HC Deb 17 October 1969 vol 788 cc691-700

Lords Amendment No. 1: In page 1, line 13, leave out "since the celebration of the marriage".

11.6 a.m.

Mr. Alec Jones (Rhondda, West)

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

Order. I have suggested that, with this Amendment, we group Lords Amendment No. 2.

Mr. Alec Jones

When the Bill left this House, the words …since the celebration of the marriage… appeared in Clause 2(1)(a) and (b), but not in (c), where clearly they were not needed, nor in (d) and (e). However, in the other place, the noble Lord, Lord Dilhorne, moved the deletion of the words on the ground that they served no useful purpose. That Amendment was accepted with the approval of the sponsor of the Bill in the other place.

As it now stands, all the paragraphs are similarly worded, and there should be no difficulty in construing the behaviour of the parties or their separation as related to the period after marriage. There is no question of principle involved. The Amendment achieves both consistency of wording and clarity of meaning.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

Lords Amendment No. 3: In page 1, line 25, leave out "does not object" and insert "consents".

Mr. Alec Jones

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

I have suggested that, with this Amendment, we take Lords Amendments Nos. 5, 6, 7 and 10, which make roughly the same point at various parts of the Bill.

Mr. Alec Jones

This Amendment has been much debated in this House and in the other place. An identical Amendment was moved with much sincerity by those hon. Members who opposed the Bill in our first suggestion, both in Committee and on the Floor of this House. While I confess that I have some nostalgia and preference for the original words "does not object", I see merit in the simpler and more easily understood "consent", and that consent is possibly stronger evidence of irretrievable breakdown than mere non-objection.

Doubts had been raised that the passive non-objection might not be as genuine and well-informed as one would wish. It was because of those doubts that, in Committee, I introduced the Amendment now to be found in Clause 2(6). Still the doubts and fears persisted, so this Amendment was moved and accepted in another place, though by a small majority.

So we are here asked to look at this matter again. It would seem to me that, in the majority of cases, it will make no difference that consent rather than non-objection is required. In most cases, both parties will be legally advised. In most cases, both parties will have agreed that the marriage should be dissolved.

In most cases, both parties will have worked out mutually satisfactory arrangements.

I believe that the Amendment will not affect the principle of the Bill. While it may not go as far as some would wish, it will alleviate the fears of many of the Bill's critics.

Dame Joan Vickers (Plymouth, Devonport)

I want, first, to offer the hon. Member for Rhondda, West (Mr. Alec Jones) my congratulations for getting his Bill to this stage with so few Amendments from the other place.

I am a little disappointed that we have to make this change in the Bill, and my object in intervening is to ask the learned Solicitor-General whether he can clarify one or two points of which, I understand, he has been given notice.

This Amendment was agreed to by a very small majority in the other place. The voting figures were 65 to 61. No doubt hon. Members have read the debate in the other place, so I will not reiterate what was said.

I should like to know, if consent is not forthcoming, whether that means that the person will therefore have to wait another three years before he or she can get the case reheard. Secondly, suppose a person cannot be found. There are many cases where one or the other spouse has disappeared completely. Can action be taken under desertion, or will such people also have to wait to a later time before they can try to get divorced again?

From what I have read in the other place, it seems that there might be a chance that the court could consider the withholding of consent in cruelty cases. This seems another reason why we should not have "consents", but should have "does not object". I think that it would make it more difficult for people if we have "consents" rather than "does not object". If a person holds very strong principles it is difficult to give consent. On the other hand, if there is what I think is a loophole in not having to object—in other words, a person does not have to purge his or her conscience but can let things slip past—this must be better. Therefore, it will be extremely difficult for many people to give consent and it will hold up many of these cases.

I believe that at present the other side is sent a letter by post informing him or her that action may be taken and there is a form which asks whether the respondent objects to going before the court. Nowadays people can get full advice from the citizens' advice bureau or legal aid. I think that it would be much better to have "does not object" than "consents".

Owing to the lateness of the Bill being brought before the House it was not possible for me to put down an Amendment, other than one which would wreck the whole Bill, and I do not want to do that.

It seems strange, giving consent to a Bill not becoming an Act until 1971, that we have to rush these points through in this Session because otherwise it would fall. However, I should be grateful if the Solicitor-General could give an answer to the points that I have raised. This would clarify the position to many who may be worried about this proposed change in the Bill.

Sir Lionel Heald (Chertsey)

I rather hoped that I should not have to make another speech about this matter—this is the seventh occasion on which I have discussed it—but I cannot resist the opportunity of congratulating and thanking the hon. Member for Rhondda, West (Mr. Alec Jones) for having at last, although apparently with slight reluctance, acceded to the arguments that we put forward on such a number of occasions.

I am sorry to disagree with my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers), but I feel that we have at last accepted that if we are to have divorce by consent we ought to have consent. That is the fundamental point that we have now accepted, although somewhat reluctantly, and I have never been rigid about it. There seems to be overwhelming agreement in the country that there should be divorce by consent, but it must be done in a proper way.

I agree with the hon. Member for Rhondda, West that it probably does not make any practical difference, except in a few cases. It is more a question of the impression that it gives to people. I believe that there will be great satisfaction that this has been done. Although it is almost the only occasion—I think that there was one other occasion when I agreed with the hon. Gentleman—I am glad to be able to support him on this occasion.

Dr. Hugh Gray (Yarmouth)

Although congratulating the promoters of the Bill on their successful efforts, I deplore that they have found it necessary to accept this Amendment. I strongly support what was said by the hon. Member for Plymouth, Devonport (Dame Joan Vickers).

I remind hon. Members of St. Augustine's discussion of the word "consent", when dealing with the subject of rape. Consent, particularly consent in the will, to which he made reference, bears particularly strong connotations. It indicates a strong positive action. I suggest that these Amendments mean that difficulties are unnecessarily being put in the paths of Roman Catholics and orthodox Hindus who believe in the indissolubility of marriage. As the Clause stood it gave them a loophole, but with the introduction of the word "consents" it does not. Therefore, I deplore it very much.

11.15 a.m.

Mr. Eric Lubbock (Orpington)

I am prompted to intervene by the remarks of the hon. Member for Plymouth, Devon-port (Dame Joan Vickers) about the words in sub-paragraph (d) and to ask the Solicitor-General one further question which has risen in my mind after listening to the hon. Lady.

Ostensibly, the courts would be able to look at either sub-paragraph (c) or (d), and, if there has been desertion, grant a divorce after two years without consent, because consent is not mentioned in sub-paragraph (c), but only in (d).

I can envisage a situation arising in which the parties have lived separately by consent for, say, 18 months, following which the man emigrates to South America without leaving a forwarding address. In such a case there is doubt whether the court should be looking at either sub-paragraph c) or (d) in deciding whether to grant the petition. If it was an absolutely clear-cut case it would be quite all right, because the court has to be satisfied of only one or more of the following facts, so that each of the sub- paragraphs can be looked at individually. But if there were cases where the court had to look at two or more of the subparagraphs and had to try to construe them together, I can see difficulties arising.

I should be grateful if, when the Solicitor-General replies, he will take that into account as well.

The Solicitor-General (Sir Arthur Irvine)

I respond to the invitation to deal with these matters, and I am glad to do so. While I make no complaint about this at all, it is only since I entered the Chamber a few moments ago that I heard that this matter was to be raised. But, I repeat, I raise no complaint about that. My hon. Friend the Member for Rhondda, West (Mr. Alec Jones) indicated to me, as I came in, that the hon. Member for Plymouth, Devonport (Dame Joan Vickers) was interested in this point.

At this stage of the Bill, when so little time is left, I must be very careful in my endeavours to elucidate for the benefit of the House the legal effect of the proposals in the Bill. I have throughout, of course, to be extremely careful in matters of this kind for the obvious reason that they are of great importance and it is desirable that hon. Members should proceed with their consideration of the Measure without there being the slightest element of misundering in their minds or a wrong impression created.

Having, I hope not too formally or oppressively uttered these cautionary observations, I should tell the hon. Member for Devonport that it is very difficult to give an honest responsible answer that would be satisfactory to her. I say that for this reason. When the Bill is enacted—if enacted it is—and comes to be construed in the courts of law, questions will arise on the proper construction of its provisions.

My understand is that the question whether there has been consent to a decree will be a question of fact for determination by the learned judge upon the evidence if there be argument about it. When I say that I do not really think that I can be charged with running away from the point. It would be wrong to do other than emphasise what I have just said. As I understand, in one or two, or a few, of the countless varieties of cases with which the courts may be confronted in dealing with this provision it will be arguable whether, as a question of fact, having regard to all the circumstance, non-objection may amount to consent.

I do not think that it would be right to suggest that the proposed change will not tend, in a very few cases—and I am grateful for the intervention of the right hon. and learned Member for Chertsey (Sir L. Heald), because I agree we are dealing with a small minority of cases—to make it more difficult to proceed when one spouse has disappeared, or is apathetic, or has conscientious objections. In a small minority of cases the change may add to the difficulties.

That is my impression, and I convey it, I hope with candour, to the hon. Lady the Member for Devonport. What is fundamental here is the question of fact whether there is consent. I can readily see the matter developing with findings of fact, so that in a whole variety of cases, on the evidence, and in the particular circumstances, non-objection will be treated by the courts as amounting to consent.

The hon. Member for Orpington (Mr. Lubbock) asked about the bearing of this on cases where, for example, there was some kind of overlap or parallelism between subsections (1)(c) and (1)(d). I would wish to clarify the difficulty introduced by the hon. Gentleman, but I am not sure that I can do more in answer to his question than I have endeavoured to do in answer to the Lady the hon. Member for Devonport. Here again, it will be a question of fact, and the matters will be considered in that light by the courts.

In answering these questions in that fashion, and in responding in that manner to the hon. Lady's question, I have given the best guidance that I can upon this matter. The House may be interested to hear what the sponsors' view is about the point that has been raised. What I have said thus far is, I think, the best I can offer on the question of the construction of the language.

Mr. Ian Percival (Stockport)

I think that the Solicitor-General is right when he says that there will be some addi- tional difficulties as a result of the Amendment. It is worth reminding ourselves, and particularly my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers), that these difficulties would not have arisen had the Amendment moved in Committee by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) not been resisted. His Amendment would have enabled the courts to dispense with the necessity for consent if they were satisfied that it was being unreasonably withheld, or if they were satisfied that the respondent could not be found. Unfortunately, the hon. Member for Yarmouth (Dr. Gray) and my hon. Friend resisted that Amendment, with the result that we are all placed in a difficulty.

I repeat that the Solicitor-General is right when he says that the Amendment will create some difficulties, but I do not think that they will be very great, or that they will apply to many cases. The Amendment will stop one or two divorces going through which would otherwise go through, but it has the great merit of honesty. We know what it means.

I appreciate the reasoning behind the hon. Member for Yarmouth wanting there to be loopholes, but I hope that the House will not proceed on that basis. I do not think that that is an honest way to deal with the law. We must show the circumstances in which we want there to be divorce, not try to leave loopholes so that people who, as a matter of principle ought not to be divorced are left loopholes which enable them to let the divorce go through.

The Amendment has the great merit of honesty. I am glad that the promoters have accepted it, and I congratulate them on so doing.

Mr. Leo Abse (Pontypool)

The point raised by the hon. Lady the Member for Plymouth, Devonport (Dame Joan Vickers) is a valid one. It has been argued before, but not with the same pungency as it was today. The hon. Lady should not console herself too much with the Solicitor-General's reply, because, although it may be hypothetical, there could be circumstances in which non-objection could amount to consent.

I share the view of the right hon. and learned Member for Chertsey (Sir L. Heald), who spoke about the clarity of the Amendment and said that it was unlikely that this circumstance would arise very frequently. I hope that when the matrimonial rules which will flow from the Bill come before the House the hon. Lady will look at them scrupulously with her customary vigilance to ensure that while they fall within the intention of Parliament, they are not more restrictive than that which has been done.

I suspect that the hon. Member for Orpington (Mr. Lubbock) can derive a little more comfort, because, in the circumstances which he has in mind, if there was evidence before the court of desertion at the start of the separation, in short, that the husband had left without the consent of the wife, or that it occurred en route—

Mr. Lubbock

I said that a husband and wife might have separated by agreement and been living apart for 18 months before the husband took off for South America, and the two-year period would have to begin from then.

Mr. Abse

If that happened en route, if there was evidence that during the 18 months when they were separated there had been not an agreement, but on the contrary some evidence that one had broken off relations with the other without the other's consent, it might be thought that there were sufficient facts for the desertion to begin to run from that time. If the person concerned could not be found, if he had gone to South America, the rules of substituted service may be able to be applied, and in that case the five-year period may not be necessary.

I say to the hon. Lady the Member for Devonport and to my hon. Friend the Member for Yarmouth (Dr. Gray), who has drawn attention to the unfortunate position in which the Amendment will place many Catholics who may not wish to participate in any form of divorce proceedings, but who would have allowed the divorce to go through, that in 1963, when the hon. Lady was actively engaged, as I was, in that task of reforming the divorce law and we would not have thought that six years later it would be possible to have divorce by consent.

Mr. Speaker

Order. With respect, we are not on Third Reading. The hon. Member must speak to the Amendment.

11.30 a.m.

Mr. Abse

We should accept that divorce by consent in this form after two years is so fundamental a change that those of us who may like the wording to be slightly altered must take the point of the hon. and learned Member that at least this presents the facts to the country showing that we have reached this point and, if there are to be subsequent modifications, perhaps they can be made without arousing the enormous controversies that have already arisen on the Clause.

Question put and agreed to.

Lords Amendment No. 4: In page 2, line 23, leave out "section 2(1)(d) of this Act" and insert "subsection (1)(d) of this section".

Mr. Alec Jones

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is a drafting Amendment.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Back to
Forward to