DIVORCE LAW REFORM (SCOTLAND) BILL (Hansard, 23 January 1973)

§ Mr. William Hamilton (Fife, West)

I beg to move, That leave be given to bring in a Bill to amend the law of Scotland relating to divorce, dissolution of marriage and judicial separation, and to the power of the court to award interim aliment; and for purposes connected with the matters aforesaid. The need for such reform is recognised as necessary by the Scottish Law Commission, the Scottish Law Society, the Church of Scotland and the Scottish Office as well as a large body of enlightened opinion. Indeed, the Scottish Office has kindly agreed to help me in the drafting of such a Bill.

The names of the sponsors indicate all-party support, so in that sense it is a non-party, non-controversial measure. It will be generally similar to the contents of a Bill introduced last year by my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes), which received an unopposed Second Reading but got into Committee too late to ensure its enactment.

It is now just over two years since the new English law came into operation. That Act recognised that a marriage could break down irretrievably without any matrimonial offence having been committed. Therefore, it provided for divorce after two years' separation if both parties agreed, and after five years' separation if the petition were contested.

The Scottish law is still based on the principle that there can be no divorce unless a matrimonial offence has been proven. I believe it is the general wish that the law on this matter as between Scotland and England should now be harmonised.

The proposed Bill would seek to meet the criticisms made of my hon. Friend's Bill by the Law Society and others. They were criticisms of detail and wording rather than of any fundamental principle: for example, on the question whether a marriage had irretrievably broken down because one of the parties had at any time behaved, whether as a result of mental abnormality or not, in such a way that the aggrieved party, that is, the pursuer, cannot reasonably be expected to cohabit with the defender. 224 The Scottish Law Commission has felt, for reasons which I need not expound, that it would be better to retain incurable mental illness as a separate situation evidencing irretrievable breakdown. The commission also proposes to retain the power in the court to refuse a decree where the pursuer has been guilty of such wilful neglect or misconduct as has conduced to the defender's mental illness.

My hon. Friend's Bill also abolished, in effect, the defence of connivance where the situation evidencing breakdown was the defender's adultery. The Scottish Law Commission does not think this is acceptable, and proposes that that defence, which in any case operates only rarely, should be retained.

One further point of difference from my hon. Friend's Bill concerns proof of actual physical separation of the partners over the requisite period. A judgment in the English Court of Appeal, Santos v. Santos-1972 2 Weekly Law Reports, page 889—held that: mere physical separation for two years was not sufficient to constitute living apart ', and that a petitioner had to prove not only the factum of separation for two years but that he or she had ceased to recognise the marriage as subsisting and intended never to return to the other spouse, albeit that the petitioner's state of mind need not be communicated to the other spouse. It is proposed in the Scottish Bill to make it clear that physical separation of the spouses is sufficient to evidence breakdown of the marriage in so far as it is possible to obtain a suitable form of words to deny the construction put upon the wording of the English Act of 1969 by the Court of Appeal, to which I have referred. This is a Committee point of some substance which could, no doubt, be debated if I am given permission to bring in the Bill.

Last year's Bill made no provision for any judicial discretion to refuse a divorce if the five years' separation situation were established. This contrasted with Section 4 of the English Act, which put a duty on the court where the defender opposed on the grounds of grave financial or other hardship in the event of the dissolution of the marriage. The Scottish Law Commission is now of the opinion that there is some need for an overriding discretion to be vested in the court to refuse a decree in a situation where grave financial hardship would be 225 inflicted upon a defender. Certain English reported cases suggest that this power is not likely to be lightly used, and the proposed Bill would in any event be more tightly drawn in this respect than its English counterpart.

The financial provisions are, of course, crucial. They will be similar to those contained in the 1972 Bill. It is thought desirable to add a provision empowering the court to award a capital sum for the children of the marriage. There are various other provisions designed to improve the composition of the Bill introduced by my hon. Friend last year.

The Labour Government, as a matter of deliberate policy, provided time for the House to decide matters of social consequence and controversy which cut across party lines. Few will doubt that the legislation so passed has been of immeasurable benefit. The present Government, for good or ill, have adopted another policy and indicated that every Bill of this nature must take its chance. Flow, ever, this Bill could well be made an exception to that general rule on the ground that it is supported by the Government Department most immediately concerned, the Scottish Office; by the Church of Scotland; by the Scottish Law Commission; and by the Scottish Law Society. In that spirit, I beg leave to introduce the Bill.