§ House in Committee (according to Order).
§ Clause 1 (Short title) agreed to.
§ Clause 2 (Costs of Intervention) agreed to.
187§ Clause 3 (Power to the Court to order provisions to be made for the wife when the husband also has been guilty of a matrimonial offence).
§ LORD PENZANCEmoved to omit the clause, which, he said, would act as a premium to adulterous wives to make trumped-up charges against their husbands. Nor was it to be overlooked that if the wife succeeded in a retaliatory charge against her husband, no decree would be made; and, therefore, as he got nothing by his suit, it would be hard to compel him to make provision for his guilty wife.
§ LORD SUDELEYI hope your Lordships will not agree to the Amendment moved by the noble and learned Lord. It would, my Lords, I feel, be the height of presumption on my part, if I were to attempt to measure swords and to argue the point with so great an authority as the noble and learned Lord; but, whilst I feel the utmost diffidence in this respect, I trust your Lordships will allow me, having charge of the Bill, to state briefly some of the reasons which have induced many high and well-known authorities to support the clause as it now stands, and to state why we cannot accept the Amendment. The main object of the clause is to remove a restriction which now exists in the way of the parties disclosing all the facts to the Court, and thus to limit the necessity of the Queen's Proctor intervening. As the law at present stands, the wife knows that if she attempts to show that her husband is guilty, and succeeds in preventing a decree being granted, she will be left destitute, as the Court cannot, in such a case, order any provision to be made; and she is, therefore, almost bound to conceal the facts. The Court has power to make the innocent husband provide for the guilty wife; but it is obliged to allow the guilty husband to leave the wife destitute. Another object of the clause is to place husband and wife on the same footing, when both have been guilty, instead of allowing the punishment to fall solely on the wife. The noble and learned Lord says that if no decree is made, the man gets nothing by his suit; and that, therefore, it would be unfair to make him give a provision to his wife. But, my Lords, after the Bill becomes law, any man coming before the Court to seek relief would know what to expect, and 188 would be aware that if he wanted to obtain relief, he must come with clean hands. It must be remembered that this case only applies where the man is guilty of concealing facts. It is, I apprehend, well-known that in a great number of cases the wife could prove, if she dare do so, that her adultery has been caused from the example set her by her husband, and that it is due entirely to his guilt and to his neglect that she has gone wrong. Surely, my Lords, in these cases, it would be no hardship, but a simple act of justice, that the Court should have discretionary power to order provision, if it thought right, instead of leaving the poor woman destitute. Then, again, I do not think it can be said rightly, that because the man gets no decree, he, therefore, gains nothing by his suit. I apprehend if once the decree nisi has been granted, and a jury has declared the wife guilty, although no decree may be given, the husband has obtained a decided advantage, which he would unmistakeably use if proceedings were at any time instituted against him to compel him to provide her with maintenance. The result of the Amendment would be entirely to alter the character of the clause, and reduce the benefits to very small dimensions in the case where the wife was innocent; and it would not remove the blot which undoubtedly exists of its being an absolute benefit to the wife to conceal the facts. This clause has, my Lords, the support of very high authority—namely, no less person than the President of the Divorce Court, Sir James Hannen. He has been kind enough to send me a memorandum on the subject, which I have his authority to read—