HL Deb 11 May 1896 vol 40 cc980-9

VISCOUNT HALIFAX rose to move the Second Reading of the Divorce Amendment Bill. The Bill, he said, was to all intents and purposes the same Bill as that which their Lordships read a Second time last year. The only difference was that, in accordance with what he understood at the time to be a suggestion of Lord Grimthorpe, it made definitely illegal what before had been left dependent on the law of the Church. This, however, was not a material part of the Bill, and might, if necessary, be altered in Committee. Their Lordships were aware that up to 1857, when the Divorce Act was passed, it was impossible to obtain the dissolution of a validly contracted marriage, with power to marry again, by any ordinary legal process. The only way such a marriage could be dissolved, so long as the Ecclesiastical Courts had cognisance of matrimonial causes, was by a special Act of Parliament, which set aside, in that particular instance, the general law. It was the same state of things as now prevailed in Ireland. In his opinion the Divorce Act had been an unmitigated misfortune to the country, but that was not the question he was asking their Lordships to consider. What he wanted to point out—and it was all that was required for the purposes of the Bill—was the special grievance that was occasioned to the clergy and laity of the Church of England, the injury that was done to the Church as a whole, and the continually recurring cause of offence that was given to the religious and moral sense of the community at large by Clause 58 of the Divorce Act, which was the one clause of that Act he was now asking their Lordships to have repealed. By that clause any stray clergyman who could be picked up by persons who had been divorced for a breach of the seventh commandment, was entitled to force himself upon the incumbent of the parish, and, against the will of the incumbent, and against the will of the parishioners, to claim the Church for the performance of a marriage which certainly can claim no sanction from the Church of England, which outrages the religious convictions of a vast number of persons, and which, under the circumstances in which it is necessarily celebrated, turns the words of the marriage ceremony into a religious mockery. First as to the incumbent. In no other case can any other clergyman force his way into a Church to perform any service of the Church against the will of the incumbent. It is only in the case, and for the benefit of persons divorced for adultery that such an unenviable right has been conferred by law. Could anyone really maintain that such an exception, and for the sake of such persons should be provided by the law? He submitted, with some confidence that they could not. Next, in regard to the parishioners. He assumed that the parishioners are interested in the religion and morality of the parish. If they are not they ought to be. Some grievous scandal occurs, not a case where evil done has been repented of, for in such a case no one would be likely to insist on such a legal right as that conferred by Clause 58, but a case in which the evil done is being deliberately ignored and condoned. Nevertheless the parishioners are compelled to see the persons guilty of the evil, and responsible for the scandal, in defiance of what they believe to be the law of the Church, treated in precisely the same way as the innocent and virtuous, and married with words and blessings none can think applicable to their case, and with nothing to show that the Church disapproves of their conduct, or thinks them guilty of any breach of morality. In the third place, he asked the House to consider the direct effect of such a state of the law in regard to the Church herself, and in reference to the respect due to the sanctities of religion and morality. Would their Lordships recall for a moment the words of the marriage service prescribed by the Church of England. The solemn vow— To forsake all others so long as ye both shall live."—"For better, for worse, till death do us part." And—"That it should never be lawful to put asunder those whom Thou by matrimony hadst made one, and then say whether it is tolerable, in the interests of religion, truth, and morality, he would go further, whether it is consistent with the honour due to God's holy name, who is invoked as a witness to the vows given and received, that those who have set at nought such solemn obligations should be enabled and encouraged by the law as contained in this 58th Clause of the Divorce Act, to call God again to witness similar vows made to another, the original husband or wife being still alive, with the probability—for such cases are not uncommon—of such vows being again broken and trampled under foot. Such a state of things was not tolerable, and it was because he felt sure that everyone who had the interests of religion and morality at heart must say the same thing, that he asked them to give this Bill a Second Reading. As he had already said, the Bill in no way affects the legal facilities for divorce which at present exist. Those facilities, so far as this Bill is concerned, remain precisely where they are. The persons whom it affects can, if they wish to contract a legal union, always have recourse to the Registrar's office. The Bill merely deprives them of the legal power which they now possess of forcing themselves and some intruding clergyman, into a Church against the will of the incumbent, for the performance of a marriage which is in flagrant contradiction to the whole tenour of the marriage service. With this object, it merely repeals Clause 58 of the Divorce Act, and makes such other provisions as are necessary to make that repeal effectual. He would add, in conclusion, that the Bill had obtained very large and wide support outside this House. It was understood that the members of the Episcopate and the Convocations of Canterbury and York were in favour of it. It had, he thought, been discussed and accepted by every Diocesan Conference throughout the country. It had the approval of the lay house of the province of Canterbury; a very large number of petitions had been presented to this House in favour of it last year. He had been asked to-day to present a very large petition signed by 31,367 members of the Church of England, which went a great deal further than the present Measure; and it had also obtained considerable support from persons outside the Church of England—among others, Mr. Price Hughes, whose name might be familiar to their Lordships as one of the most leading representatives of the Wesleyan body, who had written to him expressing his strong desire that this Bill should become law. He asked their Lordships, therefore, to read the Bill a Second time.


If my memory serves me right, either last year or the year before we had a Bill very similar to this in its provisions and there was a general agreement on both sides of the House that, whatever the present form of the remedy to be adopted, there was an evil to which a remedy ought to be applied, and that, therefore, it was expedient to read the Bill a Second time. The evil, of course, is the offence which is given to a very large number of persons on the grounds of religion and morality by the right possessed by guilty persons, after their divorce, to require the use of the Church for the purpose of remarriage according to the service of the Church of England. I do not think it is the least necessary, in dealing with this question, to go into any abstract principles. We have merely to recognise that the feeling of scandal does exist; that it is created by persons who have no particular right to our sympathy; and if a remedy can be found to which no reasonable objection can be offered, Parliament will have taken a step which will be decidedly conducive to the interests of morality. The difficulty which I should find in this Bill, if we are to come to details, is the very drastic provision that these marriages shall be void. I do not say that out of any consideration for the person; but you must remember that, if you make marriages void, you hazard the creation of a condition which must be a hardship, and which may be a great injustice, for the issue of such marriages. I should, therefore, prefer any other way of deterring guilty persons from the use of the Church than that of making marriages void, whereby the principal burden falls upon the unhappy children. But as far as the Second Reading of the Bill goes, I have no reason to alter the opinion which I expressed last year, that it would be wise to read the Bill a Second time.


I am not going to oppose the Bill, but some of the expressions used by the noble Viscount were worthy of notice. He says that these marriages are contrary to religion and morality; and that is as much as to say that marriages legalised by Parliament have been contrary to religion and morality. That is a very dangerous doctrine. The whole question of divorces is a very delicate one; and I do not wish to raise it now; but there is some objection to the Bill in principle, because, in a way, it penalises a certain class of persons who, as the noble Viscount says, have broken the seventh commandment; and it has not hitherto been the principle of the law of the land to inflict a penalty for breaches of that commandment. I protest against language which will go much further than this Bill warrants. It is a Bill to relieve certain persons from what they consider to be a hardship, though I do not think it is a great one. The noble Marquess has referred to another objection—that of making the marriages void—but I shall not oppose the Bill, and only make these observations that it may not be supposed I agree in the language of the noble Viscount.


said, that his objection to the Bill last year was that it should be introduced in consequence of a disturbance deliberately created in a church by the curate of another church and by a certain number of persons who had organised a conspiracy to prevent the law from being acted upon and a certain marriage from being solemnised. But he thought the main object of the Bill was quite right—namely, to avoid that which a great many people felt to be a scandal. He strongly objected last year to its being left to the discretion of clergymen to say whether certain people should be married in church or not, but that provision had gone. At present his criticism was rather to the defect that the Bill was a long way short of what the promoters said they wanted to achieve. It was said by one of the Prelates who spoke last year that it was desirable to prevent the scandal of persons coming redhot from the divorce court to be married again in church, and he agreed with that. But there were a number of equally guilty persons who would be able to do that after this Bill had become law. Assuming the spouse to die very soon after the legal proceedings, there was nothing in the Bill to prevent a bigamist from getting married again in church. Last year he suggested something like a time of repentance, but he was told by the Archbishop and the Bishop of London that the persons aimed at did not deserve such indulgence. He was rather inclined to think that one of the rev. Prelates had now somewhat changed his mind. At any rate, the bigamist may still get married, if he did not also get divorced; and bigamists were very seldom divorced. Again, people who committed rape or unnatural crimes did not get divorced, but all these offences were properly included in the Divorce Act of 1857, with which the noble Viscount was so dissatisfied. Then, petitioners for divorce who failed to obtain it on account of their own adultery would be able to get married in church in spite of the Bill, supposing their wives to die. Persons who were convicted of adultery, but against whom divorce proceedings failed by reason of collusion, and, more than all, guilty co-respondents, might all be married in church and immediately. The Bill only dealt with people whose marriages had been actually dissolved on certain grounds, and he had pointed out a number of guilty people whose marriages were practically never dissolved. There was another point which was certain to arise. The right rev. Prelate was suspicious of anything which might lead to lawsuits, and so was he. But nothing was more likely to do so than to use the words ''marriage dissolved'' without any qualification as to when and how. Two cases had recently come under his notice showing the importance of this point. The first was the case of a dissolution of marriage in a colony. He was shown the decree, and was asked whether the parties could get married again. The question was whether there had been collusion; and his inquiries convinced him that there had been collusion, such as would be fatal to the recognition of the divorce here; and in many countries divorces are granted which are not recognised here. Therefore it was necessary to specify by what Court the dissolution had been effected, and the only safe line to draw seemed to be at some superior Court of this kingdom. The second case was now pending. The defendant in it had actually been declaring at one time that he had a good divorce, and at another time that he had a bad divorce, and personally he should not like to say which statement was likely to prove true. The noble Marquess had pointed out another fault in the Bill as to the voidance of the marriages under certain circumstances. A provision of this kind would be a capital sporting-ground for any fresh claimant or blackmailer to ruin another family after any length of time. A person had only to swear that a party to the marriage had admitted that he or she knew this provision in the Bill was being transgressed, and how was such a statement to be disproved? Whoever drew this Bill miscarried altogether in his notions of analogy. He had evidently thought of the Prohibited Degrees Act, which rightly made marriages void; but that was by reason of "a previous incapacity,'' which did not exist in the cases contemplated by the Bill. The object was to prevent scandal; but if the scandalous conditions were not known till after the marriage had taken place there could be no scandal, and there was no reason why the marriage should be upset merely for being celebrated in a wrong place, which does nobody any harm. Then the Bill repealed sections 57 and 58 of "The Matrimonial Causes Act 1857," and that was totally unnecessary, because the Bill would be a contradiction of that Act. These defects showed that the Bill had been imperfectly drawn, and, indeed, it would require remodeling altogether. Last year when the Bill was before the House he gave notice of an Amendment substantially to the following effect:— No marriage of a person found guilty in a superior Court of the United Kingdom of divorce or of any crime for which a marriage may be dissolved shall be solemnised in any church or chapel of the United Kingdom. That did a great deal more than the Bill, and would avoid its numerous defects. But the progress of that Bill was stopped by a greater event.


hoped that the House, following up its decision of last year, would give the Bill a Second Reading. The operation of the present law was felt by the clergy to be a tyranny, as it took away from them on one particular point the discretion which they were obliged to exercise on many similar points. It was also a great scandal to the best people in the congregation—those people who valued most the privilege they possessed in their Church, and to whom the Church was the scene of the most sacred incidents in their lives. It was extremely painful to those people in their resort to this sacred place, the day before, perhaps, it was subjected to what was, in their opinion, a great desecration. He did not think it was quite fair to describe the Bill as a penalising Bill for a particular act. If the people it affected desired to be married again, a legal way was open to them which could not be called penal. It was no objection to the Bill to say that it arose out of the conduct of a curate. The conduct of a curate might be heroic—he did not say it was; but he would point out to those who minimised it that great changes often arose out of small occasions. The causes were always great, the questions were always great, though the spark that finally kindled the conflagration was a small one. As to the suggestion that there should be a limitation of time—that, for example, a man who had been divorced might wait for five years and then be married again—there could be no rational limit irrespective of other considerations. He thought there was no use in Parliament making an enactment of this kind if it were to be passed without a penalty. The noble and learned Lord (Lord Grimthorpe) had proposed to place under the same penalty certain crimes for which divorce might be granted, whether there had been a previous marriage and divorce or not. But they were not dealing with crimes at large. They were dealing with a particular action which reversed the applicability of the marriage service. They desired that a clergyman should not be asked, nor churches used, to perform an important and solemn religious ceremony over again for persons who had offended against its obligations; and he thought that the Bill should be limited to that.


My proposal does not deal with any crimes but those for which divorce is granted.


said, it was also urged as an objection against the Bill that it was hard that a marriage should be invalidated if it were performed in the wrong place. But under the existing law, if a marriage was not performed in a church or in a licensed place, it was invalid; and all the Bill did was to provide that the church was, for the marriage of certain persons, the wrong place. He thought there was nothing unreasonable in that. In regard to the Amendment which the noble and learned Lord suggested, there was a most serious difficulty. According to it the marriage must have been dissolved in a Court of the United Kingdom. But divorces in many foreign courts were recognised here; and it would not be reasonable to say that while a man who had his marriage dissolved in England might not be married again in a church, a man who had been divorced in a foreign court, or in the colonies or in America might go triumphantly into church and have the religious ceremony again performed. He was aware that the Bill, as introduced, needed Amendment; but he did not think the Amendment suggested by the noble and learned Lord met the case.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday the 19th instant.