DIVORCE BILL [H.L.] (Hansard, 23 June 1903)

*EARL RUSSELL

My Lords, when I last had the honour of submitting to your Lordships' House a Bill containing somewhat similar provisions to the Bill which is now before you, I commended it to your attention in a speech which I endeavoured to make reasonable, temperate, logical, and respectful to this House. Some comments which reached me after that occasion might have led me to suppose that I had succeeded in that endeavour were it not for the remarkable observations which fell on that occasion from the noble and learned Earl on the Woolsack. The usual Motion that the Bill be read a second time that day six months appeared upon the Order Paper, fathered, as might have been expected, by the noble Lord who represents the High Church Party in the Protestant Church, and who endorses the sacramental view of marriage. But that noble Lord and his Amendment were contemptuously brushed aside by the Lord Chancellor, who, in a state of apparent fury, fell upon the remarks I had ventured to make to the House and declared more than once that both my Bill and the observations with which I had endeavoured to support it were an insult to your Lordships. He then proceeded, with the courage of a large majority behind him, to move that the Bill be rejected, a Motion which, so far as I am able to ascertain, has been unknown in the recent history of this House. But that is not perhaps to be wondered at from a member of a Government which has revived several archaic and rusty weapons of the Constitution. Everyone in this House must recognise the conspicuous talent and ability which has raised the noble and learned Earl to the high position he to-day occupies, but many, especially on this side of the House, also regret that he should not yet have acquired that courtesy in debate which we are wont to expect from other noble Lords more imbued with the traditions of this assembly. 203 It has not hitherto been held to be an insult to the House to propose in a reasonable manner, and to support by arguments, a measure for the amendment of the law where such may seem desirable. But I must not for a moment appear to wish to alienate the sympathies of the noble and learned Earl on the Woolsack on this occasion, for I hope I may claim him with some confidence as a supporter. In that very small fraction of his observations which dealt with the merits of my proposals, the noble and learned Earl called attention to a clause in my Bill permitting a divorce after one year's separation on the joint petition of the parties. That clause is not in the Bill now before your Lordships, and as it was the only one to which the noble and learned Earl specifically objected I hope that to-day I shall not be mistaken in looking for his support.

If your Lordships will refer to the Bill you will see that by the first section it is proposed to extend the causes for which a marriage may be dissolved. The present ground of adultery remains, with the extension of that remedy to a wife who has been wronged as well as to a husband who has been wronged. In addition to that it is provided that cruelty, which is now a ground for separation, shall be a ground for a divorce a vinculo. The third, and to my mind the most important provision of all, is that either party to a marriage may present a petition for dissolution of the marriage on the ground that during the three years preceding the presentation of the petition the parties to the marriage have lived apart, and that throughout that period either of the parties did not intend to resume cohabitation. The effect of that clause is that when two married persons have lived apart for three years, and during the whole of that period one at least of them has never intended to live as the husband or wife of the other party, then the Court shall be empowered to grant a divorce. In support of that proposal I quoted to your Lordships last year a largo number of authorities with which I do not propose to trouble you in detail on this occasion. But, among others, I would remind your Lordships of the opinion of Mr. Gladstone. Mr. Gladstone, who was opposed to divorce altogether, nevertheless said that if adultery was a cause for divorce 204 there were other causes equally entitled to give relief at law to the husband or the wife who suffered from them, and he specifically mentioned desertion and cruelty. I also called your Lordships attention last year to the fact that the Reformatio Ecclesiasticarum Legum—a document prepared by divines and lawyers of the highest authority at the time of the Reformation, also proposed to grant a divorce for desertion. That document was drawn up by the authority of the Church and under the immediate superintendence of the Church, and nothing but the untimely death of the Sovereign prevented it becoming law in the reign of Edward VI. But the Church has now departed from that attitude. Since I last referred your Lordships to that document I have had an opportunity of considering the actual words in detail, and I find them even stronger than I supposed, for an article of Archbishop Cranmer most expressly says that, where a spouse has been deserted by the other spouse, it is just that the tribunal should grant a divorce with liberty to proceed to a fresh marriage. He also grants the same remedy for offences which he calls mortal enmities, meaning, apparently, the attempt of one spouse on the life of another. The same remedy of divorce is granted in the case of extreme cruelty, and at the end there appears a very significant prohibition. He there lays down that judicial separation should be altogether abolished, because judicial separation has brought into marriage many evils in its train—the very argument I ventured to urge last year in support of these proposals. It is clear that at that time those who were responsible for the conduct of the Church, assisted by eminent lawyers, came to the conclusion that adultery alone should not be retained upon the Statute-book as the only cause for divorce and that other causes which made married life impossible should also be included.

The effect of the third proposal under the first section is simply to ask that the law should recognise a state of things which in fact exists. The two parties to the marriage must have, to all intents and purposes, divorced themselves before the law is put in operation; they must have lived apart for three years without the intention of living together again. During that period they will have had ample opportunity for changing their 205 minds and for reconciliation, and it must be assumed that if at the end of that period they proceed to address to the Court a petition for relief they have come to the conclusion that it is impossible to live together. Last year the noble and learned Earl on the Woolsack described the Bill as one to abolish marriage. I hear a noble Lord beside me say, "Hear, hear." The marriage which it proposes to abolish is a marriage which has already ceased to have any element of marriage — it is a marriage in which the spouses have already ceased to have the mutual comfort and assistance one from the other. If that is the ideal of Christian marriage that commends itself to this House, then I do propose by this Bill to abolish marriage. But that is not the sort of marriage which any legislature or Church has ever contemplated—it is a marriage which has ceased to be a marriage in everything but the legal tie. It can no longer have the sanction of the Church, for the Church has contemplated that the parties should live together and support each other. It is a state of things, a separation of two married people, which is immediately productive of immorality and social harm, and if that is what is meant by noble Lords who speak of the Christian institution of marriage, it may, I think, very well be abolished, for the only thing left is merely a legal tie uniting two persons, and preventing them from ever contracting a respectable and legal tie with any other persons of the opposite sex. Therefore, in Clause 7 it is proposed that after the commencement of this Act no petition shall be presented for judicial separation or for restitution of conjugal rights.

As I ventured to point out last year the attempts at restitution of conjugal rights have a contrary effect. The pretence is to restore the deserting spouse to the arms and to the home of the other spouse, but it is well known that the effect of that action is not to arrive at that happy result. It does not, in fact, restore the two spouses to a united home. It is nowadays used in order that it may proceed to a judicial separation being established on the ground of desertion. It therefore has no longer the effect which the Church that instituted restitution intended it to have. The Church intended that this should be a spiritual 206 admonition to two persons to carry out their marriage vows. The idea of forcing a man and woman to whom union is repugnant to live together is abhorrent, and, though the action in form proceeds, the provisions of the Welldon Act have made it inoperative. I may say that the other principle in connection with the dissolution of marriages, which I have endeavoured to establish by this Bill is the principle of equality of the sexes—a principle which, I am sorry to say, seldom commends itself to an assembly of male legislators, and the non-recognition of which was the subject of some very scathing observations by Mr. Gladstone in the Lower House. Women protest, not often vocally, but they protest and suffer constantly from the injustice of the present law, which denies to them the remedy for the same offence for which it grants it to the husband, and many women are unable to obtain the relief to which they are entitled, the protection and the freedom they desire, on account of the inequalities of the present law. I have therefore ventured to propose in this Bill that the same remedies shall be given to both sexes, and that they shall be put upon an equality before the law in this matter.

It is frequently said that the effect of loosening the marriage ties will be to cause a large number of people to rush to the Divorce Court and to avail themselves of the facilities offered, but under the provisions of this Bill they will have to be people who are already divorced in fact, and it cannot be supposed that other persons, who are not divorced in fact, will qualify for the remedies offered to them in consequence of the Bill becoming law. I am not prepared to admit that the majority of married couples in this country are held together merely by legal sanction or even by ecclesiastical sanction. I hope, and I trust I am not mistaken, that the vast majority of married couples in this country are held together by mutual affection, and have no desire to part, and I have no reason to believe that that affection and mutual devotion will be interfered with by any legislative measures whatever. Legislation is passed for the cases which it affects. There are upon the Statute-book a large number of criminal statutes dealing 207 with forgery, burglary, theft, and so on; but it is never suggested that the effect of those statutes is to make people forgers and burglars, or that they affect in any way persons who have no tendency in that direction. In the same way, I submit that the alteration of the law of divorce will in no way affect any except those who would, under any circumstances, be anxious to avail themselves of these remedies.

The Bill deals with the question of County Court jurisdiction, which I introduced to your Lordships' notice last year, and provides that where the total joint annual income of the parties does not exceed £500, they shall be able to obtain relief from the local County Court. That is a provision which I should have thought would have commended itself to everyone who wished the law to be equal for the rich and for the poor. At present the whole business of divorce is centralised in a Court in London, and all persons living in any part of the kingdom have to come themselves, and to bring their witnesses to this central Court in London in order that their case may be heard. The effect of that is to deprive by far the larger proportion of the community of any remedy at all. If there is a legal remedy to which persons are entitled, surely they should not be deprived of its exercise merely because they cannot afford to come to London to prosecute their suit. This inequality was pointed out when the Act of 1857 was passed through Parliament, and among others who called attention to it was a then occupant of the Episcopal Bench, who said that the measure failed signally to fulfil the avowed intention for which it was introduced—namely, of making a legal remedy available to all. That this provision does work injustice must be known to everyone. It is universally known to solicitors, and those who have to do with the getting up of cases. It should be known to right rev. Prelates, who must be cognisant of cases where, even under the present law, persons entitled to divorce are unable to obtain it on account of the expense. A very striking instance has come under my own observation, in which an unfortunate woman has been 208 deserted for nine years by her husband. There is no question that her husband has committed adultery, and the facts are easily susceptible of proof, but the deserted woman has no money with which to prosecute her case; and even if she were to proceed in forma pauperis, the expenditure which would be necessary puts it absolutely out of the question, either for the woman herself or any of her immediate friends to find the money to remedy the injustice from which she is suffering. It is admitted that even under the present law she is entitled to a divorce, but simply for want of money she cannot obtain that divorce from her husband who deserted her nine years ago. If she were able to go to the local County Court, within a few miles of where she is, she would be able then to conduct her case with the minimum of expenditure, and where she would now have to pay pounds she would then only have to pay shillings.

I can quite understand that those who are opposed on principle and altogether to any relaxation whatever of the divorce laws, and to any extension of the remedies, may think it a good thing that even the remedies which the law now provides should be denied to the poor, but I am surprised that those who profess to desire equality in legislation should support a state of things by which the whole business is centralised in London. That is not the case with other legal business, and until the Act of 1857 such matrimonial legislation as existed could be and was conducted in the local Bishops' Courts of the dioceses. But that Act abolished the whole of the local courts and centralised the procedure in London, thereby putting it out of the reach of persons of very poor means. The present law as to decrees of nullity of marriage is not touched by the Bill now before your Lordships. Clause 5 provides that they shall be heard and determined on the same principles as now exist. There are some alterations in procedure which, however, are matters of detail with which your Lordships should not be troubled at this stage. The Bill proposes to re-enact the present provision as to the performance of marriage of divorced persons by the 209 clergy. If your Lordships will look at Sub-section 4 of Clause 16 you will see that it is there provided that— A clergyman shall not be compelled to solemnise the marriage of any person whose previous marriage has been dissolved, and shall not be liable to any suit, penalty, or censure for solemnising or refusing to solemnise the marriage of any such person. That, I believe, is the present law, though a recent interpretation given to it by the Bishop of London would seem to show that the censure to which the clergyman is not to be subjected, does not include the censure of his ecclesiastical superior. The Act of Parliament, which is the governing authority of the Church of England, distinctly provided that he shall not be subject to any censure, but from recent proceedings which have appeared in the newspapers, it appears that the re-marriage of divorced persons in this diocese has exposed a clergyman who had the temerity to perform it to censure. I see no reason to suggest an alteration in the present law on this subject. I might remind your Lordships of what, perhaps, bas been forgotten, that in 1857 this House, on no less than three separate occasions, rejected an Amendment proposing individual liberty of conscience to clergymen in the form of the present clause, and insisted that every clergyman should, as a servant of the State, perform any marriage that the State said could be legally performed. However, the truculent attitude of this House towards the Church on that occasion was modified in the more kindly atmosphere of another place, and the present compromise appears to have been the effect of that discussion.

I do not know whether any noble Lord supposes that there is no ground for an amendment, and that there are no grievous cases of injustice and hardship under the present divorce law, which differs in its stringency from the divorce law of every other Protestant country. I have received a vast mass of correspondence, with some few extracts from which I am compelled to trouble your Lordships. One gentleman writes and says— My wife left me to return to her father after I lost my money more than eleven years ago. There is no deed of separation and no ground 210 for divorce, and yet by the law of England I am married and condemned to lead a celibate life with no possibility of relief. Had I committed forgery, burglary, or any other serious crime, I could long ago have expiated my offence, but from an unfortunate marriage there is no release, unless there is cruelty or adultery, which are absent in the case under notice. This state of things I contend is contrary to every law, divine or human, and demands a remedy. A woman writes:— Your Bill would be a blessing to many poor women. I married at twenty-one a man who turned out to be a great scamp, thief, and forger. My home was sold up, my belongings seized by creditors. When my son was thirteen months old my husband deserted me and went to Canada fourteen years ago. I have never heard of nor seen him since. My wrist was injured for life through my husband's brutality. I have proof of desertion and cruelty, but what chance have I to obtain a divorce? Another writes and says:— Where the parties have for a number of years been separated and positively refuse to live together again they are, in my humble opinion, ipso facto divorced; why then should measures be refused to make such definite estrangement legal? … Where mutual love exists the man and woman never part; it is the absence of it that brings about the evil. The sooner there is some law permitting the deserted husband or wife to marry again after a lapse of years, the sooner will immorality and dissipation be reduced. Another writes:— Are two people grievously unhappy together and without fault or intention, to be literally killed and worn to death, being held together in an unnatural and useless bond, to be made useless to each other and even to their children, while those who live riotously and break all marriage laws are content with them and are often the loudest voiced in upholding them? That is an easy way of carrying out a law impossible often to keep. Another writes and says:— Realising the impossibility of obtaining legislative relief in this country, I am forced to consider the expediency of settling in America with a view to obtaining there that relief denied me here. Another writes and says: It is remarkable how perverted Christianity is trotted out on every possible occasion to bar real progress. To say that reasonable release would destroy Christian matrimony is simply the dictum of a person very ignorant, and very much of a bigot. The Founder never recommended, and certainly would never have enforced, for it would be abhorrent to all his teaching, that two who had got utterly to dislike each other, and whose presence with each other brought out and acerbated all the evil in the nature of both, should drag on a 211 tortured existence together, degrading to both, and leading to all kinds of evils and a strong temptation to murder even. A young woman writes that four days after her marriage her husband had to leave on the duties of his vocation as officer in the Royal Navy. For nine years he has not been near her. She has not the money to pursue the evidence for adultery.

A man who occupies a responsible position writes: I have been married twenty years to a most unsuitable woman, who has never been any help to me, who has persistently got into debt, falsified accounts, confiscated letters, deceived and lied to me so much that it has produced an utter alienation. For seven years we have occupied separate rooms. Another writes:— Oh this dull, stupid English law, with Scotland's bright example shining so near. You have to go no farther than Scotland to find divorce a vinculo granted for three years' desertion.

I submit this Bill to the House as an honest attempt to remedy an intolerable state of things. I ask whether among all the Members of this House there are none who recognise that the present marriage laws do inflict upon a vast number of men and women in this country great hardship; that the present marriage laws lead in many cases to the contracting of immoral alliances between separated men and women, and that the granting of a judicial separation is really to throw upon the world two potential adulterers. It is easy to legislate for human nature, but it is less easy to control it after your legislation. The present law offers a divorce as a reward for immoral conduct. It can be obtained where immorality has taken place, but where both parties are unwilling to be guilty of immorality, the present law denies divorce; and where, as so oftens happens, women have been deserted by their husbands for an indefinite number of years, they are precluded from ever contracting a fresh alliance, and are compelled to remain for the rest of their lives neither married nor unmarried, with no possibility of establishing a home and all that is dear to the heart of a woman. Is there no one in this House who feels that this state of things needs a remedy? Are your Lordships satisfied, because in your individual 212 cases the law may not bear hardly upon you, to leave such a blot upon the social legislation of this country? The proposals which I have put before you, and I say this unhesitatingly, make for the increase of social purity and for the absence of adultery. They make for a legitimate dissolution of unions that have long since become impossible, and their adoption would tend to purify the marriage relation, to make marriage a more real thing than it is at present, and to make adultery looked upon, as it is not often looked upon now, as a disgraceful, a discreditable, and an unnecessary crime. I beg to move the Second Reading of this Bill.