HL Deb 07 December 1937 vol 107 cc352-60

Order of the Day for the Second Reading read.

LORD ALNESS

My Lords, the Bill to which I respectfully ask the House to give a Second Reading resembles in many particulars the Divorce (Scotland) Bill which I had the honour of sponsoring earlier in the year, but which, most regrettably, through lack of time, did not achieve either discussion or determination in another place. In so far as this Bill is identical with the former Bill I should not be warranted in detaining your Lordships by re-arguing its provisions now, because, thanks to the courtesy of your Lordships' House, I had an opportunity at the earlier stage of very fully presenting the case on behalf of that Bill. I shall therefore restrict my observations this afternoon to recounting quite briefly the differences between this Bill and the former Bill. The differences may, I think, be compendiously and conveniently described as being of the nature of addition, subtraction and modification.

So far as addition is concerned, your Lordships will remember that since the Divorce (Scotland) Bill came before your Lordships' House earlier in the year the Matrimonial Causes Bill, promoted by Mr. Herbert in another place, has passed through both Houses of Parliament and is now inscribed upon the Statute Book. I have ventured to borrow and incorporate in this measure three clauses from the Matrimonial Causes Act, as now is. The first of these relates to the reaction of a decree of separation upon a decree of divorce; the second relates to the grounds upon which a marriage may be annulled: and the third relates to the presumption of death which arises after the disappearance of one of the parties to the marriage for seven years, with a resulting decree of dissolution of the marriage tie.

If your Lordships will bear with me for a moment I will develop quite shortly these three provisions which are in the Matrimonial Causes Act, and which appear in the measure which is now before your Lordships' House for approval. The first of them will be found in Clause 3 of the Bill, which provides that the mere fact that a plaintiff has secured a decree of separation will not disable that plaintiff from subsequently pursuing an action for divorce, and where the decree of separation has proceeded upon the ground of adultery or cruelty, which are the two recognised grounds, then the decree of separation in that former action will excuse the plaintiff in the action for divorce which follows, from proving the offences a second time, if the Court thinks that that is the proper course. The second relates to a different matter; it relates to annulment of marriage. In the Matrimonial Causes Act there are four grounds upon which a marriage may be annulled. The first is that it has failed to be consummated owing to the wilful refusal of one of the parties to the marriage; the second is that at the date of the marriage one of the parties was insane or was a mental defective; the third is that at the date of the marriage one of the parties was suffering from communicable venereal disease; and the fourth is that at the date of the marriage the wife was pregnant to a third person. That is Clause 4 of this Bill. The third provides that, if reasonable grounds exist for the presumption that the other party to the marriage is dead, after disappearance for seven years, the marriage may be dissolved. That is Clause 5 of this Bill. I apprehend that your Lordships would certainly not desire me to-day to discuss or to argue these provisions, inasmuch as they have secured the approval of both Houses of Parliament so very recently, and inasmuch, further, as I can see no ground why the law of Scotland should differ from the law of England in these particulars. So much for additions.

I now come to the second branch—subtraction. Here your Lordships will recall the situation. In the Bill which I had the honour to present earlier in the year several new grounds of divorce were included. Two of them were, respectively, habitual drunkenness and repeated conviction of serious crime or a sentence of penal servitude. As to habitual drunkenness, the position in regard to the Matrimonial Causes Bill, which is now an Act, is that this ground was included in Mr. Herbert's original Bill. He, however, dropped habitual drunkenness as a ground of divorce while the Bill proceeded—I think in another place; at any rate that provision is not to be found in the Act. After very careful consideration, and with a considerable measure of regret, which will be shared by at least one member of your Lordships' House who spoke on the Matrimonial Causes Bill, I have resolved to omit that provision from the present Bill. I do so with the less hesitation inasmuch as there are other remedies which are open to the aggrieved party.

Coming to the second provision which is omitted from this Bill one is in a different region. The provision in the original Bill which was submitted to your Lordships' House was that where a party to the marriage had been convicted repeatedly of serious crime as defined, or was serving a sentence of penal servitude, that should afford a good ground for divorce. So far as the first of these grounds is concerned—repeated conviction of serious crime—it never was included in the Matrimonial Causes Bill, and I frankly admit, as I did on the last occasion, that it was not included in the recommendations of the Royal Commission on Divorce. There was an attempt made to introduce it into the Matrimonial Causes Bill while it was before your Lordships' House, but the attempt failed, the Amendment being negatived without a Division. I think it right and proper to add that this provision about repeated conviction of serious crime caused more controversy and criticism in Scotland and among, if I may say so, members of another place than any other provision in my former Bill. Indeed it was really the spearhead of attack. In these circumstances—again with some reluctance I must own—I have resolved to omit that provision from this Bill, and your Lordships will accordingly no longer find either repeated conviction of serious crime or serving a sentence of penal servitude as a ground of divorce. So much for subtraction.

I now come to modification. That relates to the provisions in the Bill which deal with insanity. Insanity, as I ventured to say on a former occasion, in my humble judgment, involves a more complete frustration of the fundamental purposes of marriage than perhaps any other ground. In the Bill I presented to your Lordships' House on the last occasion it was provided that three years of continuing insanity should be a ground of divorce, and I said that the extension of three years to five would find no opponent in me. In the Matrimonial Causes Act, on the other hand, it is provided that insanity is a ground of divorce after five years persistence and if incurable. I have, as your Lordships will see, introduced the word "incurably" into this Bill, but that is subject to a definition or interpretation which your Lordships will find in Clause 6 (2), which, with your Lordships' permission, I shall read to the House: In any action of divorce on the ground of incurable insanity, the defender shall not be held to be incurably insane, unless it is proved that he is, and has been for a period of five years immediately preceding the raising of the action, under care and treatment as an insane person, and where such care and treatment as aforesaid is proved the defender shall, unless the contrary is shown to the satisfaction of the Court, be presumed to be incurably insane. Your Lordships will see that this clause sets up, not what lawyers term a prœsumptio juris et de jure, but a presumption of fact which may be rebutted by contrary evidence. I hold very strongly that without an interpretation clause of that kind the clause dealing with insanity would be a dead-letter, because it would be very difficult, if not impossible, to get an expert to certify that either party to a marriage is incurably insane. Accordingly, fenced by that safeguard, I commend this clause, as altered, to the approval of your Lordships' House.

I have now covered all the points on which the Bills differ, and I would only say in conclusion that the measure which your Lordships are considering is well within the four corners of the Matrimonial Causes Act. It seeks to assimilate the law of Scotland to the law of England. Inasmuch as, if I may say so without offence, we on the other side of the Border have always been pioneers in the matter of divorce reform, it humbly appears to me that the case for a Second Reading becomes strong if not irresistible. I have honestly tried, your Lordships will believe me, to meet all reasonable objections which have been taken to the Bill as originally drawn, and I hope I have succeeded. The principle of the Bill has been endorsed very recently in both Houses of Parliament. At the Committee stage the Bill will, of course, come up for examination and, if necessary, for revisal. In the meantime I submit it to your Lordships' House, and beg to move.

Moved, That the Bill be now read 2a.—(Lord Alness.)

THE UNDER-SECRETARY OF STATE FOR WAR (LORD STRATHCONA AND MOUNT ROYAL)

My Lords, this Bill, as the noble Lord has just said, would bring the law of Scotland into line with what has now, since the passing of the Matrimonial Causes Act, 1937, become the law of England and Wales. The present Bill was introduced only on Wednesday last, and it has not yet been possible for His Majesty's Government to consider their attitude towards it. I cannot therefore, at this stage, express on behalf of the Government either approval or disapproval of the principles which it embodies. I can only say that the Government will watch very closely the debates on the Bill in this House, and will have due regard to the views which your Lordships express.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, I have no intention of intervening with regard to this Bill. Obviously, after a long consideration of the whole question in this House and in another place, it is fitting that only those who can speak on behalf of Scotland should take part in these proceedings. But I should like to ask the noble and learned Lord who moved the Second Reading whether he has had any communications with regard to the provisions of the Bill from the authorities of the Church of Scotland.

LORD KINNAIRD

My Lords, as the noble Lord who spoke for the Government has just said, this Bill was only circulated on December r, and there has been less than a week in which to consider it. In view of the fact that there has been such a short time before the Second Reading, I hope ample time will be given before the Committee stage to anybody who wishes to raise any Amendment. For the convenience of some of your Lordships who come from Scotland, I hope that that stage will not be until after Christmas. I think that would be a great convenience. Last time the Bill came up I said I hoped the Church of Scotland would have an opportunity of considering the matter, and I know that many Presbyteries have considered it. We should like to have ample time for any Amendments to be brought forward in view of the importance of the measure. Speaking from memory—because one has not had time to get notes from Scotland —I saw a point mentioned by the Society of Writers to the Signet. They considered that it was very important that any new Bill brought in for Scotland should be, as far as possible, the same as the English Act. The noble and learned Lord has assured us that this Bill is within the four corners of the Matrimonial Causes Act, and I am sure that point will be regarded as very satisfactory by the Society of Writers to the Signet. I trust we may have an assurance that plenty of time will be allowed before the Committee stage is taken.

LORD SALTOUN

My Lords, I think I am right in saying that the noble and learned Lord's original Bill on this subject was read for the first time on December 1, 1936, and that this Bill was read for the first time on December 1, 1937. I hope, in view of the extremely lucid and able manner in which the noble and learned Lord has introduced this measure, that this new Bill will have a little more good fortune than the previous one which he introduced. There is one point about this Bill to which I wish to draw the noble and learned Lord's attention in the hope that he may co-operate with me in amending the measure to a certain extent. The clause to which I wish to draw attention is Clause 2. Clause 2 extends to most of the new causes for divorce the penalty as regards the estates of the parties which at present exists in the law of Scotland with respect to adultery.

In Scotland, possibly owing to the persistent efforts of King Edward 1 of England to unify the two countries, the position of women has always been from very early times a very high one. At the present moment, by the ordinary law of Scotland, which cannot be varied by a married woman, a married woman has these rights in the estate of her husband. She has a right, in the event of his death, to one-third of the income from his heritable estate—that is his real estate—and she also has the right under her jus relictœ to one-third of the movable property of her husband, one-third, that is, of all his personalty. She can take the capital away. I know as a matter of fact how damaging that right has been in many cases. I have known great houses in Scotland that are now empty shells because everything movable has been taken away to satisfy a widow's jus relictœ.That is the right of the married women of Scotland, and I am glad to say that, in most cases, no man feels that these rights are excessive. These rights are so sacred that not only can a married woman not vary them, but also, in certain circles—at any rate until recently—it was held to be a kind of reflection upon a widow if she was not named the trustee under her husband's will, although her duties as a trustee might conflict with her rights as a widow. That was the reward that a woman earned for long and faithful companionship.

I venture to think that, for adultery the proposed penalty is rather excessive where a marriage has not persisted for a long time. I remember that in the old days public opinion was not quite so strong. Before the Reformation a daughter of my father's house married a cousin, an Earl of Cawdor, and, while awaiting the dispensation from Rome, the marriage was solemnised and took place, that being as your Lordships know the custom in those days. But it was agreed that if the lady did not get the dispensation from the Holy Father, the Pope, to marry her cousin she should be returned to her family with three hundred marks Scots for her virginity. That shows your Lordships that, in those days at any rate, the penalty on the break up of such a marriage was not considered to be so very excessive. I venture to think that for adultery the imposition of this penalty is more in the nature of a vindictive punishment than a proper punishment. But the situation is even worse, because my information is that there is a certain type of young woman—a very undesirable type in some ways—who makes use of her attractions to marry a young man of property and, having done so, makes his life such a curse to him, such a hell upon earth, that he does anything in order to dissolve the marriage. This is done by the young woman for the set purpose of obtaining these very extensive rights upon the property of the young man so married. If Clause 2 were so amended as to make the second part of it applicable to all the grounds of divorce I think that that kind of attraction would absolutely vanish, because everybody has the greatest confidence in the discretion and ability of our Judges, and I can see no harm in entrusting these settlements to the discretion of the Court. Once that is done, once it ceases to be a part of the law of the land that automatically these extensive rights are obtained by the pursuer, then I think this evil would abate. It is a very serious one and a very wicked one wherever it takes place. I hope the noble and learned Lord whose Bill this is will consider this point and that he will be able to meet it.

LORD ALNESS

My Lords, with your Lordships' permission I shall endeavour to answer the questions which have been put to me. The most reverend Primate asked me whether I had had communication with the Church of Scotland upon the subject of this measure. I can only answer that question by saying that I have had the very great advantage of unofficial communications of an authoritative character with a representative of the Church of Scotland. Moreover, the most reverend Primate knows, I have very little doubt, that that Church on the last occasion of the meeting of its Assembly approved in principle of the Bill which I have the honour to present to your Lordships' House, and appointed a Committee to watch developments. I have seen to it that the Committee have been furnished with ample copies of the present measure, and I have no doubt that their views will be forthcoming before the Committee stage of the Bill is taken. As regards the Committee stage I am in no difficulty in giving the assurance for which my noble friend Lord Kinnaird asked. I certainly do not intend to hurry the Bill through this House, which would be most undesirable. Your Lordships will, of course, remember that you are not dealing with an entirely new measure but with a measure which is identical in many of its provisions with the former one that I had the honour to introduce. That I remember on the one hand. I also venture to recall on the other hand that as time runs out, the chance of this Bill becoming law in another place recedes. Subject to those two considerations, however, I shall certainly see to it that ample time is given before the Committee stage is taken.

With regard to the question put to me by the noble Lord, Lord Saltoun, it is an interesting inquiry which he has suggested. There have been always two schools of thought on the subject, those who thought the old system of the Scottish law, the tierce, the jus relictœ, was best, and those who thought that the question of the adjustment of property might more properly be left to the Courts. But I will ask the noble Lord not to forget that the system which he condemns and criticises has been the law of Scotland for nearly 300 years, and that when the law of divorce for desertion was introduced—in the year 1573, if my memory serves me right—it was then provided that the same consequences should follow on the pronouncement of the decree of divorce as though the defender to the action were dead. At the same time, it is an interesting topic, and I have no difficulty in giving my noble friend the assurance that what is, after all, a Committee point, will be very seriously and carefully considered by me when that occasion arises.

On Question, Bill read 2a, and committed to a Committee of the Whole House.