GRANTING OF DIVORCES WHERE THERE IS NO COHABITATION (Hansard, 18 June 1976)

§ Mr. Fairbairn
I beg to move, That the clause be read a Second time.
This clause is, in terms, the same as the new clause that I canvassed in Committee, and its purposes are quite simple. Under the new Act the sole ground of divorce, at present, is the breakdown of marriage. That can be established by proving what were the old matrimonial offences of adultery, cruelty, which I believe is now called unbearable conduct, and also separation for a period of two years with consent. In other words, there has been a change in the law on the concept of the offence of desertion. Whereas previously divorce was obtainable only by the sponse who was deserted for a period of three years, it is now obtainable by the deserting spouse without consent after five years and with consent after two years.
The Act therefore introduces the concept that the offending party, that is to say, the deserting party and not the deserted party—or, in the old language, the guilty party—may obtain a divorce. 964 That situation never previously applied. I can understand the logic of saying that that is a bad principle, and that persons who have committed no matrimonial offence under the old language should not be allowed to be divorced at all. After all, they entered into marriage for better or for worse—"until death us do part"—and they may hold the strictest religious, moral or philosophical principles, believing that they have done nothing wrong and that marriage should last for ever. One can understand the logic of that stance.
One can understand, equally, the practicality of the position that if the marriage has broken down it is pointless perpetuating it, and that, therefore, either spouse in a broken marriage should be entitled to obtain the final recognition of its death. But what is utterly illogical is to say that divorce can be obtained against the will of the innocent party after five years. That satisfies neither principle.
The purpose of my new clause is to ensure, if that principle must be accepted, that the spouse who has committed no matrimonial offence in a marriage that has broken down for good is not allowed, for reasons of obtuseness, spite, obstinacy, cruelty, greed or blackmail, to refuse to allow the other spouse to enter into a lawful marriage for another three years. That extra period of three years was put into the English Act not, as it was thought, to protect men but to protect women, but it has usually operated to the detriment of women who have been anxious to form another marriage and to have legitimate children. They have been unable to do so because of that provision.
I have in mind the situation in which a husband says "I shall be happy to give you my consent on condition that you make no financial claim against me. If you make any financial claim, you can just be married to me for another three years." Equally, one can imagine the wife saying, "I shall be happy to give you my consent if you give me £10,000 a year. If you do not, I shall deny you your wish to form another marriage and have legitimate children. I shall bargain that for your money." That is an extremely bad situation.
The Lord Advocate again had the great courtesy to write to me in detail 965 giving the Government's reasons for finding my clause unacceptable. With his permission, I shall again quote from his letter, in which he says: Clause 1(2)(e)"— the relevant clause— introduces for the first time in Scots law the principle of divorce by compulsion in cases where the defender has not committed a matrimonial offence and can be divorced against his or her will…In all cases where the parties had lived apart for two years, the pursuer would be able to require the defender to appear in court—including a defender who has contributed in no way whatever to the alleged breakdown of the marriage—and to justify under cross-examination the reason why he or she wishes the marriage to continue for the time being… The proposed amendment would substantially undermine the policy of clause (1)(2)(d), one aim of which is to give defenders (including,ex hypothesi entirely innocent defenders) the right to give or withhold consent freely. With great respect to the right hon. and learned Gentleman, it does not give defenders the right to give or withhold consent freely. It gives them the right to withhold consent only for two or five years, but not thereafter, so it breaches the very principle on which the argument is founded.
The Lord Advocate says, as is perfectly correct: In many cases, a refusal to grant consent will be entirely on conscientiously held moral or religious grounds and will not, therefore, be a justiciable issue. For any defender or pursuer, that is obviously a reasonable ground for withholding consent for ever rather than for five years. But in many cases that will not be the reason. As the right hon. and learned Gentleman says: In other cases, consent will be withheld in the very sincere belief that there is still some hope for the marriage. The court will be able to decide whether that is valid when it hears the evidence.
Next, the Lord Advocate says: The amendment runs directly counter to the Bill's main aim of giving dead marriages a decent burial with the minimum of embarrassment, humiliation and bitterness. I am not concerned with the many cases that will fall into the category of religious or conscientious objection, or with people who believe, hope against hope, that the marriage may yet survive. I believe that there is a large category of cases in which pure bloody-mindedness, spite, narrow-mindedness, short-sighted- 966 ness or financial gain may well be the reason, and I do not think it right that the House should pass a law which in England has acted contrary to the interests of those whom it was intended to protect and in Scotland can be used to act contrary to the interests of the parties to the marriage.
Therefore, far from running counter to the Bill's aim of giving marriages a decent burial, the clause will enable marriages that are dead to be buried without the spite or acrimony in which refusal of consent with no substantial reason, moral or otherwise, would result. I feel strongly about these special cases, where there is no reasonable ground for withholding consent and thus preventing another marriage after two years and before five, or preventing legitimate children being born. Illegitimate children can be born and can never be legitimised, because there is at the time a bar to the marriage. It is wrong that there should be an Act that will force any children born in those three years to be for ever illegitimate, when we can remedy the situation by a rational compromise.

§ The Lord Advocate
As the hon. and learned Gentleman said, I wrote to him at length about this proposal. I recognise the hon. and learned Gentleman's sincerity and accept that it is true that he would give relief to a small additional category—but at considerable expense. It is equally true that what he is doing is an extension of the principle embodied in the Bill, but the Bill must achieve a balance that is right for this time and I think that his proposal goes beyond that balance.
Clause 1(2)(e) already introduces into the law of Scotland the principle of divorce by compulsion of a person who has ex hypothesi done no wrong and has not contributed to the breakdown of marriage. No act of adultery, cruelty, desertion or conduct justifying non-adherence can be proved against him or her, otherwise the pursuer would rely on paragraphs (a) to (c) of Clause 1(2). The new clause goes even further. An innocent spouse who has not contributed to the breakdown is not only to be divorced against his or her will, but is to be called upon to justify to the court his or her reasons for resisting divorce. On humane grounds, this seems wholly unacceptable, because it goes to the root of consent.
967 Secondly, the new clause will introduce an element of compulsion or blackmail into Clause 1(2)(d). Under the Bill, the consent can be freely given or freely withheld. But if the new clause is accepted the pursuer will always be able to threaten the defender with legal proceedings—a defender who may well be a working-class wife or husband who does not know the ropes, is afraid of the law, the courts, legal documents and legal proceedings. Such a person would be very vulnerable to the threat of an enforced appearance, an inquisition, in court. By a side wind, therefore, the new clause will destroy the basis of Clause 1(2)(d), since one could never be sure that the consent had been freely given or freely withheld.
Thirdly, while it is reasonable to allow the courts to apply a test of "unreasonable withholding of consent" in matters like a tenants' assignation of a lease, or a consent by a parent to adoption—where the welfare of the child is the first consideration—the test appears quite inappropriate to divorce. In many cases, the reasonableness of withholding consent will not be a justiciable issue.
11.30 a.m.
If a spouse, for example, says that he or she has conscientious or moral objections to divorce, the judge cannot investigate these questions of conscience and morality and override them as unreasonable. Again, an insane person cannot give his consent and, as under the present law, the Bill provides, in effect, that unless his behaviour justifies non-adherence the other spouse must wait five years. Consideration of the reasonableness of the withholding of consent is then wholly out of place.
Let us take the case of a working-class, middle-aged wife whose husband deserts her for a younger woman, or perhaps for reasons of mere incompatibility. She hopes against hope that he will see the error of his ways and return to her. She does not want to be divorced, and may feel the loss of marital status badly. Under the new clause, unless she gives her consent under Clause 1(2)(d), which she does not wish to do, she will find herself cited to appear before the court to explain her attitude and justify her desire to remain married under cross-examination by counsel.
968 Her reasons for refusing her consent are not such as to warrant Parliament preventing the divorce in due course. But Parliament is surely not justified in requiring vulnerable, middle-aged wives whose husbands have deserted them to justify their resistance to divorce. It will merely increase their misery because they would have to suffer a post-mortem examination of their marriage.
Fourthly, marriage is not a mere contract between private persons; it is a status and forms the basis of our society. But even if it is a contract, it is not the person who wishes the marriage to continue but the person who wishes to terminate it who is breaking the contract. There can be no justification for calling upon a person who wishes to maintan the contract to justify his or her attitude.
Looking at the matter from a contractual point of view, there is a compelling argument against the clause. The party who is seeking to uphold the marriage may not be able to give a rational explanation why he or she wants the marriage to continue, and should not be forced to do so, particularly in a public investigation. I think that the hon. and learned Gentleman said at one point —I may have misheard him—that adultery was a bar to the legitimation of illegitimate children, but that is no longer the case. The impediment to their legitimation was removed by the Legitimation (Scotland) Act 1968.

§ Mr. Fairbairn
What I said was that while the marriage subsists for the period of five years, or the extra three years, if the spouse who has departed has any children by any person he wants to marry, those children would for ever be illegitimate.

§ The Lord Advocate
I thought that possibly the hon. and learned Gentleman meant that.
Finally, there is no doubt that the new clause runs clean counter to the Bill's principal aim of giving dead marriages a decent burial with the minimum of embarrassment, humiliation and bitterness. It will inevitably means the proliferation of judicial post-mortems into dead marriages because, in adjudicating upon the reasonableness of a spouse's withholding consent, the history of the marriage is bound to be relevant in many 969 cases. It will add a new, and in many cases unjustifiable, issue to divorce proceedings. It will create uncertainty and, above all, it may destroy the basis for proceeding under Clause 1(2)(d). That is a new provision, involving an element of consent. We would be wise to give that a run before we consider any provision such as this clause. For those reasons, I hope that the clause will be rejected.

§ Mr. Fairbairn
I have listened to the arguments advanced by the Lord Advocate, and agree that every case he cited would be reasonable grounds for refusing consent. But he has not dealt with those cases where the ground for refusing consent is unreasonable. It may be that the reform that I am proposing is ahead of its time. All the best reforms are. That would seem to me to be a good reason for implementing it.