MARRIAGE (PROHIBITED DEGREES OF RELATIONSHIP) BILL. (Hansard, 7 July 1931)

§ VISCOUNT BERTIE OF THAME
My Lords, in moving the Second Reading of this Bill, the title of which is so cumbersome that one of my correspondents, who is wholeheartedly in favour of it, is misled into calling it the Marriage (Improper Relationship) Bill, and the provisions of which are so complicated that I shall have to go into them at some length later on, I feel I must first detain your Lordships for a few minutes in order to give you the sequence of events which led up to it. You will doubtless remember that after a great deal of controversy an Act was passed, in 1907, authorising a marriage between a man and the sister of his deceased wife. Then, after a good deal more controversy, in 1921 another Act was passed allowing a woman to marry the brother of her deceased husband. These Acts have left a somewhat anomalous position, inasmuch as although a man may marry his dead wife's sister he cannot marry the sister's daughter. In the same way, although a woman can marry her deceased husband's brother, nevertheless she is debarred from marrying the brother's son. It is in order to remove these amongst other anomalies that this Bill is now before this House.
With regard to the history of similar measures, Bills having the same object have been before the House of Commons every Session for the last six years. In 1926 a Bill received a Second Reading in another place without a Division, and again in 1927, but owing to its always having been in charge of private members it only once passed its Third Reading in time to reach this House. That was in 1928. On that occasion the Bill had a most chequered and peculiar career in this House. It received its Second Reading without a Division, and it was not until the Committee stage was reached that the guns of its opponents were unmasked. The noble Viscount, Lord Ullswater, had a series of Amendments on the Paper, of which he had given Notice, but he had not given notice of another Amendment, which he moved—namely, that the House, instead of resolving itself forthwith into Committee, 629 should postpone the Committee stage for six months. That amounted really to a rejection of the Bill.
A series of Second Reading speeches ensued. By the time that a Division was taken it was late in the evening, and when the figures were announced it was found that fourteen Peers had voted Content and fourteen Not-Content. That being so the Lord Chancellor declared under Standing Order XXXIII that the question was undecided, and the debate had to be adjourned to the next day. On the following day the debate was continued, but instead of going to a Division again Lord Ullswater ran away and. his Motion was negatived without a Division. The Bill was not amended in Committee, and so when the Third Reading stage was reached the Bill was in exactly the same form, word for word, as it was when it passed its Second Reading without a Division. The late Archbishop Davidson, however, had down a Motion for its rejection. Again there was a series of Second Reading speeches, but on the plea that another six months consideration should be given to the matter—which in point of fact turned out to be six times as long, because it is three years ago—the Bill was killed on Third Reading by twenty-six votes to twenty-five, a majority of one.
Since then there has been ample time for opposition to have been organised in the constituencies, had there been any vital objection to the proposals in the Bill; but the very fact that it has had an easy passage in another place shows that no real ground of opposition exists. It was recently suggested in debate in this House that when all Parties in another place are in accord upon certain proposals, that amounts to a representation of the will of the people, and therefore your Lordships would be amply justified in assenting to any such agreed measure. I submit that this is a good case in point. For this is by no means a Party matter, similar Bills having been introduced into another place in 1926 and 1927 by Sir Arthur Shirley-Benn, in 1928, and in the case of the present Bill by the Rev. James Barr, and I believe in 1922, by Mr. Rendall, a Liberal M.P.
The Bill has of necessity been drawn in somewhat complicated phraseology, but for the benefit of those of your Lordships 630 who have not yet had time to work out the various relationships in every-day English, I beg to inform you that cases 1, 2, 7 and 8 allow a man to marry his various classes of niece by marriage, and cases 3, 4, 5 and 6 allow him to marry his various classes of aunt by marriage. It therefore follows that if you turn cases 1, 2, 7 and 8 round you will find that a woman may marry her uncle by marriage, and in cases 3, 4, 5 and 6 a woman is enabled to marry her nephew by marriage. There is, therefore, no question of blood relationship, but merely that of affinity. As in the 1907 and 1921 Acts, so also in this Bill the provisions are retrospective. The clergy who have scruples about marrying persons in affinity are amply protected. The discipline of the Church is maintained; in fact, the clergy will not be required to do anything which they think they ought not to do.
Before I resume my seat, there is one point to which I desire to draw your Lordships' attention. The wording of the proviso in Clause 2 is not in the same form as it was in the Bill of 1928, nor is it as it was introduced in another place. For this reason, that when it was in Committee in another place, the spokesman of the Home Office moved an Amendment to alter the wording. In the opinion of the Home Office it was a purely drafting Amendment, but, owing to the complexity of the matter dealt with, it is not very easy to explain. The point arose in this way. Subsection (1) of Section 184 of the Supreme Court of Judicature (Consolidation) Act, 1925, is as follows: As soon as any decree for divorce is made absolute, either of the parties to the marriage may if there is no right of appeal against the decree absolute, marry again as if the prior marriage had been dissolved by death or, if there is such a right of appeal, may so marry again, if no appeal is presented against the decree, as soon as the time for appealing has expired, or, if an appeal is so presented, as soon as the appeal has been dismissed: Provided that it shall not be lawful for a man to marry the sister or half-sister of his divorced wife or of his wife by whom he has been divorced during the lifetime of the wife, or the divorced wife of his brother or half-brother or the wife of his brother or half-brother who has divorced his brother during the lifetime of the brother or half-brother. The necessity for the proviso arose by reason of the fact that the subsection to 631 which it is appended (consolidating the old law) enables divorced persons to marry again, "as if the prior marriage had been dissolved by death."
Without the proviso it might have been argued that, inasmuch as persons are entitled to marry as if the marriage had been dissolved by death, a man might under the Deceased Wife's Sister's Marriage Act be entitled to marry his divorced wife's sister, and, similarly, that under the Deceased Brother's Widow's Marriage Act, 1921, a man might be entitled to marry his divorced brother's divorcee. It was in order to prevent this that the proviso was inserted in the Act of 1925, but that proviso naturally dealt only with the two Prohibited Degrees of Relationship Acts which were then in force. It has been recognised that this proviso must be extended to fit the extended class of marriages which will be permitted under Clause 1 of the Bill, and it is with this intention that Clause 2 was inserted in the Bill. While the proviso suggested by Clause 2 as it originally stood intended to do no more than adapt the existing law without substantive alteration, it did, as drawn, go a great deal further than the existing law, and a good deal further than was intended.
The effect of the proviso as it was originally drawn is most easily shown by illustration. For instance, assume that A's wife's sister has been divorced. A's wife dies. Under the existing law, A is permitted to marry his deceased wife's sister, notwithstanding that her divorced husband is still alive, but, under the proviso as it stood, he would not have been entitled to do so. Again, assume that A has been divorced. Upon the decease of his brother, he would be entitled under the existing law to marry his deceased brother's widow, but, under the proviso as originally drawn, he would not have been entitled to do that. The proviso at present enacted in Section 184 of the Supreme Court of Judicature (Consolidation) Act, 1925, is drafted in a form which enumerates the cases dealt with by the two existing Acts, which, complicated as the matter is, was probably the most intelligible way of putting the matter at that time, but if the Bill passes eight further "prohibited degrees" will cease to be prohibited, and 632 to attempt to continue this method would involve a perfectly unintelligible tangle. All that the proviso, as amended, does is to put into general terms the effect of the existing proviso to Section 184 of the Act of 1925 in such a way that it will operate in respect of the "prohibited degrees" in exactly the same way as it operates in respect of the existing ones.
I may mention that, although the Government of the day has never officially supported similar Bills, yet the spokesman of the Home Office has frequently taken a kindly interest in them, as is evidenced by remarks made by Mr. Hacking in 1927 in another place, by my noble friend Lord Desborough in 1928, and by Mr. Adamson on the present Bill. It has been suggested that there are not many people likely to be affected by the provisions of this Bill, and that, therefore, it need not be passed. Is that any reason—because there are only a few people who ask for a little happiness and justice? I venture to think not. For my part, if your Lordships are good enough to place this Bill on the Statute Book, then, if only a few people are made happy, instead of remaining with a sense of injustice in their hearts, I shall, indeed, consider it to have been a privilege to have been in charge of the Bill. I beg to move.

THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I dislike this Bill. I think it makes a further departure from a sound and wholesome principle, and I see no signs of any real demand for it. The noble Viscount seemed to imply that, because there was little opposition to it in another place, it could be regarded as representing the will of the people. I do not think the people care anything about it. I do not think they have given it any attention, and I see no kind of trace of any general demand for it. For long centuries the principle was established that the relations of one of the partners of a marriage, whether by affinity or consanguinity, should be regarded as the relations of the other. It was a clear principle, a consistent principle, and it relieved the whole family life, which the 633 husband and the wife share, from the embarrassment which would arise if it were possible that a relation of the husband or the wife might conceivably, if circumstances occurred, become a possible husband or wife of the other.
But into this clear principle Parliament drove a wedge in 1907 when it passed the Deceased Wife's Sister's Marriage Act. Assurances were then given in abundance that there was no contemplation, or indeed probability, of any further extension being made. Such assurances, of course, were vain. The breach, once made, was bound to be widened. Consequently, there came the Deceased Husband's Brother's Marriage Bill and now this Bill which proposes to legalise marriages within the remaining degrees of collateral affinity. It has not even the excuse of the two former Bills, and it cannot be alleged that there is any plea for the consideration of the special cases of men or women who may be left with children in their homes and who would naturally look to their deceased wife's sister or deceased husband's brother for help and guardianship. Therefore, as I say, it is a Bill which I intensely dislike. Yet, since Parliament, in its wisdom or unwisdom, departed from the long governing principle in these matters it seems to me futile to go on contesting the extension of what Parliament then did to its logical and legitimate consequences.
Moreover, there are some proposals in the present Bill that are less objectionable than those of the Acts which have already been passed. For example, if a man may marry his deceased wife's sister it seems rather absurd that he may not marry his deceased wife's sister's niece who is further in relationship from himself. I do not forget that the last time a similar Bill was before your Lordships' House my revered predecessor, Archbishop Davidson, moved its rejection and did so in what was his last speech in your Lordships' House as Archbishop of Canterbury. He carried its rejection, as you have been reminded, by only one vote and the main plea which he urged against its introduction was that it had been thrust into the hurry and confusion of the very end of the Session. These objections do not apply in like measure to the present case. Therefore, I confess with very great reluctance and a good deal of hesitation, I have refrained from 634 putting down any Motion that this Bill should be rejected.
It has one satisfactory feature; that is, as I understand it, that the liberty of the clergy guaranteed by the former principal Act has been retained and that the clergy are under no requirement whatsoever either to perform marriages between persons named in this Bill or to lend their Churches to anyone else to perform them—a liberty much greater and, in my judgment, much more just than is accorded to them in regard to the marriage of divorced persons. At the same time your Lordships will recognise that this Bill constitutes a still wider divergence between the principles of the Church and the law of the State—a problem which sooner or later must be faced and which is one of extreme gravity and difficulty. I can only trust that when it is fully and with full responsibility brought before Parliament, Parliament will treat it in a wise and considerate manner.
It is, perhaps, needless to add, yet I think it necessary to say it clearly and to put it on record, that nothing that is contained in these Acts from the one of 1907 to this present Bill of 1931 can be deemed in any respect to change the teaching and discipline of the Church of England as that teaching and discipline were before the principal Act was passed. It is competent for Parliament to give protection and enforcement or its own sanction to that teaching and discipline, but they themselves remain and always will remain outside the sphere of Parliamentary enactment. I have not concealed my dislike or this Bill, as I think it moves still further away from sound and consistent principle governing the home life of the country, but Parliament has broken that principle and I think it must abide the consequences.

§ LORD MERRIVALE
My Lords, when this measure was before your Lordships' House three years ago did what I could and said what I could with a view to preventing its becoming an Act of Parliament. I have not changed my own personal views on that subject in the least. If I may respectfully say so, I agree with all that the most reverend Primate said in respect of the unhappy effects of a measure of this kind upon family life in this country. It diminishes 635 the area of the family circle, which is an unfortunate thing. It provides the logical sequel to two, as I thought, misguided measures of past times which have at any rate this to be said in their favour, that as to marriage with a deceased wife's sister, there was a strong body of public opinion founded upon intelligible and, perhaps, one might call them very generally recognisable reasons. To my mind there is no such body of opinion behind this proposal although it is the logical sequel to the two Acts to which the most reverend Primate referred.
This measure after three years of consideration is again presented here. There are people, as one knows from one's own correspondence, who press, in the name of logic and reason, to be admitted to liberties to which others have been admitted by previous legislation and, although I dislike this Bill as much as I disliked the earlier Bills, I do not propose to take the responsibility of moving against the Motion for Second Reading.

§ LORD PONSONBY OF SHULBREDE
My Lords, there is no need for me to delay the Second Reading of this Bill by making a speech. I only rise on behalf of the Government to say that they desire to raise no opposition whatever to the Second Reading. The noble Viscount has explained very fully the history of this measure and the ups and downs during the last years through which various Bills have passed. He is more fortunate to-day. The weighty pronouncement we have heard from the most rev. Primate fortunately is not in opposition to the noble Viscount's Motion. As the most rev. Primate said, a breach had been made in what were regarded as the prohibited degrees by the Act of 1907, and I cannot help thinking that what has happened since then is but a logical sequence, and that the measure we are considering to-day is complementary to previous legislation. I therefore rise only to say that His Majesty's Government will support the Second Reading of this Bill.

§ VISCOUNT BERTIE OF THAME
My Lords, there is only one word I should like to say. I am sure that the most rev. Primate will have earned the undying gratitude of the people affected by the really broad position, if I might use that term, which he has taken to-day.