HC Deb 29 January 1971 vol 810 cc1162-84

Order for Second Reading read.

1.45 p.m.

Mr. Alexander W. Lyon (York)

I beg to move, That the Bill be now read a Second time.

The Bill arises out of the Law Commission's Report—No. 32—on Nullity of Marriage, which was the culmination of the Law Commissioners' review of family law. The Bill is, I hope, wholly uncontroversial. It is an attempt simply to tidy up one or two loose ends in the existing law of nullity, but on the whole to re-enact most of the existing law. Its purpose really is to enable the Government, in due course, to bring in a consolidating Measure which will take account of all the changes that have been enacted as a result of the Law Commission's Report.

The Divorce Reform Acts, the property and maintenance legislation and this piece of legislation if it is passed will, together, form a new corpus of matrimonial law which could be the subject of a consolidating Measure, and therefore the House is again deeply indebted to the Law Commission for pursuing this line of inquiry; otherwise it would presumably have very little chance of reaching the Statute Book. The House is indebted to the Law Commissioners for the depth of research and the balance of views expressed in their Report.

Compared with divorce law, the law of nullity is singularly uncontroversial. That is because the practical effects of the divorce law are so much greater. There are about 40,000 divorce decrees a year, and about 800 nullity decrees. The main grounds on which nullity decrees are granted are either wilful refusal to consumate a marriage, or incapacity to consumate a marriage. Most of the other grounds, to which I shall refer when explaining the provisions of the Bill, are, in practical terms, of very little significance.

In theory the law of nullity is very much more important than the law of divorce. After all, what the law of divorce seeks to do is to regulate the breakdown of personal relations between two spouses and to take some kind of sympathetic but practical view of the new facts that have emerged. What the law of nullity does is to define the area of marriage as we understand it in our society. It is for that reason that the law of nullity has long been regarded by the Church as an acceptable way of disposing of a marriage—and I use the word "disposing" in a neutral sense. Even in Italy, where there is so much controversy about the reform of the divorce law, where previously there had been no possibility of obtaining a divorce, the Vatican has for long allowed an extended jurisdiction in nullity, because the Church has taken the view that the law of nullity is simply the acceptance of the restrictions upon marriage which it will accept. Therefore, if one looks at the law of nullity, one can see the bounds of our concept of marriage.

Mr. T. G. D. Galbraith (Glasgow, Hillhead)

I am interested in what the hon. Member is saying, especially about his reference to the views of the Papacy. I understood—perhaps the hon. Member will correct me if I am wrong—that it was sometimes possible for consummation to have taken place and for a marriage still to be regarded as a nullity, in the Roman view. If that is so, does it not make the situation difficult for a layman to understand?

Mr. Lyon

Having regard to recent events, my mind is not as clear on the technical issues as it should be. I do not wish to comment in any detail upon the Papal position, but even under our law there can be consummation of a marriage and still grounds for declaring the marriage null and void.

I was indicating that the law of nullity sets the limits to our concept of the law of the status of marriage. I should like to give an example to explain what I mean. It is a ground of nullity, which makes a marriage void, that one of the parties is already married. That takes account, first, of the law and, secondly, the religious doctrine relating to bigamy. Our society does not recognise a polygamous marriage—at least, a polygamous marriage carried out within the jurisdiction. That is one limit that we set to the concept of marriage. Marriage must be monogamous in English society; if it is not, the marriage can be declared null and void. That occurs whether or not the marriage has been consummated. Therefore, one can come to a view about the present limits of marriage by considering the provisions concerning nullity.

This is of considerable importance, in view of the current discussion as to what should be the marriage state. There are those at the extreme who say that marriage now no longer has any purpose in our society—that if two people want to live together there might need to be some kind of obligation in respect of property or the care and control of children, but there should not be any declaration either that the person is in a legal estate or that, having passed through certain events, the estate should be broken off. One can therefore say that there should not be any kind of doctrine of marriage. That is such a minority view that I do not need to pursue the argument further.

But there is another possibility which was not aired by the Law Commission, either in its working paper or its report, namely that the law of nullity is really unnecessary to our concept of matrimonial law. It would be possible to say that all the grounds of nullity were grounds for divorce and deal with the question on that basis. In recent years the practical effects of a decree of nullity have become fairly indistinguishable from the practical effects of a decree of divorce. At one time a decree of nullity meant that all the children were illegitimate, because the marriage was declared to be void and it took effect as if the marriage had never been. Therefore, not only was a child branded as illegitimate; it was incapable of claiming under the estate of the parents, for instance, in probate.

This led to many difficulties—but all those difficulties have gradually been ironed out by amendments to the law, and the practical effect in respect both of divorce and nullity is now much the same. One can now have a decree of nullity which allows one of the spouses to receive maintenance, to have custody, and to have all the other rights and obligations that flow from the law of divorce. It is arguable that the practical effects of the law of nullity have now so diminished that it can be absorbed into the law of divorce without difficulty.

There is one practical objection, which is of relevance to a point that I shall make later. In relation to a decree of nullity an objection can be filed immediately after the marriage, but in relation to a decree of divorce it can be filed only three years after the marriage. There is a time lag in one case that does not exist in the other.

For the reasons that I have indicated I do not think that it would be right to say that the law of nullity should be subsumed to the law of divorce, precisely because the law of nullity is the legal statement of a marriage within our society. This is of real importance in defining the status of the union and therefore setting the limits for public concern. It follows that there would be profound objections from some religious groups—particularly the Christian Churches—if we were to take that line of thought. That is of some importance when we are considering the question of wilful refusal.

In order to help hon. Members with what is admittedly a difficult subject I have included in the Explanatory Memorandum all the notes contained in the Appendix to the Law Commission's Report, which were the observations on the draft Bill that the Law Commission tabled. Members who have read the Report will know that the Appendix is set out so that on the left hand page there is a Clause of the Bill and on the right hand page, in a convenient form for reading and commenting, the notes of the Law Commission on that Clause.

I tried to have the Bill published in that way, so that for ease of reference there would be on one side a Clause of the Bill and on the other an explanation of that Clause, but I found that because of the innate conservatism of the establishment it was quite impossible to persuade the Public Bill Office that such an idea was helpful and that it could take place without some Resolution of the House. We move in slow and devious ways. I can only hope that the Committee on Procedure will consider the matter.

I remember, some years ago, being a member of the Statute Law Revision Committee and making recommendations about the drafting of legislation to the effect that any change could be incorporated by sliding a new page into a loose-leaf folder. Any amendment of the law would merely require taking one leaf out of the loose-leaf folder and putting in another. But the others on that Committee voiced the objection that the House of Commons would never agree to that kind of revolution in the drafting of legislation and amendments. We would have to have textual amendments instead of the kind we have now.

If that is so I regret it, but I do not believe that it is so; I believe that the House is far too rigorously governed by its officials—to whom I pay tribute for their diligence. There is an in-built conservatism about the official who says, "We must not do anything that might cause a row in case the dispute extends to the Floor of the House. Therefore, we will abide by what we did last week." Surely it would be helpful to experiment in this way.

The first Clause is a statement of the grounds on which a marriage may be declared void. The essential difference between a void and a voidable marriage is that a void marriage has never been a marriage. It does not require a decree of the court to say that the marriage did not exist. The purpose of going to the court is simply to regularise the position, so that the parties know where they are, particularly if there is a dispute about the facts. But if the facts are as alleged by the petitioner, he does not need a decree. A voidable marriage is valid up to the time that one of the parties gets it annulled and declared void.

This used to have certain practical differences. It now has very limited practical consequences, and the difference is receding, but in essence it means that the void marriages are those where society has an interest in seeing that the legal estate of marriage does not come into existence. In the other case, it is very much at the parties' discretion whether they want to consider that their marriage never took place, and it is not the business of anyone else.

I should like to go through the various grounds to show this distinction. In relation to a void marriage, Clause 1 says that it shall not be a valid marriage if it is invalid under the provisions of the 1949 Marriage Act, which sets out the procedure to be adopted in relation to marriage in this country. The first ground therein constituted is that the parties are within the prohibited degrees of relationship, which are numerous.

The second is that either of the parties is under 16. The Latey Commission, when considering the age of majority, considered whether there should be any change in the law relating to limitation of age for marriage, and concluded that, even though it was right to reduce the age of majority, it was not right to reduce the age of 16—although it recognised that both boys and girls mature earlier than they used to do. On the whole, I think that that would be accepted by most people in society—it is certainly accepted by the Law Commission—so no change is proposed there.

The third ground is that the parties have intermarried in disregard of certain requirements as to the formation of marriage. This relates to the giving of banns and giving of notice and other legal requirements, all of which are being reviewed by a working party of the Law Commission. It may be that, in due course, the Marriage Act will be reviewed but, at the moment, the provisions required by the Act are those which will declare the marriage to be valid. The other ground is that, at the time of the marriage, either party was already lawfully married. I have dealt with that already.

In effect, then, there are no differences there in relation to the requirements for declaring a marriage void. There is one change from the existing law. Under the existing law, lack of consent applies to the case of a heavy-handed father insisting upon his daughter marrying against her will—a sort of Barretts of Wimpole Street situation, if one could put a gloss on those facts—which curiously enough still gives rise to odd cases even in the middle of the twentieth century. If that kind of duress or fraud or some kind of mistake is present in the bargain made between the two parties, which is the basis of the marriage contract, under our existing law it can be declared void.

However, as the Law Commission points out, one of the grounds, namely, insanity, is so like the ground which was put in by the 1937 Act—that a party was suffering from some kind of mental illness—that it is rather illogical to say that, in the one case, it makes the marriage void and, in the other case, it makes the marriage voidable.

In addition, although duress may be present at the marriage ceremony, when they have lived together for a little while, the two parties may want to continue to live together, even though either the mistake or the duress existed in the formation of the contract. It is, therefore, a question for them to decide whether they want to have the marriage annulled and not one for anyone else. Society has no interest in whether they, as two people, decide to continue with the union, even if there were this flaw in the original contract. So the Law Commission argues—I think rightly—that that should be a voidable marriage, and this then falls under Clause 2.

Grounds are set out in Clause 2 for making a marriage voidable. They are that the marriage has not been consummated owing to the incapacity of either party, or that it has not been consummated owing to the wilful refusal of the respondent to consummate it. I must come back later to paragraph (b), because it is one of the two important matters in the Bill which need discussion.

But, about consummation, which is by far the biggest ground for making a marriage null and void, there cannot now be any argument. No one who has ever been involved in any of these cases in the courts, as I have from time to time, can mistake the misery which exists when two parties who want to make a valid marriage find that, for one reason or another, they cannot consummate it.

Those who believe that sexual intercourse is a matter which ought not to be publicly discussed and is not of considerable importance in a marital union have no idea of the kind of misery which can exist when proper sexual relations are not present within the union. It can rot the very fabric of a marriage, even if the two parties are ad idem about everything else.

It is, therefore, right that one should say—as the Christian statement of marriage says—that consummation is necessary for a valid marriage. Of course, if the parties can manage to make a fruitful partnership without sexual intercourse, it is only right that they should do so, but that is the reason that it is a voidable rather than a void marriage. That is clearly a matter which should be kept as a voidable marriage and no change is proposed from the present law.

Then there is the question of consent, which I have mentioned. Then there are three grounds which were put into the law in 1937 and are kept. One is that there was no valid consent or some defect from mental disorder. The other is that the respondent was suffering from venereal disease in a communicable form and the third is that the respondent was pregnant by some other person.

All three could be the subject of controversy, but happily have not been, and the Law Commission simply suggests that the existing law should be re-enacted, with this difference, that the grounds for saying that insanity or some kind of mental illness made the marriage voidable were rather wider under the 1937 Act than are here proposed.

However, as the Law Commission points out, what one is concerned about in relation to mental illness is whether the parties understood what they were doing in joining in marriage. It may be that they fully understood the nature of the marriage, fully wanted to get married, that one was still mentally ill but that the other party was prepared to accept that and that, therefore, should not be a ground for making a marriage voidable. There is, therefore, some limitation in paragraph (b) on the present position. The other two grounds are as in existing form.

Clause 3 relates to the bars on relief——

Mr. Galbraith

There is a matter which disturbs me when the hon. Gentleman talks about the necessity for sexual intercourse and says that, if it is physically impossible for the man to penetrate the woman, this should be a good ground for nullifying, voiding the marriage—a proposition with which I think we all agree. But there is another aspect of that which may have precisely the same effect, is there not, whereby, owing to the frigidity or whatever it may be of the woman, it is impossible for her—it is very difficult to talk about these matters in public—to enjoy the sexual act fully? Should that also constitute a ground for nullity or not? I am interested in the hon. Gentleman's view on this.

Mr. Lyon

It depends on what the hon. Gentleman means by "frigidity". The incapacity referred to in the Bill and in the existing law covers both physical and psychological incapacity to consummate the marriage; and consummation is full sexual intercourse. It is not necessary to be able to have a child. The Law Commissioners considered whether there should be the additional ground of sterility, but they came to the conclusion that there should not, for reasons which the hon. Gentleman will find set out in their Report and to which I will not refer today.

If, on the other hand, what the hon. Gentleman means is that frigidity indicates that the wife is capable of having sexual intercourse and submits to having it but cannot get the kind of pleasurable excitement and fulfilment out of sexual intercourse which is normal in a marital relationship, then the answer is that it is not an existing ground for declaring a marriage null and void. Nor is it a ground for divorce.

However, it is obviously a matter which will enter into the relationship to a marked effect and will probably lead to the kind of conduct which, under the new legislation, would be regarded as intolerable conduct or would lead to the separation of the parties, when, in any case, they can get a divorce. The matter is, therefore, dealt with if, in fact, it leads to that fundamental rotting of the marriage fabric.

Before the hon. Gentleman interrupted I was about to deal with the bars to relief in Clause 3. This is one of the most important changes which the Bill seeks to make. Under the existing law a voidable marriage—that is, one which can be made void only when the parties go to court and ask the court to make it void—can be met with the defence that one of the parties has recognised the marriage in such a way that it would be unfair to split it up because the other party has acted so as obviously to accept that there was a marriage in being, has so conducted himself or herself for it to be unfair for the marriage to be declared null and void. Although this is a simplified statement of the situation, that is, in effect, the law of approbation. The defences arise entirely out of case law, and there have been varied statements about the formation of the law and what is implied.

In addition, there have been alternative grounds called "lack of sincerity" and other names. These have tended to make it difficult to understand exactly what would be regarded as a defence. The most practical result of this which causes concern is that lawyers, when faced with parties who may have prima facie grounds for declaring a marriage null and void, are sometimes inhibited from saying, "Let us see whether you can get together and whether there can be some sort of reconciliation." That course cannot be taken in an effort to overcome the difficulties because it might be considered to be a case of approbation of marriage.

The law of approbation can be said to have three factors: that the person knew the facts, that the person knew the law and that it would be unfair either in relation to the conduct of the petitioner or in relation to public policy to allow the marriage to be declared null and void. The tidying up operation which the Law Commissioners have done is contained in Clause 3(1)(a) and (b), where the test is stated as a statutory test in these terms: 3.—(1) The court shall not grant a decree of nullity by virtue of section 2 of this Act on any of the grounds mentioned in that section if the respondent satisfies the court—

  1. (a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
  2. (b) that it would be unjust to the respondent to grant the decree."

Mr. S. C. Silkin (Dulwich)

Does my hon. Friend construe subsection (1)(a) to mean "intentionally so conducted himself" or not necessarily intentionally?

Mr. Lyon

I think it is implicit in the wording of this part of the Report that this is a subjective approach. It is, therefore, an intention. It follows, I submit, from the preceding words in relation to having knowledge both of the law and of the facts that it must be intentional conduct and could not relate to something that was unintentional and inadvertent.

The other bars to relief which are stated in Clause 3 are as they exist in the present law, with the exception of some of the bars to the new grounds for declaring a marriage voidable contained in the 1937 Act. In that Act there were certain statutory bars. One was that the petition had to be presented within a year and that the person had not to know the facts at the time when the marriage was celebrated.

The Law Commissioners have made a number of alternatives, for reasons which are given in their Report and which I will not go into at this stage. They can be dealt with in Committee. This is a tidying up operation for reasons which, in my submission, are fully justified.

Clause 4 is simply concerned with foreign marriages. Clause 5 is concerned with the Effect of decree of nullity in case of voidable marriage". That relates to the difficulty to which I referred earlier; in relation to the nullity of marriage, the old law was that once a marriage was declared null and void, it was as if the marriage had never been. A number of practical complications that flowed from that view of the law have been ameliorated by changes in the law over the years.

However, there are still difficulties arising in relation to a voidable marriage. For example, once a marriage has been declared null and void, an ante-nuptial settlement could not be regarded as being valid. The Law Commisisoners point out that although this is of little practical difficulty these days, it may occasionally give rise to difficulty. Thus, to make the position quite certain, they say that there should be no retrospective effects from the decree of nullity in relation to a voidable marriage.

Clause 6 abolishes collusion as a bar to a decree of nullity, which brings the position into line with the position now under the Divorce Reform Act in relation to divorce. The other matters are incidental.

Although I have spoken at some length, I have not dealt with all the points in the Bill. No doubt they can be discussed in Committee. However, there are two other matters to which I draw attention because I would like help on them in Committee. It may be that to promote this discussion—on neither matter have I made up my mind—I will table Amendments to ensure that a full discussion of the two points takes place.

The first is this. It has been represented to me that it is illogical that one should continue to accept wilful refusal as a ground for declaring a marriage null arid void. The Morton Commission, which reported on the whole matter of matrimonial law some years ago, came to the conclusion that it had been a mistake to legislate for wilful refusal in 1937 and that it was illogical to say that wilful refusal, which relates to matters that have happened after the celebration of the marriage, made a marriage null and void. In every other case all the other grounds relating to nullity refer to something which is already present or may have happened before the marriage came into existence. It is the incidents before the marriage which are relevant, and not what happened afterwards.

Mr. Galbraith

The hon. Gentleman is suggesting that after the marriage takes place, while there has still been no intercourse, one of the spouses refuses to consumate the marriage. But surely that must arise from a state of mind which existed before the marriage. It is not something which has come about subsequent to an act of consumation, because that would remove the whole grounds.

Mr. Lyon

If I could develop the argument a little the hon. Gentleman will understand the point. The argument is that if there is a physical or mental difficulty about consummating the marriage, the matter can already be dealt with on the ground of incapacity, which has always been a ground for declaring a marriage null and void anyway. I understand from some of the judges that this would cover the vast majority of cases of non-consummation, and that there are cases where there is no physical or mental incapacity but one of the parties simply refuses to have sexual intercourse. It is not related to any ingrained aversion. It is just that they did not want to have intercourse, or sometimes, most frequently in these cases, that they simply deserted the other spouse at an early stage in the marriage. In those circumstances the argument is that all those matters should be dealt with as a ground for divorce, either as cruelty or the new ground of intolerable conduct, or as desertion. It is illogical to make it part of the law of nullity.

The Law Commission argued this point out at some length and came to the conclusion that it was right to maintain the ground of wilful refusal. The four arguments which they put forward are on pages 14 and 15 of the Report.

The first argument is that it may seem unreal to the spouses that the issues should turn upon whether it is wilful refusal, an act of will, or some ground of incapacity, thereby indicating that in one case it would be a decree of nullity and in the other case a decree of divorce, and this may lead to practical difficulties in the pleadings. Already in most cases of allegations of voidable marriage, pleaders put in an alternative of desertion or some other ground for divorce. It is true that when the case comes for trial, the initial hearing relates to the nullity petition and then the matter proceeds on to the divorce petition. But if there is really a doubt, it can easily be dealt with within the same procedure as an allegation on divorce, and it therefore does not seem that the first argument is of considerable weight.

The second argument is that the parties themselves are interested only in why the marriage did not work, and it did not work because they could not consummate. It is irrelevant to them whether it was because of incapacity or wilful refusal, and the matter ought to be dealt with in one procedure. But logicaly there is a considerable difference between the question of whether one of the spouses could not or would not consummate the marriage. The act of will makes it more akin to cruelty and intolerable conduct, which is really where the matter ought to be dealt with.

The third argument was, perhaps, the most academic of the four: that it might lead to difficulties about jurisdiction because, in relation to nullity, jurisdiction is rather wider than in relation to divorce. I have never come across a case where that has been a difficulty, particularly now that we have Section 40 of the Matrimonial Causes Act 1965, where "residence" is so wide that one can usually grant a decree.

The cogent argument is the fourth one, which the Committee in due course might consider, that in relation to nullity there is no need to wait for three years. In relation to divorce one has to wait for three years before filing a petition. This may, therefore, lead to a long delay which would be unjustifiable. I find that that is a matter of some weight, but it may not be enough to determine the issue as against the other arguments which have been put forward.

Another point is the question which arose in a comparatively recent case, where a woman was declared by a court to have been a man. These transexual cases are of considerable difficulty and the matter is always one of great delicacy, and sometimes a considerable difficulty arises in definition. That case received public comment at the time. It was argued by one the parties that the husband should have gone to the court to ask for a declaration that his spouse was a man, and that would then have meant that there could have been no marriage. The court rejected that and said that the matter could be dealt with within the confines of the law of nullity, and, excepting for the purposes of the decree, that there had been a ceremony of marriage and that the matter could be considered as a marriage until the decree was made, and having considered the whole matter, if it were found that the parties were really of the same sex, the matter could be declared null and void.

There are some difficulties about that argument. As I indicated earlier, it is now accepted that the consequences which flow from a decree of nullity are rather similar to the consequences flowing from a decree of divorce. One of the spouses can claim maintenance. It is impossible in these cases that there would be any problem about children. But the maintenance point may be of considerable significance. If one were to say that in relation to a "marriage" between two parties of the same sex that there was a legal status which gave rise to legal liabilities to pay maintenance, one would be getting near to the argument that our society can accept a homosexual relationship as a marriage.

It is true that Mr. Justice Ormerod, in the case of Corbett, to which I was referring, pointed out that in medical terms there were four factors which govern the definition of whether a person was male or female, and that three of them were physical and one of them was psychological. He said that in future the law ought to take the three physical factors in determining the sex of a person and that it would be going too far simply to say that although a person has all the physical characteristics of a male or female, he or she has a psychological condition which makes him into a male or female, because then the problem of definition would be impossible. So it is arguable that someone who has no physical characteristics that make him or her look like a man or a woman could not pretend that, because he felt like a man or a woman, therefore he was entitled to be considered as such. Therefore, the clearly homosexual relationship could never be accepted as a marriage.

On the other hand, as the judge pointed out, it is very difficult in some cases to make up one's mind whether a person is a man or a woman. In the final analysis it may be only a matter of opinion. There may be so many factors of one sex in the person and so many factors of the other sex that, in the final analysis, one simply says, "I believe that that person is a man", or, "I believe that that person is a woman". In this situation, the genuine distress caused to that person, who, believing himself to be a man or herself to be a woman, finds the judge declaring to the contrary, may be such that it would be wrong also to take away from that person the incidental rights of marriage.

But all these are academic arguments which I put before the House so that they can be discussed in Committee. The crucial argument, and the one which moves me, is that if one is to say that, in these trans-sexual cases, we should go to the court for a declaration and not ask for a marriage to be made null and void, it means that in every trans-sexual case there will always be put before the public an open discussion about the sex of a particular person, whereas if it is left as a matter for declaring the marriage to be null and void, most of the cases will come before the court simply as cases of incapacity and there is no need for there to be any discussion on the sex of the person.

Indeed, it is very likely that many of the cases on the books—many of the authorities of the past, particularly the 19th century—were, in fact, cases of a trans—sexual nature—cases of incapacity—which in the state of medical knowledge at that time would not be aired as such. It is of considerable importance to the feelings of the person concerned that these matters should not be public property and that the matter can be dealt with in a way which causes no public comment at all—namely, whether the marriage has been consummated. This is, in my view, an argument of considerable power.

In relation to the question of the homosexual union and maintenance, one is bound also to accept that, in a bigamous union, the same problem arises. One is there arguing that there might be the possibility of saying to a polygamous wife—to use that expression—"You can have maintenance in these circumstances, but we leave it to the court's discretion to say that this is not a case in which maintenance ought to be ordered". One can say in relation to this problem of a homosexual marriage that if the relationship were clearly homosexual no judge would be likely to order maintenance in that case, and therefore the problem is academic.

These two matters have been raised with me at the highest level and I wish to put them before the House because they are the two major difficulties which arise in relation to the Bill. I am sorry that I have taken up considerable time, but this is a technical Bill and it was just as well perhaps at this stage to explain the difficulties in order that, in Committee, they can be dealt with fully.

2.35 p.m.

Mr. T. G. D. Galbraith (Glasgow, Hillhead)

I do not know to what extent I should be taking part in the debate because I am not certain that I cannot be regarded as a foreigner, since the Bill, I understand, does not apply to Scotland. I apologise to the hon. and learned Member for Dulwich (Mr. S. C. Silkin) for trying to bring his speech to a conclusion on the previous Bill. It was done for reasons which had nothing to do with him or this Bill, which I support. I wonder whether he feels that what he said on the previous Bill is relevant in this case, in relation to what extent there should be harmonisation between the laws of the two countries.

The hon. Member for York (Mr. Alexander W. Lyon), whose Bill this is, explained this difficult and complicated matter certainly to a layman such as myself in a very clear way, and I do not think that he should apologise at all, because such subjects are difficult to explain. He did not abuse the House in any way.

I was interested in what he said on the subject of consummation and intercourse. I interrupted him at that point but I am still not certain whether inability to reach a climax—I do not know whether that is the technical jargon or not—may not be allied to the actual physical incapacity with which he was dealing. However, that is a minor point. I thank the hon. Gentleman for having allowed me to interrupt him once or twice and for the courteous way in which he answered my questions. In general, his Bill has my support, as a "foreigner", for what that is worth.

2.37 p.m.

The Solicitor-General (Sir Geoffrey Howe)

I congratulate the hon. Member for York (Mr. Alexander W. Lyon) on the good fortune he had in securing a place in the Ballot and in securing this piece of legislation. I also, on behalf of the House, thank him for the care and lucidity with which he has outlined the arguments which bear upon the difficut human questions which underlie all these matters relating to nullity of marriage.

It may seem to those who cannot follow or have not had the advantage of following the difficult legal concepts that we are on classical dry legal territory. But we are not. We are at the heart of the human relationship and of real personal anguish in some cases, and it is therefore important that the law should be in line with what society feels about these things.

The Bill implements the Report of the Law Commission. So far from being merely technical, as it may appear to be, it represents the first step towards a larger consolidation of family law, which is one of the matters to which the Law Commission hopes to be moving. It is therefore important that, when the Bill gets into Committee, as the Government hope that it will, the two difficult questions to which the hon. Gentleman referred should be set out as he has laid them out for consideration by hon. Members who serve on the Committee.

Perhaps I might digress for a moment and say that I was interested by the point which he made about the form of the Statute Book and the form in which the Bill comes before the House. One often wonders about the desirability of loose-leaf legislation. I do not want to say anything about that now, but I have been impressed by the way in which Bills coming before other legislatures are laid before them with the notes on Clauses on facing pages interleaved, as in the original Law Commission Report. I have not been able to discover what it is which makes that not naturally acceptable to the authorities or institutions which generate our Bills. I suspect that, as always, we are wrong if we seek to blame the officials of the House or anywhere else for that. I suspect that there are deep-seated constitutional reasons other than mere conservatism which explains the way in which our Bills come before the House.

When going into these matters one finds, for example, that the length of Clauses in legislation considered by this House as opposed to that considered by other legislatures is, as we may well realise after last night's experience, in no small part due to the routine of having a separate debate on the Question, That the Clause stand part of the Bill, so that over the years it has become apparently more sensible, in view of occasional outbursts, to have long Clauses rather than short, concise, simple ones which might make it easier for the law to be understood by the layman but more difficult for the Government to get their laws through. I certainly hope that the Procedure Committee will look into the way in which Bills come before the House for consideration, because it seems rather strange that we have to revert to this kind of presentation of a Bill when we start off with a Bill which is laid out in the way that was done by the Law Commission in its Report.

The hon. Member for York raised two specific points—first, whether wilful refusal to consummate should be a ground for nullity or divorce. As the hon. Member said, the arguments are set out in the Report of the Law Commission. The argument which weighs with the hon. Member, and which seems to be an important one, is that by keeping it as a ground of nullity it avoids the three-year delay rule and that to move it into the category of divorce might involve consequential changes in the law of divorce. Those are factors which lie on one side of the scale, and it is not a matter about which the Government wish to express any view, nor would it be right for them to do so on a matter of this kind. It is plainly a question which needs to be considered in Committee, and the Committee will he assisted by what the hon. Member said about it.

The hon. Member's second question was whether a marriage, if one may call it that, between people who turn out to be—again, oversimplifying the question—of the same sex should be amenable to procedure by way of decree of nullity or by way of a declaration, as was thought to be the case before the decision in the Corbett case. This, again, is a difficult question which the Standing Committee will want to consider and which will certainly need to be left to the House at the end of the day. Indeed, the Law Commission made a point of saying that it was classically a matter of social policy which it was for Parliament to decide. The arguments both ways have been outlined clearly by the hon. Member for York.

It would not be right for me at this point to make an expression of opinion on behalf of the Government one way or another on that either, because both these questions are matters which are appropriate for Parliament, with private Members participating in the discussion, to consider and deliberate upon before the law takes its final shape.

With those two somewhat non-committal comments on the not-very-committal observations of the hon. Member about a modest but important Bill, I warmly commend it to the House. Once again, I congratulate the hon. Member on the way he has presented the Bill to the House.

I close by thanking the hon. and learned Member for Dulwich (Mr. S. C. Silkin) for the kindness, characteristic of a Friday, with which he welcomed me at the Box in this law reform rôle on this occasion. The Solicitor-General apparently wears many hats, some of which appeal to all parts of the House and some of which appeal to only parts of the House. For my part, they are all hats which I am proud and content to wear. I thank the hon. and learned Gentleman.

2.44 p.m.

Mr. S. C. Silkin (Dulwich)

I hope to be even briefer than the Solicitor-General, but I cannot let the debate pass without making two points. The first is to echo what has been said about the lucidity, clarity and, indeed, charm with which my hon. Friend the Member for York (Mr. Alexander W. Lyon) characteristically explained these difficult matters to the House and thereby made it much easier for us all to follow them. Secondly, I readily accept the apology proffered with disarming courtesy by the hon. Member for Glasgow, Hillhead (Mr. Galbraith).

In doing that, I answer the hon. Member's question as to whether I would wish in this matter to assimilate the laws of England and Scotland by saying that it seems to me that to do so is desirable in every field, although, of course, not always at the same pace. It may take longer in relation to certain built-in traditions than in relation to others, but that this process must go on, as is provided for in the Law Commission Report, and, indeed, that it should, and must, extend beyond the reaches of the United Kingdom by assimilation between our laws and the laws of Europe, a process which is also going on, is something which I regard as right and inevitable.

Mr. Galbraith

I have a good deal of sympathy, in general at least, with what the hon. and learned Member says about that. Does he, however, expect that that will lead to the legal systems being completely merged so that there would be one court for the whole country, as there is at present for England and Wales, and that the ancient Court of Session in Scotland would cease to exist? Does the hon. and learned Member also imagine that there would be one court for the whole of Europe?

Mr. Silkin

I rather feel that the hon. Member is seeking to take me far beyond the province of the Bill, and I would not wish to look into the crystal ball to that extent or to trespass upon a debate which, no doubt, we may once again have in the future on the subject of Europe generally.

My hon. Friend the Member for York referred to the question of the status of the remedy for wilful refusal to consummate a marriage which has not been consummated and the provisions of Clause 5, which operate to bring a marriage to an end as annulled, not ab initio, but from the time of the decree. It seems to me that wilful refusal to consummate is, to some extent, a nigger which was introduced into the woodpile by the 1937 Act and thereby created a certain lack of logic.

Wilful refusal to consummate may well be something which arises after a marriage has taken place. One can visualise circumstances in which, for some reason, a marriage is not immediately consummated, the husband and wife part for a time and events occur in the meantime which cause the respondent to the eventual petition thereafter wilfully to refuse to consummate the marriage. One then has a situation which is very much like a desertion situation.

In those circumstances, there would be a case for so regarding it. I say that, however, with the qualification that where a marriage has not been consummated, there is, I would have thought, good ground for relaxation of the three-year rule even if this remedy were transferred to the realm of divorce.

Though I have said that this is an illogical part of this part of the law, clearly it is not wholly illogical, because even in the case of incapacity one is not always looking completely at the situation which existed at the time of the marriage. The Law Commission's Report in paragraph 56 deals, for example, with the case of a person who is incapable not generally but simply in relation to the other spouse, which is a well-known situation, and also the case of a curable defect which, after the marriage, the respondent refuses to have cured. One is in a sort of intermediate realm of that which existed at the time of the marriage and that which comes into being afterwards.

The difficulty is attempted to be solved by the Law Commission and the provisions of Clause 5, but I am bound to say that they seem to be somewhat illogical, although I gather from the Report that they exist in other countries. I would have thought that a marriage is brought to an end, in which case it is dissolved; or it is annulled, in which case it has never been. But now we are to have a situation by which it is annulled from the date of the decree but it has been in existence up to then, and I find it very difficult, apart from the change of word, to see how it differs from the situation of dissolution.

These are not very helpful comments for my hon. Friends. They are nothing more than comments on what are very technical and difficult questions. They will, I am certain, be considered further in Committee. I applaud the enterprise of my hon. Friend, and I look forward to reading with very great interest the discussions which subsequently take place in Committee—if I am unfortunate enough not to be included among those selected to serve on it. I am sure they will make fascinating reading.

Mr. Alexander W. Lyon

By leave of the House, I would just say "Thank you" to the two hon. and learned Gentlemen for the kind things they said about me. On the point made by both of them, arguing from the Report, about wilful refusal, the Report itself rather suggests that the alternative is between leaving wilful refusal as a ground for nullity and leaving it as a ground for divorce. Taking the second alternative would be to ask for an amendment of the recent Divorce Act, and no one would want to have to go back to do that. But it is quite unnecessary. The only real alternative is to leave wilful refusal as it is or to allow that kind of conduct, which has nothing to do with incapacity but is an assertion of will, to be dealt with as intolerable conduct or as desertion or dealt with as separation. There- fore the problem about the three years is a real problem, because one could not distinguish between these cases, in relation to divorce, and other kinds of intolerable conduct.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).