§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Eltisley.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair].
§ Clause 1:
§ No divorce within five years of marriage.
§ 1. No petition for divorce shall be presented to the High Court unless at the date of the presentation of the petition five years have passed since the date of the marriage:
§ Provided that nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which have occurred before the expiration of that period.
§ LORD SALTOUN moved, at the beginning of the clause, to insert "Except as otherwise expressly provided in this Act." The noble Lord said: This Amendment is necessary to make room for the Amendment standing in my name to Clause 2, page 2, line 16, to which I beg to draw your Lordships' attention. The Second Reading of this Bill indicated that your Lordships were prepared to discuss the extension of the grounds for divorce, and it remains for us to-day to consider what those grounds should be, in the interests of the nation as a whole and in the interests of private persons. The interests of private persons seem to me to be more carefully considered in the Bill than those of the State or of the nation. On this side the sanctity of marriage and of the home are of immense importance in providing for the continuity of the race and in giving the best means of providing the necessary protection for the development of the young. I think that if I can show a case where a divorce is in the public interest, I am on much stronger ground than in merely asking relief for a private injury.
§ My Amendment to Clause 2 seeks to enact that if one spouse, against the will of the other, refuses to permit the conception or birth of a child without good reason, this shall be a ground for divorce without delay. The divorce must not be unduly delayed, since the prolonged use of contraceptives induces sterility. Now the State and the race have a distinct interest in the passage of this Amendment. The Divorce Commission's Report preceded the enormous advance and 70 popularity of contraceptives; a popularity which plays some part in the diminution of population with which we are threatened. We are told that even a slight fall in population threatens us with serious economic and industrial evils, so that from this point of view alone the State and the nation have a clear interest in the passage of the Amendment. Even should the Amendment prove a little difficult to work in practice, which I do not anticipate, its presence in the Bill will go a long way to prevent the commission of the crime it is intended to remedy. For it is a crime indeed, and no small one. It is a crime against the race, as well as against the person. Moreover, the crime is a new one for which rip provision is made in our present religious and social marital code.
§ A man is in a terrible position who has married a wife, and who after the marriage is told by her that she does not intend to have children. If he manages to evade her prohibition, she takes means, which are open to all women, to prevent the child going its time. What resources has such a man, the very purpose of the institution of marriage being thus defeated? He may have recourse to a cruelty from which his soul revolts, and I must say in such a case there would seem to be justification for cruelty. It might be effective, and I think a man in that position would be justified in taking very strong measures. But perhaps the most important side of the Amendment is as a protection to women. A woman has not even the meagre resources that a man has. Our divorce proceedings show an increasing number of cases where a man marries a girl, and then tells her that he intends to prevent the birth of children by contraceptives, and this in spite of her protest. To my mind it is a crime and far worse than adultery. It is a hideous wrong to the woman. In many laws; I believe in Mahomedan law—certainly in the old Roman law—provision was made that wives should have regular opportunities for the conception of children. It will, I feel, be a blot upon our nation, our religion, and a disaster to the race, if this remain one of the few countries where a woman can be married and then, against her will, be kept as a mistress and not as a wife. I beg to move.71
Page line 12, at the beginning insert ("Except as otherwise expressly provided in this Act").—(Lord Saltoun.)
§ LORD ELTISLEY
I must respectfully ask the supporters of the Bill to reject this Amendment. In the first place there is no recommendation in the Report of the Royal Commission which supports an Amendment of this character, and I submit that it is obviously inadvisable, if not dangerous, to endeavour to introduce a new ground of divorce without support being given by a Report of this importance. Moreover, if I may venture to criticise the Amendment itself, owing to its actual terms there is no definition of what is to be called "reasonable cause" for the use of contraceptives. I will ask the House, therefore, to reject the Amendment.
§ On Question, Amendment negatived.
§ VISCOUNT BERTIE OF THAME moved to leave out "petition for divorce shall be presented to" and insert "decree nisi of divorce shall be pronounced absolute by." The noble Viscount said: At first sight it might be thought that I am in favour of Clause 1. I am not, and I intend, should my noble friend Lord Redesdale go to a Division on his Amendment to leave out the clause, to vote with him. But we must visualise this clause with some form of limitation—some time limit. In a letter in The Times this morning Sir Reginald Poole, a well-known solicitor, says that adultery frequently happens soon after marriage, and therefore it is most important to have witnesses. If there is any time limit the witnesses may be dead by the time the petition is presented; they may have gone abroad, or they may not be traceable. I may be told: "Oh, yes, but you have your remedy; you can get a judicial separation." That may be true, but you then have three sets of costs, because you first have your judicial separation, then you go to the Court for the divorce on which a decree nisi is allowed, and then you have to get that decree made absolute. That makes three sets of costs against two.72
Page 1, line 12, leave out from ("No") to ("the") and insert ("decree nisi of divorce shall be pronounced absolute by").—(Viscount Bertie of Thame.)
§ LORD ELTISLEY
I must ask your Lordships to resist this Amendment. The purpose of Clause 1 is to forbid divorce in the first five years after marriage. It provides in the difficult early years of marriage a period of waiting during which the spouses have time to reconsider their differences and an opportunity of coming together again. The object is therefore to discourage as far as may be the lighthearted assumption of the obligations of marriage in the knowledge, which is at present possessed by the respective spouses, that they may, with or without collusion, discard these obligations at any time. If this Amendment were carried the purpose of the clause would be defeated; the spouses would be able at any time to sue for divorce. A decree nisi having been granted, the spouses might then be left in a position in which the chances of reconciliation were indeed very remote, and at the same time remarriage would be impossible.
§ THE MARQUESS OF SALISBURY
I do not desire to contest the view which my noble friend has just uttered as to the proper fate of this Amendment, but I think I might take this opportunity of asking him a question. My noble friend Lord Bertie speaks of a decree nisi. I had assumed from reading the Bill that if the Bill passes in anything like its present form decrees nisi are going to disappear. I should be very glad if the noble Lord who sits beside my noble friend (the Earl of Drogheda) would put us right.
THE EARL OF DROGHEDA
I can assure the noble Marquess that there is no intention to do away with the decree nisi. That was originally in the Bill, but in another place the suggestion that the decree nisi should be done away with was defeated and the position remains as under the present law.
§ On Question, Whether the words proposed to be left out shall stand part of the clause?
§ Their Lordships divided:—Contents, 87; Not-Contents, 12.73
|Halifax, V. (L. President.)||Plumer, V.||Gorell, L. [Teller.]|
|Ridley, V.||Greville, L.|
|De La Warr, E. (L. Privy Seal.)||Samuel, V.||Hardinge of Penshurst, L.|
|Hay, L. (E. Kinnoull.)|
|Birmingham, L. Bp.||Hindlip, L.|
|Ailesbury, M.||Illingworth, L.|
|Reading, M.||Addington, L.||Jessel, L.|
|Salisbury, M.||Addison, L.||Joicey, L.|
|Ailwyn, L.||Kilmaine, L.|
|Ancaster, E.||Allen of Hurtwood, L.||Kilmarnock, L. (E. Erroll.)|
|Cavan, E.||Arnold, L.||Latymer, L.|
|Drogheda, E.||Askwith, L.||Mamhead, L.|
|Halsbury, E.||Atkin, L.||Middleton, L.|
|Lucan, E.||Bingley, L.||Monkswell, L.|
|Macclesfield, E.||Blythswood, L.||Palmer, L.|
|Midleton, E.||Boston, L.||Ponsonby of Shulbrede, L.|
|Mount Edgcumbe, E.||Brocket, L.||Rea, L.|
|Onslow, E.||Carrington, L.||Rennell, L.|
|Poulett, E.||Cautley, L.||Rhayader, L.|
|Sandwich, E.||Chalmers, L.||Roche, L.|
|Selborne, E.||Charnwood, L||Russell of Liverpool, L.|
|Strafford, E.||Cromwell, L.||Ruthven of Gowrie, L.|
|Darcy (de Knayth), L.||St. Just, L.|
|Astor, V.||de Clifford, L.||St. Levan, L.|
|Buckmaster, V.||Doverdale, L.||Sandhurst, L.|
|Cecil of Chelwood, V.||Dunleath, L.||Shute, L. (V. Barrington.)|
|Esher, V.||Eltisley, L. [Teller.]||Snell, L.|
|Greenwood, V.||Elton, L.||Stanmore, L.|
|Hambleden, V.||Fairhaven, L.||Templemore, L.|
|Long, V.||Fermanagh, L. (E. Erne.)||Vernon, L.|
|Mersey, V.||Gage, L. (V. Gage.)||Vivian, L.|
|Cranbrook, E.||Aberconway, L.||Lawrence, L.|
|Wicklow, E.||Chatfield, L.||Milne, L.|
|Clanwilliam, L. (E. Clanwilliam.) [Teller.]||Oriel, L. (V. Massereene.)|
|Bertie of Thame, V. [Teller.]||Phillimore, L.|
|Heneage, L.||Teynham, L.|
§ Resolved in the affirmative and Amendment disagreed to accordingly.
§ VISCOUNT BERTIE OF THAME
On a point of order. I understand that several noble Lords, owing to the way the Question has to be put, made a mistake and instead of—
§ VISCOUNT BERTIE OF THAME
I understand that if any noble Lord will go to the Bar of the House and say he has voted wrongly his vote will count.
THE LORD CHAIRMAN
No noble Lord has yet said he voted in the wrong Lobby. I will read the Standing Order:When, on the Question being put, a Division is called for, the Lord on the Woolsack, or in the Chair, shall order strangers to withdraw, and thereupon the House and Inc side Lobbies shall be cleared of strangers, but not the galleries and the space within the rails of the Throne, unless the House shall so order.74As soon as the order has been given for strangers to withdraw, the Clerk at the Table shall turn a two-minute sand glass…and so on, and later it goes on to say,—which is the point in question—If any Lord shall have by mistake gone out with the Contents or Not-Contents (as the case may be), having intended to vote on the other side, he shall wait until the other Lords in the same Lobby shall have passed out, and on presenting himself to the Tellers desire that he may not be counted by them, he having entered that Lobby by mistake; and the Tellers shall thereupon come with such Lord to the Table, and inform the House of the circumstance, and shall ask the said Lord whether he was in the House when the Question was put, and if he shall reply in the affirmative, whether he desires to vote Content or Not-Content on such question, and the vote of the said Lord as then declared by him shall be taken by the Tellers in the House, and recorded by them accordingly.
§ THE EARL OF CLANWILLIAM
It is perfectly obvious that a large number of noble Lords voted the wrong way. If any noble Lord knows he voted the wrong way I think it is only right that he should stand up and say so.
§ LORD PONSONBY OF SHULBREDE
Before the next Amendment is moved, may I ask the noble Lord in charge of the Bill whether he does not think it would be to the general convenience of your Lordships if instead of taking these Amendments, which are very important, separately, we had a general discussion on the period suggested, so that the noble Lord at the end of that discussion might intimate to us which of the Amendments he is prepared to accept?
§ LORD ELTISLEY
I beg your Lordships' pardon. It would certainly be for the general convenience of my noble friends who are supporting the Bill if we had a wide discussion because that would enable us to dispose of all the Amendments with the minimum number of Divisions.
§ THE MARQUESS OF SALISBURY
May I say that, although I share with the noble Lord opposite a wish that there might be a general discussion on the next Amendment, the Amendments must be put separately and decided separately?
§ LORD JESSEL
In the absence of my noble and learned friend Lord Maugham, whom I had very much hoped would have been here to move this Amendment, I would ask leave to move it at a moment's notice. It is to substitute "three years" for "five years." I am in sympathy with the Amendment, which strikes at the root of Clause 1. It does seem to me that this is only following other precedents in the Bill. For example, in the case of desertion, a period of three years is mentioned. Many of us who are interested in this Bill think five years is too long. Many other noble Lords think the clause ought to be abolished altogether and that you should have no time limit at all. That may be so, but we must recognise that there is a very strong feeling, not only in this House but in the other House, in favour of a time limit, a certain period 76 of probation for marriage. It seems to me, therefore, that it Would be a wise compromise if your Lordships accepted the period of three years. I do not think I need say any more, except to point out that I understand there is no chance of this Bill passing in another place if the time limit is altogether removed. Therefore, though personally I do not so much care about it, I think it is very reasonable that the period of five years should be amended to three years. I am afraid I have not put the matter as well as the noble and learned Lord, Lord Maugham, would have put it—he would have given your Lordships very much better reasons than I can—but I have put before your Lordships those considerations that have occurred to me and I hope that you will accept this Amendment.
Page 1, line 14, leave out ("five") and insert ("three").—(Lord Jessel.)
§ LORD ELTISLEY
This is the first time in the history of our legislation that it has been proposed to impose a waiting period before divorce proceedings can be instituted. Admittedly this introduces a highly important change in our Laws. It says that for four years no one will be able even to entertain the idea of divorce because no question of a divorce can arise for four years. This keeps the idea out of people's minds. Possibly it is a very advantageous thing to know that in no circumstances during those first few critical years of marriage can they possibly obtain a divorce. Those who support the clause generally feel that it will produce a tendency, which some see, of trial or companionate marriage, of which we hear a good deal in other countries. It is a clause which deals with and regulates marriage and it will tend to make young people stop and think.
Clause 1, in the form of legislation, symbolises and emphasises that the State desires that marriage should be, above all, a permanent institution. It tends to discourage rash and frivolous marriages and those cases, which we see sometimes reported, that generally speaking, bring the great institution of marriage into dispute. We think that a provision of this kind will save a great many marriages. After all, a vast majority of people who do marry have every intention of settling down. I think there can be no doubt that they have no other thought in their minds than 77 that of a happy and united life together for the whole of their lives. For these reasons those who support the Bill think that there should be a waiting period. On the other hand, we have very carefully considered this obviously difficult question, and recognise that it is not easy to make up one's mind and lay down a precise period of months or years as a waiting period. It is difficult to decide precisely, in terms of time, what that waiting period ought to be. There will be differences of view on that subject, and some will differ very considerably in regard to it. It is a way out to reduce that period of five years to three years, as is suggested, and at the same time give a discretionary power to the Court in urgent and exceptional cases to grant permission to institute proceedings for divorce. That is the suggestion I venture to lay before the Committee.
§ VISCOUNT CECIL OF CHELWOOD
I do not know if I might ask my noble friend whether that means that, so far as he is concerned, he would be prepared to accept the two Amendments standing in the name of Lord Maugham.
§ VISCOUNT BUCKMASTER
I am not sure if I am correct in my procedure, but my original intention was to move an Amendment to the Amendment standing in the name of the noble and learned Lord, Lord Maugham, proposing that the word "two" be substituted for the word "three." I am indeed reluctant to oppose any Amendment put forward by the noble and learned Lord, Lord Maugham, but I feel that in placing the period at three years he has chosen too long a time. This matter in my view can only properly be assessed if one bears in mind the fact that after this period has expired there must be a further period during which divorce is sought. This amounts to something like twelve months, so that in fact your five years became six years and your three years become four.
It is true that there is a subsequent Amendment proposing that discretion be given to the Court, but your Lordships will appreciate that such an Amendment provides for the discretion to be exercised by the Court in cases of extreme hardship. I see little reason why cases of hardship which are not extreme should have the legal right to divorce, which they now enjoy, arbitrarily suspended for so 78 long a time as three years. I myself am absolutely opposed to any such period. I would prefer to see the deletion of Clause 1. On the other hand, I am most anxious in no way to impair or impede the progress of this Bill. I think all matters should be approached as far as possible in a spirit of compromise, and for reasons which, very briefly, I will put before your Lordships, I suggest that two years is the very maximum period that should be established.
I can give my further reasons with great brevity. One point which I do not think has received adequate attention is the question of evidence. Let us assume that a couple seek divorce: how are they to preserve their evidence during this probationary period during which divorce is suspended? The normal procedure—noble and learned Lords who are better versed in this matter will correct me if I am wrong—is that on the institution of proceedings a subpoena is served on witnesses instructing them to notify any change of address. Well, when proceedings cannot be instituted how can you subpoena your witnesses? How are you to keep them? Where are they to be supposing the evidence has to come from abroad? I suggest that you will inflict the greatest hardship on people by having this long period of waiting. I do not want to overstate my case or to weaken it by overemphasis. I feel that some period is probably wise in the best interests of the Bill, but I do say that it should be as short a one as possible.
One last reason that I would put forward is this. The period during which divorce may not be instituted is an antisocial period. When people have reached the point that they have definitely decided to institute divorce proceedings the likelihood of their having children ceases to exist. It will be a barren, sterile period for those who are to seek divorce, and as such it will be contrary to the best interests of the State. I therefore ask your Lordships to fix the period as low as possible, and I suggest a term of two years.
THE EARL OF DROGHEDA
I support the Amendment which stands in the name of the noble and learned Lord, Lord Maugham. I think that Clause is a really vital part of the Bill, and that to reduce the period from five years to two years would be taking away too 79 much from the principle of the clause which was passed in another place. In my opinion three years is reasonable. I hope that that period is the one that your Lordships will accept.
LORD DARCY (DE KNAYTH)
I think I have some connection with those who have dealt with this matter in another place, and I rather gather that they, at least, regarded this five years period as the raft on which this Bill has been floated through the Parliamentary rapids. When the clause came up to this House it was attacked by my noble and learned friend Lord Atkin in a speech which was very short but utterly conclusive. He pointed out the impossibility that it should work in the absence of some Amendment giving discretion. I do not think he actually spoke in favour of giving discretion, but it was quite clear from what he said that it could not work unless there was this discretion. I venture to think that if we put in a proviso about discretion we shall not sabotage the Bill, but we shall save a provision which is regarded as very important by people elsewhere.
It seems to me that we must look at the Amendment in conjunction with other Amendments standing in the name of the noble and learned Lord, Lord Maugham. On the Second Reading of this Bill he made a speech of extreme lucidity explaining the position, and he said that only a limited number of petitions would come under the five-year limitation. Then he used these words:If it is limited to three years, only 4 per cent. or thereabouts of the petitions which are now presented will be hit by the clause. If, in addition to that, you give the Court discretion, which I think your Lordships are very likely to do, the number of people who will be affected by Clause 1 is very small.That comes very near saying that you will make the clause inoperative. I think that when we are considering whether this protection, to which many people attach so much importance, is to be included or not, it is very desirable that a decision should be come to on the broad issue.
§ LORD MOYNE
It is rather unfortunate that this question is raised first as a part and then as a whole. Many of us are entirely opposed to the clause in any form, and I take it that we shall reserve our arguments against the clause as a 80 whole until this Amendment has been disposed of. Personally, I propose to vote for the Amendment as a limitation of what I regard as a most dangerous clause, but if this Amendment is carried I hope that noble Lords who agree with the noble Lord, Lord Redesdale, will not take this Amendment as a satisfactory settlement but will go further and try to get the whole clause omitted when the time comes.
From the last two speeches to which we have listened it is fairly obvious that there is a great difference of opinion conscientiously held on this vital clause. We have the clause ardently recommended by those who are in reality opposed to the granting of any divorce at all, and we have those who wish full extension of the grounds of divorce desirous of taking out this clause. In all the circumstances it seems reasonable that those who desire this Bill to pass into law should not be swayed to either extreme. I would venture very earnestly to hope that your Lordships will accept the Amendments which stand in the name of the noble and learned Lord, Lord Maugham. I cannot help feeling, after listening, I think, to every word of the debate on Second Reading, that many of your Lordships must have been very greatly impressed by the speeches—notably that of the noble and learned Lord, Lord Atkin—dwelling upon instances of hardships that there might be if no form of discretion whatever is granted. We have now heard from the noble Lord in charge of the Bill a statement that he and those who work with him are hopeful that your Lordships will accept this middle period of three years coupled with a discretion to meet the very hard cases. I hope your Lordships will bear in mind that there are many who regard this clause in some form or other as absolutely vital to their support. If it is omitted altogether those who desire many of the great reforms in the Bill must be conscious that they will be grievously imperilled. Therefore I venture to hope that your Lordships may see your way to accept the two Amendments which stand in the name of the noble and learned Lord.
§ LORD MAUGHAM
I must apologise for not being here to move the Amendment standing in my name, but there was a slight mistake on my part as to the hour 81 at which the House would meet. I quite agree with the noble Lord who observed that everybody's right to vote for the more drastic Amendment to leave out Clause 1 ought not to be prejudiced by the view they take of the Amendment which stands in my name. But I would venture to think that when we come to consider the omission of the clause we shall have to take into serious consideration the views held on the matte7 in another place. There are many of us who may think that it is better to pass Clause 1 in an amended form rather than wholly disregard the views of many people in another place who are in favour of this period during which there would not be a positive right to present a petition for divorce. In considering the shortening of the period it: is desirable to bear in mind the fact that, even if the period is reduced to three years instead of five, we shall be imposing a considerable period of delay before the final step is taken in the normal case. In substance, the period of three years will mean that the innocent party will not get a divorce for four years, inasmuch as you must add to the three years a period of six months before m the normal way the ease will come on for hearing and a further period of six months before the decree can become absolute in the normal case. Really the Amendment would not result in a very short period during which the spouse who has been innocent has time for consideration.
Another point I would ask your Lordships to bear in mind is one which has been mentioned already. There are not a great number of petitions presented very early after marriage. The good sense of people in this country leads them to suppose that in the early years there may be matrimonial difficulties which can be got over in time. The figures, for which I am indebted to the noble Earl, Lord Drogheda, show that the first five years only account for some 14½ per cent. of the total number of petitions for divorce at the present time. If you reduce the period to three years you will reduce the number of petitions to about 4 per cent. One noble Lord has asked whether it is worth while to preserve the period of time at all in those circumstances. For my part I think it is. There would then be the position that people who enter the married state will know that during three years they will not in the normal case 82 have a right to present a petition at all, and that may be of use.
But whether that view is quite correct or not, I think your Lordships have to take into consideration the fact that a great many members in another place—the majority—were in favour of there being some such period during which divorce petitions should not be presented. I think that view, founded as it is on the opinion that a great many people enter lightly into the bonds of matrimony, must be mistaken, but we have to take into consideration that widely-held view. Another reason for limiting the period is that, assuming that such a view exists, we ought not unduly to take away existing rights which have now for a very long time enabled married people to present a petition for divorce on the ground of adultery. In depriving people of existing rights it is worth considering that they ought to be deprived as little as possible in the interest of some theory about the circumstances in which people enter into the married state.
That relates to the period. If I may say a word on the question of discretion I would point out that it was suggested in a great number of speeches in the lower House that discretion ought to be inserted in the Bill. A number of persons thought that such a clause would be put into the Bill in this House. Although the Amendment that stands in my name has been the subject of much consideration and has had the assistance of many able people who are concerned with the actual practice of divorce and with the discharge of judicial duties in relation to matrimonial cases, yet I am not in any way wedded to its precise words, and it may be that on the Report stage somebody will be able to suggest a better Amendment carrying out the substance of what is desired. The substance is that there are very serious cases in which it would be a grave mistake, as well as a great injustice, to prevent the innocent party from applying for a divorce.
Will your Lordships give me leave to read, as an example—others might be given—two instances from cases which have been heard during the present legal term? I propose to cite one case where a husband, and another where a wife, has been injured. They were both poor people. The first one is this. A year after the marriage the wife went off with 83 another man and told her husband that she would not in any circumstances return to him. The husband, who is left with a baby to look after, is a working man and has to go out all day. The other case is this. Within a year of marriage the husband told the wife brutally that he had no use whatever for her and went off with another woman. The wife, now aged 25, gets no money from the husband and has to go out to work. She has a baby a few months old. In cases such as these—not to mention even more terrible cases where one of the parties has been guilty of the grossest possible forms of depravity—it would be a cruel hardship to say that the wife or the husband, as the case might be, must remain for a period of three or five years, whichever it be, without the right to ask the Court to exercise the discretion and give leave to present a petition for divorce.
The circumstances of the poorer classes are such that a husband or a wife who is left in that condition has to have somebody to look after the home, and it happens only too often that illicit connections are then formed by the wholly innocent spouse. I venture to think that, by permitting discretion in such cases, you will diminish the formation of those unfortunate connections. Other grounds might be given for the exercise of the discretion and terrible cases which have in fact occurred might be mentioned as requiring the exercise of the discretion. I do not propose to delay your Lordships by mentioning things which must be within the imagination of everybody. Brevity is essential in this debate if we are to get through it within a reasonable time. For the reasons I have mentioned I venture to press these two Amendments upon your Lordships without prejudice the consideration of the more drastic Amendment.
I am unalterably opposed to this clause in any form whatever. I find myself in the completest agreement with the noble Lord, Lord Moyne. In point of fact, at the Second Reading the noble and learned Lord, Lord Atkin, described this clause as "a kind of 12½ per cent. discount" offered to those who did not like the Bill. I should call it something very much stronger than that; I should call it blackmail, and I dislike paying blackmail in any quantity. 84 I do not think that it is any better in principle to reduce this period to three years than to leave it at five years. It is utterly and completely had from the word "go," and the only defence that I have as yet heard for it is that it may persuade certain people to let the Bill pass, as apparently it did persuade them in another place. I have a considerable acquaintance, as I suppose most of your Lordships have, with the other place, and from conversation with members of it I have been unable to find the large volume of support which this clause is claimed to have. It seems to have slipped through another place without having been noticed, considerably to the dismay of a great number of members there.
In point of fact, so bad do I think this clause that I do not care whether the Bill is thrown out in another place should we suppress it. I believe that the fact that this Bill is at the moment before your Lordships is evidence that there is such a strong feeling in the country for its necessity that it must come up again. On the other hand, should it pass in what I consider a mutilated form, then I am afraid that, as its sponsor said on the Third Reading in another place, it may be regarded as the last word on the subject for a considerable length of time. Should that occur, then our divorce law, which has, I am afraid, caused surprise and ribald amusement among foreigners for a great number of years, will add to their amazement and merriment yet another cause. That such a clause should be put into a Marriage Bill at this time in our history is to me utterly and completely amazing. I cannot believe that this clause has the support in another place that certain noble Lords seem to suspect. I think that the number of the people who were persuaded by this clause to vote for the Bill must be very small. In fact, I have a strong suspicion that, as the noble Marquess, Lord Reading, said—though he did not put it in these words—it is what one might call a "class-conscious" clause: it arises very largely from the fact that our impressions of the Divorce Court are based on the reports in the newspapers. Nothing, of course, as the noble Marquess pointed out, could be further from the truth.
Of course, it has occurred to your Lordships, and I entirely agree with the noble and learned Lord, Lord Maugham, that the clause would be considerably less 85 vicious with his Amendment allowing discretion to the judges. There again, however, what cases are to be hard cases? He has given two flagrant cases to-day, and other flagrant cases were given on the Second Reading. Surely, practically all cases would be hard cases. I cannot visualise a case that is not hard. What is the situation in which you are going to tell a wife who is suing her husband, who has committed adultery, that she has got to put up with his adultery for another five years; in fact, as Lord Maugham has pointed out, for another six years? In what cases has she got to put up with cruelty for another five years? How much is he to beat her before it is a hard case? It seems, in fact, as I think the noble Marquess, Lord Reading, said on the Second Reading, that you are making a lottery of this divorce. It will depend upon the personal feelings of the Judge trying the case. Of course I am sure he will be as impartial as possible, but it seems to me a difficult matter to define hard cases.
I do not believe that this proviso is going to act as a deterrent in any way. The fact that the numbers affected are comparatively small seems rather an argument against the proviso than in favour of it. Why put in a clause so fraught with dangers and undesirable possibilities, in order to cover such a very small number of cases, of which the chances are, as has been said, that very few are in the least, shall we say, punishable by such treatment, or worthy of such treatment? I am at a loss to find any cogent reason for the clause at all, except some muddled thinking on the part of people who are fundamentally opposed to the Bill, and who have been bribed by this clause. I cannot understand why they should be bribed, because if one is fundamentally opposed to the Bill, on grounds such as Lord FitzAlan of Dement expressed, I cannot see why this clause should in any way allay one's conscience.
I might, incidentally, remind your Lordships that one of the greatest lawgivers, and perhaps the greatest of modern times, had a very different idea on this subject. When Napoleon drew up the Code Napoleon he considered seriously the insertion of a clause in exactly the opposite sense, making it impossible for people who had been married for nine years to get divorce at all. That shows that considerable thinkers are able 86 to view the position from an altogether different angle. I am not certain, if either of these projects makes sense, that I do not prefer Napoleon's. I sincerely hope that your Lordships will throw out this clause entirely, and have nothing to do with it. I do not believe it is possible that, if you throw out this clause, the Commons may not accept the Bill, but if they do reject the Bill another Bill is bound to be produced in a short time. The feeling in the country demands it, and I fear that if you pass the Bill as it is it will be the last word for some time.
§ VISCOUNT CECIL OF CHELWOOD
The noble Viscount, Lord Buckmaster, in an earlier part of the debate, made an appeal that we should treat this subject as a matter of compromise. The noble Lord who has just spoken has clearly a different opinion, and I cannot help feeling that if that is the spirit in which the debate is to be conducted it will be very difficult to arrive at anything like an agreed Bill. The last speaker asked us to imitate foreign countries, and said that our divorce law was the subject of amusement and surprise on the part of foreigners.
§ VISCOUNT CECIL OF CHELWOOD
For my part I do not care a button what foreigners say. We know quite well that our legal system, including divorce, is very much superior to that which prevails in any country in the world, and I am content to find that there are certain foreigners, though a small number, who do not agree in that opinion. As to the merits of this proposal, I thought we were going to discuss Clause 1 as it is. I thought that was the object of Lord Moyne, and perhaps your Lordships will allow me to say in a very few words what seems to me to be the case for something of this kind. It is not because of what will happen to the Bill when it returns to the House of Commons, though it is not unreasonable to consider that view of the matter.
We all start with this proposition, that the more indissoluble you can make marriage, consistently with justice, the better—that it is a good thing that marriage should be a permanent and not a temporary institution. That is the general view I 87 believe. I see that the noble Lord who has just spoken assents to that. The point of this proposal—I am not talking about three or five years, about which I am content to take the opinion of those who have studied the matter more than I have—is to provide a pause, during which people who have married shall be told that it is important you should consider carefully before you enter upon marriage. Therefore we say "You must abide by what you have done for two or three years," or whatever number of years the House fixes. I think that is a reasonable proposition. I agree that there may be hard cases, and they are to be dealt with by Lord Maugham's second Amendment. There must be a safety valve for hard cases; but, broadly speaking, it seems a reasonable thing that people who have entered upon marriage, upon the theory, which will still be the theory of the law if this Bill is passed, that it is to be a lifelong contract, should be content, apart from conditions of great hardship, to abide by the contract for three or four years. If the result is to make people more careful before entering upon marriage, then it would be all to the good. For myself, I am quite prepared to vote for the clause as it stands, but if in a spirit of compromise the Committee accept an Amendment I shall be quite content with that.
§ LORD ATKIN
I troubled your Lordships for some time on the Second Reading, and I do not want to repeat what I said then more than is necessary, but I do suggest to your Lordships, as I said then, that this is an oppressive and reactionary clause and will deprive a great many people, especially of the working classes, of relief which they at present enjoy and which they are entitled to enjoy. There is a great deal of talk about compromise. There are some subjects upon which you have no right to compromise, and one of these is, I think, the woes and sufferings of married people and questions relating to married life. It is said that there are people in another place who would not be prepared to accept the rejection of this clause. I believe that that has been very much exaggerated. There were 190 people who voted for the Third Reading, and 37 who voted against it, and amongst the 190 who voted for it there were at least two of the supporters who, after saying they were going to vote 88 for the Third Reading, said they were entirely opposed to this clause. Indeed one who opposed the Bill altogether said that, although he was opposed to the Bill, he could not see any sense in this five years provision. I believe that if you sent the Bill back without this illogical clause you would have not 190 but at least 490 voting for the Bill in its new form. And I will tell your Lordships why.
The Bill purports to prevent people from obtaining divorce in precisely the circumstances in which relief ought to be given. I mentioned to your Lordships on the last occasion some very hard cases—cases that I think would be met by my noble and learned friend's Amendment providing for cases of exceptional hardship. But those were only instances of had cases. My noble and learned friend mentioned two other cases to-day which he thinks would come within this class of case which would be subject to the discretion of the Judge—cases of exceptional hardship. I think when your Lordships listened to him you recognised that those were normal cases of divorce—everyday cases of divorce among the working classes, cases in which divorce and relief ought to be given. There are some very, very bad cases. I heard of one only the other day, where a girl was married to a man who within two years took to drinking, brought women to their small house of two rooms, turned the wife and the baby out of the marital bed, turned her into the sitting room while he had relations with the woman in their bed. I suppose that was a bad case, and I suppose that any Judge would exercise his discretion there. But that is not the ordinary case. Take the working-class husband who commits adultery with a woman or with women. Is he to return to a wife from the arms of his mistress and sleep with her in the wedding bed? Your Lordships will remember that among the working classes there is no question of separate rooms or even of separate beds. That is an insult from which a working-class woman is entitled to be relieved, and that is a normal, ordinary divorce case.
I do not know what the supporters of this clause have in their minds when they talk of matrimonial difficulties in respect to which people ought to stop and think. What ought they to think about when that happens? What room is there for stopping or thinking? That woman is 89 entitled to relief from the terrible position in which she has been placed; and she would have no remedy. She has a remedy now by divorce. She would have a remedy under a later clause of this Bill by getting a separation; but I thought that the one thing that the promoters of this Bill really wished to do was to diminish separations, because they all know of the terrible difficulty and the sad immorality which are the result of making young people who have been married, and in whom the flames of passion have been rightly kindled, live apart in separation. Take the case on the other side, the normal case, when a man discovers that his wife has committed adultery with another man. What is he to do? Why has he to stop and think? Think about what? Is he to have a spurious child brought into his family? I thought that for generations it had been an accepted view that the manly thing to do in those circumstances, the right thing to do, is to turn the wife out of doors. That is what a husband has done from time immemorial, and that, it seems to me, is what he has a right to do. But in these circumstances he has either to stop and think or they have to adjust their personalities together while she is perhaps hearing the child of her paramour, and he is keeping her in his house and, I suppose, sleeping with her in his bed. It seems to me to be perfectly distressing.
I think the clause would be most cruel and oppressive, and I trust your Lordships will reject it. If you have three years, or two years, the clause will not entirely meet my view, but as far as I am concerned I am prepared to vote first for three, and then for two, and then for no clause at all. We have no right to balance the sufferings of one side, of the people who suffer now and to whom we are going to give relief by reason of giving divorce for cruelty and desertion—we have no right to balance against that the sufferings of people who during the first five years are subject to the wrongs that are done in normal divorce cases. My own suggestion is this. There are some of us whose views I respect—I know very well what it means to them—who are opposed to divorce altogether. That is not the position, I believe, of the majority of your Lordships. I believe your Lordships are in favour of the rule of law which has obtained now for eighty years 90 —namely, that there should be divorce. I think your Lordships are prepared to accept a progressive Bill and to improve the law as to divorce. I suggest that your Lordships should adhere to that which I propose to make the golden rule, that is to say, adhere to the carefully considered recommendations of Lord Gore11's Commission.
There is not a word about the proposal of this clause in the Report of Lord Gorell's Commission. There was another Bill that was proposed by the father of my noble friend Lord Buckmaster, of whom no lawyer, and I think no one else in this House, would speak without respect and admiration. The late Lord Buckmaster carried a Bill through in this House for the improvement of divorce. This idea never occurred to anybody then. It was not in that Bill, it was not suggested by any of your Lordships.
§ LORD ATKIN
No, I understand it passed here and was thrown out in another place. I was not here at the time, but I believe that is absolutely correct. In those circumstances I propose that your Lordships should really go forward, that you should not take into account possible dangers which, I suggest to you, do not exist. If we have to go forward, why should we take one step forward in Clause 2 and another step backward in Clause 1? I submit that it is perfectly illogical. The abolition of this clause is really awaited and expected by the vast majority of people in this country, and I believe also in the House of Commons. I hope very much that your Lordships will act accordingly.
§ LORD ARNOLD
I had no intention of taking part in this discussion, but I would like to say a few words, being impelled to do so mainly by the speech of my noble friend Lord Faringdon and to some extent by certain observations of the noble and learned Lord who has just sat down. I wish to speak simply on the question of what I may call Parliamentary procedure—of what is likely to happen, because this, it seems to me, is of fundamental importance. After all, politics is the art of what is possible. As I see it, if this clause remained unamended, if it were put to your Lordships' House as it is, with the full five years, it would in all probability. I think, be defeated here. On 91 the other hand, if the five years are entirely taken out and the clause goes back in that form to another place, I suggest to your Lordships that the probabilities are that that would mean that the Bill would be defeated, particularly having regard to the element of time. That is the point which is so important.
With great respect, my noble friend Lord Faringdon has not been in another place as some of us have. I would remind your Lordships that, to begin with, this is not a Government Bill. I myself was very greatly interested in a Bill two years ago, which was introduced at this stage of the Session into your Lordships' House, and which was a Government Bill, and a Bill which was to a very large extent non-controversial. As a fact in the end that Bill did just get through in time. This is what I want to put to my noble friend Lord Faringdon. He does not think there is a great number in another place in favour of the five years. It may not be a question of whether there is a large number. It might be a question of whether there are two or three or four. In the particular case of the Bill of which I have been speaking, it was largely a question of getting withdrawal of the opposition of a single member. That is all I wish to submit. Au fond, I agree with the noble and learned Lord, Lord Atkin, entirely, but it is a question of what we can do and what we are likely to get. You might get 490 members to vote in favour, but the question is how many you will get against.
Having regard to the history of this Bill, if it were sent back with the five years taken out altogether, the opponents of the Bill would almost certainly see that the Bill did not pass. There would be quite enough to see to that. Two persons would be sufficient, if persistent enough, to kill the Bill. If that he the case, we have to consider whether, on balance, it is not better to accept the Amendments of the noble and learned Lord, Lord Maugham. What is the price that will have to be paid? He tells us that the number of divorces within three years of marriage is only about four per cent., and that four per cent. will be further reduced because of the discretion which we are hoping will be inserted in the Bill, giving the judges power to deal with the hard cases which the noble and 92 learned Lord admitted. I submit that, on balance, on a question of debit and credit, the best hope of getting the Bill through in a form which, after all, does mark a great step forward, is to accept the Amendments of the noble and learned Lord. The noble Lord, Lord Faringdon, said: "Throw the Bill out and with all the popular feeling we will get another Bill soon." That might be so, but it is twenty-five years since the Gorell Commission, which is a long time, and, with the exception of the Bill passed in 1920, there has been no divorce reform in the interval. I say, pass the Bill with the noble and learned Lord's Amendments, and get an amending Bill later on, if public opinion wants it, in the direction of those who really want to take out Clause 1 altogether.
§ On Question, Amendment agreed to.
§ VISCOUNT BUCKMASTER
I have nothing to add to what I have already said, and I beg to move that Lord Maugham's Amendment be amended in the form I suggest.
§ THE MARQUESS OF SALISBURY
On a point of order, I submit that your Lordships have just decided that the word "three" be inserted in the Bill, and that it is impossible to put "two" in now. With great respect to your Lordships, I submit that the proper time for the noble Viscount to intervene was when the Chairman put from the Table the question whether the word "three" be there inserted. Then he should have moved his Amendment. Your Lordships have decided that the word "three" he inserted. I do not want to give myself airs about this matter, but I suggest that it would be out of order to go back now. The noble Viscount will, after all, have his opportunity on the next stage.
§ VISCOUNT BUCKMASTER
I apologise if I am in error in moving this Amendment. I took advice on the subject, and it was on that advice that I moved. I was not perfectly clear. I do not think your Lordships now are perfectly clear as to whether we are doing the whole clause or taking the Amendments individually. But if I have fallen into error I apologise.
LORD MAUGHAM moved to omit the proviso and insert:
Provided that a Judge of the Probate, Divorce and Admiralty Division may, subject to and in accordance with rules of Court,
allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition, that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, it may either dismiss the petition or, if the petitioner would otherwise have been entitled to a decree nisi, may pronounce such a decree, subject to the condition that no application to make the decree absolute shall be made for such period, expiring not earlier than three years after the date of the marriage, as the Court may direct.
(2) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which have occurred before the expiration of three years from the date of the, marriage.
§ The noble and learned Lord said: I beg to move this Amendment. I would only add, if I may, that those who have carefully studied the proceedings in another place, of whom I am one, will find it is quite a mistake to suppose that Clause I was inserted without very full consideration.
Page 1, leave out lines 16 to 19, and insert the said new proviso.—(Lord Maugham.)
§ LORD ATKIN
This is a mere question of detail, but your Lordships will observe what this Amendment says. First of all, we have a three-year limit. The discretion is only to be exercised, first of all, where a Judge of the Probate, Divorce and Admiralty Division allows a petition to be presented—that is to say, poor people from the country must come up to London and present their petition to a Probate, Divorce and Admiralty Division Judge in London. How he is to satisfy himself I do not know; it does not say. If he is to hear evidence, then the poor person from the country must produce his evidence. If he is to act solely upon the allegations in the petition, it will not be very difficult, I imagine, to make allegations in the petition which would entitle the person to get leave, though I believe the petitioner has got to swear to the truth of the allegations in the petition. It is after that that the discretion has to be exercised by the judge who happens to be trying the case. The standard is one of "exceptional hardship" or "exceptional depravity." I pointed out the objections there are to such a phrase. I have not the least idea whether the cases I quoted, to which my 94 noble friend referred, are cases of exceptional hardship; but if they are cases of exceptional hardship, that appears to cover every case likely to come before the Divorce Court. It only indicates how vague the protection really is.
§ On Question, Amendment agreed to.
§ LORD REDESDALE moved to leave out Clause 1. The noble Lord said: It is quite clear from what was said by the noble Lord who introduced the Bill that Clause r was designed to discourage persons, and particularly young persons, from frivolously, rashly, or irresponsibly assuming the obligations of marriage. Firstly, in my view, legislation should be framed in the interests of ordinary, normal people, and not with a view to patching up the misunderstandings of a few frivolous children. If frivolous children are to be dealt with here at all they should be dealt with, it seems to me, quite separately and on separate lines. Secondly, I cannot believe in any case that this clause will have, or can be expected to have, the effects intended. It seems to me impossible to suppose that in actual practice it will in any way discourage the reckless undertaking of marriage. The vast majority of people seeking relief under this Bill will not necessarily have married with any undue recklessness, and will nevertheless be genuinely suffering from the horrors it is designed to terminate.
§ Ordinary, normal people, in my experience, do not approach marriage in a spirit of reliance upon some clause in an Act of Parliament, nor, in my opinion, will any clause in any Act of Parliament ever induce people to look before they leap, which is the admitted object of Clause 1. People who approach marriage looking upon it as a mere frivolous experiment must be very few and far between. It is surely far more normal—for men at all events—to regard marriage as an extremely unlikely contingency until suddenly they meet someone, and when two people are sufficiently in love to contemplate marriage they are sure to regard each other as very perfect; and it is presumably at this stage that the magic of Clause 1 is intended to operate, to pull them up, at it were, and induce them to start thinking. But is it really possible to imagine either party at this stage saying to themselves: "Now you must be careful; do not forget that if he or she 95 does so-and-so shortly after marriage I shall have all that time to wait before I can be free again"? Why, of course not. The mere possibility of any such behaviour on the part of someone on whom you look in a holy light of perfection would never enter your head. Thus I for one am absolutely convinced that Clause 1 will never even fill the part for which it was designed.
§ On the other hand, and whether I am right in that or not, there can be no doubt that it will inevitably inflict untold hardship and suffering on numbers of people who could obtain speedy relief from their troubles even under the law as it exists to-day. It has also to be remembered that the five years' delay might create very great hardship to the parties if during the interval material witnesses should die, disappear or forget. Several noble Lords, including the noble Lord who introduced the Bill, pointed out in their speeches on the Second Reading that one of the great merits of this Bill is that it will particularly benefit the poorer classes of the community. This is, of course, true, and it is a very good thing that it is so. But this clause will surely operate strongly in the opposite direction, for the period of delay will quite obviously inflict far greater hardships on poor people, living often in very close and restricted quarters, than on those whose circumstances enable them to make more suitable arrangements for its endurance. On the grounds, therefore, that this clause is quite unnecessary for any of the main purposes of the Bill, that it will certainly in practice defeat its own object and that it will inflict great and unnecessary hardships on many persons and especially on the poor, I beg to move to omit the clause.
Leave out Clause 1.—(Lord Redesdale.)
§ LORD MOYNE
The injustice which is to be feared under the clause which we are considering has been so very movingly put by noble and learned Lords and others whose experience in this matter is infinitely greater than my own, that I feel some diffidence in raising one or two points which seem not to have been dealt with. Is it not certain that the maintenance of this clause is bound to lead to an enormous growth of separation orders? We all know the 96 disadvantages of that form of procedure, but I would like to draw attention to the very cruel position in which it is often found that these separation orders place the children who are the innocent victims of these divorces, which will in future, be so often based on a separation order.
Unfortunately very many marriages are wrecked in the first few months and this Bill will, I fear, not succeed in changing this sad fact. If a wife deliberately, during the subsistence of the marriage, lives with another man it will be almost necessary for the husband to apply for a separation order. Otherwise, is it not almost certain, if he goes on living with her, that when the time comes for a divorce to be possible he will be ruled out on grounds of condonation? I shall be very much obliged to noble and learned Lords if they will tell me that I am wrong, but I am informed that Judges are very particular, and properly particular, to be satisfied that in cases of divorce the husband has not forgiven the wife by going on living with her. Therefore when the husband gets evidence a few months after marriage that his wife is living in adultery with another man, if he wants to keep open the possibility of a divorce he will have to separate, and I think he will almost certainly apply for a separation order so as to put the evidence in cold storage.
The position of children who are alive at the time of a separation order is very unsatisfactory, but I would like the House to consider what is going to happen in the case of unborn children. It seems to me that it is bound to be a further inducement to an increase in separation orders so as to strengthen the defence of a husband against paternity being foisted on him for another man's child. Let me remind the House of what is apparently the law of legitimacy in these cases. Every child born during the subsistence of marriage is prima facie legitimate. The prima facie presumption of legitimacy may be rebutted by evidence that the husband and wife did not have access to each other as is necessary in order for the husband to be, in fact, the father of the child. The presumption of legitimacy continues, notwithstanding that the wife can be proved to have committed adultery with any number of men. In 97 order that the presumption can be rebutted, it is essential for proof to be shown that the husband cannot have been the father of the child.
Evidence of non-access may not be given by the spouses, but, of course, it can be found in other directions. Is it not evident that legal separation will offer much firmer ground for evidence of non-access during the waiting period? And, if that be so, is it not to be feared that separation orders will take the place of early divorces, and that the possibility of the parties coming together will be effectively ruled out? When there is absolutely certain evidence of non-access the child can be declared by the Courts to be a bastard. Under the present law of quick divorce on account of adultery the question of legitimacy of the children is very seldom raised, and it seems to me that this clause threatens to create a class of children born during subsistence of the marriage and bastardised years afterwards by divorce proceedings.
The noble Lord, Lord Arnold, made an appeal to us on the ground of expediency. He said that he hoped that eventually, if this Bill passed with the clause in it, it would be amended and the clause would go out. I do not think we can be swayed by such an argument in a case of this kind where it is proposed to remove a relief which has been enjoyed for years by innocent people on the mere possibility of its being re-established at some future time. And if there is all this difficulty about the Government giving time when there is undoubtedly a great demand in the country that this matter should be settled, what is the prospect of its being re-opened afterwards? I am afraid I am entirely unmoved by an appeal for a compromise in this matter. It seems to me that the clause threatens such deep and incalculable reactions of divorce practice that I would rather have no Bill at all than a Bill containing this provision. If this clause stands I shall feel obliged, instead of supporting the Bill, to oppose the Third Reading, and, if we succeed in defeating it, I shill not lament its total loss in another place as an alternative to its reinstatement.
§ LORD ALLEN OF HURTWOOD
May I add a word or two in support of the speech just made? I most earnestly hope that this clause will be deleted. I do not know how it came to be drafted, but it 98 was clearly not drafted by any one who has had any experience whatever of working-class homes or of work in social settlements or in the east end of some of our great cities. This Bill, if it contains this clause, is going to do one of the most cruel things that can be done. It is going to encourage immorality in the home itself. I understood that the object of bringing this Bill before Parliament was that we might diminish immorality. The right reverend Prelates who sit upon the Ecclesiastical Bench have had this clause in their minds throughout, and it has been their object to diminish immorality in this country. If this clause stands, far from diminishing immorality it would encourage immorality of the worst possible kind, the immorality which takes place in the home. You will have the position of a working-class man or woman who has been injured by the partner, being told by that partner when that injury has been done, "You cannot touch me for three or, may he, four years." And all that the working-class partner who has been injured can then do is to apply by an elaborate procedure for the discretion of a Judge who, I understand from the noble and learned Lord, Lord Atkin, will be in London.
Noble Lords far too often think of the subject of divorce in terms of the cases which are reported in the newspapers, and those are very often cases that are concerned either with curiously living human beings or special classes. They are not the cases which are the ordinary everyday cases of working-class life. If a woman is injured under the present procedure of this clause and she is told she has the right to go to the discretion of a learned judge in London, and she is an ordinary working-class woman, she will neither have the means, nor the knowledge, nor the courage to do so. Consequently, she will have to suffer for years on end, not outside her home but inside her home, the immorality and cruelty that noble Lords are desiring to remove. Therefore, I personally would say that if this clause remains part of this Bill I would infinitely prefer that the Bill should drop, and that the whole subject raised by this clause be once more discussed by those with experience of working-class life and marriage conditions, rather than that we should take a backward step of so serious a kind when the Bill was intended that we should take a progressive step forward.
THE LORD ARCHBISHOP OF CANTERBURY
There might have been some value in this clause in its original form, but I cannot see what value for the purpose for which the clause was originally intended will be secured from the clause as your Lordships have seen fit to amend it. The object was to fix by Statute a certain time during which the parties would have realised that no divorce was possible. Five years might have been of some use, but three years seems to me of comparatively little use for that purpose. On the other hand, for the sake of this, as I think, small value of three years, and for the sake of, admittedly, some fear of oppressing those who, unhappily, apply for divorce, you would run the risk of all those very real evils which have been so forcibly and eloquently described by noble and learned Lords and by the noble Lord who has just spoken. I do not think it is worth while and therefore, while I might have been prepared to vote for this clause in its original form, I do not see that any good advantage would be gained by voting for it now. At the same time, if a vote is challenged, I should not like to vote against it without the reason being known.
If it be said that to omit the clause as it now stands would prejudice this Bill elsewhere, that is not a matter of tactics with which I am much concerned. I read the debates in the other House very carefully, and I do not think it would be wrong to say that that House was not in the least seized of the importance of all the issues that have been so fully and specially put before your Lordships in this House.
§ LORD HEWART
May I in a sentence or two express my hope that this clause will be deleted? Without going into unnecessary detail I should like to ask a simple question. The object of this Bill, as I understand it, is to extend the grounds upon which divorce may in a proper case be obtained. Why should the adulterous or cruel husband have a close period of three years? Why should the existing rights of one potential class of persons be sacrificed in order to secure for others that which is admitted to be their right? It seems to me with great respect to be a most unreasonable concession to unreasonable opposition. It appears to be a price to be paid for 100 getting the Bill through. I entirely agree that a period of three years is not worth while. A period of five years, in my respectful opinion, is less worth while. It is more unfair. I cannot for the life of me understand why the rights of one set of persons should be given away behind their backs in order to secure the admitted rights of others.
§ VISCOUNT SAMUEL
During the debate, this clause appears to me to have been riddled with arguments and the only justification put forward for it is that to omit the clause might imperil the fortunes of the Bill in another place. I would point out that time will have to be found in another place for consideration of the Lords Amendments, since your Lordships have already made Amendments, and important Amendments, in this clause. If, when that time is found, another place should insist upon the maintenance of a clause of this kind, then the matter can always be reconsidered by your Lordships' House.
§ LORD ROCHE
I do not intend to trouble your Lordships with lengthy observations, but I desire to make some, as an unrepentant supporter of this clause in the form in which it has been amended. I intend to do so in spite of incurring a charge of muddled thinking from the noble Lord, Lord Faringdon, or one of want of logic or of hardness of heart from the noble Lord, Lord Atkin. I support the clause, not as giving a discount for accepting something else, but because in my judgment the clause, as amended, is a good clause in itself. I would like to take your Lordships for a few moments to a busy Assize such as that of Manchester or Leeds, where perhaps there are one hundred or one hundred and twenty divorce cases in the list. I am free to confess that I have found time to relieve the monotony of that dreadful situation by keeping some sort of informal statistical score of the different classes of suitor. I came to the conclusion that in addition to the miscellaneous cases that came before the Court, there were two classes which stood out very clearly.
One, a very sad one, was the class of case where the marriage breaks up when the parties are about fifty years old, and the wife—it is generally the wife—is deserted. Such cases will be met, if your Lordships pass Clause 2. I may say, in 101 passing, that I think it shows how little the noble Lord, Lord Faringdon's hero Napoleon knew or cared about human nature, because he apparently would have prohibited any divorce for such persons. Those are, in my judgment, the hardest cases of all. There is another class, I do not say a large one, of young persons, not all in the same class of society, who do lightly enter into the marriage tie, and in some classes of society consciously do it—in most cases it is unconscious—thinking and knowing that they can get rid of the tie. In the very thoughtful speech, if I may say so, of the noble Lord, Lord Moyne, he dropped the observation that there were some marriages—a number I understood him to say—which broke up within a few months. Why? The cases where they break up through another attraction are few and far between, and where they do, it is because one party has been grossly deceived. Those cases will be met by the Amendment as to discretion which has already received the assent of the Committee. But the cases where the marriage breaks up, not from passion but from pique, will be met by this provision of the Bill. That is why I support it.
I was very much struck, if I may say so, by the notable contribution which the noble Viscount, Lord Dawson of Penn, made to the debate on the Second Reading, and particularly by one observation which he made in the course of it. He narrated a case where, through the good services of a medical man, a reconciliation between parties had been secured, and he expressed himself as desirous of introducing some provision into this Bill furthering and forwarding reconciliation. It is to be found in this clause with the Amendment proposed by my noble and learned friend Lord Maugham, and adopted by the Committee. I cannot conceive any place and time which will be more fruitful of opportunities for reconciliation than when the parties come before the Court for leave to present a divorce petition. If it is a bona-fide case of hardship, I am perfectly certain discretion will be exercised, but if it is a case such as that put by the noble Lord, Lord Moyne, where the marriage has broken up within three month by reason of pique, the first thing the parties will be asked will be: "What are you doing about it? Have you tried 102 to get on?" They will be sent away with the application adjourned to see whether they can be reconciled.
It may seem strange to many people who do not believe in the possibility of reconciliation that in these very sittings of the Divorce Court in London there have been four cases of reconciliation after the decree nisi and before the decree absolute. If that happens at the last stage of the proceedings, how much more may be expected to happen if the influence of the Court towards reconciliation is exercised when troubles begin. There is only one other thing I want to say with regard to reconciliation. Without betraying any confidences by giving details, I have within my own knowledge a case where both parties to a marriage had been unfaithful to one another, but in both cases it was the unfaithfulness, not of passion but of what I have ventured to describe as pique. Through the instrumentality of another medical man those parties were reconciled. Children were born to that marriage, and the parties are living as a happy married couple. It is for such reasons that I advocate the retention of this clause, as amended.
THE EARL OF MORAY
Before I attempt to address your Lordships on the thorny problem now before us, I must say a few words of personal explanation. I was born in Edinburgh thirty-seven years ago and married in Paris twelve years ago to an American girl. The civil marriage took place on the first day before the Maire of the 16th Arrondissement and a religious ceremony, was gone through on the day after. Through the careful forethought of my mother-in-law I can therefore get a divorce in Scotland or in America, but there seems to be some legal doubt if I can do so in France. So I take a rather academic and, I hope, unbiased view of this debate. This clause in particular applies now only in Scotland, where some people think we do things better.
In that connection I would like to draw your Lordships' attention to a paragraph which I saw in the newspapers the other day, stating that one of Scotland Yard's "Big Five" welcomed at Waterloo station a party of distinguished officers of the United States Police, who would remain in London for some weeks as the guests of the Metropolitan Police, 103 during which time they would be given every facility to study the latest methods of crime detection. It is understood that a party of British officers will shortly pay a return visit to the United States as the guests of the New York City Police with a similar purpose. To get down to what I call brass tacks, by which I mean the noble Lord's Amendment, on which I am speaking, there are only two parts to which I wish to refer. One is the time-limit of five years. It may be true that a thousand ages in the sight of God are as a moment gone, but if it is true, then that God must be asleep all the time.
THE EARL OF DROGHEDA
May I say one word on this Amendment as one of the firmest supporters of the general principles of this Bill? I most fervently hope that the Amendment will be defeated, for the sake of those who I hope will receive much-needed and long overdue relief under Clause 2. So far as one can judge from the debates in another place, there is a strong feeling in this country that this clause should be retained and that it plays an important part in making many people support the Bill who would otherwise not have supported it. Without this clause I think the Bill will meet with uncompromising hostility. The clause was, moreover, strongly supported in another place by many who were most in favour of extending the grounds for divorce. I do not regard this clause as the payment of blackmail in any shape. I think that those who inserted this clause believe in the principle of preventing early divorce. Whether they are right or not I cannot say, but I was impressed by what was said by a member who was representing a working-class constituency. Speaking of the difficult early years of marriage, he said that many young people of the working classes marry and cannot get a home of their own, but have to live with the parents of either the wife or the husband, and never get a real chance to understand one another in married life at all. I think that point impressed many people in another place.
I gravely fear that to delete this clause will be to defeat the Bill, and I cannot imagine anything more dreadful than that this Bill should be defeated, not by its opponents but by its supporters. I 104 hope that the Bill will pass, but I fear that it will not pass at all if this clause goes, just as it would never have come to your Lordships' House at all without the clause. I ask your Lordships, when giving your vote on this Amendment, to consider how many years of effort may be wasted, how many people who are entitled to relief may not receive it, and how many hopes may be frustrated, if you vote against this clause. I hope that the majority of your Lordships will not do so, but will leave this clause as amended by the noble Lord, Lord Maugham. The noble and learned Lord, Lord Atkin, said that one was not entitled to weigh one set of people against another set—that is, the people who will perhaps suffer some hardship under Clause 1 against the people who under Clause 2 will get relief. I most respectfully disagree with him; I feel that one is entitled to weigh them. One is weighing a hundred people a year against many thousands who will get relief under Clause 2. I earnestly hope that this clause, as amended, will stand part of the Bill.
§ LORD WRIGHT
On the Second Reading last week I explained very shortly the objections I felt to Clause 1. I hoped that those objections might be entirely cleared away by Amendments, but I am bound to say that, notwithstanding what has been passed to-day, I still object on principle to the clause even in its attenuated form. It must produce injustice and, so far as I can see, will do no good to anybody. The only argument I hear is that if the clause is rejected the Bill may be thrown out in another place. I do not know how that may be. Opinions seem to differ; I know nothing about it, but even so there might be a locus pœnitentiœ here. On principle, however, I feel bound, much as I regret it, to oppose this clause.
§ LORD AILWYN
I should like to support in as few words as possible the Amendment moved by my noble friend Lord Redesdale. I find myself in very complete accord with Lord Atkin when during the debate on the Second Reading he described this clause as "a terrible clause." Here is a Bill destined, we hope, to bring great benefits to our people. It is designed to help those multitudes of sane, respectable, sober, clean-living people, of mature age in the 105 majority of cases, whose marriages, largely through no fault of their own, have ended disastrously. It is not designed, I submit, for those flighty persons who enter upon marriage in a light-hearted, frivolous, irresponsible way, although to those alone this clause would apply a wholesome and well-merited check. But do any of your Lordships seriously consider that these "butterflies," if I may so describe them, are worthy of legislation, when that very legislation must bring in its train untold hardship and misery to those countless others whom this Bill is fundamentally designed to benefit? Do not let us spoil what in my very humble opinion is an excellent Bill in all other ways by taking away from those unhappy people whose marriage has been desecrated the right which they now possess of being able to petition for divorce when life for them has become insupportable.
It is not difficult to see—and it has been stated in many quarters of the House—the motive underlying the inclusion of this clause. It is obviously in the nature of a compromise, designed rather as a sop for those who hold up their hands in horror and dismay at the very idea of divorce being made more easy. You cannot compromise with human lives. Life is far too serious and too profound for any such action. May I earnestly and respectfully beg your Lordships to be wholeheartedly courageous in the measures of relief which this Bill can bring
§ and strike out with a firm hand this offending clause?
§ LORD DARYNGTON
I wish in a few words to support what has been said by Lord Roche in connection with this Bill. Everyone who has been in communication with the other House will know that it is a balanced Bill, and that it would be unwise in the present instance to strike out this clause.
§ LORD ELTISLEY
Your Lordships have been very kind in allowing me to speak once before in regard to this Amendment. I trust that the clause will not be cut out. Those who have been sponsors and supporters of the Bill have been in close touch with those who they believe are most capable of giving a reasoned opinion as to the chances of the in another. House, and as a result we have come to the considered conclusion that in the interests of the Bill, which we believe is earnestly wanted by the country as a whole, the clause with the Amendments already accepted by this House should stand part of the Bill. I believe that the proposal of three years, coupled with the discretionary power, will catch the butterflies, and that the discretionary power will ensure that all the genuinely hard cases receive the relief which they merit and are entitled to obtain.
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?
§ Their Lordships divided: —Contents, 88, Not-Contents, 74.107
|Halifax, V. (L. President.)||Dawson of Penn, V.||Cautley, L.|
|Devonport, V.||Chalmers, L.|
|Norfolk, D. (E. Marshal.)||FitzAlan of Derwent, V.||Charnwood, L.|
|Greenwood, V.||Cromwell, L.|
|Ailesbury, M.||Hambleden, V.||Daryngton, L.|
|Reading, M.||Plumer, V.||De Saumarez, L.|
|Zetland, M.||Ullswater, V.||Dormer, L.|
|Albemarle, E.||Birmingham, L. Bp.||Eltisley, L. [Teller.]|
|Bathurst, E.||Gloucester, L. Bp.||Elton, L.|
|Beatty, E.||Liverpool, L. Bp.||Fairhaven, L.|
|Birkenhead, E||Gifford, L.|
|Cavan, E.||Aberdare, L.||Gorell, L. [Teller.]|
|Drogheda, E.||Acton, L.||Greville, L.|
|Iddesleigh, E.||Addington, L.||Holden, L.|
|Macclesfield, E.||Addison, L.||Howard of Penrith, L.|
|Malmesbury, E.||Annaly, L.||Hutchison of Montrose, L.|
|Midleton, E.||Arnold, L.||Illingworth, L.|
|Munster, E.||Arundell of Wardour, L.||Jessel, L.|
|Selborne, E.||Biddulph, L.||Kilmarnock, L. (E. Erroll.)|
|Stanhope, E.||Bingley, L.||Latymer, L.|
|Blythswood, L.||Lawrence, L.|
|Astor, V.||Boston, L.||Mamhead, L.|
|Brentford. V.||Brancepeth, L. (V. Boyne.)||Maugham, L.|
|Cecil of Chelwood, V.||Brocket, L.||Monkswell, L.|
|Mount Temple, L.||Rennell, L.||Shute, L. (V. Barrington.)|
|O'Hagan, L.||Ritchie of Dundee, L.||Strathcona and Mount Royal, L.|
|Oriel, L. (V. Massereene.)||Roche, L.|
|Palmer, L.||Russell of Killowen, L.||Templemore, L.|
|Rankeillour, L.||St. Levan, L.||Teynham, L.|
|Rayleigh, L.||Sandhurst, L.||Vivian, L.|
|Remnant, L.||Sherborne, L.|
|Canterbury, L. Abp.||Falmouth, V.||Foxford, L. (E. Limerick.)|
|Goschen, V.||Gage, L. (V. Gage.)|
|De La Warr, E. (L. Privy Seal.)||Long, V.||Hardinge of Penshurst, L.|
|Mersey, V.||Hare, L. (E. Listowel.)|
|Ridley, V.||Heneage, L.|
|Ancaster, E.||Samuel, V.||Hindlip, L.|
|Balfour, E.||Swinton, V.||Mancroft, L.|
|Clarendon, E.||Middleton, L.|
|Cranbrook, E.||Winchester, L. Bp.||Milne, L.|
|Dudley, E.||Morris, L.|
|Halsbury, E.||Aberconway, L.||Moyne, L. [Teller.]|
|Iveagh, E.||Ailwyn, L.||Phillimore, L.|
|Lucan, E.||Allen of Hurtwood, L.||Ponsonby of Shulbrede, L.|
|Lytton, E.||Amulree, L.||Rea, L.|
|Onslow, E.||Askwith, L.||Redesdale, L. [Teller.]|
|Peel, E.||Atkin, L.||Rhayader, L.|
|Poulett, E.||Berwick, L.||Ruthven of Gowrie, L.|
|Sandwich, E.||Bethell, L.||St. Just, L.|
|Strafford, E.||Carnock, L.||Saltoun, L.|
|Wicklow, E.||Carrington, L.||Seaton, L.|
|Clanwilliam, L. (E. Clanwilliam.)||Selsdon, L.|
|Bertie of Thame, V.||Strabolgi, L.|
|Buckmaster, V.||Darcy (de Knayth), L.||Stuart of Castlestuart, L. (E. Moray.)|
|Chelmsford, V.||de Clifford, L.|
|Cobham, V.||Doverdale, L.||Trent, L.|
|Davidson, V.||Faringdon, L.||Waleran, L.|
|Esher, V.||Fermanagh, L. (E. Erne.)||Wolverton, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ Clause 1, as amended, agreed to.
§ Clause 2:
§ Grounds of petition for divorce.
2. The following section shall be substituted for Section one hundred and seventy-six of the Supreme Court of Judicature (Consolidation) Act, 1925 (hereinafter called "the principal Act"):—
176. A petition for divorce may be presented to the High Court (in this part of the Act referred to as 'the Court') either by the husband or the wife on the ground that the respondent—
Page 1, line 25, leave out the second ("the") and insert ("this").—(Viscount Bertie of Thame.)
§ LORD ELTISLEY
As one of the most ardent admirers of the assiduity with which the noble Viscount scrutinises even the most prosaic of Bills which come before the House, may I thank him for his discovery, and for remedying a small grammatical error?
§ THE EARL OF DROGHEDA moved, in paragraph (b), after "petitioner," to insert "without cause." The noble Earl said: This is purely a drafting Amendment. The words "without cause" are really implicit in any application for relief on the ground of desertion. It seems, however, to be advisable to insert them in Clause 2 in order to bring the wording of the clause into line with the wording of the principal Act.
Page 2, line 5, after ("petitioner") insert ("without cause").—(The Earl of Drogheda).
THE EARL OF HALSBURY moved, after paragraph (b), to insert the following new paragraph:
(c) the two parties have wilfully separated from each other for a period of at least three years and have after this period before presenting the petition made a declaration before the Registrar, that they have no desire for and no intention of ever coming together again.
The noble Earl said: In drafting this Amendment I took some care to see exactly what I thought was the general idea of this Bill. I think that the general feeling of the country was that the divorce laws as they at present stand were not satisfactory, and that throughout the country there was a certain amount of hypocrisy going on. It was felt that where you had only one ground for divorce, and that adultery, evidence of adultery was being given constantly when everyone knew perfectly well that the evidence was not true, and yet it had to be acted upon. That was one of the things that undoubtedly made the country feel that something ought to be done in order to get the laws of divorce on to a better basis.
§ Then, when people were discussing the Bill, they came to the conclusion that life had changed to some extent since the Act of 1857 was passed, and that it was better to grant an extension of the grounds for which divorce could be obtained. As a result there have been added two other grounds. I am not dealing with the further ground—namely, the question of unsound mind—but I am taking desertion and cruelty either of which would be a ground for granting a divorce. My Amendment really is an extension of paragraph (b)—the question of desertion. When you come to the question of desertion you are brought up against something quite different from the question of adultery or the question of cruelty. I am not sure that anybody has a right to say, as has been commonly said for many years, that in a marriage which has not succeeded and which has finally resulted in a divorce, one of the spouses is a criminal and the other a saint. As a rule in this life you will find that when people are unable to agree and to get on together, both are to some extent to blame. It is not always a question of one being a criminal and the other a saint. In the matter of desertion that becomes very obvious. If one thinks it over, it is often the person who is deserted who is 110 the more to blame, because he of The is the person who has made the home so impossible that the other person cannot stop there, and leaves in order to get a decent and proper life. I mention that only to show that there certainly are cases where the person who is deserted is not necessarily the person who is the saint and the other the criminal.
§ Let us come down to the case where both are to blame, or possibly where neither is to blame. Two people have married, and I assume they married with the very best idea that they were going to live a happy married life for the rest of their lives. Afterwards they have unfortunately found that they are entirely unsuited for one another and that if they try to continue together they will both be condemned equally to a thoroughly unhappy and unsatisfactory life. That is a case that one feels should be dealt with. I have put this Amendment down in a way which would bring the law much more into line with the present law of Scotland. What I am suggesting is that if the two parties have wilfully separated for a period of at least three years—I am not letting it be done in a hurry—and have, after that period, before presenting the petition, made a declaration before the Registrar that they have no desire for, and no intention of ever coming together again, then they are entitled to a divorce. What is the difference between that and a case of desertion?
§ There has been a great deal spoken in another place and also in the debate in this House about the difficulty of collusion. Why in the name of creation collusion should be put up as something appalling I do not know. But assuming it is, the one thing we can get collusion in at once more easily than in anything else is desertion. All that has to be done in regard to desertion is for one party to say to the other: "My dear, we are not getting on very well, let us have a divorce. I will desert you, and you will get your divorce straight away." There can never be any evidence given of that. It is the simplest way of getting divorce by collusion you possibly could have. If you are going to allow that, which you do by the Bill in its present form, why not get out of the hypocrisy and say that if we allow that, let us have it out straight and honest. What we are saying in this Amendment is this: If two people cannot get on, desert each other for three years, 111 and then after that say they could never get back together again, why not let them be separated rather than try to tie them for all their lives to a state in which they would not be really living in happiness at all, but living in a state half fight and feud and half bickering, with no tastes in common and no possible happiness?
§ I have only one other word to say about it, and then I shall leave it to your Lordships in the hope that you will allow this as nothing very new, nothing very much out of the way, but really as a paragraph which ought to continue after paragraph (b) in its present form in order to make a proper clause. When you are discussing divorce—and everybody agrees it is the most difficult subject you could possibly discuss—one of the first things everybody has to consider is the question of what is to be the position of the children. May one not say with perfect fairness that the position of the child under the custody of one parent is likely to be much happier than if the child were living with a mother and father who are doing nothing but constantly fighting with each other, and giving an idea of married life which that child must carry up to its mature years, and which must be the very worst atmosphere in which it could possibly be brought up? For these reasons I ask your Lordships to accept this Amendment not as anything new, not as anything violently radical, but as the logical counterpart of paragraph (b) of Clause 2 of the Bill now before the Committee.
Page 2, line 7, at end insert the said new paragraph.—(The Earl of Halsbury.)
I should not have intervened on this Amendment were it not that the noble Earl a few moments ago invoked in support of it the law of Scotland and claimed a certain resemblance between his Amendment anti the law of Scotland to-day. I want to assure the Committee, if I may, that this Amendment does not bear the slightest resemblance—the noble Earl will forgive me for saying so—to the law of Scotland as it is to-day and as it has been for three hundred years. The law of Scotland requires that in a case brought on the ground of desertion the Court shall be satisfied that there is 112 no collusion between the parties. That presents no difficulty on our side of the Border; we do it without any King's Proctor. In the second place, the Court must be convinced that one of the parties is, if I may use a technical word, a malicious deserter and the other party is deserted for some reason which must be wilful and malicious. But, so far as the other party is concerned, the law of Scotland has all along required, and does require, that the deserted party should be willing to continue, as we call it in Scotland, to adhere to the other, to remain in consortium, and not to desert. So far from there being a deserting mind on the part of both, there must be a deserting mind on the part of one and there must not be a deserting mind on the part of the other. Therefore, I am unable to see how the noble Earl can buttress this Amendment by invoking the law of Scotland.
But, the law of Scotland apart, this Amendment does seem to me to introduce a complete novelty. The noble Earl said it was not new. It appears to me to be entirely new. It has been, so far as I know, in no Divorce Bill before—and there have been a number in this House and in another place—and, what is more, it is not only novel, but it seems to me for the first time to propose to introduce into the law of England and the law of Scotland divorce by consent. That is contrary to the first principles upon which our Courts in Scotland have proceeded, and I think I am right in saying that it is contrary to the principles upon which the Courts in England have proceeded. So, whatever may be the merits of the Amendment, it cannot be claimed to receive any support from the law on the other side of the Border.
§ LORD ELTISLEY
I do not think there is anything further for me to add. I hope the Committee will reject this Amendment on the ground that it does amount to granting divorce by consent.
§ On Question, Amendment negatived.
THE LORD CHAIRMAN
Before calling the next Amendment I ought to explain to your Lordships that I have had handed in a manuscript Amendment by the noble Viscount, Lord Dawson of Penn. As your Lordships have not got it on the Paper, you should perhaps know what it is before discussing the 113 Amendment which is down in the name of the noble Lord, Lord Elton. The manuscript Amendment is as follows: "In paragraph (d), line 10,to omit the word 'incurably' after 'is,'" and then, in the same line, after "mind" to insert the words "believed to be incurable." Your Lordships will see that that alters the sense of the wording, and therefore I shall put the question whether the word "is" shall stand part of the clause, thus leaving the noble Viscount's Amendment free.
§ LORD ELTON moved to omit paragraph (d). The noble Lord said: The Amendment which my noble friend Lord Darcy (de Knayth) and I have put down is designed to remove the fourth of the four paragraphs in respect of which divorce is to be permitted—namely, the paragraph which permits divorce if the respondent is "incurably of unsound mind." Your Lordships will at once recognise that that paragraph stands on a quite different footing to any of the three paragraphs which go before it. Paragraphs (a), (b) and (c) all may be said, rightly or wrongly, to permit divorce because the erring party has deliberately, of his own misdemeanour, desecrated the marriage and made the marriage bond meaningless. This fourth paragraph alone permits divorce for misfortune, the misfortune of being "incurably of unsound mind." May I begin by drawing your Lordships' attention to the word "incurably" as a question-begging epithet? I do not know what the motive of the manuscript Amendment may be, but I take it that the motive may be that the noble Viscount recognises that it is not possible, or at any rate very difficult, to maintain the word "incurably."
I should like in that connection to quote to your Lordships a sentence or two from the evidence given before Lord Gorell's original Commission by one of the two chief medical experts who testified on behalf of divorce for insanity. These were the words of Dr. Robert Jones:
To define such would be an impossible task. It Las become an axiom in the study of prognosis as to mental disease that anything may happen in lunacy. Excepting what we call dementia…the most unlikely and unexpected recoveries take place.
That is the evidence of Dr. Robert Jones before Lord Gorell's Commission. But I do not think we need rest our scepticism
as to the word "incurably" solely on the testimony of experts. It is right to be respectful to experts, but there is no reason to be afraid of them. Is it not within the general knowledge of us laymen that the whole tendency of modern psychology is towards recognising that scarcely any mental insanity should be regarded as incurable? Most of us, I suppose, could think of cases, very likely during the War, when many learned doctors shook their heads over some instance of shell shock as being incurable, and yet the case was finally and permanently cured. With every possible respect, and no one has more respect for the medical profession and more reason to be grateful to it than myself, is it not the experience of most of us when we have consulted a number of medical experts on some obscure physical condition, which is usually far less baffling than an obscure mental condition, that although all these experts will alike have lavished the utmost devotion and great learning on our problem they do, in fact, almost invariably disagree? Yet this Bill is to pronounce the final sentence, and it is a terrible sentence to ask anyone to pronounce, that the sufferer is to have no hopes that he may be cured; and he is to have stripped from him all that stands between him and the troubles and anguish of life.
There is a reason which moves me, I confess, much more than the liability even of medical experts to error or change of opinion on which I believe other noble Lords will have more to say, and that is that it seems to me that what is fundamental and quintessential not only in the Christian but the civilised conception of marriage, is the conception of two persons coming together to comfort, support and cherish each other, in all the manifold changes and chances of this mortal life. In the words of the Marriage Service:
To have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health.
I hope none of your Lordships will say that is only the formula and the ritual of one Church; that by no means all the nation would subscribe to the tenets of that Church, that by no means all the nation or indeed not all of your Lordships' House accepts even the Christian faith. I would contend that that conception of marriage, represented by those
words, represents something much wider, something much more fundamental than the creed of one Church. I maintain that that conception of marriage as the coming together of two persons who link their fates together against the darkest stroke that fate can deal them, runs not only through all the Christian conception of marriage but through all civilised conceptions of marriage, and over wide areas of the animal world itself. Pity, compassion—that seems to me to be the essential in love, less violent but more durable and in the long run more obvious than the sexual instinct itself.
§ The noble Marquess, Lord Salisbury, spoke during the Second Reading of cases of melancholia. I suggest to your Lordships that it is wrong that there should hang over these dark approaches and borderlands of insanity the threat that, if that worst of all misfortunes should fall, then the sufferer is to be stripped of all he values most, all that stands between him and the shocks of the outer world; that we are in fact to re-write the words of the Marriage Service "in sickness and in health" unless it is the worst of all sickness, and "for better for worse" unless it is the worst of all that befalls us. Once you accept the principle that divorce has to be possible for misfortune because misfortune misfits the sufferer from fully discharging his marital functions, then there are many other misfortunes which can be classed sooner or later in that category. We can all think of physical disabilities which prevent the sufferer from fully discharging his marital functions. We can think of lingering physical diseases which make one who was only the other day a helpful and hopeful partner, a mere tragic encumbrance of the earth.
§ The senior member for my own University of Oxford said during the Third Reading in another place that the Bill would settle this matter for at any rate twenty years. I suggest that within this twenty years if you accept this principle of divorce for misfortune, you will be extremely likely to find you are admitting other misfortunes beside mental instability. It may be said that this provision is, after all, only permissive and that those persons whose comfort would be worth having when the dark hour comes will not in fact avail them- 116 selves of it, but the principle I want to hold on to is that we should not admit for the first time the principle of divorce for misfortune. We should not admit a principle of which we cannot see the end and which in itself is an inroad on all that is finest and most Christian in marriage.
Page 2, line 9, leave out from ("cruelty") to the end of line 13.—(Lord Elton.)
We have listened to a very moving speech from the noble Lord who moved this Amendment, but I hope nevertheless that your Lordships will not accept his Amendment. The noble Lord quoted from some of the evidence given before the Royal Commission, but, after all, the Royal Commission listened to the whole of the evidence, including that part which the noble Lord quoted, and the majority came to the conclusion that insanity with a definite safeguard should be recommended as a ground for divorce. The noble Lord spoke very eloquently against making misfortune in any degree a ground for divorce, but the Royal Commission pointed out how very markedly different insanity was from any other class of misfortune. The noble Lord spoke of misfortunes which prevented one partner from fully discharging the obligations of marriage. If I may say so, the introduction of that word "fully" was—I am sure he did not mean it—a trifle disingenuous, because, under the provisions of the Bill, it is not a case of one partner by misfortune being prevented from fully discharging the obligations of married life, but from being able to discharge them at all. I think one has to consider in relation to this very difficult class of case the actual practical effects of incurable insanity as defined in Clause 3 of the Bill upon the ordinary small home.
LORD DARCY (DE KNAYTH)
Will the noble Lord tell us the difference between those having incurable insanity and those having ordinary insanity?
I do not understand the point of that interruption. The insanity of which we are speaking is the insanity which has been defined in the clause to which we will come next, Clause 3. It covers all the real cases of insanity. I have no doubt many medical questions 117 will arise on that, and we shall get guidance, I hope, from the noble Viscount, Lord Davison of Penn. I would ask your Lordships in this matter, which was so fully considered and has been before the public for so many years, to rest upon the findings of Royal Commission, emphasising that it is not a case of starting upon a slippery slope of misfortune, that the degrees of insanity to which this clause applies have been explained by the Commissioners as—setting the case quite apart from any other form of misfortune—rendering all the obligations of marriage quite inoperative. I would earnestly hope that your Lordships will resist the Amendment and retain this as one of the causes for divorce in the Bill.
THE LORD ARCHBISHOP OF CANTERBURY
I do not wish to say much after the extremely able and eloquent speech of the noble Lord who moved this Amendment, but, having regard to my desire to mitigate the evils as well as encourage the good which this Bill may contain, I feel bound to say a word in support of his Amendment. I emphasise what he said—and I hope your Lordships will bear it in mind—about the unique character of this particular alleged ground of divorce, that it necessitates that the marriage may be terminated for a cause for which the person is in no sort of way to blame, and where determination of the marriage is due to no sort of fault, but to misfortune. I would go a step further than I think the noble Lord himself went, and say that sometimes in these cases there is a fault, but it is not the fault of the person who becomes insane. It may be the fault of the other partner, a fault which is extremely difficult to prove, by which continual ill-treatment or continual neglect has brought about those tendencies to mental disease which have led to the confinement, it may be, of the party who is to be against his or her will, divorced.
I would also emphasise what the noble Lord said, that if there is any single instance in which it is legitimate to appeal to the fact that marriage should be a sincere endeavour for each party to hold to the other in sickness as well as in health, it is this form of sickness, which is peculiarly distressing. We cannot ignore the fact—I imagine my noble friend Lord Dawson has accepted it—that you cannot really speak of mental disease as being incurable. I remember what 118 was said by Lord Horder in this House not long ago, that the incurability of the disease is never more than an estimate based upon experience. And I would like to remind your Lordships that I was a member of the Royal Commission to which my noble friend Lord Gorell has alluded, and I had the opportunity of listening to all the evidence. I am bound to say that on this matter, perhaps it may be presumptuous to say so, the minority of whom I was one had a truer grasp of the weight of the expert evidence that was given than the majority, who were influenced by a great many other relevant considerations. I was particularly impressed by the evidence of one who, certainly at that time it will be admitted, was a very great authority on all matters of mental disease, Sir George Savage. Speaking of his experience what he said was that he approached this matter with every desire on grounds of emotion and the like to agree with the suggested change in the law, but, after reviewing carefully his forty years experience, he had come to the conclusion that, on the basis of that experience, he could not support the inclusion of insanity as a ground for divorce.
I think some of us have our own measure of experience in this matter. I would only allude to one single case of which I have knowledge, where a woman who had been regarded as insane and under treatment for nine years—four years in excess of what is provided here—completely recovered and returned home. What would her position have been if she had come home to find that another woman was in possession of her home, which, through no fault of her own, she had been obliged to leave, and that her children were under the care of one whom they had been led to regard as their mother? I might mention other cases, but I do not want to take up your Lordships' time. If it comes to actual experience, I would venture to call attention to experiences of which we had abundant proof in the Royal Commission, and to one's own experience of those with whom one has been brought in contact in a long life which has had much to do with all classes of society.
Then, lastly, I would remind your Lordships of the effect which the inclusion of this ground of divorce might have upon those who are partially insane or persons who may be liable to insanity. 119 I do not know whether my noble friend Lord Dawson, who will no doubt punish me for my rash remarks about the medical aspects of the case when I am done, had that in mind when he spoke about including in this clause persons who would be liable to recurrent fits of insanity. On persons of that kind what is likely to be the effect of the inclusion of this ground? I have the very clearest recollection of the evidence that was given before the Royal Commission, and I think it is true to say that the majority of the expert witnesses themselves were against the inclusion of this cause, even though they were in favour of the inclusion of other causes for divorces. For instance, four Commissioners in Lunacy, the Lord Chancellor's Visitor in Lunacy, Sir George Savage, whom I have just quoted, and others who were familiarly dealing with people of this class every day of their lives, brought home to us that the apprehension that some approach of insanity might develop into a cause by which the man or the woman might lose a home and husband or wife, as the case might be, would have the gravest effect. Therefore, without labouring the point, I venture to think that the adoption of this Amendment would result in retarding the recovery of those who are curable and sometimes would upset the balance of those who are liable to become insane.
Of course there are in this matter hard cases. I have known mama myself, and I could easily impress your Lordships with a moving account of the way this hardship works. At the same time one has known cases of great hardship where a working man had a wife afflicted with epilepsy, paralysis or some incurable disease which made it quite impossible for her to look after the children. It would not be suggested in such a case that that incurable disease was a ground on which the man could get rid of his wife and send her to an institution and marry someone else. This is one of the cases in which, in attempting to relieve certain quite obvious hard cases which appeal to all our hearts, we should be creating even greater hardships. For these reasons, whatever may be thought about the extension of other grounds for divorce, I hope your Lordships will see fit to refuse to allow this to be included among them.
§ LORD CROMWELL
If the noble Lord who moved this Amendment will allow me I will try to point out that the arguments he used in favour of the Amendment were based on two fallacies. In the first place he appeared to assume that divorce did not exist at all. He used as an argument for not extending divorce to this misfortune rather than fault, the words of the Marriage Service. I think that all your Lordships would agree that marriage should be permanent, but the law of the land admits divorce and therefore I do not think it is fair to quote the Marriage Service as an argument against admitting insanity as a ground. The second fallacy, if he will forgive my saying so, is that he assumed apparently that divorce is a punishment. This argument has been used before, but I do not think any one would agree that divorce was instituted, in the first instance at any rate, as a punishment. Therefore, whether it is a case of misfortune or mistake, I do not think the question arises at all. Divorce, I think everyone will agree, was instituted in order to make the home which is left better.
LORD DARCY (DE KNAYTH)
I would like before making those observations which I had intended to address to your Lordships to draw attention to the Report of the Royal Commission and to point out that in a very material and important matter its recommendations are not given effect to in this Bill. In paragraph 292 the Commission say:We further recommend that the insanity should be found to be incurable to the satisfaction of the Court, and that this ground should only operate when the age of the insane person is, if a woman, not over fifty years, and if a man, not over sixty years. The last recommendation would exclude the case of senile dementia, and cases where there is no reasonable ground for dissolving the marriage, having regard to the age of the parties.There is nothing to that effect in this Bill. The evidence given by Dr. Robert Jones shows that in London alone at that time there were 7,339 cases between the ages of fifty and over eighty to which this would apply. Taking men alone between the ages of sixty and sixty-four there were 1,442 cases. Those figures will be found on page 13 of Volume III of the Report.
There is another thing I should like to mention before proceeding further. It is not fair to my noble friend Lord Elton 121 to say he picked out a certain passage of the evidence which was in no way representative. It is not fair for two reasons. First, he did not pick it out, and I did. Secondly it is thoroughly representative, and I defy a contrary opinion to be found expressed in any of the evidence. The noble Lord, Lord Gorell, rightly pointed out one thing with which I will deal later, but I would like to say I owe the noble Lord an apology for having intervened when he was dealing with the question of results of insanity, because I mistook him and thought he was going to refer to the usual things that result after that terrible period that is instituted in this Bill of five years.
There are two other matters which I think it is only right to bear in mind in connection with the Report of the Royal Commission. The Royal Commission sat at a time when the only ground for divorce was adultery, and when relief could not be obtained, as would be possible under this by a decree of nullity in certain circumstances. Dr. Jones, one of the great twin brethren on whose shoulders the whole weight of medical evidence was carried, proceeded to give evidence in which he said he had known cases in which within a few months, a few weeks, a few days of marriage a person had become insane. The cases we are seeking to alleviate can be dealt with by getting a decree of nullity by which immediate relief can be obtained without having to wait five years to start the necessary proceedings. There is the further point of cruelty. There are many cases which start because of cruelty. Women who have suffered from being knocked about by their husbands who subsequently become insane are unable to secure a remedy. I do not mind their getting relief in those circumstances.
I referred a moment ago to the period of five years as being necessary for the purpose of getting a decree on the grounds of incurable insanity. We have thousands of cases like those of which the noble Lord, Lord Maugham, has told us: how the husband or wife, as the case may be, has young children to look after; and the result is that, in the absence of adequate financial standing, they are unable to do so without the intervention of Why this unnecessary cruelty? It is perfectly true that it is cruel. If you can say that a case of 122 insanity is curable, why do you not cure it? Are you really so brutal that you are not going to do that? Of course, it is simply that from first to last there is only one way in which it is suggested in this Bill or in the evidence that a case of insanity may be incurable, and that is by showing that very few people are cured after a certain lapse of time. It is interesting to see that if you say that, if you say that so-and-so is incurable after that time, the suggestion is that you will not be wrong in saying so.
An idea which I think is rather interesting is that, as far as I have been able to find, and I have read and re-read the evidence given before the Royal Commission, where we had the advantage of seeing doctors and, what is more, doctors under cross-examination, not one of them, as far as I can tell—I shall of course be corrected if I am wrong—once made a single statement that he was able to pick out those cases that would recover. Are you not, rather, merely saying that the odds are—I think the figure was given—possibly 2 per cent., and therefore fifty to one against you? This tribunal is not going to sit down and say whether a particular case will recur, but what are the odds against its recurring. I suggest that this is to reduce the Bench to the position of the punter, and the experts who give the evidence to the position of a bookmaker who is shouting the odds. If it is only fifty to one, I know that many of your Lordships are prepared to venture such a risk to the considerable benefit of yourselves, and I should feel very surprised if your Lordships would not, in the interests of humanity, be prepared to take a risk which you are prepared to take in the interest of pecuniary gain.
I apologise for wearying your Lordships so much, but there is a great deal with which one really ought to deal. The noble Lord said that he thought that not one case in a thousand would slip through the procedure suggested. In evidence before the Royal Commission, that great expert Dr. Robert Jones proceeded to suggest that there ought to be colonies to protect people against the shocks that they might have on coming out and finding their spouses married to somebody else. In fact, he suggested that the local authorities all over the country should set up colonies in order to accommodate 123 those totally sane persons who have been divorced on the ground of incurable insanity. There are a great many people who think that this is only a matter concerning a few poor, demented people. I wish I thought it was, but there was a great deal of evidence which suggests that the class extends very much further. We have heard evidence that a great many of these people would suffer very much indeed from the mere knowledge that insanity was a ground against them, even though they were not actually to be divorced.
Dr. Chambers in his evidence was asked, I think by the noble Lord, Lord Gorell:What is your view as to the effect of the knowledge that insanity was a ground for divorce?'The answer was:It would have a deleterious effect on some members of the sane community. I know how unconvincing it is to press illustrations, but there is one that occurs to me. Take the case of a couple getting married—I am speaking rather of educated people with nervous organisations—and pregnancy occurs. If the young wife, at what is a physiological crisis for her, feels that she has all the attention and care she should have she will pass through it quite safely; but if the husband, perhaps thoughtlessly, is inattentive, she not being judicial in her attitude towards things may wake up one morning and think, 'He wants to get rid of me; if I break down in my confinement I may be divorced.' This is a grave matter. Then if you come to the other end of life, when a wife is not so attractive and may not be getting the same attention she had when she was younger, at the climacteric—I am not speaking of people with insane heredity, but people who are neurotic—again, if the husband is not careful—he may have too many interests outside his home, some may be wrong and some may not be wrong—she may think that he does not care for her, and it would be a great strain if she knew that insanity was a ground for divorce.I am sorry; these extracts are much too long, but again and again a statement is made that members of the sane community, particularly females, are liable to be upset owing to the proposals of this Bill. Under this Bill, if in one of those most distressing cases of puerperal insanity, 20 per cent. of which, I understand, are not cured, the man is to be allowed to say: "No, I loved this woman when I married her, and owing to her efforts to produce a son and heir for me she has risked not only death but a fate which is possibly worse than death—"then, my Lords, how would you describe 124 such a man if he were to take advantage of this provision? The noble and learned Lord, Lord Atkin, referred to some people who might be seeking relief under this Bill and said that he would not mention in your Lordships' House what he would think of them. This is a very serious matter, and I would not hesitate to say anything of the kind except for the fact that such expressions would be wholly or partially inadequate.
THE EARL OF MORAY
This is a serious matter which concerns your Lordships' House more than another place, both from an inheritance point of view and from a religious one. Another reason given us is that it is too costly—
THE EARL OF MORAY
This is a serious matter which concerns your Lordships' House from the inheritance point of view—
§ THE MARQUESS OF SALISBURY
On a point of order, I venture to hope that that Motion will not be made. I am quite sure that your Lordships are very anxious to get on with business. Every noble Lord would feel that it would be a pity if we put into force that very rare Standing Order. It is really not called for. I believe that your Lordships are really anxious to hear what Lord Darcy has to say.
In reply to the noble Marquess, I only made that Motion because the noble Lord, Lord Darcy (de Knayth) has not finished his speech. It was only for that reason. It is not a mere interruption by the noble Earl, Lord Moray; it is a new speech.
LORD DARCY (DE KNAYTH)
I feel at any rate that one member of your Lordships' House thinks that I have spoken for a wholly adequate time. I will draw my remarks to a close by making one short observation. Your Lordships will remember the late Viscount Bridport. I once had a discussion with him when we were standing there at the Bar of this House. It was after a discussion on the subject of animal welfare, and the noble Lord asked me how I was going to vote. 125 I replied to the noble Lord by asking him his views, and, with that broad sympathy for which he was so noted, he said to me: "Where there is an issue between men and animals and there is no good reason to the contrary, I always vote for the animals, because they are not here to speak for themselves." We are here dealing not with dogs, cats, rabbits or animals at all, but with fellow human beings who are not here to speak for themselves. In those circumstances, in the spirit of the broad humanity of that noble Lord, I feel myself impelled to make one last appeal to your Lordships on behalf of those who are entitled, with everyone else, to your Lordships' justice, and who have, owing to their misfortunes and misery, a peculiar claim to the charity, humanity and sympathy of every member of your Lordships' House.
§ VISCOUNT DAWSON OF PENN
The noble Lord who has just sat down will perhaps forgive me if I do not attempt to spread myself over the wide ground he has sought to cover. I think it was the speaker before the last who referred to the differences of opinion among experts. If there were not differences of opinion among experts there would be no progress in the world at all. There is no branch of knowledge, statesmanship included, where there are not differences of opinion, and it is a mistake to suppose that medical experts always differ. If you were to go calmly into it, you would find that on essential subjects there is more general agreement in the medical profession than almost in any other. It is common ground, I take it, that we all ought to be as human as we can be, and most of us think we are pursuing the Christian ideal. It is also common ground that this particular group of cases is one which demands our very careful consideration and our merciful consideration; and the reason is that in most instances it is not a matter of fault, it is one of misfortune. That statement is hot strictly true. I need only mention one instance, that of chronic alcoholism—the effect of alcoholism producing a steady progress of dementia. Another example is that of syphilis. Still, broadly speaking, it may be asserted that the element of misfortune does come into the question of insanity more than into the question of adultery and cruelty. Therefore, to my mind, what we have to do 126 is to be very careful to hold the scales of consideration and justice as between the patient on the one hand, and the equally suffering partner, and equally suffering children, on the other band.
What has been so noteworthy in the speeches which have gone before is that one would think there had been no suffering partner; but any one who has had an opportunity of studying insanity in the homes would often come to the conclusion that far more sympathy is to be extended to the suffering spouse, who feels things acutely, than to the patient, who feels things less acutely. I take it that we cannot consider this clause without considering Clause 3. There you will find that the insane patient must have had continuous treatment in some form of institution for a period of five years. That, in itself, is a great protection. The question that next arises there is this—how many patients will be covered? We cannot expect to get one hundred per cent. in any clause of this Bill. We can only endeavour to get the best results for the largest number. It is a fact agreed by a fair consensus of opinion that the chances of recovery after five years of continuous treatment are small, or, put in another way, that the large majority of patients who have been under continuous treatment for five years do not recover. That does not go so far as to say "incurable," and I propose to move an Amendment on that. To assert that anything in the world is "incurable," which means one hundred per cent., is not a very wise statement by a scientific man, and I am proposing to put in, instead of "incurable," "one who is believed to be incurable." That, I think, is a fairer and more accurate statement.
I said just now that the large majority of patients who have had continuous treatment for five years will not recover so as to take their place in the world again. The prospects in the first year of treatment are very good. The prospects after two years of treatment are definitely smaller. There is a big drop between one year and two years, and between three and four years a greater drop, and after five years the number who recover is very small. Therefore, I put this to your Lordships, that after five years, when the prospects of recovery for the patient are so small, is it not our duty, in justice to the suffering spouse, to give that suffering spouse a chance of relief? 127 We do not make it compulsory. What we say is that there is an option on the part of the suffering spouse—it may be on the part of the children, or it may be on the part of herself, or on the part of the home. What we are very apt to forget is that the large majority of people with whom we are concerned in this Bill are people who live in houses of only a few rooms, and therefore, in case of cruelty or insanity, whether caused by drunkenness or drug addiction, on the majority of the population it presses much more hardly than it would on members of your Lordships' House.
I would say that in many cases it will be true that the wife, or healthy spouse, will elect to tread that hard and thorny path, and go along with things in spite of the suffering which it involves, but I do not think it is justifiable for the community to make that compulsory. This country prides itself on voluntary effort. It depends upon voluntary effort and individual judgment. It will not let us even compel physical education to be taken by law. Was there ever a case where you were not justified in forcing on a spouse, after five years of treatment, with the chances of recovery so very small—was there ever a case in which you would not be justified in enforcing the judgment of the community and saying coûte que coûte that is to go on? Imagine a small household of perhaps two or three rooms, and a patient coming back after a term in an asylum. These patients let out of an asylum are indeed not normal, and have to be treated with great care. They are easily fretted and made irritable, and why each time that a patient comes out should that home be destroyed, and the health of the other spouse endangered? I think that that puts the main facts. The people who put in the explanatory clause, and made it five years, did it after great consideration. They did it after getting advice from experts, and the advice they had was right.
On the question of incurableness the only reason why I propose directly to amend this paragraph is really for scientific accuracy. For scientific accuracy it is much better to say "believed to be incurable." And if I ask your Lordships to pass that Amendment it does not mean that the medical profession has the power to say that no case is incurable. Cases like shell shock in the 128 War are on a totally different footing from those cases of insanity which result from organic and structural disease. If, for example, the arteries of a man are getting harder and harder there never has been a case in Christendom where they have ever gone back. Those cases are completely incurable by the very nature of things, and there are certain definite structural causes of insanity which in their very nature must be incurable. Therefore it is very important to distinguish between such cases and that large group of functional cases which, if they were put under treatment for five years, would be cured, and most of them a long time before that. But the large majority of patients who have been treated continuously for five years do not get well, and therefore when that period has passed I claim that we should in mercy and justice turn aside from the odd chance of the patient getting well and turn our attention with gentleness and consideration to the small home which is converted into a hell very often by the deranged mind of a partner. A misfortune if you will, but the greater good is to look after the spouse and the children.
One more thing. It has been said, and it was said in to-day's Times by a very distinguished solicitor, Sir Reginald Poole: "Think of what it would mean for an insane person to think of the prospects of divorce, of his feeling that he has been displaced in his home, that his children belong to someone else." The answer to that is perfectly clear. It does not take place. We are very apt to judge those who are mentally deranged in terms of ourselves. In the large majority of cases when persons have been under continuous treatment for five years the acuity of mind has gone, the range of mental vision has contracted, the powers of appreciation have steadily declined, the point of view is narrower, and they feel not as we might think they would feel. They become accustomed to their surroundings, they look only a short way ahead, their life and their thought, with the deterioration of their minds, are entirely different. I have no fear on that point. There would be no substantial injustice done. The whole question turns on the question of five years. I should only be in favour of this paragraph if it were five years, and I beg your Lordships in the interests of the nation and of the 129 spouses, and without doing any substantial injustice to the poor patient, to pass this Amendment.
§ THE MARQUESS OF SALISBURY
Perhaps your Lordships will allow me to intervene, not to repeat what I have already said on Second Reading, but just to say one or two words largely in consequence of the very important speech to which we have just listened. I need not say that I feel the greatest diffidence in entering into a controversy with my noble friend who has just sat down, from whom I have experienced every kind of kindness all through my life. My noble friend has made a very great contribution to the debate, but I think your Lordships will recognise that it was very significant that he has already abandoned in its integrity the word "incurable" altogether. He uses it, but he uses it with great limitation. I do not know whether it was the effect of the Second Reading debate upon his mind, but he is evidently convinced that to speak of incurable insanity world be what he called unscientific, and what in fact is inaccurate. That is very important. And your Lordships will observe that in discussing the question of insanity he spoke of insanity which was incurable in the great majority of cases. That is very significant too, because that is an admission in effect that there is a substantial minority of cases which would turn out not to be incurable. Of course we cannot contest with the noble Lord any matter of medical opinion. I should not dream of doing so, but I take it as he himself has put it before us. Here are cases of insane persons the great majority of whom will not recover, and he proposes therefore that, notwithstanding the fact of the substantial minority, yet this substantial minority should undergo the risk of divorce.
May I say one further word about the degree of insanity? It does not follow that because a man is insane, or even incurably insane, he has not got the most acute feeling. That is a matter which I want very much to impress upon your Lordships. He may be insane upon a particular issue or in a particular part of his mind. I gave the instance of melancholia on the Second Reading, but of course there are many other forms of insanity in which a wan is only insane on a particular matter. That may be incur- 130 able—I do not know—and he may be confined in an asylum in consequence, but he may all the time be quite conscious of his domestic relations and of the love of his wife and the passion for his children. All these things may be present to his mind. It does not follow in the least that because he is incurable he is insensitive. On the contrary I expect he is very sensitive indeed, and therefore you have to deal with these cases of people, some of whom, by the noble Lord's own admission, may be recoverable, but even if they are not recoverable you have to deal with them when they are very sensitive indeed. Surely that is a very important consideration.
Sometimes I think we forget when we legislate of how suggestive legislation is. A woman who was attached to her husband and who was confined to an asylum, let us assume incurably insane, might be quite determined to stand by him as the law stands at present, yet if your Lordships alter the law and say to her, "You are entitled to a divorce" then it is suggested to her. And that penetrates all through our legislation. That is why we have to have all that legislation about drink, because unless we have that legislation we should be guilty of not saying that Parliament wished people not to drink too much, and that has immense effect. And so with this question of insanity. If you once suggest to a woman that has a great effect on her. Then all her relations come round her and say: "You married your husband. You are devoted to him still. He is mad. You are surely not going to stick to him. Parliament has suggested it to you. The noble Viscount, Lord Dawson, speaking in the House of Lords, has suggested to you that you are entitled to a divorce. Surely you are not going to stand out? Give way. Agree with us. We want you to free yourself." And the woman might say, "Very well, I suppose I must give way, but I am very fond of him still." I consider that these temptations that you put into people's minds are some of the most important dangers of legislation.
It is most dangerous for us to wander into this domain of misfortune. How many misfortunes there are which prevent marital relations. One occurs to me, it may occur to your Lordships. Supposing after an accident, after marriage, a man becomes impotent. That is a complete denial of marital relations. Is a divorce to follow? There is really no 131 limit to where you will advance on these lines. Take the Amendments that are going to be moved immediately after this, dealing with imprisonment for a long term. I do not know what your Lordships will decide on that point, but on the arguments used on this insanity clause there is a great deal to be said for giving a woman divorce if her husband is imprisoned for a long term. Marital intercourse is completely arrested. Once you leave the domain of whether one of the spouses is at fault, and go into the domain of misfortune, there is no limit to the degree you will have to advance. I very much hope your Lordships will ponder well the speech made by the most reverend Primate. He showed that it was by no means proved that authority was all on the side of change. Speaking, as he did, as a Commissioner himself he was able to cite very effectively, if I may say so with great respect, the evidence on the other side. It is by no means true that all the authority is on one side. Your Lordships are asked to make a great decision. It involves a very great principle, and I hope your Lordships will agree to the Amendment which has been moved.
THE LORD BISHOP OF BIRMINGHAM
I trust the Committee will pardon me, if after the speech made by noble Viscount, Lord Dawson of Penn, I venture to speak very briefly. I would like to stress the aspect of heredity in connection with the particular question now before us. In these matters of divorce we normally think of the well-being of one or other of the spouses, but behind their well-being lies the question of the children, their well-being and the future of the race. As the most reverend Primate has truly said, insanity, though it ranks as a misfortune and not as wrongdoing, is a misfortune of practically a unique kind. A man normally does not become insane because of something that he himself has done. I exclude cases like chronic alcoholism or syphilis. He becomes insane because of something in his make-up. He inherits a highly organised nervous structure. The man who is insane is closely akin to the genius. This highly organised structure is part of his inheritance. He hands it on to his children, and if the organisation is such as to be liable to a breakdown leading to that type of incarceration in a mental 132 home of which the noble Viscount, Lord Dawson, has spoken, then there is the more likelihood that he will hand on to his children a grievous type of instability which they may show as they grow to manhood.
We have been constantly told of the medical evidence before Lord Gorell's Commission—evidence given before 1912—but I would remind your Lordships that much progress with the study of inheritance has been made since that time. Menders great paper was rediscovered in 1900. The rediscovery was not really taken up by large groups of research students until about the time of the War. Since then, as everyone knows who has made even a cursory study of the literature, the volume of research has been enormous and the results are sometimes disquieting. For instance, take the allied though quite different subject of mental defect. That is adequately provided for, as I think, in the clauses relating to nullity which your Lordships will shortly be asked to pass, but the extent to which mental defect is inherited—not directly, of course, but according to Mendelian laws, so that it may appear in an earlier generation in brothers and sisters, not in direct ancestors—was estimated by one witness before the Brock Committee, the Departmental Committee which inquired into mental defects some few years ago, as some seventy-five per cent. His figures were challenged, and in a subsequent paper he said that probably inheritance existed in at least ninety per cent. of the known cases of mental defect. These inquiries are very difficult, and inquiry into the inheritance of insanity is more difficult than inquiry into inheritance of mental defect; but there is no doubt whatever that a very considerable proportion of the cases of insanity which are known result from a morbid inheritance.
Are you to allow the possibility that a man, carrying such a taint in his makeup that he has been for five years in a mental home, may come back and produce more children? I can conceive nothing more awful than that a woman should be expected to bear children to a man whom she knows to have this taint. You may say she ought to have discovered it before marriage; but nothing is more carefully concealed in all classes of the community than the existence in 133 the family of a taint of insanity. That surely is well known to all social workers. It is particularly well known to all doctors in mental homes, for their endeavours to find insanity in the family in the past often fail because frank evidence is not forthcoming. As I look at this question, from the point of view of heredity it seems to me you have drawn rather too stringent precautions and I would make it easier for the sane partner to obtain relief.
§ LORD ADDINGTON
I have had experience with a mental hospital both in visiting and in the discharging of patients. The progress of medical science for twenty-five years since the Royal Commission has gone on and we look forward to much progress in the years to come. We hope to be able to discharge as cured an increasing number of patients even, many of them, after five years. I am quite aware that a discharge after five years is not common. They do exist and no one is able to say what particular case may not be cured after five, six or even nine or ten years. It is extremely difficult to say whether any case is incurable or whether they are believed to be incurable. In my own opinion, for what it is worth, as you go round the institutions, even by the old patients you are asked most frequently when they can get out and return to the family. It is quite impossible to tell. Taking the five years and this case, the number of cases which will be benefited is comparatively small. In view of these cases a very dangerous principle is shown in this Bill to use this class of misfortune in this way.
§ and we have taken decisions of very great importance and moment, and I would venture respectfully to make a plea for brevity of speeches because we have a tremendous programme ahead of us this evening. In support of that I will be very brief myself. I will remind the Committee that this matter was very carefully considered by the Royal Commission and also that this matter was debated at great length in another place. It is evidently the view of the other place at any rate that this paragraph should be included in the Bill. I only want to say one other thing because one can speak at great length on this subject, and that is that I do not think competence is in anything approaching the same field as the question of companionship. Those of us who support the inclusion of insanity in this Bill as a cause for divorce do so because we are of the opinion that sanity is on quite a different plane from any other illness. The distinction between insanity and other forms of illness is that, while in the case of physical illnesses, there can be and still is a very real companionship between the parties, in the case of insanity that companionship can no longer exist because the very basis of happy relationship has been destroyed. Much as we appreciate the position of the lunatic we look also at the other side of it and the children whose best interests ought to be served by the legislation which we pass. I hope the Amendment therefore may be resisted.
§ On Question, Whether the words proposed to be felt out shall stand part of the clause?
§ Their Lordships divided:—Contents, 95; Not-Contents, 31.135
|De La Warr, E. (L. Privy Seal.)||Sandwich, E,||Birmingham, L. Bp.|
|Strafford, E.||Liverpool, L. Bp.|
|Ailesbury, M.||Aberconway, L.|
|Reading, M||Addison, L.|
|Bertie of Thame, V.||Ailwyn, L.|
|Ancaster, E.||Chelmsford, V.||Allen of Hurtwood, L.|
|Bathurst, E.||Cobham, V.||Alness, L.|
|Beatty, E.||Dawson of Penn, V.||Amulree, L.|
|Birkenhead, E.||Exmouth, V.||Arnold, L.|
|Cranbrook, E.||Goschen, V.||Atkin, L.|
|Drogheda, E.||Greenwood, V.||Biddulph, L.|
|Effingham, E.||Hambleden, V.||Boston, L.|
|Howe, E.||Knollys, V.||Brocket, L.|
|Lucan, E.||Long, V.||Camrose, L.|
|Macclesfield, E.||Mersey, V.||Carnock, L.|
|Midleton, E||Plumer, V.||Carrington, L.|
|Peel, E.||Samuel, V.||Chalmers, L.|
|Plymouth, E.||Swinton, V.||Cromwell, L.|
|de Clifford, L.||Lawrence, L.||Rennell, L.|
|Doverdale, L.||Luke, L.||Rhayader, L.|
|Dunleath, L.||Mancroft, L.||Ritchie of Dundee, L.|
|Eltisley, L. [Teller.]||Maugham, L.||Roche, L.|
|Fairhaven, L.||Mendip, L. (V. Clifden.)||Selsdon, L.|
|Faringdon, L.||Middleton, L.||Sherborne, L.|
|Foxford, L. (E. Limerick.)||Milne, L.||Shute, L. (V. Barrington.)|
|Gage, L. (V. Gage.)||Monkswell, L.||Snell, L.|
|Gifford, L.||Mount Temple, L.||Strabolgi, L.|
|Gorell, L. [Teller.]||Moyne, L.||Templemore, L.|
|Greville, L.||O'Hagan, L.||Teynham, L.|
|Heneage, L.||Palmer, L.||Trent, L.|
|Hindlip, L.||Rea, L.||Waleran, L.|
|Illingworth, L.||Redesdale, L.||Wright, L.|
|Kilmarnock, L. (E. Erroll.)||Remnant, L.|
|Canterbury, L. Abp.||FitzAlan of Derwent, V.||Clanwilliam, L. (E. Clanwilliam.)|
|Salisbury, M.||Darcy (de Knayth), L. [Teller.]|
|St. Albans, L. Bp.|
|Grey, E.||Winchester, L. Bp.||Daryngton, L.|
|Iddesleigh, E.||Dickinson, L.|
|Malmesbury, E.||Elton, L. [Teller]|
|Onslow, E.||Addington, L.||Holden, L.|
|Poulett, E.||Arundell of Wardour, L.||Mamhead, L.|
|Radnor, E.||Berwick, L.||Rankeillour, L.|
|Selborne, E.||Bingley, L.||Russell of Killowen, L.|
|Cautley, L.||Saltoun, L.|
|Brentford, V.||Charnwood, L.||Seaton, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative and Amendment disagreed to accordingly.
THE LORD CHAIRMAN
A manuscript Amendment has been handed in by the noble Viscount, Lord Dawson of Penn, in line 10, to leave out the word "incurably."
§ VISCOUNT DAWSON OF PENN
My intention was to move to leave out the word "incurably" and then after "mind" to insert "believed to be incurable," but during the Division some of my legal friends told me that that phraseology probably would not meet my purpose. Therefore, with your Lordships' permission, I will not move that Amendment, but retain a discretion to revive it on Report.
§ VISCOUNT DAWSON OF PENN had an Amendment on the Paper to add to paragraph (d) "or has during that period been subject to recurrent fits of insanity." The noble Viscount said: I propose to add, at the end of subsection (d) "or has during that period been subject to recurrent attacks of insanity." I agree that one of the principles that we ought to maintain is a careful balance between our sense of justice and our sense of mercy to both 136 the patient and the spouse. At the same time, although knowing how tragic these cases of insanity are, I have, with the best intention in the world, failed I think to satisfy my own criteria and my own standard that we must hold the balance justly between the patient and the spouse. In cases of cyclical insanity, dangerous as these people are to the happiness of their homes, I am afraid it would be true that when the patient came back from a period of insanity and re-entered the home he would know, and would suffer as a result of knowing, that he might be divorced, whereas in the case which I have been discussing on the clause itself, at the end of five years he would in the majority of cases not know. Therefore, applying my own criteria, I am bound to confess I have failed and with your Lordships' permission I would not move the Amendment.
§ [The sitting was suspended at twenty minutes before eight o'clock and resumed at nine o'clock.]
VISCOUNT BERTIE OF THAME moved, after paragraph (d) to insert:
has since the date of the marriage and within the five years immediately preceding the presentation of the petition for divorce, been convicted at least three times of a crime, and sentenced on any such conviction to imprisonment for a period of not less than six months.
The noble Viscount said: I had hoped to see my noble and learned friend Lord Alness with a view to his moving these Amendments, because they appear in the Scottish Bill, and I hope that, as I have not seen him, he will not think I have been poaching on his preserves. His Bill is more courageously entitled the "Scottish Divorce Bill," whereas this Bill is called the "Marriage Bill," although it has little to do with marriage except its dissolution. The Scottish Bill having passed through this House without even one Amendment being moved, I have put down a similar clause which is self-explanatory. It is a dreadful thing to think that a spouse should be tied to an habitual criminal. It is only serious crime, as you will see from the definition Amendment I have down at the end of the clause:
the expression 'crime' means an offence involving dishonesty or personal violence.
I hope I have been short enough to satisfy my noble friend Lord Eltisley, and with some confidence I throw it to him as a sop. I beg to move.
Page 2, line 13, at end insert the said words.—(Viscount Berlie of Thame.)
With diffidence, and, I hope, with brevity, I desire in a few sentences to support the Amendment moved by the noble Viscount. My sole justification for intervening in this matter is, as he has indicated, that I had the honour of sponsoring a Bill in your Lordships' House about three months ago—a Divorce Bill applying only to Scotland—which contained this very provision. I am aware that I was severely castigated by the noble Marquess, Lord Salisbury, on the Second Reading of this Bill. I was unable, unfortunately, to be present, but I read the report of the debate very carefully.
§ THE MARQUESS OF SALISBURY
I must apologise to the noble and learned Lord for having spoken of him in his absence, but it was not my fault!
It was entirely my misfortune or, it may be, my fault, but I react what the noble Marquess said with very great respect and very great interest, and I am afraid I am still unrepentant in my profound conviction that serious crime ought to be a ground of divorce. Of course the crime must be serious—serious in the 138 sense in which it is defined in the Amendment: that is to say, that a man shall have been convicted on three separate occasions of an offence which involves either personal violence or dishonesty, and have been sentenced on each of these occasions to a term of imprisonment of not less than six months. I venture to think that a man who has been convicted three times of such crimes as these may be guilty of a more outrageous violation of the marriage bond than a man who has committed adultery. On that question, no doubt, opinions may vary. But I am bound to say that I cannot imagine anything more tragic, anything more revolting, than that a woman should have to receive back, not perhaps into a house with three rooms, which has been mentioned this afternoon, but into a one-room house, a convicted felon—a jailbird. Nor can I imagine anything more distressing or degrading to the children of the marriage than that they should be compelled to associate with a convicted felon.
This is not a new proposal. It has been the law in fifteen civilised countries of the world for quite a considerable period, including three or four Catholic countries. It therefore comes before your Lordships, not only with a very recent precedent in your Lordships' House, but also documented by the experience of these foreign countries. I take courage in supporting this Amendment from an expression which fell from the noble Marquess this afternoon when he said, if I understood him aright, that, if we passed the insanity clause, that would give considerable support to those who proposed that crime also should be a ground for divorce. Well, we have passed the insanity clause, and I venture to invoke any help forthcoming from that fact in support of this Amendment. I desire to be brief, as we have been enjoined to be, and, though I feel very strongly on this subject, I will not trouble your Lordships with any further observations. I venture, however, to hope that the precedent of the Scottish Bill and of these various civilised countries to which I have referred may be followed on this occasion.
§ LORD ATKIN
I hope very much this Amendment will not be adopted. If it is the law in Scotland, I think we may offer our condolence to Scotland. It seems to be most unfortunate as it is worded. 139 It means that within the five years there has been a conviction at least three times of a crime and a sentence of not less than six months, and the limitation, is very remarkable. It is confined to offences of violence and dishonesty. May I suggest what it leaves our? Poisoning, malicious damage, intercourse with a girl under sixteen, and indecent assault on children, which are not crimes of violence but are crimes because you cannot get consent. It does not exclude the case where the woman herself was a party to the crime, which oftens happens in the case of an habitual criminal. There are no safeguards, and I think the House would be far safer at this stage of the Bill in leaving the grounds of divorce where they are.
I do not know whether it is necessary after what has fallen from the noble and learned Lord for supporters of the Bill to say very much. I hope in this instance we shall not follow the example of Scotland. If we did I think we should deserve the criticism of Lord Salisbury, that we were putting our foot on a slippery slope. I trust we shall stand firm on the causes in the Bill as presented to your Lordships, and not increase them by the addition of a clause which is clearly one which might at any time be variable, and hardly seems to be deserving of reasonable consideration.
§ VISCOUNT BERTIE OF THAME
The points raised by Lord Atkin, especially if he gave me his help, could be dealt with on Report. I should like this provision to be in the Bill, because it is often said that it is a bad thing to have different laws on each side of the Border.
§ On Question, Amendment negatived.
LORD LAWRENCE moved to insert after paragraph (d):
(e) is undergoing penal servitude in pursuance either of a sentence thereto or of commutation of sentence of death;
(f) has, since the date of the marriage and within the five years immediately preceding the raising of the action for divorce, been convicted at least three times of a crime, and sentenced on any such conviction to imprisonment for a period of not less than six months; or
The noble Lord said: This provision is in the Scottish Bill, and I think it is very hard on a man or woman if the husband or wife is sentenced to death or
to penal servitude for life. It would be just as if everything were dead, and I should very much like this Amendment to be inserted in the Bill.
Page 2, line 13, at end, insert the said new paragraphs.—(Lord Lawrence.)
§ VISCOUNT BERTIE OF THAME
I should like to support this Amendment, and I feel sure that in doing so your Lordships would like me to congratulate my noble friend on his maiden speech, although he has been in this House for twenty-five years. I hope now that he has broken the ice we shall often hear him again. Owing perhaps to some fortuitous circumstance, such as sentimentality, a man or a woman may be reprieved when he or she ought really to have been hanged, and I cannot see why that reprieve should make any difference.
§ VISCOUNT CECIL OF CHELWOOD
Surely this Amendment goes a long way further than that. It says anybody who is undergoing a sentence of penal servitude.
§ VISCOUNT CECIL OF CHELWOOD
I am sorry if I have misread it. But the Amendment seems quite clear—"is undergoing penal servitude."
§ VISCOUNT CECIL OF CHELWOOD
We have already defeated the Amendment dealing with the same subject as paragraph (f).
I am not quite clear what Amendment we are discussing. We seem to be dealing with penal servitude, as to which there is no period mentioned at all, and we have already dealt with the subject of paragraph (f). I earnestly trust that your Lordships, in pursuance of the same argument that applied to the Amendment moved by Lord Bertie, will not accept this Amendment.
§ On Question, Amendment negatived.
VISCOUNT DAWSON OF PENN moved, after paragraph (d), to insert:
(e) has since the celebration of the marriage been guilty of the practice of homo-sexuality.
The noble Viscount said: I think some explanation is due from me for moving this addition. The word "sodomy" has in the course of time become inadequate and unsuitable. The word "sodomy" involves the question of a rather vulgar crime which is only open to the male, but the progress of knowledge has altered our conception, and we therefore have adopted the word "homo-sexuality." Homosexuality refers to both sexes, not to one sex. That is one justification, as I hold, for the addition I suggest. There is another reason, and that is that we now look upon homo-sexuality as a pathological condition. I am not at all sure that in the future it may not Le regarded as an insufficiency disease, and although it is true that the law must take cognisance of homosexuality and punish it in order to act as a preventive to potential offenders, the more reasonable view is gradually being adopted that it at any rate has one foot in the realm of disease and it is not wholly in the realm of crime.
§ I am not disputing the fact that the law must take serious cognisance of this offence, but I do urge that this is an occasion for recognising with advancing knowledge the increasing tendency to regard it as a pathological process which concerns those who have to deal with disease, and I almost enter the region of prophecy when I say it may be regarded as an insufficiency disease in the future. But for the purposes of this Bill I think it would be entirely wrong to use any word which confines homo-sexuality to one sex. It is really time that there should be equality of treatment between men and women. For that reason alone the insertion of this special paragraph is justified. We all know that this particular offence is quite compatible with excellent qualities of mind and character, and it is most important for us to realise that it is scientifically impossible for one who is attracted to the same sex to be capable of any sort of attraction to the opposite sex. That is not always so. Perhaps I ought to put it in this way, that in the case of individuals who have a leaning towards or attraction and affection for the same sex, whether they have a parallel affection for the other sex or not, we cannot possibly maintain that they are suitable people for marriage. In other words, such people would frustrate the purpose for which marriage exists, 142 and it would be a grave injustice to recognise any marriage in which homosexuality turned out to be existent in either one of the parties, whether it be the male or the female.
§ A further reason for this addition is this. It is notorious to those who know anything about this class that homosexuality in all decent people hides its head. It is almost impossible for the spouse to have the tragic misfortune of finding out. They cannot find out very often before marriage that the natural attraction of sex is absent and that unfortunately the spouse is homo-sexual. When that is discovered, it ought to be, in my judgment and I trust in the judgment of your Lordships, a ground for divorce. I should have moved at a later stage, to delete the word "sodomy," but some noble and learned friends thought it would not do to delete a word which has been the sole means of expression of this unfortunate offence for centuries. Therefore I have not moved, at a later stage, to delete the word "sodomy" owing to that advice. But, at the same time, there is every reason in favour of putting in this paragraph by itself, if it is only for one purpose, and that is to recognise that it is an offence, or a misfortune or a disease, whichever way you like to look at it, equally in a woman as it is in a man. It is a curious thing that whereas a man at the present time can be open to criminal prosecution, a woman can not, but homo-sexual women can break up a home, as I have had sad experience of, just as easily as homo-sexual men.
Page 2, line 13, at end, insert the said new paragraph.—(Viscount Dawson of Penn.)
THE LORD ARCHBISHOP OF CANTERBURY
I would like to ask my noble friend a question. The word he uses is "practice." That seems to me extremely vague. Does he mean some particular act, proved, of this particular tendency, or does he mean a continuing habit? It seems to me the word "practice" is most dangerously vague. Also, I should like to ask him whether it is not the case in his experience, as it certainly is in mine, that even these unfortunate tendencies can be cured, and whether this is not a case of a disease, if it can be called a disease, which is incapable of cure?
§ VISCOUNT DAWSON OF PENN
I am grateful to the most reverend Primate for raising this question. I put in the word "practice" for this reason. It may occur to individuals that they will be inveigled into a single act of homosexuality, partly by curiosity, partly because they may be potential homosexuals and therefore open to the influence of an actual homo-sexual whom they happen to meet. There are instances where they will be inveigled partly by curiosity and partly by a physiological or pathological leaning, and then, having had that experience, they pull themselves together. Very often they come into contact with a doctor or friend. They are people who are perfectly capable, as I have knowledge, of being good spouses, and I put in the word "practice" for that reason. I meant the word "practice" to imply habit, a repetition and not a single instance. I had another reason at the back of my mind. Where there has been a single act of homosexuality on the part of only a potential homo-sexual, where, I may say, the female and male composites of the nature are a little too nearly balanced—because this is a scientific question—they are peculiarly open to blackmail. I am sorry I have not had the opportunity of fully consulting my legal friends in this House on account of pressure of other work, but I want to make clear to the Committee why I put in the words "practice of homo-sexuality." What I mean is a continuing tendency and not an isolated lapse.
Now there is the question of cure. I hope I am not going too far with the House, but as knowledge up to date sees this matter, it would be almost true to say that there are very few people who are 100 per cent. male or 100 per cent. female. The people who are males are predominantly males and those who are females are predominantly females, but there is often an admixture. I am talking anatomically. You get people who are near the borderland, and whether they go right or wrong depends on circumstances in life which none of us can control. For practical purposes speaking for myself alone, and this is a difficult question, I divide the homo-sexuals into those who are potential and those who are actual. Some of the offenders I wish particularly to guard against are those who are potential, because it is a fact that if 144 you can only get a right influence to bear morally and physiologically, you can guide them into the natural physiological route. I have in my mind while I am speaking, people who are happily married at this moment who have had the necessary influence to tilt them, both physiologically and morally, if you like, into the right physiological path. That is my explanation to my most reverend friend the Primate as to why I use the word "practice." It involves the question not of an isolated wandering or lapse from what I might call virtue, but a repeated practice, and if any of my noble and legal friends can help me with a proper term I shall only be too pleased to adopt it.
As to the question of a cure we are only on the brink of this question. There is no more fascinating scientific study at the present moment than the development of these imponderable juices. For those who have a scientific interest it is a study of extraordinary fascination and there is no doubt that a realm is being opened up which will enable more help to be brought to these people provided they can be caught in the early stages. Whether they could be in later life I very much doubt. I apologise to the House for having continued for so long in a matter which is almost foreign to this House but I must seek protection behind me from my noble friend for having addressed those remarks.
§ LORD ELTISLEY
I know the noble Viscount who has put down this Amendment will forgive me if I say that I do not fully understand what this Amendment means or what its ramifications are, or how it is to be carried out in practice by the Courts of Law if it is passed. Frankly, to me, it is not at all clear. What is, however, clear is that the purpose of this Amendment is to put both sexes on the same footing with regard to homosexuality as a ground for divorce. I would venture to resist it on behalf of my noble friends who support me because this recommendation is not one made by the Royal Commission, and I think it is dangerous to endeavour to introduce a new ground of divorce of this character into the Bill.
§ VISCOUNT DAWSON OF PENN
I believe in Committee I am allowed to speak a second time. I do beg of your Lordships not to decide by the knowledge of years ago. If you are going to make 145 a change on a matter like this surely you must take cognisance of the progress in knowledge that has taken place in the last twenty-five years. If there is one thing that has been established in our legislation of recent years it is equality of the sexes. If you are going to have equality of the sexes it ought to cut both ways, and it is as much a misfortune with the woman as it is with the man. You ought to protect the man against the Lesbian just as you protect a woman against a male homo-sexualist.
§ LORD ATKIN
This is a physical and a delicate subject, and there are not many people who would profess to know much about it. No one really would have at the present moment, as far as I know, a profound knowledge of the subject except a medical man who has had to study it with the knowledge and skill of my noble friend Lord Dawson; but, as a judge, one has come across this subject, and I had the privilege for seven years of being President of the Medico-Legal Society in which this kind of subject was discussed. I should not like it to be thought that this House rejected the more modern application of science as put forward by the noble Viscount, Lord Dawson, whom everybody trusts in the matter, without some reasoned objection to it. To begin with, I should think that it is not correct to say that these cases, though Lord Dawson did not say so, are the result of something in the nature of disease. It is quite certain in one's experience, I think, that they are not. They are the result of wicked impulses which, like other wicked impulses, are capable of being controlled. Like other impulses of the kind, they can be checked by advice and by resolution, and they do not appear to me to be of the nature of a permanent infirmity that is always likely to affect the married life.
But I think the real answer probably, at the present moment, is that this is a subject which requires very careful scientific examination. If some time or other a Select Committee or a Departmental Committee considered this subject in all its branches, the result might be a very valuable Report upon which the criminal law and the civil law might very well be amended. At the present moment, surely it would be a mistake for your Lordships to send this to another place with the discussion that would be likely to arise about it. Later on perhaps it 146 may have to be discussed, but I venture to suggest that at present the right thing is not to accept this new ground for divorce, put into the Bill for the first time at this stage.
§ On Question, Amendment negatived.
VISCOUNT DAWSON OF PENN moved, after paragraph (d), to insert:
(e) is an habitual drunkard; or
(f) is an inveterate drug addict:
For the purposes of paragraphs (e) and (f) a signed certificate will -be required to be given in each case by two medical men at least one of whom belongs to a panel of names approved by the Home Secretary on the nomination of the Royal College of Physicians of London.
The noble Viscount said: I have been asked by my noble friend Viscount Eli-bank to move this Amendment in a slightly different form from that in which it is printed on the Amendment Paper. I do so on this ground. For those who claim that there should be no divorce at all it is perfectly logical that habitual drunkards or inveterate drug addicts should be excluded, but those who hold that marriage should be dissolved whenever such circumstances arise as frustrate the fundamental purposes of marriage cannot, to my mind, logically exclude habitual drunkards or inveterate drug addicts. There is nothing, whether from the point of view of companionship, or from the point of view of sex, or of the welfare of the children, that breaks up a home more than habitual drunkenness, whether on the part of a woman or on the part of a man.
§ It is easy for your Lordships to visualise, as it is very easy for me to do with the work of my life, the dreadful conditions in small homes which can result from the permanent drunkard who, night after night, rolls drunk into the house, and who causes to reign in that house a state of fear and unrest and distress. It means the break up of the home in every sense, economic, moral and everything else. Such an habitual drunkard—I stress the word "habitual"—gives legitimate cause for divorce in the view of those who believe, not that marriage is under all circumstances solemn—that I understand, that I respect, that is logical—but that marriage should be dissolved when the fundamental purposes for which it exists are frustrated so that in a spiritual sense that marriage exists no more. If we are going to do it for other things it seems to me that we are logically 147 compelled, if we can, to deal with habitual drunkards. That is equally true of that dreadful thing the inveterate drug addict. Homes are broken up by these people. They are perfectly helpless and owing to the present state of the law we have no power to cure them. It is one of the curious anomalies of our law that unless we can certify them insane we cannot cure them and we cannot treat them. If they go insane and are certified, then within a few weeks their addiction is sufficiently relieved for them to demand their release from certificates. Out they go, back to their addiction they go. To chain a man or a woman for all time to a person who is a drunkard, habitual and incurable, and equally to a drug addict, especially to one who is addicted to cocaine, seems to me something which the community has not the right to ask of any citizen. It has no right to compel a citizen to go on living with such a person. In some instances a person will, out of sheer goodness of heart, but it should be a voluntary undertaking and not enforced by law.
§ Those briefly are my contentions for this Amendment. To continue, if I may: you must surround this provision with proper precautions, and the essence of proper precaution is that in order to decide whether a person is an habitual drunkard or an inveterate drug addict you must have the certificates of two doctors, one of whom must be chosen from an approved list of men with special knowledge and experience. My profession is in these matters extremely conservative. It takes a very strong case for any of us to say that a person is an habitual drunkard or an inveterate drug addict. Considering the whole attitude of mind of British medicine there need be no fear that they will not err on the side of caution. With that precaution, except for those people who wish that marriage should always be indissoluble, a view which I understand, it seems to me logical and right that these people should be relieved of this chain about their necks. I beg to move.
Page 2, line 13, at the end insert the said words.—(Viscount Dawson of Penn.)
VISCOUNT BERTIE OF THAME moved, as an Amendment to Viscount Dawson's Amendment, to add:
The expressions 'habitual drunkard' and 'inveterate drug addict' mean a person who by reason of habitual drinking to excess of alcoholic liquor or of addiction to drugs, as the case may be, is (a) at times dangerous to himself or to others, or a cause of reasonable apprehension of such danger, or (b) incapable of managing his own affairs.
The expression 'drugs' means drugs to which Part III of the Dangerous Drugs Act, 1920, applies.
The noble Viscount said: This is merely a definition Amendment which I have poached from the Bill of my noble friend Lord Alness. I beg to move.
Amendment to the proposed Amendment moved—
At the end insert the said words.—(Viscount Bertie of Thame.)
I should hesitate very much to disagree with anything my noble friend Lord Dawson said, and I am not at all certain that I am not in sympathy with the point that he put forward. But I believe I am right in saying that this question was very fully discussed in another place, and that the other place came to the decision that it was not desirable. I only wonder whether, from the point of view of those who desire that this Bill should pass into law, it is advisable to send back to the House of Commons an Amendment which they have themselves already rejected in principle.
§ VISCOUNT BERTIE of THAME
I must protest at what the noble Viscount, Lord Mersey, said. We are not ruled by the other place.
I should not suggest it for the world. I asked whether it was wise that those who wish that this Bill should pass into law should ask the other place to stultify themselves at once.
§ VISCOUNT CECIL OF CHELWOOD
I hope the Committee will not adopt this Amendment. If you compare it with the Amendment dealing with insanity, you will see how very much more careful the promoters of the Bill have been in dealing with that matter than is proposed in dealing with this. There you say that the insanity must be believed to be incurable, and you require that the person shall have been under treatment for five years. No such provisions are suggested here. There is no definition except that suggested by the noble Viscount, Lord Bertie, of what is an habitual drunkard, and still 149 less what is an inveterate drug addict. I should myself have the greatest difficulty in defining "inveterate." I do not know whether my legal friends would be able to do so. Lord Bertie of Thame defines them as "at times dangerous to themselves"—no doubt if a man is rolling drunk he is dangerous to himself—"a cause of reasonable apprehension of such danger"—to that the same observation applies—and also "incapable of managing his own affairs." There are many people who have been in a sense habitual drunkards. I believe a very learned Lord Chancellor was drunk every day—at any rate I have been told so—but he was quite capable of managing his affairs when he was not drunk, and he would not be an habitual drunkard. I think the whole thing is much too vague, and I do not think you can define it.
THE EARL OF KINNOULL
I am thinking more of the working class wife who listens to the faltering steps of her husband coining in, for she may get a crack with an iron bar or a slosh on the jaw when he comes in. That may happen every night, and it often happens that the police are called in. One frequently reads of such cases in fie papers, and I think it should form a cause for divorce. I hope your Lordships will accept the Amendment.
§ LORD ELTISLEY
I hope the Amendment will not be pressed. This proposal was rejected, as has already been mentioned by Lord Mersey, in another place, and I do not think it would be to the advantage of the Bill that we should put these words in. I would also like to point out that drunkenness is very often accompanied by cruelty and any one who can prove that he or she is subject to habitual cruelty will be entitled to a decree. If the drunkenness is continual, even if the man is not actually cruel he will be guilty in law of constructive desertion, and in such case therefore the injured spouse will be able to obtain a measure of relief, provided the cruelty is continuous for three years. I hope your Lordships will not accept these Amendments.
§ On Question, Amendment to the proposed Amendment negatived.
§ On Question, original Amendment negatived.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.150
§ Clause 4:
§ Duty of court on presentation of petition for divorce.
4. The following section shall be substituted for Section one hundred and seventy-eight of the principal Act:—
178.—(1) On a petition for divorce it shall be the duty of the Court to inquire, so far as it reasonably can, into the facts alleged and whether there has been any connivance or condonation on the part of the petitioner and whether any collusion exists between the parties and also to inquire into any countercharge which is made against the petitioner.
(2) If the Court is satisfied on the evidence that—
Provided that the Court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery or if, in the opinion of the Court, the petitioner has been guilty—
THE MARQUESS OF SALISBURY moved to add to the substituted subsection (1):
and for those purposes the Court shall cause to be summoned in addition to the witnesses called by the parties to the proceedings, any witnesses, including the husband or wife as the case may be, whose evidence the Court may think desirable.
The noble Marquess said: I hope I shall be fortunate enough to carry with me the consent of the promoters of the Bill in this Amendment, which I think important, because its object is really to strengthen the policy of which the clause is an example. Under the Bill as it stands an obligation is thrown upon the Court to inquire, so far as it reasonably
can, into the facts alleged. The question is how far will the Court be equipped to make this inquiry? Perhaps it would not have been so important to urge this matter upon your Lordships' consideration if it was not that so distinguished a lawyer as the noble and learned Lord, Lord Atkin, and I think to some extent the noble and learned Lord, Lord Wright, were very apprehensive of the operation of this clause. They seemed to shrink from its provisions, and indeed they seemed almost to suggest that it was not very workable as the clause stands.
§ THE MARQUESS OF SALISBURY
No, it was not quite workable. That alarmed me very much, because one of the main reasons why so large a majority supported this Bill, both here and in another place, was because of this provision against collusion, because it was felt by your Lordships and by every other observer of the working of the marriage law that this question of collusion has become a formidable scandal. I need not labour that point, because it is common ground. Everybody agrees that it is so. And in the Bill as it reaches your Lordships—I am not quite sure how far it was in the original Bill—this provision is made in order to prevent collusion.
I have tried to watch the working of the divorce law in practice lately, and I am going to say a thing which I want to express in the most respectful language. I think the Judges, or many of the Judges, have misunderstood the intention of Parliament. That may be the fault of Parliament. I am quite sure that many of the judges would say it was, although I would not dare to say so myself. But at any rate they misunderstood the intentions of Parliament, and they have allowed to grow up, especially in the provinces, this practice of what are called the hotel bill cases. I wonder now, having regard to the hesitation of the noble and learned Lord about the effectiveness of this clause, whether, if we pass it as it stands, we shall be able to convey to the Judges that Parliament desires that these provisions against collusion should be effective, because, as the clause goes on, the Court has to be satisfied on the evidence.
152 Well now, what evidence? That is the point. It all turns on that. Unless the evidence is adequate for the purpose, then the clause may be inoperative. I have tried—I hope your Lordships will forgive my presumption in doing so—to indicate the direction in which I think—and others of your Lordships have conveyed to me their support of the view—that evidence may be made effective. I suggest that the obvious way is that the respondent should be made an available witness. Your Lordships will recall the kind of case we are dealing with. A married man engages a room in an hotel and, apparently out of the blue, a woman is found in that room whom he has never heard of before, never seen, knows nothing about, on a particular night. There is no evidence as to whether an actual act of adultery takes place. That evidence appears to be sufficient. If that is sworn to by some observer in the hotel—a waiter or a chambermaid—that is sufficient.
Many divorce cases appear to have been decided upon that issue alone. Here is a case in which a man has passed a night in a room with a woman—very suspicious conduct on the face of it, but that is a spontaneous thing; it suddenly occurred that he would like to pass the night in a room with a perfectly unknown woman. I suggest that the obvious way, to a layman, of finding out the truth is to ask him how he came into this curious position, where it is obvious that there is something a little bit queer. Why should you not ask him how it comes about that he found himself in this room with this woman of whom he had no knowledge at all—I need not go into further particulars—and thereupon a divorce is claimed? It might be a perfectly genuine thing; that that is what he likes to do; it is the sort of thing that happens to one of those lunatics, perhaps, whom your Lordships were discussing in the earlier part of the Bill. Surely it is very curious and surely the obvious way is to ask the respondent? I am told that it would be contrary to the practice of British law to ask him whether he committed adultery, though I cannot understand why. It seems to be a very obvious question to put to him. But supposing that direct question is ruled out, he might be asked whether he can explain to the Court how the woman came to be there, whether there was a certain 153 agency he communicated with who had provided the woman, and he might even be asked whether he had any understanding with his wife on the subject. These things surely might be asked.
Once the evidence was given, the wonderful skill of the profession of which noble and learned Lords are great ornaments would at once put the witness through the business of cross-examination and probably find out the truth in a very short time. At any rate they would find out that the thing was very suspicious indeed, and if they found that out the clause would operate. The moment suspicion was established, then, unless the suspicion could be met, the Court would withhold the decree of divorce. Your Lordships will see that my whole intention has been merely to make the clause effective in the face of the sort of doubts which noble and learned Lords have thrown upon its operation and in face of the way in which, up and down the country, these divorce suits have apparently been rushed through in the provinces, and it toes seem that the time has come when Parliament should make the intention of Parliament perfectly clear.
Page 3, line 5, at end insert the said words.—(The Marquess of Salisbury.)
§ LORD ROCHE
I hope I may be able to reassure the noble Marquess on behalf of my noble friend who is in charge of the Bill. He has exactly the same objects as the noble Marquess—namely, to prevent and stop the few but gross cases of collusion which now take place, but those responsible for the Bill think that they have already secured that object if Clause 4 stands part of the Bill. If it stands part of the Bill substantially unaltered they think they will have secured the means of attaining that end, and I will tell the noble Marquess why. This Amendment proposes a course which is unusual and impossible in the British Courts. Judges at the Courts have neither the machinery nor the power to call witnesses, but they can require the parties to call witnesses, and if the parties do not call the witnesses necessary to satisfy the Court they can dismiss the case or petition as the case may be. Those responsible for this Bill think that is just what they are able to secure by Clause 4 as it stands. May I say this, in addition: If unfortunately, contrary to the desires 154 and hopes of my noble friends responsible for the Bill in this House, that was not the case in regard to Clause 4, and it was substantially altered, they would be pleased to consider after consultation with the noble Marquess whether it was necessary for anything to be done in this sense, if in a different form, to secure the object he desires and they desire.
§ THE MARQUESS OF SALISBURY
I am very much obliged for the sympathetic way in which the noble and learned Lord has met this Amendment. I hesitate a little, notwithstanding his great position, to accept his assurance that the clause will work satisfactorily as it stands. Your Lordships must have been aware that when I put it to the noble and learned Lord opposite, another great luminary in this House, he was not entirely satisfied.
§ LORD ROCHE
My noble and learned friend Lord Atkin wants to alter the clause substantially and he was not saying the clause as it stood would not do that.
§ THE MARQUESS OF SALISBURY
The noble and learned Lord has put it himself. I understood him to say that on the first part of the clause as it stood, he did not think he was satisfied as to its working.
§ THE MARQUESS OF SALISBURY
That means that the noble and learned Lord thinks that without alteration further on it would not work later on. Is that so?
§ THE MARQUESS OF SALISBURY
What I understand the noble Lord, Lord Roche, to say is that he thinks the clause as it stands will work properly. Upon that I can only say that I am surprised that he is not willing to make assurance doubly sure. I do not see why there is this objection to calling these witnesses. It may be that the Judge can tell the parties to do so, but does he assure me—because I must accept what he says—that he thinks, as the clause stands, it will work?
§ LORD ROCHE
If the whole clause stands and the Amendments which will be moved, amongst others, by Lord 155 Atkin, are not agreed to, I believe the clause will work reasonably, and it will be perfectly satisfactory, but if it was substantially altered, then some Amendment in substance, though not in form, such as is suggested by the noble Marquess might be necessary.
§ THE MARQUESS OF SALISBURY
I need not say that I do not care a straw about form. It is highly probable that my form is not the perfect form. I gather that other noble and learned Lords share the opinion of the noble Lord behind me (Lord Roche), and in the face of that I shall not press the Amendment at this stage, but I shall reserve to myself the right to submit it to your Lordships on a future stage if it should appear, especially after conference with my noble and learned friend, that the clause as it stands is not sufficiently strong.
§ Amendment, by leave, withdrawn.
LORD ATKIN moved to leave out that part of subsection (2) which precedes the proviso and insert:
If on the evidence the Court is not satisfied that the case for the petition has been proved or where the ground of the petition is adultery finds that the petitioner has during the marriage been accessory to or has connived at or condoned the adultery complained of or where the ground of the petition is cruelty the petitioner has during the marriage condoned the cruelty complained of, or finds that the petition is presented or prosecuted in collusion with any respondent, the Court shall dismiss the petition.
(3) If the Court is satisfied that the case for the petition has been proved and does not find any of the findings mentioned in the last subsection the Court shall pronounce a decree of divorce.
The noble and learned Lord said: I notice what my noble and learned friend Lord Roche said, and the noble Marquess thought he was sympathetic towards me. He really did not mean to be sympathetic towards me; he meant to be unsympathetic towards me, and he was having a shot in advance at the Amendment which I am now proposing. I do object to the second part of the clause very strongly. I am quite prepared to accept the Amendment which has been made in subsection (1). Your Lordships know that that is a repetition, in part, of the previous existing section, Section 178, which, as the law stands at the present moment, says:
It shall be the duty of the Court to satisfy itself so far as it reasonably can—
and the promoters of the Bill have put in "to inquire." That is the kind of duty that I think the noble Marquess meant to impose upon them, and I think that is right. The question is how they are to carry it out.
§ The proposal of this Amendment now is that, with or without evidence, and whether they have inquired, or whether they have not inquired, they have only to be suspicious about it, and it is the petitioner who has to prove that he or she has not been guilty of collusion, and the petitioner who has to prove he or she has not been guilty of connivance. I venture to say that is a complete reversal of the stream of judicial principle. It is not for a person to prove himself innocent of what is a very serious social and legal offence, and the law at the present moment, I venture to think, is entirely satisfactory. My Amendment is merely an Amendment to replace the existing law. It has to be altered slightly because there are now new grounds for divorce—namely, cruelty and desertion—but I have, in my Amendment, followed the words of the present section, which provides that if on the evidence the Court is not satisfied that the case for the petition has been proved, or comes to the conclusion that on the evidence the petitioner has connived at or condoned the adultery, or, later on, finds that the petition is presented in collusion with any respondent, the Court shall dismiss the petition.
With great respect, that is right. The Courts have not no business to act on suspicion. The duty of a Judge is to decide on evidence, and the present law is, I venture to think, a very proper law. It is not the Judge who has to call the evidence, but he has an official specially provided under the Act, whose duties under the Act are most carefully defined. That is the King's Proctor, who is, as we all know, a Solicitor to the Treasury. In the case of any petition for divorce, I would like to point out that this section is unaltered, so that all these powers are existing at the same time as this new section is in force:
(1) The Court may if it thinks fit direct all necessary papers in the matter to be sent to His Majesty's Proctor, who shall…instruct counsel to argue before the Court in question…
(2) Any person may…give information to His Majesty's Proctor of any matter material…and His Majesty's Proctor may thereupon take such steps as the Attorney-General considers necessary or expedient.
That is to say, he has the great advantage of acting and consulting with the principal Law Officer of the Crown.
(3) If in consequence of any such information or otherwise His Majesty's Proctor suspects that any parties to the petition are or have been acting in collusion…he may, under the direction of the Attorney-General,… intervene and retain counsel and subpoena witnesses to prove the alleged collusion.
That is the practice at the present moment, and that practice is in accordance with form and in accordance with principle.
§ I venture to think that there are a great many people, possibly in this House and certainly outside this House, who have a very vague idea of what collusion means, and I am quite certain the noble Marquess, though I have no doubt he knows what collusion means, is very unfamiliar—and properly unfamiliar—with the practice of the Divorce Courts in respect of evidence of this kind. I have never heard of a case where the lady who appears in bed with the respondent in the morning, and is seen by the chambermaid in bed with him, has been stated by the respondent to be a woman who is unknown to him. That is not the fact at all. The fact is no doubt that from time to time a man will commit adultery, I am sorry to say, with a woman with whom very likely he has had no relations before, but that does not mean that he does not know who she is when he takes her to the hotel. What does happen is that he will not give her name, and one of the difficulties of the Court has been to compel the respondent to give, or the petitioner to obtain from the respondent if she can, the name of the woman in the case, the hotel name.
§ Hotel evidence has been treated as being suspicious—so suspicious that the noble Viscount, Lord Bertie, was prepared to propose at one time that you had only to procure or send hotel evidence to prove collusion. But collusion means a bargain between the parties that divorce shall be obtained or that adultery shall take place. The matter was decided some time ago, and I submit to your Lordships that it was quite properly decided, within I think the last two years, by the Court of Appeal in a case of this kind. There were two people who had quarrelled within two years of the marriage. I commend that to those who think people do not quarrel within two years 158 of marriage. The husband had left his wife. He left her in January and in July he wrote her a letter saying in effect, "I think it is only fair that you should have a divorce, and I enclose a hotel bill and the evidence which will enable you to get your divorce." Now is that wrong? Is it collusion? It certainly is not, and the Court of Appeal decided that it was not. This seems to me a rather remarkable case, because the President of the Divorce Court had said that he was not satisfied in that case that adultery had been committed.
§ The evidence in the case was that the chambermaid had walked into the hotel room and seen the two parties in bed together, and the Court of Appeal thought that the proper conclusion to draw in those cases was that they had committed adultery; and I suppose most people would think that was right. The wife thereupon obtained a decree. But this is a clause to reverse that decision. And why should the woman not obtain her divorce in those circumstances? Suspicion is wrong as a ground for a Judge to act upon. It is perfectly good ground for a Judge to make as many inquiries as you please, and to call upon the parties, if you please, to call evidence. But at long last, when the evidence has been called, the Judge must be satisfied that the offence has been committed before he can act upon it to the detriment of the woman. There are grave difficulties, I venture to think, in this clause. These cases are now tried in nearly all the Assize towns in the country, when they are undefended divorce cases, and what inquiries the Court is going to make in these undefended divorce cases, and at whose expense, it is very difficult to say. I do not know who is going to pay the expenses of calling the husband and the husband's witnesses. Is it the unfortunate wife, who has appeared under the Poor Persons' Procedure and who finds it difficult enough to produce the evidence of her own witnesses?
§ As a matter of fact this is a reactionary clause, again, which is going to create difficulties in the way of people obtaining divorces and especially in the way of poor people obtaining their divorces, because they will be unable to find the expense that is necessary for satisfying a suspicious Judge. You have all sorts of Judges. Some judges would be suspicious, some Judges would grant a 159 divorce easily, and other Judges—like, I dare say, my noble and learned friend opposite—would find it very difficult to be satisfied and would be suspicious. You would have a very uncertain state of the law in this matter. The substance of my Amendment is that I leave the law as it is. Collusion is a bad thing, but if collusion exists, it ought to be proved. It is not for the petitioner, who may have suffered—and, if the case is right on the other ground, has suffered—a wrong, to satisfy a Judge who may require a standard of proof with which it is quite impossible to comply. There is no appeal, as far as I can see, because it is for the Judge to say whether or not he is satisfied on the evidence, and you cannot say that an unsatisfied judge is a person who has gone wrong; all you can say is that he has not chosen to accept the evidence, and there is an end of it.
§ I venture to say that this is a great grievance to petitioners. It reverses the law. I think the noble Marquess referred to the question of whether it was in the original Bill. It was not in the original Bill; it was a clause put in at the end of the tenth day of the Committee; and by whom do you suppose it was put in? By one of the keenest opponents of the Bill: by Mr. Spens, the member for Ashford; and I can very well understand why it was put in. We are taking a reactionary step in supporting this clause, and I venture to ask you to support my Amendment, not because I am putting in anything new, but because I am leaving the law as it has previously existed.
Page 3, leave out lines 6 to 21, and insert the said new words.—(Lord Atkin.)
§ VISCOUNT CECIL OF CHELWOOD
I earnestly hope that the Committee will not adopt the noble and learned Lord's Amendment. I think it very greatly underrates the opinion there is on this subject. Collusion in the Divorce Court has become a public scandal. Really, it is not an exaggeration to say that. All of us are perfectly aware of what happens. A wife desires to be divorced. She goes to her husband—I have known cases of my own personal knowledge—and says: "Either you will provide the necessary evidence, or I will go off with a man." Then he, in order to avoid a scandal, does provide evidence which is perfectly untrue in itself. Of course, he 160 is not bound to swear anything under the existing law, but he merely creates a situation from which the Court draws the conclusion that adultery has been committed.
§ VISCOUNT CECIL OF CHELWOOD
Of course it can be proved. But it is to nobody's interest to prove it. In point of fact, it happens constantly. My noble friend must be aware that that is a state of things which is continually occurring in the Divorce Court. I dare say such cases are very small in number, comparable with the whole number of divorces, but it is a very serious matter, not only on the ground of divorce but of respect for the law. It is a shocking thing that you should have the machinery of the law misused in this way. What is the real issue? My noble and learned friend talks about suspicion, and so on. There is no question of suspicion. The whole question is, is it to be the law that in order to establish collusion you have to prove positively that collusion has taken place, or is it to be the law that, as one of the conditions of obtaining a divorce you must satisfy the Court that no collusion has taken place? It is no question of suspicion at all, but only a question of the burden of proof, and there is no reason in the world why you should not cast the burden upon one party rather than another. It is only a question of what will best serve the ends of justice.
I trust that none of your Lordships will be misled by the noble and learned Lord's suggestion that any one who disagrees with the Amendment must be a reactionary. It is not a question of reaction or the contrary. My attitude is not what he would describe as a reactionary view. The people who are in favour of this change in the law are in favour of it perfectly genuinely, in order to put an end to what is a great scandal in the law. I hope that nothing will induce the House to refrain from adhering to the Bill as it stands, and I hope that the promoters of the Bill are prepared to accept the strengthening which is proposed by the noble Marquess, Lord Salisbury.
§ LORD ROCHE
I am sorry to find myself again in disagreement with my noble and learned friend Lord Atkin: not because it will make any difference to 161 a friendship which has endured almost for a lifetime; but some of your Lordships may think that Law Lords in general, and my noble friend and myself in particular, are always in disagreement. But I would venture to point out that there are thirteen clauses in the Bill, and we agree about eleven of them and only disagree about two. With regard to this clause, I think it right to state very shortly the position of those who support this Bill in relation to the attitude of the Government. It is sometimes thought that this Bill, and the Amendments to it, have come into being haphazard, and that ignorant laymen have sought to rush in where only angels and lawyers ought to tread. His Majesty's Government have expressly disclaimed any part or lot in the policy of this but inasmuch as they are vitally concerned, not in the administration of justice—because that is a matter for the judges—but in the regulating of the machinery of the administration of justice, they have felt themselves impelled at every stage to take profound interest in the machinery clauses.
In another place not only was the Bill drafted by a Parliamentary draftsman, and all Amendments were submitted to him and considered by him, including this Amendment, but the Solicitor-General or the Attorney-General was present throughout the debates in Committee. They were instructed by the Treasury Solicitor, who has the advantage of being the King's Proctor, and in that capacity has recourse to every person of knowledge in the Divorce Court, including the President and the Judges. Of course those persons like His Majesty's Government would take no part or lot in the policy of the Bill, but they hold themselves rightly available for consultation as to the machinery. That being the equipment of those who dealt with the clause, what happened in another place in Committee was that, after this clause was submitted, the Solicitor-General said this with regard to this very clause:So far as the Government are concerned, we are satisfied that, subject to the question of policy, this new clause provides a workable convenience for the Court, and that it is necessary if the Court is to envisage much wider grounds for divorce than have hitherto been the law. I think that I can even go so far as to say that it would necessarily very much determine the attitude which His Majesty's Government might have to take towards this Bill if they found themselves with a measure which created new grounds for divorce but 162 conferred on the Court no power of inquiry to see whether the law was being given effect to or whether abuses were not taking place. I think that it would be necessary to have some such power as the new clause confers and, so far as the form of the clause is concerned, the Government are satisfied with it.In addition to that, I understood from my noble and learned friend Lord Wright on the Second Reading that he as a lawyer saw no objection to this clause.
For what it is worth, I see no objection to the clause as it stands. I think it is not correct to say that it is altering the onus of proof at all. The onus of proof in divorce cases is not as it is under the criminal law; in divorce cases it always was on the petitioner in this matter and there it rests to-day. My noble and learned friend's excuse is that he wants to go back to the former Statute. That is the law as it has been found to be insufficient. With regard to any other objection, I do not believe that the Judges are going to act on suspicion. The Judges of this country know how to act. The Judges of the Divorce Court are sensible and humane men and what is perhaps more important, they are busy men. They do not want to go hunting hares or indulging in any other form of not but they do want the power of suppressing and catching the few cunning hen-raiding foxes who at present seem to escape the meshes of the law.
THE LORD ARCHBISHOP OF CANTERBURY
I feel bound to say that to some of us Clause 4 is really vital to the claim of this Bill that it has such merits that it ought to pass. I do not think that what the noble Viscount, Lord Cecil, said about the existence of the present abuse was one whit too strong and on the Second Reading I said, with the approval of many of your Lordships, that the position of the law was scandalous, inasmuch as it brought the reality of the sin of adultery, the cause of truth, and the law itself into contempt. Now, it is patent that this is an abuse that calls for remedy, and it is patent equally that the existing law does not provide the remedy that is needed, otherwise the scandal as it is would not exist. I understand, and am supported in that understanding by what my noble and learned friend has just said, that those who are responsible for the administration of the divorce law desire that their powers should be strengthened and believe that this clause will effectively strengthen them.
163 My noble friend Lord Atkin is obviously not well-informed when he said that this particular clause was due to the member for Ashford whom he described as one of the bitterest opponents of the Bill. I have read the proceedings in another place and observe that Mr. Spens was particularly thanked for the constructive help he had given. I speak in this matter as a layman, and there is a conflict between the representatives of the great profession of the law in this House. What I would, in a sentence, call your Lordships' attention to is the plain fact that the existing law has proved to be defective and that the noble Lord admits he is doing nothing to change it. In the view of those who believe that the existing state of things calls for a remedy, it receives no remedy at the hands of the noble Lord.
§ LORD ATKIN
May I say one word? In the first place this question of collusion has been grossly exaggerated. It is due very largely to the mistake people make, in such a case as I have put before which was decided in the Court of Appeal, that because the husband provided evidence of his adultery that is acting in collusion with the other side. It is that suspicion and feeling which seem to prevail, even now in spite of that decision, that I desire to get rid of. I cannot imagine anything more unfortunate than its being suggested that it is wrong for the husband who has done his wife irreparable wrong, who has deserted her and gone with another woman, to provide the wife with the means of setting her free. Far from that being an unsocial act, that seems to me to be worthy of commendation. He is acting fairly and properly, and the exaggeration that is produced is produced by those people who look upon an act of that kind as though it was something wrong. That is not collusion. Collusion means anything of a bargain between the spouses. Evidence of that kind can be given without there being any bargain at all. If there is no bargain, it seems to me that, far from its being blameworthy, it is praiseworthy, if in fact it represents the true facts of the case.
Apart from that, I do not think there is very much to be said about the matter. The Courts have powers to inquire which they did not have, and that is the part of the clause which seems to me satisfactory. If that is acted upon, well and 164 good. The noble Lord opposite seems to be in touch with the Judges of the Probate and Divorce Division, and on the understanding, which I dare say is well founded, that they do not propose to act from prejudice and to adopt the airy view about collusion which has been adopted by a good many people who speak about it, I for my part, now that the matter has been ventilated, am satisfied, and I do not propose to ask your Lordships to divide.
§ Amendment, by leave, withdrawn.
LORD SALTOUN moved, in the proviso in the substituted subsection (2), after the first "if," to insert "after taking all the circumstances of the case into consideration the Court is of opinion that the granting of a decree of divorce would be more injurious to the interests of any children of the marriage than its refusal or if." The noble Lord said: The Amendment that I have the honour to move will make the clause read, after line 21:
Provided that the Court shall not be bound to pronounce a decree of divorce and may dismiss the petition if, after taking all the circumstances of the case into consideration the Court is of opinion that the granting of a decree of divorce would be more injurious to the interests of any children of the marriage than its refusal or if…
I trust that I may win the support of the noble Viscount, Lord Mersey, because I am satisfied that this Amendment was not moved in another place.
§ It has astonished and, I confess, moved me very deeply that in all the discussion which this Bill has received so little has been said about the children. They should, in my mind, properly dominate every discussion of the Bill, and yet if your Lordships will examine what has taken place, one might think the children had very little to do with marriage. Mainly speaking, the real reason for the sanctity of marriage is that it provides the only easy means of giving the young of our species the requisite protection and provision up to maturity. The extension of divorce must always be a cruel burden to them. I am told that schoolmasters can always pick out, by sight, the children of divorced parents. I do not suppose your Lordships will be very much swayed by what happens in Russia, but, at any rate, according to the newspapers, in Russia at one time they started with absolute freedom of intercourse and crèches everywhere, and if reports are to 165 be trusted, they are now restricting divorce very much, and trying, I think, to re-create the home. I think we might take a lesson from that.
§ This Bill, I submit, and this Amendment give an opportunity which may not occur for some time which shows that we do look to the future and consider the future of the race. I am told that the young people of the present day have very definite views on the matter. These young people who are born of marriages which were among the early divorces after the War, are now approaching marriage with a determination to avoid anything which would inflict on their children the intolerable hardship brought about by the divorce of their parents. It may be said that the Court is unable to bear the weight of the discretion which this would impose on it. I hope that is not so. It seems to me that to refuse the burden would be to reject the only effective means for settling the dispute. According to Clause 2 of the Bill, we are granting divorces for adultery, desertion, cruelty and insanity. In the case of the last three of these—in the case of insanity, in the case of cruelty, and in the case of desertion—it appears to me that the question before the Court is perfectly simple, and I should imagine that in every case the Court would come to the decision that the granting of a divorce would be in the interest of the children.
§ The only ground therefore that remains is that of adultery, and I am sorry I differ from a great many noble Lords, but in my opinion adultery is the weakest of all causes for divorce that appear in this Bill. By that I mean an isolated act of adultery. In fact, your Lordships will realise that isolated acts of adultery were only made punishable by divorce in 1923. The real reason for allowing a husband to divorce a woman is not her adultery, but the danger that by her adultery she may bring a stranger into the house with an indefeasible title to his estate and property. It appears to me that the mere fact that this discretion is vested in the Court should compel parents to approach those Courts with more humanity and more consideration for their children, and I think it is time that people who are obsessed by a sense of their own wrongs should be forced to think of the interests of those for whom they are responsible. Whatever we may do under this Bill to cut down a mutual 166 contract that parties have entered into, I think at least that it should be the law of the land that the interests of neither parent should be allowed to supersede those of the innocent beings whom their contract has brought into existence.
Page 3, line 24, after ("if") insert the said worcls.—(Lord Saltoun.)
§ LORD MAUGHAM
I hope your Lordships will not be disposed, however much you sympathise with the excellent motives that have caused this Amendment to be put on the Paper, to agree with it. If the noble Lord had the experience of actual practice in the Divorce Court or, I may say, an active practice in other matters relating to children, he would really not have come to the conclusion that his suggestion was practicable. He is quite right, if I may say so with respect, in saying this will only occur in the case of adultery, because, of the other three causes, there can be no question as to who ought to have the custody of the children. But in the case of adultery the normal case will be that the home has been broken up, that one of the spouses has either gone off and left the home with some other person, or, at any rate, that there has been under the Bill, if it passes into law, real adultery and not the sort of fictitious thing of which your Lordships so strongly disapprove. A woman or a man who has been so treated by his or her spouse cannot be compelled any longer, according to the feeling of civilised people, to live with the person he or she has married. The home has come to an end; it has been broken up; and in many cases the guilty party would be living with somebody else.
But suppose the exceptional case where the guilty party has not gone off with another person; still, how can you then have to answer the question whether the grounds of the decree would be more injurious to the interests of any children of the marriage than its refusal? What materials will the Court have for judging that question except these: that one party is guilty and the other party is innocent? The noble Lord must not suppose that on an application for a decree of divorce the Court can go into the interests of the children from the point of view of the sort of home that the children are going 167 to have, as the Courts do on an application for the maintenance of the custody of the children in the Chancery Division when there has been no decree of divorce. I may say, perhaps, that for years I was concerned with those cases in the Chancery Division. Difficult the cases are, and the Court deals with the matter solely on the test of whether the proposed order is in the best interests of the infants or not; but the Court there knows what sort of a home each of the spouses has got, whom they are living with, what their means are, how far they can support, maintain and educate children, and also the question whether the character of the person who is seeking to obtain the custody is quite satisfactory, or at any rate is better than that of the other person to the application.
Things of this sort were constantly dealt with, and are now constantly dealt with, in the Chancery Division. They cannot be dealt with on an application for divorce because the materials are not there. One party has left the house and gone away and committed adultery. How can you tell at that stage of the proceedings whether there are any circumstances under which at some future date he may be able to provide a suitable home for the children, although the perfectly innocent party, the petitioner in the divorce proceedings, is willing and desirous to take them? I venture to think with great respect that this particular Amendment, although as I said the motive behind it is most excellent, is one your Lordships should not accept.
I should like to tell the noble and learned Lord that that is precisely one of the reasons why people who look to the future of our race and of society do object to the regulations under which the grounds for divorce are being extended. So far as I can see the Courts have not got the material before them to judge how the most important persons are going to fare under the divorce. I would like to see the whole procedure very much strengthened and much greater powers given to the Courts and used by them.
§ On Question, Amendment negatived.
§ LORD ATKIN moved, in proviso (c) in subsection (2), after "party," to insert "before the adultery or cruelty complained of". The noble and learned 168 Lord said: The two Amendments standing on the Paper in my name are another attempt on my part to improve this Bill. They are really drafting Amendments to which I think there is not likely to be any objection. The first Amendment, which deals with a person having wilfully separated himself or herself, is taken from the old Act.
Page 3, line 35, after ("party") insert ("before the adultery or cruelty complained of").—(Lord Atkin.)
§ LORD ELTISLEY
Although those in charge of the Bill do not consider these Amendments are strictly necessary they are clarifying Amendments which we accept.
§ LORD ATKIN: I beg to move the next Amendment.
Page 3, line 37, after ("mind") insert ("or desertion").—(Lord Atkin.)
§ Clause 4, as amended, agreed to.
§ Clause 5:
§ Decree of judicial separation.
5. The following subsections shall be substituted for subsections (1) and (2) of Section one hundred and eighty-five of the principal Act:—
185.—(1) A petition for judicial separation may be presented to the Court either by the husband or the wife on any grounds on which a petition for divorce might have been presented, and the foregoing provisions of this Part of this Act relating to the duty of the Court on the presentation of a petition for divorce, and the circumstances in which such a petition shall or may be granted or dismissed, shall apply in like manner to a petition for judicial separation.
(2A) Subject to the provisions of this Part of this Act prohibiting divorce within five years of marriage, any person to whom there has been granted a decree for judicial separation, or an order under the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925, having the effect of such a decree, may, if the grounds on which the decree or order was granted constitute grounds for divorce under this Act, present a petition for divorce on those grounds; and in a case where the ground is desertion, any period of desertion immediately preceding the institution of the proceedings for the decree or order shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the petition for divorce.
On any such petition for divorce the Court may treat the decree of judicial separation or the order having the effect thereof as sufficient evidence of the grounds on which it was granted, or may require further evidence of those grounds, and all powers of the Court in relation to petitions for divorce shall be exercisable in relation to any such petition as aforesaid.
§ LORD ATKIN moved, in substituted subsection (1), after "presented," to insert "or on the ground of failure to comply with a decree for restitution of conjugal rights or on any ground on which a decree for divorce a mensa et thoro might have been pronounced immediately before the commencement of the Matrimonial Causes Act, 1857." The noble and learned Lord said: The grounds for judicial separation in the Bill are not as wide as they were before, and I suggest that the words of Section 185 of the principal Act should be followed—namely, that a ground for judicial separation should be failure to comply with a decree for restitution of conjugal rights, a ground which has existed now for a long time, and also—this is important with reference to what fell recently from my noble friend Lord Dawson—any ground on which a decree for divorce a mensa et thoro might have been pronounced. That covers any attempt to commit rape and so forth, and it also includes cases of what we know as gross indecency, and probably covers also general cases of homosexuality. These are matters which would be taken into account by the Court if necessary and I think should now be taken into account.
Page 4, line 7, at end insert the said words.—(Lord Atkin.)
THE EARL OF DROGHEDA
On behalf of my noble friend in charge of the Bill I would like to say that we accept this Amendment subject to seeing how it will fit into the Bill. That can be dealt with on the Report stage. If I may say so, the same remark applies to the other two Amendments which Lord Atkin has on this page of the Order Paper.
§ LORD ATKIN
I understand that the Amendments will be accepted but that they will possibly be subject to some alteration on Report. I am quite content with that.
§ THE EARL OF DROGHEDA moved, to leave out the first paragraph of the substituted subsection (2A). The noble Earl said: Perhaps it would be convenient if I dealt at this stage with my later Amendments.
THE LORD CHAIRMAN
The noble Earl will excuse me. I see that the next Amendment is in the name of Lord Atkin:Page 4, line 18, leave out from the beginning of the line to ("any") in line 20.I will put the Amendment down to the word "any," in order to save the noble Lord's Amendment.
THE EARL OF DROGHEDA
That would be covered by my Amendment on the next page. I do not know whether it would be convenient if I dealt with my Amendment on the next page at this stage. I think perhaps it might save time. Would your Lordships look at my Amendment on page 8 of the Marshalled List. It is mainly a drafting Amendment. In the first place it seems to be preferable to make a new clause of subsection (2A) of Clause 5, because the subject matter of that subsection has no real connection with the subject matter of Clause 5 (1) and (2). Subsections (1) and (3) of the suggested new clause merely state in what, it is hoped, is a somewhat clearer form those provisions of the present Clause 5, subsection (2A), in regard to which there has really been no criticism. The real point of substance in the Amendment occurs in subsection (2) of the proposed new clause on page 8, and that should be read in connection with the last paragraph on page 4 of the Bill.
Your Lordships will remember that it is laid down in Clause 1 of the Bill that a petition for divorce may be presented upon facts that have occurred before the expiration of—it is now—three years from the date of the marriage. This last paragraph lays down that if a petitioner has already, on those facts, obtained a decree of judicial separation or an order under the Summary Jurisdiction Acts, he may when petitioning for divorce use the evidence already given on his behalf, subject to the reasonable discretion of the Court. Objection was made to this proviso in another place on the ground that it should not be extended to the evidence given before magistrates. It was urged that, when the Bill provided that evidence 171 taken in courts of summary jurisdiction was to be used in divorce proceedings in a higher Court, the greatest care was to be taken to prevent any abuse of the privilege thus granted. I do not know, but it is possible that these are the considerations that have led the noble Marquess to put down an Amendment proposing the entire deletion of the last paragraph of Clause 5.
THE EARL OF DROGHEDA
I respectfully suggest to the noble Marquess that the total deletion of that paragraph might be very hard on those in humble circumstances. The paragraph does not, as the Bill did when it was first drafted, provide for the automatic conversion of the decree or order of the lower court into a divorce. The provisions of the clause of the Bill and of my Amendment provide that the whole matter shall be under the control of the High Court. The real point of the paragraph is that it gives a poor petitioner who has had an order granted by a magistrate some assistance in getting his divorce petition through on evidence that was given when the order was made. I need not point out to the noble Marquess that the expense that would be entailed if the poor person had to produce to the Higher Court all the witnesses who had already given evidence on his behalf would be a matter of the very greatest concern. Indeed, it is not always easy to find the witnesses who have given evidence before. The High Court may, if I may respectfully say so, be trusted to deal with the matter in a very reasonable way. That is, I think the High Court will not always call for fresh evidence, but it will see that the clause is not used so as to have a more or less automatic effect.
If it is shown by investigations made and evidence given that the evidence given before the magistrates would not support a decree of divorce, the Court has power to deal with the situation which would then arise, and would either dismiss the cause or call for fresh evidence itself. The change in the Bill which my Amendment makes is that in these cases the Court shall not grant a decree without receiving evidence from the petitioner himself or herself. I think it is a useful safeguard, and it 172 would not be too great a hardship on petitioners in humble circumstances, as I think it would be if they had to call all the evidence that was given in the lower court. I think that would be a hardship, and I do feel that the Court will have ample power, after it hears the petitioner, to ask for further evidence or to make further inquiry of the magistrates if it is not satisfied as to the grounds on which the order was granted. I have reason to believe that my Amendment commends itself to those who have to administer the law.
Page 4, leave out lines 18 to 35.—(The Earl of Drogheda.)
THE LORD CHAIRMAN
Lord Atkin has an Amendment to follow and therefore in putting the Question on the noble Earl's Amendment I shall put it in the same way as the Amendment put down by Lord Atkin. Your Lordships will therefore see that the whole of the Amendment proposed by Lord Drogheda will not be agreed, and that the remainder will have to be put again.
§ VISCOUNT CECIL OF CHELWOOD
May I ask the noble Earl a question? Does he propose to leave in the Bill the paragraph at the bottom of page 5 of the Bill? That appears to be dealt with by paragraph (2) of his subsequent Amendment, and yet he does not propose to strike it out in the Amendment he is now moving.
THE EARL OF DROGHEDA
I think the noble Viscount will find that my Amendment on page 4 is to leave out lines 18 to 35.
§ VISCOUNT CECIL OF CHELWOOD
But line 35 stops short of that last paragraph. It should be lines i8 to 43.
THE EARL OF DROGHEDA
I am obliged to the noble Viscount. My Amendment should have gone on to that, but it is dealt with in the new clause.
§ THE MARQUESS OF SALISBURY
The noble Earl is perfectly correct. The reason why I put down my Amendment on the Paper to strike out the paragraph was for the reason he stated. I doubt whether you can trust the local magistrates upon so very important a matter to obtain direct evidence as to adultery which must be sufficient to warrant so vital a thing as a divorce. The noble 173 Earl has shown that he is fully aware of all the difficulties, and I should certainly not try to interfere with him in any way. I only suggest that he has taken great care in drafting his Amendment to secure that the Divorce Court should be minded to call for evidence if they are not satisfied. He suggests that the words which he proposes, that the evidence of the petitioner should always be essential, is a sufficient safeguard. It may be so. I hope, therefore, he, will not think it impertinent on my part if I say that while I accept, as I fully do, his Amendment, and shall not attempt to press mine, I reserve the right to look into the matter a little more closely between now and the future stages of the Bill.
THE EARL OF DROGHEDA
I am much obliged to the noble Marquess, and I would like to say that I have given the matter the fullest consideration. I have tried to ensure that the Court shall have the most ample powers to satisfy itself, while at the same time not bearing too hardly upon poor petitioners.
THE LORD CHAIRMAN
I propose to put the Amendment to leave out from line 18 to ("any") in line 20, in order to preserve Lord Atkin's Amendment.
§ LORD ATKIN
That does not arise if we accept Lord Drogheda's Amendment. That is left out, and therefore the Amendment is unnecessary. My second Amendment would apply to Lord Drogheda's Amendment, but I think Lord Drogheda would be prepared to accept it.
THE EARL OF DROGHEDA
What I hoped to convey was that I promised the noble and learned Lord that his Amendment would be accepted in principle and be dealt with on the Report stage. So I gather that he does not wish to move his Amendment.
THE LORD CHAIRMAN
I will now put the Question to leave out "any" in line 20 and all following words down to end of line 35.
Page 4, line 20, leave out from ("marriage") to end of line 35.—(The Earl of Drogheda.)
§ THE MARQUESS OF SALISBURY moved to leave out the last paragraph of substituted subsection (2A). The noble Marquess said: I am now trying to cooperate with the noble Lord. I understand he now wants to leave out the last paragraph. That is my actual Amendment; therefore I move.
Page 4, line 36, leave out lines 36 to 43.— (The Marquess of Salisbury.)
§ Clause 5, as amended, agreed to.
§ THE EARL OF DROGHEDA moved, after Clause 5, to insert the following new clause:
§ Divorce proceedings after grant of judicial separation or other relief.
§ ".—(1) A person shall not be prevented from presenting a petition of divorce, or the Court from pronouncing a decree of divorce, by reason only that the petitioner has at any time been granted a judicial separation or an order under the Summary Jurisdiction (Separation and Maintenance) Act, 1895 to 1925, upon the same or substantially the same facts as those proved in support of the petition for divorce.
§ (2) On any such petition for divorce, the Court may treat the decree of judicial separation or the said order as sufficient proof of the adultery, desertion or other ground on which it was granted, but the Court shall not pronounce a decree of divorce without receiving evidence from the petitioner.
§ (3) For the purposes of any such petition for divorce, a period of desertion immediately preceding the institution of proceedings for a decree of judicial separation or an order under the said Acts having the effect of such a decree shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the petition for divorce."
§ The noble Earl said: I beg to move.
After Clause 5 insert the said new clause.—(The Earl of Drogheda.)
§ Clause 6:
§ New grounds for nullity.
§ 6.—(1) In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the ground—
- (a) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or
- (b) that either party to the marriage was at the time of the marriage of unsound mind or was at the time of the marriage, or has been within twelve months of that time, placed in an institution or under guardianship under Section three, Section six, Section eight, or Section nine of the Mental
175 Deficiency Act, 1913, or was at the time of the marriage subject to recurrent fits of insanity or epilepsy; or
- (c) that the respondent was at the time of the marriage suffering from venereal disease; or
- (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner:
§ Provided that, in the cases specified in paragraphs (b)(c) and (d)of this subsection, the Court shall not grant a decree unless it is satisfied—
- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
- (ii) that proceedings were instituted within a year from the date of the marriage; and
- (iii) that marital intercourse has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
§ VISCOUNT CECIL OF CHELWOOD moved, in paragraph (b)of subsection (1), after "marriage," to insert "within twelve months after that time." The noble Viscount said: This clause deals with nullity, not divorce, and the proposal of paragraph (b) as far as I am concerned is that marriage should be voidable on the ground that either party to the marriage was at the time of the marriage of unsound mind. It goes on to say "or was at the time of the marriage, or has been within twelve months of that time, placed in an institution" for mental deficiency. I read that to mean that you would have to prove unsound mind at the time of the marriage, but in the case of mental deficiency it would be enough to prove that that had occurred, either at the time of the marriage or within twelve months after. I do not know whether I read it rightly or not. I do not wish to deal with the question of mental deficiency, which is a different point, but I hope very much that the House will extend this provision so that it will cover proof of unsound mind, not only at the time of the marriage but within twelve months after marriage. The reason I suggest that is that if you do not do that you leave the law exactly as it is. If you prove unsound mind at the time of the marriage, then the marriage is voidable.
§ This is an opportunity of putting right what has proved to be a very unfortunate provision in the working of this law. I must freely admit that, like other noble Lords who have addressed the House on 176 different Amendments, my interest in this Amendment has been excited by a particular case with which I happen to be very well acquainted. That case was this. A man became engaged to a woman. During the course of his courtship he had reason to find that she was, at any rate, rather strange in her behaviour. He was assured that that was only due to her love for him. This is all reported in the Law Reports, or I should not go into these details. He thereupon agreed to go on with the marriage, and they were married in October. She rapidly became worse, and within less than six months she was admitted to be quite mad, and remained mad for the rest of her life. They were young people. She lived and he lived for another fifty years. He never was married in any reasonable sense of the word, but, in point of fact he was precluded from marriage during the whole of his life. I need not dwell on the absolute disaster to his life which was caused by that condition. He was unmarried, and yet prevented from being married in the circumstances. The case was tried, and it was argued that the evidence was that the woman was in fact not capable of giving true assent at the time of the marriage, but the Judge, a very able Judge, felt compelled to say that the evidence was not, in his view, sufficient to prove that. The evidence only proved there were circumstances of oddness about the woman, and that she certainly went mad within a very short time after the marriage.
§ I suggest that if a woman goes mad within six months of her marriage, that ought to be evidence—and in my judgment conclusive evidence—if the matter is brought before the Courts, that she was not really in a condition to give true assent at the time of her marriage. I quite admit that my interest in the matter has been excited by my personal knowledge of this particular case, but I have no doubt there have been many other cases of the same kind. I do think, if we are to reconsider the grounds of nullity, it would be a very reasonable extension of these grounds to say that, where the unsoundness became clear and evident within a year after the marriage, we might presume that she, or he for that matter, was at the time of the marriage not in a mental condition to give true assent. Otherwise you run the risk of these very shocking miscarriages 177 of justice in the larger sense of the term. I do not think this is a very unreasonable proposition, because as I read the Bill in its present form, unless it is amended as far as mental deficiency is concerned, that is actually the proposal of the promoters. They did propose that where one of the parties to the marriage is placed under restraint under the Mental Deficiency Act, as I read it, within a year of the marriage, that shall be a sufficient ground for a declaration of nullity. I understand there is an Amendment down by my noble friend Lord Gorell which alters that, but at any rate, in the original idea of the promoters, they considered that a perfectly reasonable proposition, and I agree with them. If it is reasonable in the case of mental deficiency, it seems to me a fortiori reasonable in the case of unsoundness of mind. I do not think I can improve the case I am submitting to your Lordships by repeating my arguments, and therefore I beg to move.
Page 5, line 8, after ("marriage") insert ("or within twelve months after that time").—(Viscount Cecil of Chelwood.)
§ LORD ATKIN
I venture to say that the suggestion is entirely contrary to principle. Nobody ever heard of nullity except on a ground which was not existent at the date of marriage. That is the whole ground for granting nullity of marriage because in one form or another assent must be taken not to have been properly given because the parties had already contracted a previous marriage or because of these grounds, some of which, I venture to think, are a little doubtful, at any rate for nullity, not for divorce. There must be some ground which existed at the time of the marriage. Otherwise you would have divorce. Otherwise you would have a valid marriage up to the time when the particular occurrence occurred for which it is now said you must annul the marriage. I venture to think that this would be quite inconsistent with the clause we have already passed. We have dealt with unsoundness of mind as a ground of divorce, and we have had that five-year clause to which Lord Dawson attached so much importance and on which we have all agreed. But this only provides for unsoundness of mind and that, with great respect, does not mean madness unless you define "madness" as "being of unsound 178 mind." It might arise twelve months after the marriage through a cause which had nothing in the world to do with the condition of the marriage. It might be the result of childbirth and is a not uncommon consequence of childbirth. I understand that Lord Gorell is moving an Amendment on this subject and I am bound to say that when I read that originally I understood it to mean twelve months before. I do not know if it is meant to be twelve months after. If that is so I think that is wrong also.
I am sorry not to find myself in agreement with Lord Cecil hut, because I agree with the argument of the noble and learned. Lord, Lord Atkin, as put forward, I put down my Amendment.
§ VISCOUNT CECIL OF CHELWOOD
The only thing I wish to say in answer to Lord Atkin is that nullity can only be granted on the ground that one of the parties is incapable of giving a true assent, but it does seem to me that if one of the parties goes definitely mad within twelve months of the marriage that may be fairly treated as a ground of saying that he or she was not in a position to give that assent. It has in fact been shown by one case and I believe a great many cases that where the woman does go mad within twelve months anyone not fettered by the rules of strict law would say she was not in a position to give a true assent.
§ VISCOUNT DAWSON OF PENN
It is a rather narrow issue raised by the noble Viscount. It is well known that mental disease may be so latent that it may be an unknown ground of suspicion. If it remains a suspicion then nullity would not obtain, but if in the consequence of things in that marriage the symptoms are manifest and fully developed six or eight or nine months afterwards, you are often quite able to say that these rather vague symptoms of the earlier time of the marriage are really nothing but the beginning of a disease which was in its initial stage then. I think on that ground the bulk of scientific opinion would be with the noble Viscount on that issue, but obviously, in order to establish that case, the Court would have before it experienced scientists who would be able to give evidence as to whether that was true in the particular case or not.
§ VISCOUNT CECIL OF CHELWOOD
Before you put the Question, I would like to ask a question. I do not want to put the House to the trouble of a Division on this matter if I can avoid it. I want to get the substance of what I am asking for; I do not care about the wording. I ask my noble friends to consider between this and the Report stage whether they could not meet me in some such way as this: to say the fact that one of the parties went mad within a year should be prima facie evidence, which could be rebutted, of unsoundness of mind at the time of the marriage. I do not ask them to give an absolute reply at this moment, but if they would consider some such provision as that I would be content not to propose this Amendment in its present form, but I beg them to try and meet me somehow.
§ Amendment, by leave, withdrawn.
LORD GORELL moved an Amendment to make paragraph (b)read as follows:
(b)that either party to the marriage was at the time of the marriage of unsound mind, a mental defective within the meaning of the Mental Deficiency Acts, 1913 to 1927, or subject to recurrent fits of insanity or epilepsy.
The noble Lord said: I am reluctant to ask your Lordships to accept an Amendment in view of the arguments I have ventured once or twice to address to you as to the difficulty from the point of view of time of changing the Bill at all. In the Amendment which I have placed upon the Paper I have had the advantage of advice from those who are best qualified to speak upon this matter, and I think I may say that the wording that I propose will help to clarify the subsection, and also will get rid of that difficulty of which the noble and learned Lord, Lord Atkin, spoke.
It would seem that under the present wording it is not at all clear whether it is before or after, and I would propose that the paragraph should run:
that either party to the marriage was at the time of the marriage of unsound mind, or a mental defective within the meaning of the Mental Deficiency Acts, 1913 to 1927, or subject to recurrent fits of insanity or epilepsy.
My point very briefly is that mental deficiency, if it is a ground for nullity, should exist at the time of the marriage. I think the clause was originally designed to meet the case of a person who was mentally deficient at the time, and then was placed under restraint twelve months afterwards. I understand that that would lead to the very undesirable result that some unscrupulous person might marry someone who is mentally deficient, obtain her money, then get her placed under restraint within the twelve months and have the marriage annulled. I understand that there is no objection in principle to the acceptance of my Amendment.
Page 5, line 8, leave out from ("or") to ("subject") in line 14 and insert the said new words.—(Lord Gorell.)
§ VISCOUNT CECIL OF CHELWOOD
Provided also the same understanding prevails with regard to the other Amendment.
VISCOUNT DAWSON OF PENN moved, in subsection (1), after paragraph (d), to insert the following new paragraph:
(e) that either party to the marriage has been within twelve months prior to the time of the marriage guilty of the practice of homo-sexuality.
The noble Viscount said: I do not propose to repeat the arguments which I put forward earlier in the evening, but I move this Amendment because I think it is of even greater importance where a question of nullity is concerned. I think the arguments I have brought forward are even more true in the case of nullity, because homo-sexuality may very easily not be manifest, and could not be manifest, in the social circumstances prior to the marriage.
Page 5, line 20, at end insert the said new paragraph.—(Viscount Dawson of Penn.)
§ On Question, Amendment negatived.
THE LORD CHAIRMAN
I have a manuscript Amendment handed in by the noble Viscount, Lord Dawson, to insert on page 5, line 17, after the word "from" the word "communicable."
§ VISCOUNT DAWSON OF PENN
This Amendment raises a matter of considerable difficulty. If we leave out "suffering from venereal disease" we may land ourselves in the position that someone may have had venereal disease which some authorities regarded as not being cured, notwithstanding the fact that its manifestations had passed. That would be met by inserting the word "communicable." On the other hand, suppose at the time of the marriage one of the spouses had a very early stage of loco-motor ataxy which might easily remain undetected unless there was a special examination. It would be rather serious if the marriage could not be voided, if, for example, during the months subsequent to the marriage the disease developed. I do not myself see the solution of that at the moment, but if your Lordships will allow me I will consult with my professional friends and also with my noble and learned friends to see if anything can be done to meet the difficulty. If I may make that reservation I will not move the Amendment at this moment.
§ THE MARQUESS OF READING moved, in subsection (1), proviso (iii), after "intercourse," to insert "with the consent of the petitioner." The noble Marquess said: This Amendment is, I hope, self-explanatory. As the Bill stands at the moment it would be possible for a husband by forcibly having marital intercourse with his wife to destroy her right to apply to the Court to have the marriage annulled. Such a situation ought not to be allowed to arise, and I trust that those in charge of the Bill will find it possible to accept this Amendment.
Page 5, line 28, after ("intercourse") insert ("with the consent of the petitioner").—(The Marquess of Reading.)
§ LORD ELTISLEY
I will accept this Amendment, and in doing so I would like to appeal to noble Lords to remain in sufficient numbers to make certain of concluding the Bill to-night.
LORD ATKIN moved to insert at the end of subsection (1):
Provided also that any child born of a marriage avoided pursuant to paragraphs (b)or (c)of this section shall be a legitimate child of the parties thereto notwithstanding that the marriage is so avoided.
The noble and learned Lord said: This Amendment calls attention to what appears to me a very difficult position arising out of new and unprecedented grounds of nullity. I should say that the reference in the Amendment as printed to paragraph (a)is a mistake. For the first time, as far as I know, it is proposed to annul a marriage on any ground except on the ground that there never was a valid marriage at all. It is provided that persons may be lawfully married, and that within twelve months after the marriage they may discover either that the person was of unsound mind or that he or she was at the time of the marriage suffering from venereal disease. It is obvious that those are circumstances which permit of a child being conceived of the marriage, and it is to meet the very unfortunate situation which will arise in that circumstance that I have proposed an Amendment which I venture to think will commend itself to the humanity of the whole of this Committee.
§ Suppose there is a child and suppose that the father was in fact suffering from venereal disease, is it really to be suggested that when the marriage is annulled that child is to be a bastard? That appears to me terrible to contemplate, and if we really are giving relief of this kind for the first time, then let us also for the first time provide that if the marriage is annulled, any unfortunate issue of it shall not suffer from that sad fact but shall be legitimate. I cannot speak of the old ecclesiastical rules of the Roman Church. My own idea is, from what I have heard, that there are occasions, at any rate, on which a marriage is annulled but the Church allows the issue to be legitimate. That seems to me to be humane and Christian, and anything else seems to me to be inhumane and unchristian. I cannot believe that this Committee would allow a provision for nullity of this kind to be made and allow the unfortunate issue of the marriage to be branded through life as illegitimate. I have therefore made a proposal which appears to me, at any rate, to relieve that unfortunate position and which I venture to think will commend itself to the Committee.
Page 5, line 30, at end, insert the said proviso.—(Lord Atkin.)
§ LORD ELTISLEY
I beg to accept the Amendment subject to the deletion of the reference to paragraph (a), as has already been explained.
§ Clause 6, as amended, agreed to.
§ Clause 7:
§ Proceedings for a decree of presumption of death.
§ 7.—(1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the Court, and the Court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death.
LORD MAUGHAM moved, in subsection (1), after the first "Court," to insert "to have it presumed that the other party is dead and to have the marriage dissolved." The noble and learned Lord said: The Amendments that stand in my name here are almost entirely verbal. The only thing that has been added has been to this effect. Under the clause as drawn, the Court had only to be satisfied that the petitioner did not know that the other party was dead and that he
has not been known by the petitioner to be living within that time.
§ That, is within the period of seven years. Some experience of applications to presume death led me to suppose that it was much safer to have some rather different words. Without knowing that the other party is alive, the petitioner might well have reason to believe that he was alive from some hearsay evidence which might not come to the notice of the Court. Therefore the words are now that the petitioner has no reason to believe that the other party has been living within that time. In other respects the clause is practically as drawn, except that the form of the order made by the Court is more in accordance with correct judicial procedure. The last part of the Amendment standing in my name, which incorporates Sections 181 to 184 inclusive of the principal Act, enable the King's Proctor to apply and make any proper inquiries which he may think necessary and they cover therefore subsection (4) of Clause 7 as it stands in the Bill. I beg to move.
Page 5, line 36, after ("Court") insert ("to have it presumed that the other party is dead and to have the marriage dissolved"). —(Lord Maugham.)
§ Amendments moved—
§ Page 5, line 38, at end, insert ("and of dissolution of the marriage")
§ Page 5, line 39, at beginning insert ("In any such proceedings")
§ Page 5, line 41, leave out from ("and") to the end of line 1 on page 6, and insert ("the petitioner has no reason to believe that the other party has been living within that time")
Page 6, line 4, leave out subsections (3) and (4) and insert—
("(3) Sections one hundred and eighty-one to one hundred and eighty-four inclusive of the principal Act shall apply to a petition and a decree under this section as they apply to a petition for divorce and a decree of divorce respectively").—(Lord Maugham.)
§ Clause 7, as amended, agreed to.
§ Clause 8:
§ Prevention of delay in application for decree absolute.
8. Section one hundred and eighty-three of the principal Act shall be amended by adding thereto a subsection as follows:
(3) If any party who obtains such a decree nisi shall fail to apply to make the same absolute within three months from the date when he could first do so, then the other party to the suit against whom the decree nisi has been granted shall be at liberty to apply to the Court and the Court shall, on such application, have power to make the decree absolute, dismiss the petition, or make such other order as the Court thinks proper.
§ LORD ROCHE
The noble Viscount, Lord Bertie of Thame, asked me to deal with the Amendment standing in his name at page 6, line 20, and I told him that in my view, particularly if Lord Maugham's Amendments were carried, this would be redundant. Acting on that view I do not move the Amendment, but I think it right to reserve the right of the noble Viscount on the Report stage to move this Amendment, if his view is different from mine.
§ THE MARQUESS OF READING moved, after "If any party who," to insert "has obtained or." The noble Marquess said: In the clause as it now stands the new power for a respondent to apply for a decree absolute would only apply to such decrees absolute as might be made after this Act comes into operation. If, as I believe, this power be a most salutary 185 one, it should apply not only to such decrees nisi as have been obtained after the coming into operation of the Act, but to such as may have been obtained before but are still current at the time when the Act comes into force. I hope this will not be called retrospective legislation. It does not seek to reopen anything which has been closed. It merely extends the benefit of a new clause to such decrees nisi as are operative at the time when the new Act comes into force, and I hope the noble Lord will see his way to accept the Amendment.
Page 6, line 22, after ("who") insert ("has obtained or").—(The Marquess of Reading.)
§ Amendment, by leave, withdrawn.
Page 6, line 22, leave out ("obtains") and insert ("has obtained").—(The Marquess of Reading.)
§ Clause 8, as amended, agreed to.
§ Clause 9:
§ Amendments as to maintenance, settlement of property, etc.
§ 9.—(1) When a petition for divorce or nullity of marriage Las been presented, proceedings under Section one hundred and ninety, Section one hundred and ninety-one, or Section one hundred and ninety-two of the principal Act (which, respectively, confer power on the Court to order the provision of alimony, the settlement of the wife's property, and the application of property which is the subject of marriage settlements) may, subject to and in accordance with rules of Courts, be commenced at any time after the presentation of the petition:
§ Provided that no order under any of the said sections (other than an interim order for the payment of alimony under Section one hundred and ninety) shall be made unless and until a decree nisi has been pronounced, and no such order, save in so far as it relates to the preparation, execution, or approval of a deed or instrument and no settlement made in pursuance of any such order, shall take effect unless and until the decree is made absolute.
§ (2) The said Section one hundred and ninety shall apply in any case where a petition for divorce or judicial separation is presented by a wife on the ground of her husband's insanity as if for the references to the husband (except where the reference is to the "joint lives of the husband and wife") there were 186 substituted references to the wife, and as if for the words "to the wife," wherever they occur, there were substituted the words "for the benefit of the husband."
§ THE EARL OF DROGHEDA moved, in subsection (1), to leave out "or" after "Section one hundred and ninety-one" in order to insert "or subsection (3) of Section one hundred and ninety-three" after "Section one hundred and ninety-two." The noble Earl said: The Amendment which stands at the beginning of page 11 of the Order paper really hangs together with the Amendment at the bottom of that page r, to introduce a new subsection (4), and perhaps it would be convenient to the House if I might deal with the two Amendments together. Under the law as it at present stands the Court may, on a decree for divorce or nullity of marriage, order the respondent's husband to secure for the benefit of the wife such sums, or part of such sums, as it may order him to pay for her maintenance. But there is no power to order security to be given for the benefit of the children whose maintenance or education the respondent's husband may be ordered to pay for, except by the variation of marriage settlements, if such exist. This sometimes causes hardship in cases where, for instance, the respondent husband dies and has left his money to third parties, or where he goes out of the country, and so the order cannot be enforced. This Amendment seeks to remedy the defect by giving the Court the same power to order security of maintenance for the children, as it has now for the benefit of the wife.
Page 6, line 31, leave out ("or").—(The Earl of Drogheda.)
§ Amendments moved—
§ Page 6, after ("ninety-two") insert ("or subsection (3) of Section one hundred and ninety-three").
§ Page 6, line 37, leave out ("and").
§ Page 6, line 38, after ("settlements") insert ("and the securing of money for the benefit of the children").—(The Earl of Drogheda).
THE EARL OF DROGHEDA moved to leave out subsection (2) and insert the following new subsection:
.—(2) The said Section one hundred and ninety shall apply in any case where a petition for divorce or judicial separation is presented by the wife on the ground of her husband's insanity as if for the references to the husband there were substituted references to the wife, and for the references to the wife there were substituted references to the husband, and in any such case and in any case where a petition for divorce, nullity or judicial separation is presented by the husband on the ground of his wife's insanity or mental deficiency, the Court may order the payments of alimony under the said section to be made to such persons having charge of the respondent as the Court may direct.
§ The noble Earl said: The reason for this Amendment is that the effect of subsection (2) of Clause 9, as it at present stands, is that where a husband or wife petitions for divorce or a judicial separation on the ground of insanity, and is ordered to provide for the support of the insane spouse, payments must be made to that spouse. The result, I am advised, would be that in some cases the payments made to the person nominally in charge of the respondent would have to be passed on to those actually in charge, for instance a medical institution, and it is felt that this would involve unnecessary duplication and expense. The Amendment avoids this difficulty by providing that in each case the Court may direct to whom the payments are made.
Page 7, line 1, at end insert the said new subsection.—(The Earl of Drogheda.)
THE EARL OF DROGHEDA
I have already explained, in opening on this clause, the reason for the next Amendment.
§ Amendment moved—
Page 7, line 20, at end insert—
(4) The following subsection shall be added to Section one hundred and ninety-three of the principal Act:—
(3) The Court may, if it thinks fit, on any decree for divorce or nullity of marriage, order the husband, or (in the case of a petition for divorce by a wife on the ground of her husband's insanity) order the wife, to secure for the benefit of the children such gross sum of money or annual sum of money as the Court may deem reasonable, and the Court may for that purpose order that it shall be referred to one of the conveyancing counsel of the Court to settle and approve a proper deed or instrument to be executed by all necessary parties:
Provided that the term for which any sum of money is secured for the benefit of a child
shall not extend beyond the date when the child will attain twenty-one years of age.'" —(The Earl of Drogheda.)
§ Clause 9, as amended, agreed to.
§ Clause 10:
§ Extension of jurisdiction of courts of summary jurisdiction.
§ (2) Where the wife of a married man has been guilty of adultery the married man shall be entitled to apply to the court of summary jurisdiction for an order and on such application the Court may make one or more of the orders set out in Section five of the Licensing Act, 1902, as amended by this Act.
§ THE EARL OF DROGHEDA moved, in subsection (2), to leave out "as amended by this Act." The noble Earl said: This is purely a drafting Amendment. The words as amended by the Act were needed as the Act was originally drawn. They are now quite redundant and I move that they be deleted.
Page 7, line 34, leave out ("as amended by this Act").—(The Earl of Drogheda.)
§ Clause 10, as amended, agreed to.
§ Clause 11:
§ Relief for clergy of Church of England.
11. The following subsection shall be substituted for subsections (2) and (3) of Section one hundred and eighty-four of the principal Act:—
(2) No clergyman of the Church of England shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on any ground and whose former husband or wife is still living or to permit any other minister of the Church of England to perform such a marriage service in his church or chapel.
§ LORD ATKIN moved, after "England," to insert "or of the Church in Wales." The noble and learned Lord said: The most reverend Primate has requested me to move this Amendment in his absence. It is to avoid a possible question of doubt in the law. Under the Welsh Disestablishment Act the enactments relating to the Church of England in this matter would appear to apply, and are expressly applied, to the Church in Wales after disestablishment. If that stood alone there would be no difficulty at all. But there is a provision of rather doubtful interpretation excepting enactments relating to marriage, and as 189 this is an enactment relating to marriage the provision in the Disestablishment Act applies.
§ LORD ATKIN
I was only going to add that we want to apply this protection to clergymen of the Church in Wales as well as in England.
Page 8, line 4, after ("England") insert ("or of the Church in Wales").—(Lord Atkin.)
Page 8, line 9, after ("England") insert ("or of the Church in Wales").—(Lord Atkin.)
§ Clause 11, as amended, agreed to.
§ Clause 12 agreed to.
§ THE LORD BISHOP OF ST. ALBANS had on the Paper a proposed new clause, after Clause 12, to make provisions for the purpose of introducing conciliation methods into matrimonial causes concerning divorce and nullity, and for reducing the cost of such proceedings for those who are unable to afford adequate professional advice. The right reverend Prelate said: In speaking on the Second Reading of this Bill I called attention to the fact that the Bill contained no provisions for conciliation in matrimonial divorce cases. As the Bill is one to establish and strengthen the institution of marriage, that seemed to me, as it still does, a great weakness. I do not intend to keep your Lordships at this late hour longer than a very few minutes, but I felt that the attention of the House should be drawn in Committee to this lack. The original Bill contained a clause to this effect. As a matter of 190 fact, I thought somebody else was going to move this particular Amendment, and I have put it down in my name as it appeared in the original Bill. I, and I am quite sure a great number of your Lordships, have been immensely impressed, perhaps by personal experience, but more particularly by what has taken place in the courts of summary jurisdiction with regard to the effect of conciliation.
§ I am not going to weary your Lordships with figures at so late an hour, but though I believe it is a matter which cannot be considered now in this Bill, it is one which ought to have the serious attention of the Government of this country in order to try and devise a scheme for bringing conciliation into the Courts. I am told on very high authority that if the Amendment standing in my name, which was part of the original Bill, was introduced it would cause a great deal of difficulty with regard to these matters of divorce being tried in the courts of summary jurisdiction and so on. I dare say that is quite true, and I only wish that the promoters of the Bill would find a better way of bringing in this question of conciliation. I am quite sure there is not a single member of the House, however much he may approve the provisions of this Bill, who would not infinitely rather see questions of this kind settled and parties reconciled than go through the Divorce Court. I hope your Lordships will forgive me for having occupied even a few minutes at this hour, but I did want, before asking leave to withdraw this Amendment, to bring before the notice of the House once more the need of this most important aspect of the matter.
§ Remaining clause agreed to.
§ House adjourned at twenty minutes before twelve o'clock.