BREAKDOWN OF MARRIAGE TO BE SOLE GROUND OF DIVORCE (Hansard, 18 June 1976)

§ Mr. Iain MacCormick (Argyll)
I beg to move Amendment No. 1, in page 1, line 8, leave out from 'that' to end of line 9 and insert 'the marriage has broken down irretrievably'.

§ Mr. Deputy Speaker (Sir Myer Galpern)
With this Amendment we may take similar Amendments Nos. 2, 3, 4, 7 and 8.

§ Mr. MacCormick
The Bill as originally introduced in this House, like the seven previous Scottish Bills, used the concept of "irretrievable breakdown" of the marriage as the sole ground of divorce. Clause 1(1) provided that the sole ground on which divorce might be granted in future would be that irretrievable breakdown of the marriage had occurred. However, irretrievable breakdown is not, legally speaking, a triable issue. Accordingly, Clause 1 (2) as originally introduced set out five fact situations from which alone irretrievable breakdown was to be inferred. The first three corresponded to the old matrimonial offences of adultery, cruelty and desertion and the last two added two new separation periods, namely, two years' separation with the defender's consent 970 and five years' separation without consent.
There are very strong arguments for reinstating the word "irretrievable". In the first place, as I said on Second Reading—as reported in Hansard for 27th February 1976 at c. 770—this Bill gives us for the first time in Scotland a comprehensive statutory code of the main rules of the substantive law of divorce. In this situation, it seems right that the unifying principle which underlies all the factual situations justifying divorce should be clearly stated and emphasised in the Bill. This principle is the principle of irretrievable breakdown.
There might have been an argument for not inserting that underlying philosophy or principle in the Bill. For example, the Bill could have been drafted so as to set out five fact situations as separate "grounds" of divorce and to say nothing about the underlying principle. But I can see no justification whatever for making explicit the underlying principle in the Bill itself, and then getting it wrong. Yet by leaving out the word "irretrievable" this is surely what we have done.
My first point, therefore, is that, if we state explicitly the underlying principle of the new law of divorce in the Bill itself, we must get it right even though the form of words has no direct legal effect. In the same way, we must get the preamble of our legislation right even although a preamble does not have direct legal effect.
Secondly, I venture to think that it could not be the intention of this House to set out in Clause 1(2) five different fact situations from which remediable, retrievable or temporary breakdown of marriage is to be inferred. Temporary breakdown would be a nonsensical basis for divorce. What we are concerned with in Clause 1(2) is fact situations, any one of which—when taken together with the fact that the pursuer is asking the court to dissolve the marriage—makes it plain that permanent breakdown of the marriage has occurred.
We are not, for example, selecting two years' separation plus consent, or five years' separation without consent, as evidence of temporary breakdown of the marriage. We select periods of such 971 length because one can then safely predict that the marriage will have broken down permanently or, in other words, irretrievably. Nor are we retaining uncondoned adultery as a basis of divorce because adultery of that type infers temporary breakdown. Experience shows that spouses divorced for adultery, cruelty or desertion do not come together again and remarry, except perhaps the one case in 50,000.
Finally, I wish to draw the attention of the House to the objectives of a good divorce law as these objectives were defined by the two Law Commissions. Paragraph 29 of the Scottish Law Commission's report said: The objectives of a good divorce law should include (a) the support of marriages which have a chance of survival, and (b) the decent burial with the minimum of embarrassment, humiliation and bitterness of those which are indubitably dead. In that well-known and oft-quoted key passage, which nobody has challenged, a sharp contrast is drawn between retrievable or temporary breakdown of marriages which have a chance of survival and should be supported and the irretrievable or permanent breakdown of marriages which are indubitably dead and should be terminated by divorce. The Committee stage amendment leaving out "irretrievable" has totally blurred this contrast and so misrepresents the philosophy underlying the Bill. For these reasons, I respectfully ask the House to reinstate the word ill the Bill.

§ The Lord Advocate
I beg to move Amendment No. 5, in page 3, line 5, at end add: '(6) In an action for divorce the standard of proof required to establish the ground of the action shall be on a balance of probability.'. The purpose of the amendment is to provide that the standard of proof in all actions for divorce, separation or separation 972 and aliment should be the normal standard in civil proceedings, namely, 'proof on a balance of probabilities'. The amendment adds a new subsection to Clause 1. It refers only to divorce, but under Clause 4 the provisions of Clause 1 also apply to actions for separation and separation and aliment. Those who were members of the Committee will remember that I undertook to take an amendment to this effect. I have responded to that undertaking.

§ Mr. Deputy Speaker
I may tell hon. Members that, since there will be no Third Reading debate during which the customary congratulations could be offered to the promoter of the Bill, I am prepared to simulate deafness during the debate on Amendment No. 6—but only to allow one speaker from either side. That will enable the usual congratulations to be offered.