HL Deb 22 July 1908 vol 193 cc4-13


Order of the Day for the Second Reading read.


My Lords, before coming to the actual provision of this Bill I should like to call your Lordships' attention to some proceedings germane to the subject dealt with by the Bill. I refer to the discussion which took place on "Marriage in Christendom" at the Pan-Anglican Congress, and I think your Lordships will find that some rather strange expressions of opinion were there made which did not entirely agree with the legislation as it stands in this country. The chair was occupied by the Bishop of Montreal, and the discussion turned largely upon the subject of divorce in general and upon the re-marriage of divorced persons in Christendom and the attitude of the Church towards it.

Perhaps the most violent speech on the subject was one made by a layman at that Congress, Mr. G. W. E. Russell, who attached great importance to what I might call the high ecclesiastical view of marriage and of divorce, and he said that there was a lamentable tendency even among Church people to compromise and to concession. He asked whether the re-marriage of divorced people was repudiated as legalised concubinage. I am glad to say that that extreme view did not commend itself to all present even at that Congress. He went on to say that he desired to reaffirm publicly his conviction that marriage was a sacramental institution and that marriage was perpetual. Your Lordships are well aware that by the Articles of the Church of England itself it is expressly declared that marriage is not a sacrament, and therefore no person who professes to be in entire agreement with the Church of England can properly describe marriage as being called a sacrament by his Church, differing in that, as your Lordships know, from the Roman Catholic Church. On that the argument was founded that the marriage was indissoluble.

Canon E. F. Brown said that marriages of Christian men and women were, strictly speaking, indissoluble. It was not, he said, the function of the Church, whatever the view of the State, to re-marry any person who had a husband or wife alive. He added that— In this matter the Church of England ought to take her stand by the Church of Rome. That is a perfectly possible view, and so long as that view is limited to persons who accept it and believe it, there is no objection to their holding it and acting upon it. But I submit to your Lordships that there is no reason why those who do not hold that view; why those who do not take that extreme view of marriage as a sacrament; and, still less, why those who, like myself, are free-thinkers and give no allegiance at all to the principles which underlie the doctrines of the Church, should be bound by the views taken by other people. When we come to the question of legislation, I venture to suggest that the considerations which should guide us are considerations of public policy and expediency, and that no matter how large, important, or influential a section of the community hold particular views on this question, they should be left themselves to observe the particular views they hold without attempting to impose thorn upon others. At the end of the discussion the chairman said— It rejoiced his heart to hear the magnificent conservative ring of the note which bad been sounded on the question of marriage. And he went on to say— However the State might use its power to limit the lifelong force of the marriage tie, the Church, as long as it remained Christian, must follow Christ, even though such following mi ht bring it into partial or open conflict with the State. I have no objection to these views if held and acted upon by individuals, but there is no sort of reason why individuals who hold these views should attempt to force them upon individuals who do not hold them. When you come to consider the matter from the point of view of the State, which by the speakers at the Congress was sharply distinguished from the point of view of the. Church, you have to consider what is expedient and advantageous.

Since I last presented this measure to your Lordships I have received support from a quarter which, from the point of view of legislation and of knowledge of the subject, is, I think, entitled to carry much more weight than the Pan-Anglican Congress. I refer to some observations which were made by Sir Gorell Barnes, the President of the Divorce Court, in the case of Dodd v. Dodd. Sir Gorell Barnes is eminently fitted to know the hardships and difficulties which occur in the present marriage law, and the great disadvantages that are inseparable from a condition of things where we allow very freely judicial separation, while limiting strictly the right to re-marry and complete freedom from the marriage tie; and he made these observations on a case which arose from a magistrate's order. By recent legislation more and more powers have been given to magistrates to make orders for judicial separation which cause a husband and a wife to live apart, and which have practically all the effect of an order for judical separation made by the Divorce Court. After pointing out the large extent to which these judicial separations are being obtained— some 7,000 a year—the President went on to say— Applied first in an age remote and in a state of society different from the present, the remedy of permanent separation for matrimonial grievances would always seem to have been injudicious, even in days when persons could not escape from their surroundings as they can now, and when they were more amenable to the pressure and censures of the Church, and is now probably to be regarded as more unsatisfactory still and as tending to demoralisation and providing inadequate justice to the innocent. At the time of the Reformation, the Royal Commission issued by Henry VIII. and renewed by Edward VI., composed of ecclesiastics, civilians, and common lawyers, inquired into this subject. The project) of reforming the law came to an end with the death of the latter king, but the Commissioners' Report was printed in the reign of Elizabeth, under the title 'Reformatio Legum Ecclesiasticarum,' and the recommendations were to the effect (inter alia) that separation a mensa et thoro should be abolished as productive of great abuses and scandal in the marriage state, and that, while restrictions and punishments should be imposed upon the guilty party, the innocent party should be permitted to obtain a divorce for, among other grounds, desertion: see Reeve's History, 2nd ed., vol iv., pp. 546, 547, summarising Ref. Leg. Eccl. 47–56. Desertion is a ground in Scotland and in certain other countries. Nothing, however, was done by the Legislature, and marriage remained indissoluble, except by Act of Parliament, until 1857, when, after much controversy, the Act of that year was passed, which can hardly be held to have attained to finality. By it the right of divorce was given, but confined to the cases specified therein. The remarks of Mr. Bishop in his work on marriage and divorce (s. 37), on the state of things which existed in England before that Act, are deserving of a most careful perusal. But the figures I have given above show the limited application of this Act, especially having regard to the great increase in the population of this country. The President went on to say, and this is what I have often ventured to urge on your Lordships— That the tendency of these orders is to encourage immorality, bearing in mind that human nature is what it is, and the classes; of persons with whom the magistrates usually have to deal, I doubt whether anyone, of experience sufficient to judge, will deny. That is the opinion which I have formed after a long experience in this Court, where case after case shows what so often follows from these orders, and discloses a most unsatisfactory state of things. It is an opinion in accord with that expressed in very forcible language by Mr. Bishop on the subject of divorce a mensa et thoro, s. 29, where he collects the opinions of certain distinguished writers on the subject. Continuing, the President said— Moreover these orders really impose a more serious penalty in the cases to which they apply than a decree of divorce would; for the result of a decree of judicial separation against a man is more severe to him, and in certain cases even to a woman, than a decree of divorce. The consequences of each are, in most cases, very much the same, except that the former imposes the disability of re-marriage while the latter does not; so that, for instance, a man may be more severely punished for the offence of adultery than for the same offence coupled with cruelty or desertion for two years or upwards; and, further in the latter case, the wife has the option of choosing whether she shall apply for separation or divorce …. I am anxious not to travel out of my province, which is jus dicere non jus dare, but the point as to how the Act of 1895 can be administered, with regard to the non-cohabition part of the order, by the magistrates who have, as noticed above, certain discretionary powers and can to a certain extent control the working of the Act so as to prevent, as far as possible, evil results, gives rise to the foregoing penal observations; and having, since I first sat on this bench in 1892, found it necessary to make myself familar with the history of the laws governing the relations of husband and wife, and the discussions which have from time to time taken place relating thereto, more particularly at the time of the passing of the Act of 1857, and the results of those laws, of which experience in this Court gives very considerable opportunities of judging, it is desirable, in my judgment, as bearing on the subject under consideration, to express the conviction, which has forced itself upon me, that permanent separation without divorce has a distinct tendency to encourage immorality and is an unsatisfactory remedy to apply to the evils which it is supposed to prevent. That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects. Whether any, and what, remedy should be applied raises extremely difficult questions, the importance of which can hardly be over-estimated, for they touch the basis on which society rests, the principle of marriage being the fundamental basis upon which this and other civilised nations have built up their social systems; and it would be most detrimental to the best interests of family life, society, and the State to permit of divorces being lightly and easily obtained, or to allow any law which was wide enough to militate by its laxity against the principles of marriage. It is not necessary for me now to express a formal and final opinion upon these serious questions, but the consideration of what I have found it necessary to deal with in this judgment brings prominently forward the question whether, assuming that divorce is to be allowed at all, as it has been in England by judicial decree for the past fifty years and for a long time before that by Act of Parliament, any reform would be effective and adequate which did not abolish permanent separation, as distinguished from divorce, place the sexes on an equality as regards offence and relief, and permit a decree being obtained for such definite grave causes of offence as render future cohabitation impracticable and frustrate the object of marriage; and whether such reform would not largely tend to greater propriety and enhance that respect for the sanctity of the marriage tie which is so essential in the best interests of society and the State. It is sufficient at present to say that, from what I have pointed out, there appears to be good reason for reform, and that probably it would be found that it should be in the direction above indicated. The petition for divorce in this case must be dismissed, for the wife has only proved adultery, and that is not sufficient to enable her to obtain a decree of divorce; and it will not be any satisfaction to her to know that if her case had arisen and her suit could have been brought in Scotland or most other civilised countries she would have succeeded. The learned President of the Divorce Court, in that judgment, expressed in words far better than any that I could use, the evils which arise from the present state of things; and the concluding sentence of that judgment, I venture to say, should suggest to your Lordships that the subject of my Bill is worthy of your consideration. In the concluding sentence Sir Gorell Barnes points out that in Scotland, and in almost every other civilised country, a remedy would have been open to the aggrieved spouse if desertion had taken place. There is no need for me to recapitulate what is so well said by the President as to the evils of a state of permanent separation, where no re-marriage is possible. You distinctly and deliberately, by that legislation, put people in a position of temptation from which many of them suffer, and which does not lead to good manners and good morals in the State.

By this Bill I propose to deal with one, and one only, of those grounds which are now grounds for judicial separation—I mean the ground of desertion. The operative clause of the Bill has the effect, by inserting in the Matrimonial Causes Act certain additional words, of making desertion without cause for two years and upwards a ground for divorce. I do not conceal from myself or from your Lordships, that that is a very considerable change to make, but I venture to commend it to the House on the grounds of the judgment of Sir Gorell Barnes which I have read. I also venture to commend it to your Lordships on the ground which he mentions at the end of his judgment that it is already the law in most civilised countries, and even in a country so near to us as Scotland. There is this difference between the law in Scotland and the law as proposed in this Bill, that in Scotland the desertion has to be for three years and upwards; but as the term which now exists in the Matrimonial Causes Act for desertion is two years, and as this term has been generally adopted in English legislation, I thought it best to put that period in this Bill.

It has been said before, and may be said again, that this is a subject which ought to be taken up by the Government and considered by a Commission or Committee and that no private member ought to attempt to legislate upon it. I quite agree that this is a matter which ought to be taken up by the Government and considered by a Commission or Committee; but it is not taken up, and meanwhile many thousands of people every year suffer great hardship from the existing law. That is my only excuse for again calling attention to the subject. The matter is one which is of great importance and can only be fitly dealt with by the Government of the day; and it is, I venture to think, a matter not so difficult as it is sometimes represented to be. I think a conclave of lawyers would find a remedy for the existing state of things without very much difficulty. But the present Bill has one merit, which was insisted upon by the noble and learned Lord on the Woolsack in the discussions on the Deceased Wife's Sister Bill. That is that it only deals with one point. At any rate it has that merit. I submit the subject to your Lordships for discussion because some settlement ought to be arrived at in the matter, and your Lordships, I think, must realise that when a man in the position of the President of the Divorce Court, holding high judicial office, feels it necessary to make so explicit and so clear a statement as to the disadvantages, the inequalities, and the evil effects of the present law, there must be some grievance which calls for a remedy. I, therefore, beg to move the Second Reading of the Bill.

Moved, "That the Bill be now read 2a."—(Earl Russell.)


My Lords, I came here this afternoon in order to read prayers, not even knowing that this Bill was to be before your Lordships' House; but seeing it on the Paper I remained, and having heard the speech of the noble Earl in moving the Second Reading I cannot sit still. For the last fortnight I have been acting as chairman of a large committee of bishops of the Lambeth Conference to make a report upon marriage problems, the first being divorce. We have had evidence from bishops from all parts of the world as to the mischiefs that have resulted from weakening the marriage laws. In one of the States of the United States of America they are exceedingly pleased with themselves because, by the creation of anti-divorce committees, they have actually made such an improvement as this—that instead of the legislature having twelve causes for divorce the number has been brought down to seven; and they are very proud indeed of having done so much. Other States have not got so far. The evidence that we have from all parts of the world goes to show that if you once begin to weaken the marriage laws you never know where you will stop. In one of the United States one marriage out of every six is pronounced terminated by the courts of law. I do not propose to go into any of these details. I am perfectly certain that the social state is built upon the principle of the family life, and the family life is built upon the principle of the sanctity of marriage. To dare to tamper with all that by just one little bit of piecemeal legislation, slipping in another cause for divorce, whereas there is now only one, seems to me unworthy of the suggestion of the noble Earl and quite impossible for your Lordships' House to look at. Many of us are looking forward to the time when the very strong pronouncement of one whom I can call my friend, the President of the Divorce Court, will be taken up, not, if I may say so, by a miserable piece of piecemeal legislation like this, but by a great and important Royal Commission. When that Royal Commission sits they will have before them, I believe, evidence which will tend rather to stringency than to leniency with regard to the marriage laws. I entreat your Lordships not to look at a piece of legislation of this description.


My Lords, last year or the year before, in reference to a Bill on the subject of marriage with a deceased wife's sister, I had occasion to warn your Lordships of the danger of doing more than proceed step by step in reference to the marriage laws. They are very complicated; they touch the life of the

nation at its very source and are of the utmost importance in every way. Therefore, I ventured to submit to your Lordships that any interference with those laws could only be taken up one question at a time, so that it could be seen exactly what you were doing. This Bill undoubtedly has the merit claimed for it by the noble Earl that it deals with only one question at a time. I am afraid that is the only merit I can see in the Bill. The proposal, if I rightly understand the Bill, is that a man or woman may be divorced on the ground of desertion without cause for two years and upwards. That is the proposal which is made in the Bill. I will say nothing at all about the sanctions of other kinds affecting marriage, I would simply point out that the noble Earl's Bill amounts to this, that divorces practically may be obtained at discretion or almost at discretion by the parties to the marriage. The woman being the weaker of the two, the man might very easily by his conduct cause his wife to desert him for two years and then get rid of her. I must say for myself that the proposal in the Bill is absolutely impossible and is one to which I will not at any time consent. Therefore, when the question of the Second Reading is put I shall vote in the negative.

On Question,

Their Lordships divided:—Contents, 2; Not-contents, 61.

Russell, E. [Teller.] Pirrie, L. [Teller.]
Loreburn, L. (L. Chancellor.) Morley, E. Braye, L.
Vane, E. (M. Londonderry.) Brodrick, L. (V. Midleton)
Bedford, D. Waldegrave, E. Calthorpe, L.
Devonshire, D. Clinton, L.
Althorp, V. (L. Chamberlain.) Clonbrock, L.
Lansdowne, M. Churchill, V. Colebrooke, L.
Salisbury, M. Goschen, V. Denman, L. [Teller]
Hardinge, V. Ellenborough, L.
Beauchamp, E. (L. Steward.) Hutchinson, V. (E. Donoughmore.) Fingall, L. (E. Fingall.)
Camperdown, E. Fitzmaurice, L.
Carrington, E. St. Aldwyn, V. Glantawe, L.
Cawdor, E. Granard, L. (E. Granard.) [Teller]
Coventry, E. Bristol, L. Bp.
Craven, E. Haversham, L.
Crewe, E. Allendale, L. Heneage, L.
Dartrey, E. Armitstead, L. Herschell, L.
Liverpool, E. Ashbourne, L. Henry, L. (E. Dunraven and Mount-Earl.)
Mar, E. Avebury, L.
Marland Kellie, E. Balfour, L.
Mayo, E. Belhaven and Stenton, L.
Keayon, L. Lucas, L. Oranmore and Browne, L.
Killanin, L. Michelham, L. Sanderson, L.
Langford, L. Newton, L. Saye and Sele, L.
Lawrence, L. Oriel, L. (V. Massereene.) Sudley, L. (E. Arran.)