HL Deb 08 June 1920 vol 40 cc489-515

Amendments reported (according to Order).


My Lords, I do not, propose to move the Amendment standing in my name on the Paper, to leave out subsection (1) (c) of Clause 4, which makes cruelty a ground for an application for divorce. The question has already been fully discussed in your Lordships' House.

Clause 6:

Proceedings for permanent judicial separation.

6.(1)— Any married person who alleges that any grounds of divorce are available to him or her may, instead of applying for a decree of divorce, apply to the court for a decree of permanent judicial separation, and the court, if satisfied that such grounds exist, may grant a

decree of permanent judicial separation, and thereupon it shall no longer be obligatory for the applicant to cohabit with the defendant:

Provided that—

  1. (a) the provisions of this Act with respect to defences to proceedings for divorce shall apply also to proceedings for permanent judicial separation; and
  2. (b) if the defendant claims that instead of a decree of permanent judicial separation a decree of divorce should be granted, the court may refuse to grant a decree of permanent judicial separation, and may, if satisfied as aforesaid, grant a decree nisi of divorce, and the provisions of this Part of the Act with respect to such decrees shall apply accordingly.

VISCOUNT FINLAY rose to move the omission of the word "and" at the end of subsection (1) (a).


If this is a purely drafting Amendment I accept it gladly.


It is more than a drafting Amendment. I move to leave out the word "and," merely preparatory to leaving out paragraph (b). I hope my noble friend will accept the Amendment which I am going to move, but it is not a mere drafting Amendment. Clause 6 of the Bill deals with the case, which, if this Bill becomes law, will be a very frequent one, where what has been done by one offending spouse would entitle the other, as things stand, to a judicial separation. The Bill provides that that same ground should give the right to a divorce. In those circumstances it is, of course, proper that the existing right to a judicial separation should be preserved if the injured party prefers, and the first paragraph of Clause 6 of the Bill provides for that. I will read the material words— (1) Any married person who alleges that any grounds of divorce are available to him or her may, instead of applying for a decree of divorce, apply to the court for a decree of permanent judicial separation, and the court, if satisfied that such grounds exist, may grant a decree of permanent judicial separation, and thereupon it shall no longer be obligatory for the applicant to cohabit with the defendant. It is obviously right to make provision that the person injured should not be driven to taking proceedings to get a decree of divorce and put an end to the marriage altogether.

I take the case of the wife. There is more than one reason which may impel the wife to prefer not to get a decree of divorce. As things stand at present what has taken place would entitle her to a judicial separation. If this Bill becomes law the same act would entitle her to a divorce. But the wife may think that divorce is wrong. She may object on religious grounds. Then there are a great many cases in winch a woman, apart from any religious feeling or any view that divorce in itself is a wrong thing, may very much object to having the status of a divorced woman. Of course it would not be a case where she had been divorced; it would be a case where the Court had given a decree of divorce on her asking for a judicial separation. Still, the fact would remain that a great many people would regard her as a divorced woman. People are very undiscriminating in these matters. They do not distinguish between the case of a woman getting a divorce and a woman having a decree of divorce given against her. And one can perfectly realise that, apart from all religious views of the question, many women might strongly object to assuming the status which attaches to a woman in regard to whom there is a decree of divorce annulling her marriage with her former husband.

These grounds of course, furnish a most ample reason for the portion of the clause which I have just read. But it was with amazement I found that a proviso had been inserted in this clause which to a great extent would take away those rights which, on the most obvious principles of justice, ought to be preserved to a wife in such circumstances as I have described. I will read the words of the proviso. It is the second one. "Provided that— if the defendant claims that instead of a decree of permanent judicial separation a decree of divorce should be granted, the court may refuse to grant a decree of permanent judicial separation, and may, if satisfied as aforesaid, grant a decree nisi of divorce, and the provisions of this Part of the Act with respect to such decrees shall apply accordingly. Now, my Lords, in the case that I mentioned it is for the injured party to decide whether any proceedings shall be taken and what the remedy asked for shall be. On what principle is the wrong-doer, who is in the wrong throughout, who is not entitled to require that his injured wife should take any proceedings at all, to be allowed to come forward and say when she asks for a decree of judicial separation, "Oh! you should not get that; it is much better on grounds of public policy that there should be divorces rather than judicial separations." It is not for the wrong-doer to say what the relief should be. The result of this would be that to a great extent the protection which the first part of the clause seemed to give would be taken away and a woman would have put upon her a decree of divorce.

When this clause was commented on in Committee, my noble and learned friend in charge of the Bill said that on Report he proposed to add words which would prevent a decree of divorce from going if the woman was content to abandon her suit altogether, and he has put upon the Paper an Amendment to this effect: to insert after line 35, "provided that, before granting a decree nisi for divorce, the Court shall permit the applicant to elect that in place of such decree his or her application for judicial separation shall be dismissed." I submit that it is a most extraordinary thing that the injured wife, in the case with which I am dealing, is, under penalty of having her petition dismissed altogether, to consent to have what she does not want and would strongly object to—namely, a decree of divorce.

I submit that this proposal really does not set matters right at all, and that it would be undoing what the first limb of the clause had done, and rightly done, if you were to give any such right to the wrong-doer who, in regard to this matter, is really not entitled. to be heard. It is for the person injured to decide whether proceedings shall be taken, and what remedy shall be asked. Surely to enforce, in deference to views of public policy, that there shall be a decree of divorce upon a deeply injured person is a very wrong thing. It really savours of intolerance. The view may be taken that judicial separation is not desirable, and that there ought always to be a divorce, if, unfortunately, anything of the kind is necessary. But I submit that in these matters you ought not to interfere with the rights of the parties; and in order to carry out the effect of the first part of this clause I would ask your Lordships that the subsection should end before the word "and" at the end of the first proviso, and that the second proviso should be struck out.

Amendment moved— Page 4, line 28, leave out ("and").—(Viscount Finlay.)


My Lords, I should like to say a few words on this Amendment. I myself have put down an Amendment of a similar character. A very common reason, if not the usual reason, for a woman at any rate applying for a judicial separation, is to get proper maintenance for herself or to obtain possession of her children; and I want to illustrate the position in which a woman might be placed under the Bill if her husband has deserted her and is living with another woman, thus creating the conditions which would justify a divorce. If, as is usual, she is dependent on her husband, the only way in which she can get what I should call proper maintenance is out of the Court; the ordinary summons for not supporting your wife is never sufficient.

Another cause would be if her children had been taken by the husband and were in charge of the husband's paramour. She applies for a judicial separation for that purpose, and she does so, or may do so, because the husband has, either by refusing her money or by retaining the Children, practically starved her, or forced her into taking those proceedings. Whether we agree with them or not, she may have perfectly legitimate reasons for objecting to divorce—whether they be religious, whether they be a desire that she should not lose her married status, or whether (which is surely justifiable) she may be actuated by the hope that the separation is not irretrievable and that her husband may on some occasion return to her. I cannot conceive that there is anything to be said on public policy or on private morals against a woman taking that view. She is entitled to apply for her judicial separation. It is the only way in which she can obtain a remedy for the wrong she has sustained.

Then it is suggested that where there is a cause for divorce because the husband has broken the marriage vow and is living with another woman, he, who could not possibly of his own action obtain a divorce, may receive it because he has forced his wife into taking other steps than those for a judicial separation. It seems to me that this is really a very serious individual injustice; and I think one is entitled to look with grave suspicion on measures, supported by real or hypothetical propositions of great public advantage, to impose injustice on individuals. Justice to the individual is, after all, the basis on which every organised society is founded; and it requires, I think, very grave necessity to infringe that principle. Great injustice might be done here; and although I am perfectly aware that the Judge, as I understand the matter, would have complete discretion, Judges would take different views. You cannot be sure what would happen. I believe in a case of this kind it is wrong that you should put in an Act of Parliament even the possibility that such an injustice, as that which I have suggested should be done.

There are other general arguments which might be used, but I do not want to repeat what my noble and learned friend Lord Finlay has already said. I wanted only to put that particular case; because it struck me as one which illustrated what might possibly happen under the Bill as it stands, unless it were amended as is suggested. In a matter of this kind I think one might urge upon the noble and learned Lord, Lord Buckmaster, that this does not touch the real principle of the Bill, although I know it is included in the recommendations of the Majority of the Royal Commission; yet, as I understand, there was difference of opinion in that body, but I am not sure about that. Certainly my Amendment is not based on any ecclesiastical or religious question. I do not put it on that ground. I put it merely as a matter of justice and right that, when you have given a remedy which a woman might be forced to exercise as I have suggested, you ought not to deprive her of that remedy by a side wind; and I think it would be unjust. It is for this reason that I have put down my Amendment and am prepared to support it if necessary.


My Lords, I want to say at once that the special point which I raised in Committee upon this clause has been met by my noble and learned friend in the Amendment on the Paper. I pointed out that, as the clause stands, it would be possible for a woman to bring an action for judicial separation and then find, at the end of her action, that she had divorce forced upon her. The noble and learned Lord has met that by his proviso which leaves it to the Court to permit the applicant to elect between a decree of divorce and dismissal of her action. Although that meets the particular point, it does not in the least remove the general objections to this paragraph. I can fully understand the House saying there shall be no judicial separations. That is a possible view, although for myself I should not agree with it.

But what I cannot understand is that you should invite a man or a woman to bring an action for judicial separation and, when that person has brought the action to trial, and has gone through all the pain and anxiety, perhaps the expense, of the trial and has succeeded, you shall enable the Court to say, "After all, you shall not have the remedy you seek, but you shall have, because the guilty party asks for it, divorce, or nothing at all." It seems to me to be making the whole procedure illusory and to take away with one hand what you give with the other. I think you should go the whole way and abolish judicial separation, or you should omit this paragraph and leave to it to the plaintiff to choose which of the legal remedies shall be pursued.


My Lords, before the noble Lord replies I should like to ask one question. Has he considered the position of Roman Catholics in this matter? They are forbidden to apply for divorce. Would not the effect of the clause be to prevent them from applying for judicial separation which is at present open to them?


My Lords, I have waited before answering the arguments upon this Amendment because I understand the noble Viscount desires the discussion upon his Amendment to take the place of a discussion upon the Amendments in the name of several other noble Lords. Personally, I thought his Amendment was purely drafting, and undoubtedly it could have been so regarded. I only want to know what its purpose is for this reason; that if this Amendment is to take the place of those that stand in the name of other noble Lords and the noble Viscount the whole matter can be now once and for all thoroughly discussed. If that is your Lordships' will I will be glad to do it.

In these circumstances it is important that all the new arguments which are to be brought forward in support of this Amendment should be placed before your Lordships' House before I reply. The limitations of debate upon Report stage only permit of one speech and it would be inconvenient, even if it were not unfair, for new arguments to be advanced after I had replied. In ordinary circumstances it would matter very little. In the case of a Government measure there are many supporters of the Government who can speak, but I am solely responsible for this measure and I have no means whatever of being able to secure any one to speak in its support except myself.

When the Bill was in Committee, at the instance of Viscount Cave, I offered at once to introduce Amendments to meet what he then said were the objections to the Bill. In doing so I have had the misfortune to collide with Viscount Finlay who appears to dislike the Amendments which Viscount Cave asked me to introduce. As to the first of these Amendments it is nothing but expatiating upon what is obvious. It states in plain language that the Court has discretion. I thought discretion already existed. I never object to making an Act of Parliament plain and as the noble Viscount desired it I was willing to introduce the Amendment. But the later Amendment I propose is one which is put forward by way of concession, and if, on a Division, the House rejects the Amendment now before it, I most certainly shall not proceed with my Amendment, which appears even to have divided the ranks of the opponents or the measure. I thought it right to make this statement before I discussed the merits of the Amendment itself.

The present Amendment proceeds on the hypothesis that in every case where a woman comes and asks for judicial separation you are to regard her as a perfectly innocent and guiltless party who is asking for some remedy for some unspeakable wrong done to her by her husband. There may be such cases, and if there are such cases the Judges can readily enough distinguish and determine them. But the truth of the matter is that when we speak of a man or woman being the guilty party in divorce proceedings we are using rough language for the purpose of explaining merely that they have done the thing which the Court says will enable the marriage tie to be dissolved. If it were possible to weigh in delicately adjusted scales the real rights and wrongs of the parties it would often be found that the person who was really responsible was not the person, man or woman, who had committed the wrong which the Court detected arid punished, but the person whose conduct had driven the other spouse to the commission of the offence.

These things can never be measured and weighed. You can say that the man who has left his wife and established relationships which are wrong with another woman, should be condemned for doing so; but how can you measure the heartless selfishness and cold vanity of an utter denial of all the rights of association and friendliness and help which the woman owes to her husband which, in spite of everything that may be said from the Bench or from pulpit, will sooner or later drive many men from their homes to seek companionship elsewhere, companionship which, most unfortunately, may ripen into something which will give the woman the right to claim divorce? In such cases, if she asks for judicial separation, is it not fair that the Judge shall be able to look at and try everything that has happened and say, "This is a case in which it is true you are entitled to ask for judicial separation, but I believe your conduct had a great deal to do with what has taken place and I think divorce should be granted."

What is the argument against it? It was explained in plain language by Lord Phillimore in the Committee stage, and it is this. Assuming the man gets divorced he may then marry the woman with whom he has committed wrong. Lord Phillimore objects to that because he says that the woman might think he was adding sin to sin. That, no doubt, is the view of the noble and learned Lord. It is not my view. I say that in such circumstances, if the man has committed a wrong by leaving his wife and going with another woman his first duty, if he obtains liberty, is to marry that woman; and, so far from committing sin, he is carrying out an obligation which he owes to the woman, to society and to morality. There is the issue between us. This Bill is intended to enable cases like these to be examined by the Judges and for them to say that in-one case there should be divorce, and in another there should not.

If the case of the Roman Catholic, to which the noble Earl referred, be brought before the Court, and it be explained to the Court, and the Court accept the view that the woman is only asking for a judicial separation because, according to her religious faith, she cannot ask for a divorce, you can trust the Judges. One of the things that to my mind has been a most unsatisfactory feature of this debate, has been the expression more than once—and, I regret to say, in particular from Lord Phillimore—that you cannot trust the discretion of the Judges. I do not say that they are immaculate or perfect, but in cases where discretion has to be exercised I believe that you will find no men better fitted to discharge their duty, and that they will discharge it faithfully, having due regard to the interests and the rights of the parties on each side. They will not seek to do injustice to a woman unless they think the circumstances are such that a judicial separation ought not to be granted, but that the bowl should be broken and the woman and the man set free.

Take another case, that of the woman who has said, and it can be proved, "I am going to ask for a judicial separation, and the Court will grant it me, and you will then have to settle a certain sum of money on me. Give me some more money and you shall be free." Am I to understand that in such cases the Court is not to say that this is a case where divorce should be granted? This woman is asking for a judicial separation because she wants to use her right of claiming the smaller remedy as a means of getting more money out of the husband. These things happen. The world is not composed of people living saint-like, religious lives, and coming from cloistered seclusion to claim this remedy. The world is full of wicked people, men and women, and this Bill asks that in certain cases there should be power given to the Judges to exercise their discretion, to say whether the bond should be continued or not.

I think it is a matter of weight that when this was argued in Committee, on precisely the same grounds as it is urged to-day, on the Division three Judges went into the Lobby in support of the Bill, and they were the three men in this House who have had the greatest experience of these matters—Lord Sterndale, President of the Probate and Divorce Division, Lord Sumner, who has had a peculiarly" long and almost unrivalled experience of Courts of first instance, and the Lord Chief Justice of England—and against the Bill there was not a single man who had had any practical experience of the work and administration of Courts of first instance, except Lord Phillimore, and he would nob suggest for a moment that in a case of this kind his judgment would be unbiassed, because he hates the whole Bill, and hates it honestly, and if he had the power he would prevent any single clause from becoming law. I hope your Lordships will stand by the Bill as it is drawn. It has been drawn in this way for good reasons, and if the Amendment is carried the only result will be that you will enable the continuance of many cases which, in the interests of morality and justice, ought not to continue.


I waited before speaking to see whether the noble and learned Lord was prepared on fuller consideration—perhaps it was a sanguine expectation—to agree to the omission of this particular paragraph of Clause 6. I assure him that I am not wishing to attempt to bring forward any new arguments, and I assure the House that I am not going to inflict upon it anything in the nature of a speech. I only wish in a few words, if there is to be a Division on this Amendment, to recall to the House, before it divides, the main principle, which is one, I should have thought, of simple justice due from the Courts of this Realm to an applicant for relief to which he or she is entitled. I do so with great diffidence after what the noble and learned Lord has said about the authority of the noble and learned Lords, expert in the administration of the law, who voted with him on the last occasion, and I recognise fully that the noble and learned Lord has fulfilled the promise he made to introduce the Amendments which still stand in his name. I do not think, however, that they are sufficient, because they do not touch the elementary point of justice which I think is what we have to consider.

Let me put it again in a nutshell. Here you have an applicant who applies for a remedy provided by law, to which he or she is admittedly entitled. The applicant does not apply for the remedy of divorce, for, it must be assumed, strong and adequate reasons. It was open to the applicant to apply for divorce and the applicant did not do so. It may have been for grounds of conscientious conviction, or from a desire to retain the name by which she has always been known, or it may have been from a sincere and honest desire to keep open the possibility of a return. At any rate, the applicant might have applied for divorce and deliberately chose not to do so, and comes to the Court asking for the remedy of judicial separation. Ought the Court to have a discretion, however carefully the Court may exercise it, on the ground not of law but of opinion on social and moral politics, to refuse the remedy for which the application has been made, and to which the applicant is entitled, and to insist upon imposing upon that applicant another remedy for which he or she has not asked, and to which he or she may have the strongest possible objection? I submit that the wrong is not really removed by the provision which the noble and learned Lord would have been willing to introduce—namely, that the applicant, finding that the Court desires to impose upon him or her a remedy for which he or she did not ask or desire, should be allowed, after all the trouble has been taken and costs incurred, to withdraw the application altogether.

I am not basing my arguments upon the question whether or not in such a matter what is called the guilty party should be allowed to prevail—I must say that I am exceedingly obliged to the noble and learned Lord for the way in which he pointed out how difficult it is in these matters to discriminate between the guilty and innocent party—but I put it simply on the ground of the elementary principle of justice, that an applicant entitled to a certain remedy should not have that remedy refused, and another imposed upon him or her, because of the opinion of the Court, however careful and valuable that opinion might be, and however based upon the actual circumstances of the case, when the applicant has no desire for it and may have the strongest possible objection to it. If it be the case that judicial separation carries with it these grave dangers, let the matter be frankly considered and that particular remedy refused. But if it is open to any one in this country to ask for it, I venture to think that that request should be allowed to be granted, and not refused, when legally the person making the application is entitled to it.


My Lords, this Bill is introduced as a Bill for the relief of people in a married state. There is an old relief known to the whole of Western Europe for hundreds and hundreds of years, a relief which this Bill is not needed to give, which would exist if this Bill was not passed, unless it was expressly taken away—the right to separation from bed and board, divortium a mensa et thoro; séparation de corps et des biens, which every civilised nation in Europe has known for hundreds of years. And this Bill, which is introduced as a Bill for the relief of the married state, is going to do its best to destroy that common, authorised, recognised right by putting upon people who seek for it the odium of having either to accept a divorce or lose that right. My noble and learned friend who has made so many personal allusions to me is entirely mistaken—unless I am mistaken about myself—in my reason for opposing this clause. It is not because I hate divorce. That has nothing to do with it. It is because I do not want people who do not wish for divorce, and to whom the law now gives a right, to be deprived of that right. My noble and learned friend has throughout this Bill treated your Lordships over and over again to the injured wife who is not to have a remedy. Now that he sees the difficulty he speaks as if there was no wife that was injured, as if there was no innocent person.


I am sure the noble and learned Lord has misunderstood me. I never said that, or anything of the kind.


I misunderstood the noble Lord very much indeed. I thought the greater part of his argument was that there were numbers of cases of wicked people, of whom the world was full, who came for divorce for unclean and wrong reasons, and it is on that point that I am dealing with the observations of the noble and learned Lord at the moment. Then the noble and learned Lord says, "I am giving the Judges a discretion," and he imputes to me that I have been slandering my kind, that I have been speaking evil of the Judges. I have, I submit, done nothing of the kind. What I have ventured to say was with regard to the standard of cruelty; that it would he extremely difficult to keep that standard; that the judges would he perpetually asked to lower it; that nobody would be there standing up to defend it; that human nature could not resist it; and that I myself felt that that would be the case if I was a Judge in that position.

With regard to the other matter, what I have tried to say was that discretion is useless to a Judge unless he has some grounds by which to measure his discretion. I am sure that I shall have every one of the legal members of this House with me in that respect. I said: Supposing a judge says, "Well, I know nothing about this case except that the woman has proved a case for divorce or judicial separation, and is only asking for judicial separation while the man wants a divorce, I do not see why she should not give him a divorce, but, on my discretion upon the whole, I will decide in favour of the woman." What I said was, that if an appeal was taken to the Court of Appeal the Court of Appeal would say, "On what grounds has the judge exercised his discretion? We can find none. He, therefore, ought to have followed the law, which says a man in these circumstances may be entitled to a divorce." If the noble Lord is thinking of such cases as where a woman is guilty of conduct conducive to the man's misconduct let him put in words to that effect. They are very different from the words about discretion.

If he were to say that if the woman sued for judicial separation and the man proved that his misconduct had been conduced to by the woman's hardness, then the judge might say, "You shall have a divorce or nothing." Then there would be something in this provision, but to my mind the clause about discretion is nugatory. The woman—supposing it is a woman, and not a man—who very likely, for excellent reasons, quite apart from those religious reasons which always make my noble and learned friend turn in his seat, but for which I hope some of your Lordships may still have some vestige of respect—the woman who for very good social reasons, or reasons in the interests of the children, wishes for a judicial separation and not for a divorce, ought not to be put in the position of sitting down under a wrong or of having the man force a divorce upon her. I do not know that there is really anything more that can be said, except that it is contrary to all principles of English justice that when an applicant comes into Court for a relief to which he is entitled the wrong-doer should be able to say, "You shall not have that relief unless it is fettered with something that I want."


My Lords, I rise not to prolong the debate, but in order to ascertain from my noble friend his intention with regard to the Amendment which stands on the Paper in his name. I do not wish to repeat any of the observations that have been made, but I have a disinclination to see this Bill leave this House without the provision in it which my noble friend has put upon the Paper as a result of the discussion when we were in Committee. The reason I am asking is because I understood him to say—I am not sure that I understood correctly—that if this Amendment were proceeded with he would not then feel that he was bound to move the Amendment which is on the Paper. I would appeal to him not to persist in that view, if it is his view. The concession that was made, as the result of discussion and after much consideration from your Lordships, was that it was not quite in accordance with the spirit of justice that a woman or a man as the case might be who came forward as a petitioner for a decree of judicial separation should have a divorce forced upon her or him when it only was the intention to sue for a judicial separation. I cannot quite reconcile the Bill with my idea of justice if the Amendment on the Paper in the name of my noble and learned friend is not proceeded with.

Take, for example, the question that was put by the noble Earl, Earl Grey. What will happen with regard to Roman Catholic subjects? A Roman Catholic sues for a decree of judicial separation, and, the Bill standing as it is without the Amendment on the Paper, it might then occur that after the hearing of the whole of the case the Judge might in his discretion, having regard to all the facts, order a decree of divorce. That does not seem to be right. She is entitled to say that on religious grounds she objects to divorce, and that she never would have come into Court if she had understood that a decree of divorce could be pronounced upon her petition for a decree of judicial separation. If, on the other hand, she has the opportunity of electing, she can say—if the Judge by reason of the circumstances proved to him takes the view that he ought not to make a decree for judicial separation, but that he should make a decree of divorce—" No, owing to my religious scruples, I must withdraw." I cannot think that it is just that she should be put in the position that the decree must be forced upon her, notwithstanding that she never elected to sue for it, that she never intended to get a dissolution of the marriage, and that all that she wanted was such protection as the law affords in a decree of judicial esparation. But what I would ask my noble friend, before we proceed to a Division, is to tell us that, after this Amendment, and assuming that it is not carried, he will then proceed with the Amendments giving a discretion to the Judge, and also providing further as he promised during the course of the debate in Committee, so that we may then have the opportunity of doing that which, I am sure, he thought was right, fair, and just in the circumstances, or he never would have promised in Committee to make this concession.


The origin of my Amendment was most undoubtedly my desire to meet what I regarded as the objections to the clause. I promised those Amendments, and I put them on the Paper, believing that, after the clause had been defeated, those Amendments would meet what was reasonably required. I still do not share the view that has been expressed by the noble Earl (Lord Reading) that a Judge would be in a difficulty in such a case as he suggested. The Judge's discretion is abundant, and he can exercise it freely. But, none the less, if anyone thinks that the clause as it stands is unjust, and that that injustice would be remedied by such an Amendment as I described, I would be quite willing to put. it in for that purpose. I should be very sorry if anyone should think that hardship was caused by its being moved. The only thing that I regret about it is that it cannot meet with unanimous approval, because it obviously excited the ire of the noble and learned Viscount, Lord Finlay, who objected to it.


I entirely agree with what has been said as to the danger of the sort of discretion which it is proposed in the present case to entrust to the Judge. My noble and learned friend explained the way in which this subject should be approached. He was successful in showing—what is a matter of common knowledge—that in a great many cases there are faults on both sides, but I am sure that the line of policy which the noble and learned Lord took for the case of the erring husband led him upon very dangerous ground, and that the whole trend of his discussion of the matter was what one is familiar with rather in novels of a certain type than in the debates of your Lordships' House. It would, I think, be a very dangerous thing to give the Judge uncontrolled discretion, which is fraught with such momentous consequences to the parties concerned.

Let the case be decided according to law If there has been misconduct on the part of the applicant for judicial separation which, in the opinion of the Judge has materially conduced to the wrong which has been committed. by the defendant, have the courage of your opinions and make

that a ground for refusing the relief of judicial separation. But do not make it an excuse for putting upon the applicant a remedy for which he or she has not asked. The one argument that has been adduced for this clause was that it has been recommended by the Royal Commission. We have had that argument used in a great many cases in reference to this Bill but, after all, this House must make up its mind what the truth is as to the value of the many recommendations made by the Commission. And a great many people may he disposed to think that this particular recommendation—which I agree was made by the Commission—is such as to shake one's confidence in the infallibility of that Commission, which has been so often appealed to.

On Question, whether the word "and" shall stand part of the clause.

Their Lordships divided: Contents, 75; Not-contents, 65.

Sutherland, D. Hutchinson, V. (E. Donoughmore. ) Kintore, L. (E. Kintore.)
Wellington, D. Lambourne, L.
Knollys, V. Lee of Fareham, L.
Camden, M. Leith of Fyvie, L.
Crewe, M. Askwith, L. Ludlow, L.
Lincolnshire, M. (Lord Great Chamberlain.) Atkinson, L. Lyell, L.
Barrymore, L. Monckton, L. (V. Galway.)
Bledisloe, L. Montagu of Beaulieu, L.
Ancaster, E. Blyth, L. Monteagle, L. (M. Sligo.)
Bradford, E. Buckmaster, L. [Teller.] Muir Mackenzie, L. [Teller.]
Devon, E. Cochrane of Cults, L. Muskerry, L.
Drogheda, E. Cole brooke, L. Newton, L.
Fortescue, E. Denman, L. Oriel, L. (V. Massereene.)
Kimberley, E. Desborough, L. Playfair, L.
Lucan, E. Dewar, L. Ponsonby, L. (E. Bessborough.)
Onslow, E. Ebury, L. Pontypridd, L.
Pembroke and Montgomery, E. Elgin, L. (E. Elgin and Kincardine.) Ranksborough, L.
Reading, E. Rathcreedan, L.
Russell, E. Elphinstone, L. Rotherham, L.
Spencer, E. Faringdon, L. Ruthven of Gowrie, L.
Stanhope, E. Forteviot, L. Somerleyton, L.
Yarborough, E. Glenconner, L. Sudeley, L.
Glenarthur, L. Sumner, L.
Sandhurst, V. (L. Chamberlain.) Greville, L. Swaythling, L.
Allendale, V. Hemphill, L. Weardale, L.
Bertie of Thame, V. Hylton, L. Willoughby de Broke, L.
Burnham, V. Islington, L. Wittenham, L.
Churchill, V.
Canterbury, L. Abp. Denbigh, E. Cave, V.
Birkenhead, L. (L. Chancellor.) Doncaster, E. (D. Buccleuch and Queensberry.) Chilston, V.
York, L. Abp. Falkland, V.
Eldon, E. Finlay, V. [Teller.]
Newcastle, D. Grey, E. Goschen, V.
Northumberland, D. Halsbury, E. Knutsford, V.
Somerset, D. Malmesbury, E.
Bath, M. Midleton, E. Chichester, L. Bp.
Normanby, M. Selborne, E. Ely, L. Bp.
Salisbury, M. Strafford, E. Gloucester, L. Bp.
Zetland, M. Waldegrave, E. Lichfield, L. Bp.
St. Edmundsbury and Ipswich, L. Bp. Channing of Wellingborough, L. Phillimore, L. [Teller.]
Charnwood, L. Ravensworth, L.
Sheffield, L. Bp. Chaworth, L. (E. Meath.) Roundway, L.
Southwell, L. Bp. Cottesloe, L. Rowallan, L.
Wakefield, L. Bp. de Mauley, L. Seaton, L.
Winchester, L. Bp. Desart, L. (E. Desart.) Shandon, L.
Dynevor, L. Stuart of Wortley, L.
Addington, L. Hastings, L. Sudley, L. (E. Arran.)
Ampthill, L. Lawrence, L. Teynham, L.
Annesley, L. (V. Valentia.) Mendip, L. (V. Clifden.) Walsingham, L.
Avebury, L. Morris, L. Wigan, L. (E. Crawford.)
Braye, L. Parmoor, L. Wyfold, L.

On Question, Motion agreed to.

Resolved in the affirmative and Amendment disagreed to accordingly.


I think the Amendment to leave out paragraph (b) is covered by the last Division.

On Question, Amendment negatived.


My Lords, the next is a purely drafting Amendment.

Amendment moved— Page 4, line 31, after ("may") insert ("in its discretion").—(Lord Buckmaster.)

LORD BUCKMASTER moved, at the end of subsection (1) (b), to add, "provided that, before granting a decree nisi for divorce, the Court shall permit the applicant to elect that in the place of such decree his or her application for judicial separation shall be dismissed."

Amendment moved— Page 4, line 35, after ("accordingly") to insert the said proviso.—(Lord Buckmaster.)

Clause 17:

Intervention of King's Proctor.

(2) If from any information or otherwise the King's Proctor suspects that any parties to the cause are or have been acting in collusion, or that material facts are being or have been withheld from the court, he may under the direction of the Attorney-General and by leave of the court intervene in the cause, and in the case of applications for divorce on the ground of insanity, notice of the proceedings shall in all cases be served on the King's Proctor in such manner as may be provided by Rules of Court.

LORD PHILLIMORE moved in subsection (2), after "intervene in the cause," to inset "when the application for divorce is on the ground that the defendant has

treated the applicant with cruelty and the suit is undefended." The noble and learned Lord said: The Amendment which I propose to move is, in substance, the same as I had on the Paper in Committee, when, owing to matters moving rather rapidly at that stage, I was not able to propose it. I do not quite know how this Amendment will be generally received, but I can tell your Lordships very shortly what the object of it is. Adultery and desertion are questions of fact which are ascertainable; they are not questions of degree but of positive fact, and there is a protection against collusion in respect of both. I know that throughout this debate collusion has been sometimes spoken of as if it were impossible to prevent it, but noble and learned Lords who have spoken in that way have, I think, forgotten that by the rule of the Courts an applicant or petitioner for divorce or judicial separation has to make an affidavit to the effect that circumstances within his or her knowledge are true and other circumstances alleged are, to the best of his or her belief, true. If, therefore, a wife were to come to the Courts asking for a divorce by reason of what is called hotel adultery, believing that her husband had not committed misconduct at all but only shammed it, she would be perjuring herself in her affidavit when she swore that she believed the facts she alleged were true.

Therefore, there is some protection in respect of collusion in regard both to adultery and desertion. But there can be no such protection with regard to cruelty, because cruelty is so much a question of degree. No one can convict an applicant for perjury on an affidavit that he or she had been cruelly treated, unless it were an express statement of some actual fact which had never occurred. Therefore, it will be very easy in cases of cruelty, where both parties are desirous of having divorce, for one to allege some cruelty and the other not to defend, and so the divorce would go through. Purely on social grounds, your Lordships not being disposed to grant a divorce by mutual consent and desiring to see that cruelty be a real thing, I have proposed here to do that which the Bill proposes to do in the case of insanity, that wherever a case of cruelty is undefended it shall go to the King's Proctor so that he may investigate it, at any rate to a certain extent.

I shall, perhaps, be told that it is impossible for the King's Proctor to investigate all the facts; that there will be hundreds of cases, and that they will never be able to get on. I agree that he will not be able to investigate all the facts, but he will be able to keep up a standard of cruelty; he will be able, if the facts are laid in sufficient detail before him, to instruct and advise the Court, arid to take the point if necessary as to whether or not the cruelty is really such as justifies a divorce or a judicial separation—cruelty within the meaning of the Statute. Therefore, I suggest that when an application for divorce is on the ground that the defendant has treated the applicant with cruelty, and the suit is undefended, process shall in all cases be served on the King's Proctor in such manner as may be provided by Rules of Court. If your Lordships look at Clause 17 you will see that that is to be the rule with regard to applications for divorce on the ground of insanity; and I suggest, for the reasons I have given, that cruelty is ambiguous, that the standard is so likely to be lowered, that where the case is not defended it should go to the King's Proctor so that at least he might examine the papers.

Amendment moved— Page 10, line 30, after ("cause") insert ("when the application for divorce is on the ground that the defendant has treated the applicant with cruelty and the suit is undefended").—(Lord Phillimore.)


The object of this Amendment is to provide that, in any case where divorce is sought upon the ground of cruelty and there is no defence, the King's Proctor should be brought into the suit.




At whose expense the Amendment does not say. I imagine at the public expense. For what reason? In order that the Ring's Proctor may stop collusion. That is the only thing.


And keep up the standard of cruelty.


I do not quite see how it does that. But he is there to stop collusion. Now we can deal with this matter from our own common, daily experience. The suggestion of the Amendment is this, that two people will arrange to get divorced and that the arrangement will be effected by the woman charging the man with cruelty, which he will admit. Your Lordships must have a wide circle of acquaintances and I ask you how many of the men you know would be prepared to admit that they had been cruel to their wives? I say without hesitation that for a hundred men who would admit adultery there is not one who would admit that he had been cruel; and yet cruelty is to be so rampant and so rife that you must call in a public official at the public expense to protect society against the possibility of collusion between a man and a woman arranging that one shall be stigmatized throughout his life of having been guilty of cruelty to his wife, which he never dared to admit when the charge was put forward in Court. I submit that this is a wholly unnecessary Amendment, and I ask your Lordships not to agree to it.

On Question, Amendment negatived.

Clause 25:


The expression "desertion" means desertion without the consent or against the will of the other party to the marriage, and without reasonable cause, and wilful refusal to permit marital intercourse shall be treated as equivalent to desertion;

VISCOUNT CAVE moved, in the paragraph defining "desertion," to leave out the words "and wilful refusal to permit marital intercourse shall be treated as equivalent to desertion." The noble and learned Viscount said: My Lords, I must express my regret that I was not here in Committee to move this Amendment which I had then set down, but, happily, it was moved by the most rev. Prelate the Archbishop of York, and some conversation took place upon it. Having read what was said, I still think that the words should go out. I can state the point quite shortly. This provision means that although two people, husband and wife, had been living together in one house up to the very moment of the application, one of them may come to the Court and say, "For three years marital intercourse has been refused. to me, and therefore I ask for divorce." Plainly it may be asked if the other party denies the refusal of intercourse, and denies it on oath, How can you tell which of them is speaking the truth? On the other hand, if the other party admits it, how can you detect or avoid collusion?

The simple fact is that this particular case is incapable of corroboration, and it is for that reason that in many cases the Courts have entirely refused to go into this matter at all. Where people are living in one house, and are husband and wife, intercourse is presumed and, in many cases cannot be denied. It is a very wholesome rule; because if you once go into this matter you never know where you will end. I do not deny what my noble and learned friend in charge of the Bill said that hard cases may occur, but you have to take the course which upon the whole will do the least harm; and I confidently submit to the House and to my noble and learned friend that it is far better that these words should go out of the Bill.

Amendment moved— Page 15, line 14, leave out from ("cause") to the end of line 16.—(Viscount Cave.)


My Lords, I apologise to the House for speaking so often on this matter, but may I put forward a plea to the noble and learned Lord? He will remember that in the absence of the noble and learned Viscount I moved in this matter, and in the course of his discussion lie kindly and generously said that, though he recognised there were difficulties, he would try to bring up at the Report Stage a form of words which he hoped might meet the case. He has fulfilled his promise to bring in the word "persistent," but, in spite of that, I confess I have a very real difficulty as to whether even the words he proposes to insert will meet the danger to which the noble and learned Viscount has called attention. It is simply this. Here, admittedly, is a case where there is no actual desertion. The parties are living together; apparently they are able and willing to do so. Yet they may desire to make another experiment in marriage, and the difficulty which many of us feel in this matter is that it is extremely difficult to prevent them availing themselves of this part of the definition of desertion in order to carry out their desire.

What is the evidence that will be sufficient to prove persistent refusal on the part of persons who are living together and have not actually deserted one another? Is the evidence to be words which have been heard? It is very easy for persons co agree to use certain words in the presence of certain other persons. Is it to be letters? The noble and learned Lord has admitted that at present letters pass between a man and his wife—one asking, the other refusing—and there is very little difficulty in arranging that these letters shall be repeatedly exchanged. It is difficult, I think, to say where you will draw the line and say that the refusal is persistent. How often must such words be repeated and how often must such letters he exchanged before "persistent refusal" is proved?

I submit that if desertion is to be a ground for divorce it should be real desertion; where one party has definitely left the other and where there is a strong evidence of persistent and wilful refusal to return. Those cases in which there has not been actually desertion but in which the persons are able to show some kind of evidence that one has asked, and the other refused, marital intercourse, ought not to be regarded as desertion for the purposes of this Bill. Some of us think that even in straight forward desertion there are great dangers of collusion and we do not wish unduly to increase the risks of such collusion. In spite of the safeguards which Lord Buck-master wishes to introduce it would be, I think, much better to remove at once this very possible cause of just this kind of evil.


My Lords, it is, of course, a difficult thing for a man to establish that there has been wilful and persistent refusal to permit marital intercourse, but that difficulty strengthens the position of the Bill because if the man cannot prove it he cannot get the relief based upon it. It can only be in certain exceptionally well established cases that this need will arise. But the need is a real one. A good deal of the argument about this measure has been associated with the view that the obligation which a man and woman owe to each other to keep true and faithful lies at the very root of the marriage contract; and to such an extent that if a man or woman breaks it and commits adultery, it is admitted that it is a ground for divorce. And why? Because the fundamental obligation has been violated and destroyed. Really if a woman—I am sorry to say these cases generally happen with regard to women—wilfully and persistently refuses to permit her husband to be intimate with her, how can you possibly maintain all the obligations of marriage which we understand really lie at, the root of the marriage contract?

It is said that it is difficult to prove. So it is. But it is difficult also to prove under Clause 7 that the marriage has not been consummated owing to the wilful refusal of the defendant to consummate the marriage. No question arose about that, and indeed there cannot be any question if you are dealing with the matter fairly. If the woman will not allow the marriage to be consummated it ought to be ended. Assuming that the marriage has been consummated and that for years afterwards the woman denies her husband access, what is to be his remedy? Is he to beat her, to rape her; what is he to do? These cases are not isolated mad unusual. We had a case before us at the Privy Council in which for nine years a woman had kept her husband at bay in this matter. She lived in his house, performed his work, but denied him marital intercourse. I want to ask those who support this Amendment what they suggest the man should do in such circumstances. If the titan and woman are forced to live together the result will be cruel ill-treatment, and I say that these cases amount to actual desertion. The only thing that has happened is that the man did not remove his personal presence from the house. It would have been better if he had. I hope your Lordships will maintain the Bill as it is.

On Question, Amendment negatived.

LORD BUCKMASTER moved Amendments in the paragraph defining "desertion," so that the concluding words would read—"… where there has been no actual desertion wilful and persistent refusal to permit marital intercourse shall be treated as equivalent to desertion." The noble and learned Lord said: My Lords, this Amendment is to meet a suggestion made by the most rev. Prelate the Archbishop of York. It is simply to provide that where the desertion has not been actual, in the sense of the man having left her, wilfully and persistent refusal shall be regarded as equivalent to it.

Amendment moved— Page 15, line 14, after the second ("and") insert ("where there has been no actual desertion") and after ("wilful") insert ("and persistent").—(Lord Buckmaster.)

Clause 30:

Saving for rights of clergymen of the Church of England.

(2) If any minister of any church or chapel of the Church of England refuses to publish the banns of marriage of, or to solemnise the marriage of any persons who but fur such refusal would have been entitled to have their banns published or their marriage solemnised in the church or chapel, the minister may permit any other clergyman in holy orders of the Church of England entitled to publish the banns of marriage of, or to officiate within the diocese within which the church or chapel is situate to solemnise the marriage in the church or chapel.


My Lords, the first Amendment is purely drafting.

Amendment moved— Page 18, line 1, leave out ("of").—(Lord Buckmaster.)

LORD BUCKMASTER moved at the end of the Clause to insert "Provided that the marriage of a person who as a defendant has been divorced under the provisions of this Act and whose former husband or wife is still living, shall not be solemnised in any church or chapel of the Church of England."

The noble and learned Lord said: Your Lordships will remember that on the Committee stage an Amendment was proposed to secure that any person who had been divorced under this Bill should not be married in any church or chapel of the Church of England. In the course of that debate I proposed the modification which now stands in my name; but it was not accepted. I certainly make no complaint about that. It is quite likely that those who refused to accept it thought they might get a larger right upon the Division, and they were very nearly right, because I was only able to retain the Bill as it stood by one vote. None the less I am sure the most rev. Prelate will appreciate the fact that, as my proposal was not accepted, it absolved me from the obligation to persist in the proposal which I intended as a compromise. But, indeed, I wish to be quite frank. I had no expectation that the Division was going to be so near. It was put forward for the purpose of meeting the most rev. Prelate, and not for the purpose of avoiding a hostile Division, which I did not dread. In those circumstances it appeared to me not unfair that I should introduce again, upon Report, an Amendment which I say, quite frankly, is not what I should desire myself, but which I had offered when in Committee to the most rev. Prelate.

I do recognise that the Amendment goes a long way, and I only wish to say that my introduction of it must not be misunderstood. If for example in another place, this Amendment is struck out, the fact that it was introduced in my name here to-day must not be taken as pledging me in any way whatever to stand by the Amendment on a future day. It really is not the expression of my own desire. I have put it down in my name for this reason: Knowing as I do that the opinion of both the Archbishop of Canterbury and the Archbishop of York favours a much larger and wider claim, which they put forward as the claim that, according to their views, is one that the Church of England has a right to insist upon, I can understand that they and right reverend Prelates acting with them would feel uneasy about putting forward an Amendment in a limited form, lest it should be thought that it was the true measure and compass of their claim. It was for that reason that I thought it right that, if it were put forward, I should put it forward in my name, in order to avoid the misunderstanding which would arise if it were put forward in their names. But at the same time let there be no misunderstanding since it stands in my name.

Amendment moved— Page 18, line 3, after ("chapel") insert the said proviso.—(Lord Buckmaster.)


Nothing could be fairer than the way in which the noble and learned Lord has met the circumstances, and I accept and thank him for the way in which he has put the matter. Of course, he will be perfectly free to act as he thinks fit on a future occasion.