HC Deb 27 January 1970 vol 794 cc1206-14

3.30 p.m.

Mr. Donald Dewar (Aberdeen, South)

I beg to move, That leave be given to bring in a Bill to amend the law of Scotland relating to divorce and other consistorial causes; to re-enact certain existing provisions in that regard; and for purposes connected with the matters aforesaid. In every country divorce law reform is likely to be controversial and Scotland is no exception. The basis of the Bill I now seek leave to introduce is the considered proposal of the Scottish Law Commission. It is somewhat different in form from the successful English legislation of last Session, but very similar in social consequence. I do not favour the sweeping away of the matrimonial offence if it is to be introduced by the backdoor as evidence of the breakdown which I am convinced must be the important question before the courts.

The law is at present inadequate and it is for this reason that the Bill I seek leave to introduce will restate the existing grounds, suitably amended, and will add two further provisions, namely, divorce after two years' separation if both parties consent and after five even if only one party supports the action.

The first proposal would help the couple who, faced with breakdown of Their marriage, have separated. For them, divorce is presently impossible unless they can establish cruelty or adultery. They obviously can plead desertion if the split-up has been accepted, however reluctantly by both parties, as the only solution to incompatibility. It is alleged that the two-year proposal amounts to divorce by consent. That very same charge can fairly be advanced against the existing law.

A determined husband and wife, united in the wish for a divorce, given time, can always satisfy the courts—in the circumstances a method which did not depend on the matrimonial offence might well appeal to those interested in the dignity of marriage. A separation period of two years is completely adequate and sufficient evidence that the marriage is dead in all but the most technical and legal senses.

This is even more clearly the case if the separation has lasted for five years. I recognise the concern of many for the "innocent" spouse. For myself, I would hesitate to talk in terms of innocent or guilty, because this kind of confident categorisation seems often less than justified. I would ask the House to remember that the blow—and it is a very real and terrible blow—does not fall when the divorce is finalised in the court, but when the husband or wife is deserted, some five years previously. It is then that the very real social embarrassment has to be overcome, the family and neighbours have to be faced. It is then that the impossibility of supporting two families on one wage packet becomes the desperate problem it so often is.

The break-up of a home is always a tragedy. Almost always someone is hurt, but it does not seem to be in the best interests of marriage as an institution that the courts should insist on the existence of a union which is no more than a legal fiction. The spouse in a position to sue under the law may have refused to do so for a whole variety of reasons, ranging from religious conviction through, I suppose, in extreme cases, to revenge, but surely not, after five years' separation, in the hope of reconciliation.

The courts must look at the situation as it exists, at the social facts which are before it. They cannot ignore the interests of third parties. Another home may have been established, children may have been fathered who must remain illegitimate because the courts are limited by an inflexible law which does not allow them to do what I believe they must do, and that is bury with the minimum of bitterness and humiliation a marriage which is dead.

I accept that any major social reform will have its critics. Some oppose divorce as such, basing their views on the deepest religious convictions. I greatly respect these, but divorce is an accepted part of our social machinery and opposition to change which amounts to an attack upon the concept of the law as we know it cannot, I think, be relevant. There seems to be little point in that kind of argument.

I accept that there will need to be a close examination of financial provisions to make sure that the changes introduced into Scots law by the Succession Act, 1964, are the best that can be managed. I accept that the interests of the children must above all be the prime consideration. But I repeat that this Bill would only be relevant to situations where a lengthy separation was a fact. This is not and never can be a question of a choice between the domestic unit intact and a parting of the ways authorised by a divorce action.

The Bill has been condemned as making divorce easier in some ways. This is to mistake its aims. I do not believe that it would ever be right for the law to be party to the break up of a husband and wife and I also strongly believe that the law must be in a position to deal with a marriage which has been irretrievably shattered by circumstances.

The Bill is no more than a gesture. Its success obviously depends on the will of the House and the willingness of the Government to give time for its passage. The English Measure, not in the first eight places in the Private Members' Ballot. was helped from its Second Reading and I would hope that if my Bill finds favour with the House it might be given a similar chance. This is a matter of Scottish concern only and it could pass through almost all its stages upstairs in Committee. The demands that it would make on this Chamber would be modest.

I believe that it is important that Scottish Members should have an opportunity to take a decision. If it is not taken there will be a gap between the law north and south of the Border and divorce between the two countries will be on a different social basis. Circumstances in which English courts could dissolve a marriage would not justify a divorce in Edinburgh. Whether this would result in the legal migration that some people fear I doubt, but I am certain that it would result in considerable tension and discontented frustration.

There is widespread support for reform in Scotland. The Law Society in Scotland has spoken in favour: of the 58 presbyteries of the Church of Scotland who have considered the matter. 44 have reported in favour of change, six have reached no decision and only eight have attempted to justify the status quo. I would be the first to admit that the majority of those presbyteries favoured changes much more radical than I have included in my Bill. They wanted to sweep away altogether the matrimonial offence, and to make no distinction between those cases in which the spouses agreed to divorce and those where the petition was unilateral.

I prefer to keep in the safeguards. Despite this, I believe that the Bill which I seek to introduce will be acceptable to most people who are worried about the inability of the law to deal with social problems. Public opinion has, I believe, changed on this matter, as The Scotsman pointed out in a leader on 1st December. It went on to say: No matter how much any individual in society values the institution and sanctity of marriage it is only human, and indeed Christian, for him to recognise the intolerable situation of a marriage irretrievably in tatters. It concluded, after pointing to the difficulties of this Measure, that The Government should have the courage to rescue and promote it. The Glasgow Herald, with whose leaders I do not always agree, gives its support to the Measure, and says: The only thing worse than submerging Scots law into English law is allowing Scots law to wither by neglect into irrelevance and absurdity. If Scotland is to stand against reform and advice, it must be a decision consciously taken and not an attitude dictated by the haphazard uncertainties of parliamentary procedure. I ask for the permission of the House to introduce my Bill in the certain knowledge that this is an issue of importance which affects the happiness of a significant number of people and which must not be allowed to go by default.

I hope that, if I receive the permission of the House, the Government will allow, sooner rather than later, a decision to be taken.

3.42 p.m.

Sir Myer Galpern (Glasgow, Shettleston)

I wish to oppose the Motion. I am sure that all hon. Members, having listened to my hon. Friend the Member for Aberdeen, South (Mr. Dewar), would agree that the conclusion to be drawn is that my hon. Friend is anxious for the retention of the institution of marriage. He is concerned to see to it that the law should not interfere in a marriage which is running successfully.

My hon. Friend claimed wide support for the proposition which he offers to the House today. I equally claim that there is widespread opposition to his proposal. When only a few weeks ago I referred to this fact in the House, I received more than an unusually heavy mail from people both for and against the proposition of the reform of divorce law in Scotland. I confess that the majority were in favour of divorce law reform, but I am sure that every hon. Member knows that people living in adultery are much more vocal than others who are living in an harmonious state of matrimony. Therefore, hon. Members ought not to be badgered by requests from people who find themselves in this state at present.

Paragraph 35 of the Report of the Royal Commission on Marriage and Divorce, Cmnd. Paper 9678, declared: The Western world has recognised that it is in the best interests of all concerned—the community, the parties to a marriage, and their children—that marriage should be monogamous and that it should last for life. I am sure that all hon. Members subscribe to that view, but we know that human frailty is such that that does not always occur.

As the Royal Commission said: in certain circumstances it is right that a spouse should be released from the obligation of marriage". The purpose of the Bill which my hon. Friend seeks to introduce is to deal with these "certain circumstances". I ask whether the Scottish divorce law now fails to deal with these certain circumstances in the breakdown of a marriage when we know that at present the Scottish divorce rate has, unfortunately, rocketed by 200 per cent. in nine years. The argument of my hon. Friend is that we have to bring the Scottish law into line with English law. We have heard this argument put forward so often. My hon. Friend, as a lawyer, well knows that the law of England and the law of Scotland differ in many respects. I fail to see why the House should be asked to agree to a proposal which will lead Scotland to hang on the coat tails of England in this matter.

My hon. Friend referred to the Scottish Law Commission. In its Report "Divorce: the Grounds Considered", it sets out the position quite clearly by explaining that the law is in history, development and detail different from that in England". We are hoping that it will remain so for a long while to come. Therefore, why change it? Why must we now do something just because this House has allowed such an alteration to the law of England?

My hon. Friend seeks to add breakdown to the grounds for divorce. It is interesting to note that the Church of Scotland General Assembly, while supporting the principle of divorce reform, quoted in their agreed report as their own view the following sentiments: The addition of breakdown to the existing grounds for divorce makes a mockery of marriage without improving by one iota the integrity of the law of divorce. My hon. Friend has said that the controversial English Clause would be included in his Bill if he receives the leave of the House to introduce it. This is the Clause which permits unilateral divorce after five years of separation which, for the first time, would enable a man or woman to take advantage of his or her own wrong. Why should a guilty wife or husband by law be enabled to say that the marriage is over when the other spouse is anxious for the marriage to continue, even though it may only be in name?

When a woman marries she regards it as her final career and raises her children. The argument being adduced is that the illegitimate children of a spouse who lives with someone, other than the lawful wife, should receive consideration. In this age of pills, abortions, and all the rest of it, surely, if such children are not wanted, then contraceptive measures can be taken so that he does not create illegitimate children to take precedence over the children of his marriage.

I fail to see why the House should agree to the introduction of this Measure, which has financial implications, as my hon. Friend readily agrees, and where difficulties may be created in terms of pensions and maintenance. At present, if a woman goes to live with a married man, he has no real responsibility towards her, but has responsibility for his legal wife. But, under the law of England, after five years' separation the individual will have to assume

responsibility for the new wife as well as for his erstwhile wife.

These financial difficulties and implications are of such magnitude that the coming into force of the English Divorce Reform Act has had to be postponed for a whole year and will not come into operation until 1971, until some of these matters are resolved to the satisfaction of this House and another place. In the light of these recognised financial and social problems, why should this House step in and set aside the law in Scotland where a spouse is not willing or anxious to have the marriage set aside?

I believe that we would be well advised to leave our Scottish divorce laws alone. They have operated well over the centuries and I fail to see why we should change matters so as to fall into line with England. I feel that in this permissive age the duties of legislators should not be to encourage any increase in or speeding up of permissiveness. We should look at this problem as it affects the people of Scotland. I say that they do not want this alignment with English law at present.

Recently, Parliament passed a Bill dealing with abortion. After only a short period, there are already serious misgivings about the operation of its provisions and its abuse to the extent that strenuous efforts, which I hope will ultimately be successful, have been made for its amendment.

Why should we not await the outcome of the experiment in the divorce law since there are grave doubts about the English Divorce Reform Act? After we have seen how it has operated, we can decide whether the time has come for Scotland to say that it desires to improve or alter the divorce laws. For these reasons, I hope that the House will not give my hon. Friend leave to introduce his Bill.

Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of Public Business):—

The House divided: Ayes 113, Noes 82.

Division No. 53.] AYES [3.50 p.m.
Allaun, Frank (Salford, E.) Ashton, Joe (Bassetlaw) Barnett, Joel
Anderson, Donald Atkinson, Norman (Tottenham) Bennett, James (G'gow, Bridgeton)
Archer, Peter (R'wley Regis & Tipt'n) Barnes, Michael Binns, John
Booth, Albert Huckfield, Leslie Palmer, Arthur
Bradley, Tom Hughes, Hector (Aberdeen, N.) Pannell, Rt. Hn. Charles
Braine, Bernard Hughes, Roy (Newport) Parker, John (Dagenham)
Brooks, Edwin Jackson, Colin (B'h'se & Spenb'gh) Peart, Rt. Hn. Fred
Brown, R. W. (Shoreditch & F'bury) Jackson, Peter M. (High Peak) Perry, George H. (Nottingham, S.)
Buchanan-Smith, Alick (Angus, N&M) Jenkins, Hugh (Putney) Price, Christopher (Perry Barr)
Carmichael, Neil Jenkins, Rt. Hn. Roy (Stechford) Rankin, John
Crawshaw, Richard Johnson, Carol (Lewisham, S.) Rees, Merlyn
Cronin, John Jones, Dan (Burnley) Roberts, Gwilym (Bedfordshire, S.)
Dalkeith, Earl of Jones, T. Alec (Rhondda, West) Roebuck, Roy
Davidson, Arthur (Accrington) Judd, Frank Rowlands, E
Davidson, James(Aberdeenshire,W.) Kelley, Richard Shaw, Arnold (Ilford, S.)
Davies, G. Elfed (Rhondda, E.) Kerr, Russell (Feltham) Sheldon, Robert
Davies, Ifor (Gower) Latham, Arthur Shore, Rt. Hn. Peter (Stepney)
Dewar, Donald Lawson, George Silverman, Julius
Dickens, James Lomas, Kenneth Spriggs, Leslie
Driberg, Tom Loughlin, Charles Steel, David (Roxburgh)
Eadie, Alex Lubbock, Eric Stonehouse, Rt. Hn. John
Ellis, John Lyons, Edward (Bradford, E.)
English, Michael McKay, Mrs. Margaret Taverne, Dick
Evans, Fred (Caerphilly) Mackintosh, John P. Thorpe, Rt. Hn. Jeremy
Maclennan, Robert Wainwright, Edwin (Dearne Valley)
Fernyhough, E. Manuel, Archie Watkins, David (Consett)
Fletcher, Ted (Darlington) Marks, Kenneth Weitzman, David
Foot, Michael (Ebbw Vale) Marsh, Rt. Hn. Richard Wellbeloved, James
Fornester, John Maxwell, Robert Whitlock, William
Gardner, Tony Mendelson, John Williams, Alan Lee (Hornchurch)
Garrett, W. E. Mikardo, Ian Williams, Clifford (Abertillery)
Gregory, Arnold Moonman, Eric Winnick, David
Grey, Charles (Durham) Morgan, Elystan (Cardiganshire) Winstanley, Dr. M. P.
Griffiths, Eddie (Brightside) Morris, Alfred (Wythenshawe) Woodburn, Rt. Hn. A.
Harnling, William Neal, Harold Younger, Hn. George
Hannan, William Newens, Stan
Haze11, Bert Norwood, Christopher TELLERS FOR THE AYES:
Herbison, Rt. Hn. Margaret Oakes, Gordon Mr. William Hamilton and
Hooley, Frank Oram, Albert E. Mr. Hugh Brown.
Houghton, Rt. Hn. Douglas Orme, Stanley
Alldritt, Walter Harrison, Walter (Wakefield) Peyton, John
Baker, Kenneth (Acton) Harvie Anderson, Miss Pike, Miss Mervyn
Baker, W. H. K. (Banff) Hiley, Joseph Pym, Francis
Bennett, Dr. Reginald (Gos. & Fhm) Hunter, Adam Renton, Rt. Hn. Sir David
Berry, Hn. Anthony Hutchison, Michael Clark Rhys Williams, Sir Brandon
Biggs-Davison, John Iremonger, T. L. Roberts, Albert (Normanton)
Brewis, John Irvine, Bryant Codman (Rye) Russell, Sir Ronald
Bromley-Davenport,Lt.-Col.Sir Walter Jopling, Michael Scott-Hopkins, James
Buck, Antony (Colchester) Kerby, Capt. Henry Sheldon, Robert
Cordle, John Kershaw, Anthony Silvester, Frederick
Knight, Mrs. Jill Small, William
Corfield, F. V. Lane, David Speed, Keith
Costain, A. P. MacArthur, Ian Stainton, Keith
Dance, James McBride, Neil Steele, Thomas (Dunbartonshire, W.)
Deedes, Rt. Hn. W, F. (Ashford) Mackenzie, Alasdair(Ros8&Crom'ty) Stodart, Anthony
Dempsey, James Maclean, Sir Fitzroy Stoddart-Scott, Col. Sir M.
Doig, Peter McMaster, Stanley Taylor,Edward M.(G'gow,Cathcart)
Doughty, Charles McMillan, Tom (Glasgow, C.) Temple, John M.
Drayson, G. B. Mahon, Peter (Preston, S.) Wall, Patrick
Elliot, Capt. Walter (Carshalton) Maude, Angus Ward, Dame Irene
Emery, Peter Mills, Stratton (Belfast, N.) Wiggin, A. W.
Ewing, Mrs. Winifred Monro, Hector Willis, Rt. Hn. George
Farr, John Montgomery, Fergus Wilson, Geoffrey (Truro)
Galbraith, Hn. T. G. More, Jasper Wood, Rt. Hn. Richard
Galpern, Sir Myer Nabarro, Sir Gerald Wylie, N. R.
Gilmour, Sir John (Fife, E.) O'Halloran, Michael
Gower, Raymond Onslow, Cranley TELLERS FOR THE NOES:
Grant, Anthony Orr-Ewing, Sir Ian Mr. Richard Buchanan and
Hamilton, James (Bothwell) Oswald, Thomas Mr. Esmond Wright.

Bill ordered to be brought in by Mr. Donald Dewar, Mr. Alex Eadie, Mr. Hugh D. Brown, Mr. William Hamilton, Miss Margaret Herbison, Mr. John Mackintosh, Mr. Robert Maclennan, and Mr. David Steel.

  1. DIVORCE (SCOTLAND) 53 words