§ Amendments reported (according to Order).
§ Clause 1:
§ No divorce within three years of marriage and provision for cases of exceptional hardship.
§ 1.—(1) No petition for divorce shall be presented to the High Court unless at the date of the presentation of the petition three years have passed since the date of the marriage:
§ 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 465 years have passed an 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.
§ LORD REDESDALE moved, in the proviso in subsection (1), to leave out all words after "Provided that" down to and including "respondent" and to insert "if it appears to the Court or a Judge in his absolute discretion that in the circumstances of the case the said period of three years should be shortened the Court or Judge may allow a petition to be presented before three years have passed." The noble Lord said: My Lords, as Clause 1 stands at present persons wishing to avail themselves of the provisions of the Bill will have to come to London, if they wish to plead exceptional hardship, because they must, as the clause stands, appear before the Probate, Divorce and Admiralty Division. That means that if poor persons wish to avail themselves of the advantages of this Bill they will be unable to do so, because of the proviso in Clause 1. The effect of my Amendment would be to vest the discretionary powers spoken of in Clause 1 in Judges of the King's Bench Division on circuit, and it surely cannot be said that Judges of the King's Bench are not fit persons to dispense that discretionary power, for of course they are. They have power over life and death as it is. In any case I am quite sure your Lordships would not desire to allow this Bill to proceed embodying any such injustice, if, as I think, it is an injustice. I beg to move.
Page 1, line 16, leave out from ("that") to ("but") in line 22 and insert the said new words.—(Lord Redesdale.)
§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
My Lords, I propose to put the Question in the form that the words "that a Judge of" stand part, because 466 that saves the Amendment standing next in the name of the noble and learned Lord, Lord Maugham.
§ LORD ELTISLEY
My Lords, we who support this Bill are opposed to this Amendment as a whole, but we are prepared to accept large portions of it, which I think are all contained in Lord Maugham's Amendments. Perhaps it would be for the convenience of the House if Lord Maugham could speak to his Amendments which we accept.
LORD MAUGHAM had given notice of Amendments to make the proviso read as follows:
Provided that a Judge of the High Court may, upon application being made to him 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, the Court may, if it pronounces a decree nisi, do so subject to the condition that no application to make the decree absolute shall be made until the expiration of three years from the date of the marriage, or may dismiss the petition, without prejudice to any petition which may be brought after the expiration of the said three years upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.
§ The noble and learned Lord said: My Lords, it is always wise, following the example given by a celebrated tag of the Latin grammar, to learn from your adversaries, and in this case in the Amendments which stand in my name I have embodied that part of the Amendment of the noble Lord, Lord Redesdale, which provides that a Judge on circuit or a Commissioner, if the Lord Chancellor so chooses to exercise the power, will be entitled to exercise the discretion contained in Clause 1 of the Bill as it at present stands. There are, however, two things in Lord Redesdale's Amendment which I have not been able to accept, and against which I think there are some serious objections. The first thing is that if he leaves in the words "the Court or a Judge," it is the fact that under the Rules of Court as they stand those words will include a Registrar, or it may be some other official not in the same position as a Judge of the High Court or a Commissioner of Assize 467 appointed by the Lord Chancellor. Accordingly the words "the Court or a Judge" are objectionable; but there is no objection to, and I venture to think that there is considerable weight in, Lord Redesdale's Amendment so far as he desires the words "High Court" instead of the words which are at present in the clause, "a Judge of the Probate, Divorce and Admiralty Division."
§ There is one other thing which Lord Redesdale has not mentioned, which of course is a matter of rather more importance. In his Amendment he suggests that the Judge in his absolute discretion should be entitled to shorten the time. I am not sure whether that part of the Amendment is supposed to be before the House. It is part of the same Amendment, and, if it is a matter which we are now discussing, I would ask your Lordships not to accept that part of the Amendment, because it is the fact that the persons who have to administer this proposal, if it passes into law, do desire some lines to be indicated on which the discretion should be exercised, and, moreover, it is desirable when the matter comes before different Judges that the discretion which they exercise shall be exercised on lines which shall he substantially the same. Nothing would be more unfortunate than that it should become known that certain Judges look upon a matter of this sort with a very lenient eye and are willing to exercise their discretion on grounds which are imperceptible to some of the other Judges who may have to administer the same powers. I ask your Lordships on these grounds not to accept the Amendment of Lord Redesdale as it stands on the Paper, stating quite clearly that an important part of the Amendment is included in an Amendment which stands in my name.
§ LORD ATKIN, in whose name stood an Amendment to leave out Clause 1 and insert a new clause, said: My Lords, I am in a little difficulty over this Amendment, and indeed over the next Amendment to be proposed by my noble and learned friend (Lord Maugham), because I myself am thoroughly opposed to there being any discretion at all vested in the Judge, and I am unable to understand why it should be thought that it was necessary for a Judge to decide whether 468 two middle-aged folks should have a divorce or whether they should not. After all, the Judge has not got to live with them, and they probably know very well themselves whether it is or is not possible for them to live together. But up to the present moment we are only seeking to amend a clause which already has a discretion and procedure for exercising that discretion. My difficulty over my noble friend's Amendment that is now before the House is that it is open to what I conceive to be the grave objection that the discretion is to be exercised, not as to whether a divorce should be granted but as to whether a petition should be presented. Your Lordships will appreciate that those are two entirely different things, and on the clause as it stands at the present moment it would be necessary to apply in London, and it would be necessary to provide evidence that there is a case of exceptional hardship.
§ Will your Lordships just consider what that means? We all recognise that the great value of this Bill is that it will seek to make the lives of the poorer classes more possible and easier. We know that we have to deal with a very large number of divorce cases between poor persons who at present have difficulty in finding, as they have to find, the out-of-pocket expenses that are necessary for these cases. Now, what does the procedure mean? If you have to have leave to present the petition you must produce your evidence before the Court, and if you have to produce it before you can petition at all you have then to provide it on affidavits, and apparently they will be contested affidavits, because one of the Rules of Court in divorce matters always has been that the evidence of the wife or husband alone will not be accepted; it must be corroborated. And in order to prove that there is a case of exceptional hardship you must have an elaborate statement of what the evidence is, or is going to be, in the case. All that has to be collected, affidavits have to be made by solicitors, and they have all to be sent to the Court.
§ My noble friend's Amendment proposes that an application should be made, and I think my noble and learned friend Lord Maugham intends that the Rules of Court should provide for what is not done at present—that there should be a petition 469 before the Judge of Assize. Mind you, that Judge of Assize is not the Judge who is going to try the case, because this is only for a petition, and there are many petitions that are of course contested petitions, and on circuit—this is one of the difficulties—the Judge has only power to try, first, undefended cases, and, secondly, defended cases between poor persons. But how on the inception of a case where a person is petitioning for leave to present a petition is it to be known whether a case is undefended or not? We cannot tell that until the time has expired for answering—I forget what the technical word is—the petition when it is filed. There are very grave difficulties in respect of it.
§ But there is a still more grievous difficulty which I am sure will commend itself to your Lordships. I for my part profess that nobody ought to exercise the discretion as to whether or not a divorce shall be granted under this Bill until the facts have been known and until the Judge has seen the petition and, if possible, if it is a contested case, seen both parties. To my mind it is a most unusual and really impossible provision that the person who is to decide whether or not there should be an exception to this general rule of three years is the person who has not seen, and has not an opportunity of seeing, the parties. The final decision ought to be given at the hearing. I have put down an Amendment to that effect which I hope will commend itself to your Lordships, but I very strongly object to any of this clause.
§ I prefer my noble friend's Amendment because it cuts down the clause more than does that of my noble and learned friend Lord Maugham. My noble and learned friend Lord Maugham in his Amendment would really deny the relief that everybody desires to give. In addition to that, I cannot believe that the right test is the question of whether there is exceptional hardship; but we are not discussing Lord Maugham's Amendment in detail at the moment. I may say, however, that I notice there has been a sort of what I call judicious cribbing from my own Amendment. If my noble friend presses this to a Division I shall vote for him, but, as I say, I hope very much that the House will decide that justice and equity require that the Court shall not intervene in these matrimonial questions with regard to discretion and should leave 470 it to adult married people to determine for themselves whether they should be married or not.
§ VISCOUNT BERTIE OF THAME
My Lords, there is one point I should like to have made clear. I do not understand whether, under the Amendment of my noble friend Lord Redesdale or that of my noble and learned friend Lord Maugham, a petition can be presented to a Judge sitting during the Long Vacation.
§ LORD MAUGHAM
Undoubtedly, if my Amendment is accepted, or Lord Redesdale's, substituting the words "High Court," it will apply to Long Vacation Judges.
§ On Question, Amendment negatived.
§ LORD MAUGHAM moved his first Amendment, in the proviso in subsection (1), to leave out "Probate, Divorce and Admiralty Division may, subject to and" and insert "High Court may, upon application being made to him." The noble and learned Lord said: My Lords, my Amendments look perhaps a little bit more alarming that they really are. The first Amendment relates simply to inserting the words, "High Court may upon application being made to him" for the words, "Probate, Divorce and Admiralty Division may, subject to and." I have already pointed out the advantages of that, and they are considerable. It is an acceptance pro tanto of Lord Redesdale's Amendment, and it carries out his desire to secure that the expense of this preliminary application, when it is made, shall not be prohibitive. Then in my following Amendment, in line 25, there come in some words which are simply of the nature of a drafting Amendment. They are inserted because it has been discovered that, as originally drafted, this Bill gave power to a Judge, if he was not permitting the decree nisi to be made, to say as a condition that no application should be made for a period which might, for instance, be ten years. In other words, the Amendment as drafted did not provide that it was in the power of the Judge merely to defer the hearing of the petition or the making of the decree nisi until after the expiration of the three years' period. That is pure drafting, and no one will object to it. 471 Then there comes a suggestion which I agree is taken almost verbatim, with some slight alterations of a grammatical character, from the Amendment to be moved later by my noble and learned friend Lord Atkin.
§ I am not going at the present moment to inflict on your Lordships any speech with reference to the propriety of such a clause as that which now stands, after the Amendments made in Committee, in the draft Bill, because the time for discussing whether the clause shall be entirely deleted or not has not arrived until the next Amendment has been moved; but what I do protest against, if I may use the verb that my noble and learned friend likes, is our considering the existing clause as if it were a clause relating to what is to be done at the trial of the case. It is not so. It is not reasonable to ask your Lordships to believe that any very great expense is going to be incurred in a preliminary application which is only to determine whether a petition for divorce may be presented or not although the three years' period has not elapsed. Accordingly I ask your Lordships to say that the rules of the Divorce Court, which have always been applied hitherto in cases where the petition has been presented and there is a definite case inter partes to determine, do not apply in a case where you are only determining whether circumstances exist of the nature defined in the clause as it now stands for allowing a petition to be presented although the period has not elapsed.
§ May I just add one more thing about it? The suggestion of my noble and learned friend that it might be an advantage to add to the clause that in determining the application the judge should have regard to the interests of the children of the marriage, if any, and to the question whether there is a reasonable probability of the parties being reconciled within the three years, may well be useful. They do point out, especially in the last part, the real reasons which have induced people in the other place to insist upon some such clause being inserted in the Bill. It may very well be before the expense of the trial has been incurred, before parties have gone into the box and given their statements upon oath, and before things have reached such a pass that reconciliation is almost impossible, that in these circumstances, at 472 that earlier period, when no divorce petition has yet been presented, in a certain number of cases reconciliation will be possible. That is what has very largely led to a clause of this character coming up to us from another place and to there being before your Lordships now a provision such as there is in the Bill as amended in Committee.
§ I would only add one word on this clause. I think the operation of the clause is very likely much exaggerated by noble Lords. The noble and learned Lord, Lord Atkin, talks as if this was going to affect a vast number of cases, and then he alludes in scathing terms to the fact that old people ought to know whether they want to be divorced or not. Your Lordships have already been told that the number of cases affected by such a provision as a three-year period for reflection is only some 4 per cent. of the total number of petitions which are presented to the High Court, including those cases that come before a Judge on Assize. Will your Lordships just bear with me when I point this out? In the first year of marriage there are practically none; there are a few, it is true, but only a decimal of 1 per cent. You can leave those out, it seems to me, because these cases are cases of exceptional hardship where the respondent is a sort of lunatic from the point of view of sexual matters and where a divorce discretion would be exercised. In the second year no doubt there are cases where this provision will operate. Towards the end of the third year nobody will bother about it because if a person discovers after two and a half years of matrimony that he or she must have a divorce it will not be a great hardship to have to wait six months before the petition is presented.
§ The real truth, if you consider the operation of it, is that it is going to have only a limited effect in preventing people who want an immediate divorce, not as a rule the old people to whom my noble and learned friend has referred, but young people who have unwisely entered into the marriage state. It will be only those few people who will be affected by the clause, which requires them in a normal case to hesitate and to consider whether there may not be a possibility of reconciliation. On the whole I venture to think, with the judicious liftings from the proposals of Lord Atkin and 473 from the proposals of my noble friend, Lord Redesdale, that this is a clause which your Lordships should accept.
Page 1, line 16, leave out from ("the") to ("in") in line 17 and insert ("High Court may, upon application being made to him").—(Lord Maugham.)
§ LORD ATKIN
My Lords, I am sorry to speak so often, but this is a question largely of procedure, and I have heard nothing which even purports to meet the point that I mach that this discretion is a discretion which ought to be exercised at the hearing when the facts are before the Judge, and have been ascertained by him after having had an opportunity of seeing the parties. I hope there is no misunderstanding about this clause. I will give my own reading of it. I am not at all sure that it corresponds with what my noble and learned friend put before the House. As I understand this clause, with his Amendment there will be only one exercise of the discretion, and that exercise of the discretion will be upon the application to the High Court—that is to say, by a summons, and that must be by affidavit. There is no provision for the High Court on any such application seeing the parties, and in order that you may exercise your discretion fairly and properly, you surely must have before you all the facts which would lead a Judge to say that in all the circumstances of the case this is a case of hardship or of exceptional hardship, or whatever you wish to say.
If that is so, you must put the facts before some Judge who will not be the trial Judge; you must put the facts before him upon a procedure which is not the procedure at the trial; and in order to get those facts forward you must incur the expense of affidavits on both sides. I venture to think that is a great mistake, because I cannot imagine any reasonable person being asked to say "Now is it right or wrong that these people should get a divorce within three years?"—I cannot imagine any person, Judge or otherwise, trying to make up his mind on that point—unless he knows all the facts and has seen the two spouses before him, or at any rate has seen the petitioner and heard what her story is. When once leave to bring a petition has been granted, then all that the Judge has got to do is to grant a divorce; therefore it is the exercise of the discretion at the inception of 474 the matter that is going to count. The trial Judge has only got powers under this Amendment in case he finds that the petitioner has been guilty of concealment or misrepresentation, which again is a very difficult matter to decide.
I have known cases, most of us have known cases, of women petitioners who found it very difficult to state their case in anything but an exaggerated form; but that is not the point. The point is that this procedure involves two trials, two hearings of the evidence, the hearing on affidavit on which the Judge is to exercise his discretion, and the hearing at the trial which may produce facts that are something quite different and very much more favourable to the exercise of the discretion. But that does not seem to me to matter. It is impossible, as I venture to think, to have all this procedure now suggested because of the expense to which people will be put, the fact that they have got to prepare affidavits, the fact that they have to satisfy one Judge before the case is ever heard at all, and the fact that he never sees them upon the point as to the hardship of their case. That makes this procedure a wrong procedure. My Amendment says that it is the Judge at the trial who can say whether or not a divorce ought to be granted within the three years. I venture to think that that is right for these reasons. This procedure has really not been worked out with reference to the convenience of the parties and the injustice that may be done to poor persons. It is prohibitive to poor persons. It means necessarily that in this respect there will from henceforward be a great difference between the facilities given to the rich and the facilities given to the poor. Poor people will not be able to come forward and press their cases of hardship, while rich people will be able to do so. For those reasons I hope this Amendment will not be accepted.
§ LORD ROCHE
My Lords, like my noble and learned friend Lord Atkin, I am afraid of speaking so much and so often on this Bill, but I want to say three things. Put briefly the first is this. Let us not make a mountain out of a molehill. Put the figures of my noble and learned friend Lord Maugham into actual numbers and the whole of this clause involves about 200 divorce petitions per annum.
§ LORD ROCHE
I will answer my noble and learned friend in a moment. And those deserving cases can get relief under the hardship clause. The second thing I would like to say is this. With regard to the difficulties of procedure with which Lord Atkin terrified your Lordships, he has forgotten, I think, that the Bill contains the phrase "in accordance with Rules of Court." These matters of procedure are regulated by the Lord Chancellor assisted by a Rules Committee. Let us leave, as we safely may, matters of procedure to a body more competent than ourselves. The third thing I would like to say is an answer, sufficient at any rate to my own mind, but I am afraid not in the least sufficient to remove my noble friend's ineradicable hostility to the clause. It is just because we think that with regard to a substantial number of these 200 cases the petitions are made in haste and that the parties should have an opportunity, which such different minds as the right reverend Prelate the Bishop of St. Albans and my noble friend desire should arise, for reconciliation, that we think and believe that these preliminary applications taking place, not in secret or in camera but in the comparative privacy of a judge's chambers, will offer that opportunity which we desire. For these reasons I support my noble and learned friend's Amendment.
§ LORD WRIGHT
My Lords, I had not intended to speak this afternoon as I have already spoken on this Bill, but I desire to associate myself with what has fallen from my noble and learned friend Lord Atkin. I have had some experience of exercising discretion as a Judge and to my mind it is placing an impossible burden on any Judge if he has to say on affidavit ex parte whether or not a particular petition when it is to be presented is one which, if forbidden, would involve extreme hardship. How in the name of Providence is he to say that, on these materials, and at that stage of the proceedings? I know of no precedent for any such discretionary powers being put upon a judge. I am saying nothing at all about the general effect of Clause 1, to which I strongly object, but I do say that this attempt to produce a workable machinery for giving effect to Clause 1 in any form completely fails. The whole thing is unworkable. I do not care whether you do 476 injustice in 200 cases a year or in twenty cases a year, it is still injustice, and it is still taking from the people of this country a right which they have enjoyed for a great many years to obtain a divorce if they show that they have satisfied the requirements of the law. All I want to say now is that I associate myself with my noble and learned friend Lord Atkin, in asking your Lordships to say that this is an unworkable machinery and the improper imposition on a judge of a discretion which he cannot satisfactorily perform in the way in which he will be asked to perform it.
§ LORD CROMWELL
My Lords, with great trepidation I rise to question an argument of my noble and learned friend. From a layman's point of view the statement which my noble and learned friend made does not seem to be correct, if I may be allowed to join issue with him. He went so far as to say that the only question to decide would be whether there should be a divorce or not, and that if there was no concealment or misrepresentation divorce would be automatic. But the words of the clause at the top of page 2 are "may pronounce such a decree." It does not seem to me that the decree can be in any way automatic, even if there is no misrepresentation before the proceedings. It seems to me that it would still be open for the Court not to grant a divorce even though permission to file a petition had been previously granted.
§ LORD ATKIN
My Lords, if I may be allowed to speak again merely by way of explanation I would like to say that if I made the statement imputed to me by the noble Lord I certainly made a mistake. What I meant to say, and what I think I did say, was that if the petition was granted then the judge had nothing more to do with discretion but merely had to decide whether the case was proved or not. The Judge at the hearing, in other words, had nothing to do with discretion.
§ LORD MAUGHAM
My Lords, may I reply very briefly to what has been said by my noble and learned friends? They are both unalterably opposed to Clause 1, and I venture to think that your Lordships in considering their objections to the Amendment as it stands may have that in mind. The noble and learned Lord, Lord Atkin, has asked you to 477 believe that in these cases there will have to be two trials, that the case must be heard with everybody there and the two parties present, and that after that preliminary trial on the question of discretion there is going to be another trial when the case conies on for hearing. My noble and learned friend Lord Wright, on the other hand, asks you to believe that this discretion is always going to be exercised on ex-parte affidavits. Well, they differ so much that it is quite apparent to me that their objections have affected the good judgment that they are, I am proud to say, generally capable of exercising. The truth, as has been already pointed out, is that the whole matter will be left to be dealt with by Rules of Court and it would be the greatest mistake in the world to suppose that those people who draft those Rules cannot make a distinction between cases.
If one of the parties to the marriage has deserted the other, leaving perhaps the letter which we hear of so often on the dressing table or somewhere else, do you think it is very likely that in that case the Judge will insist on the summons, or whatever the procedure is, being served on somebody as to whose residence you know nothing, and who is quite likely abroad where you cannot serve a summons? On the other hand, I have no doubt that there may be cases where the Judge in his discretion will say he is not satisfied with the application and will not grant it unless he has the opportunity of seeing one side or both sides before him in person. Rules can easily apply to different cases, and it is quite a mistake to suppose that there is going to be one hard and fast method in all these applications for discretion. Particularly it is a mistake to suggest that there is going to be a preliminary trial before the matter comes before the Court.
On the other point on which the noble Lord has just spoken, my noble and learned friend Lord Atkin has explained perfectly clearly that the only matter which will be before the Judge who has to exercise his discretion is whether a petition should be put upon the file or not. When he has done that everything is going to proceed exactly as if the three years had expired except that it is thought right to give the Judge at the trial—who will have had nothing to do with the exercise of the discretion—the power to make 478 an order of a special kind if it is found out that the leave to present the petition has been obtained by misrepresentation or concealment. It would be wrong to let your Lordships suppose that this Amendment is only on the basis that I and perhaps my noble and learned friend Lord Roche approve it. There are a large number of persons who have been consulted about it, and I am justified in saying that it is not anticipated by those who have the administration of this branch of the law that there will be any substantial difficulty in administering it.
§ On Question, Amendment agreed to.
LORD MAUGHAM moved, in the proviso in subsection (1), to leave out all words after "case" and insert:
the Court may, if it pronounces a decree nisi, do so subject to the condition that no application to make the decree absolute shall be made until after the expiration of three years from the date of the marriage, or may dismiss the petition, without prejudice to any petition which may be brought after the expiration of the said three years upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.
The noble and learned Lord said: My Lords, I am afraid, owing to my ignorance of the procedure of the House, that I was not aware that we were dealing with these Amendments quite separately. Perhaps I incautiously referred to all the Amendments. But, treating them separately, I beg to move this one, and I have already said what I desire to say on the subject.
Page 1, line 25, leave out from ("case") to the end of the subsection and insert the said new words.—(Lord Maugham.)
§ On Question, Amendment agreed to.
LORD MAUGHAM moved, after subsection (1), to insert the following new subsection:
.—(2) In determining any application under this section for leave to present a petition before the expiration of three years from the date of the marriage the Judge shall have regard to the interests of any children of the marriage and to the question whether there is reasonable probability of a reconciliation between the parties before the expiration of the said three years.
The noble and learned Lord said: My Lords, I have already stated the reasons for inserting the words which I have, as I said, cribbed from Lord Atkin. I beg to move.
Page 2, line 6, after subsection (1) insert the said new subsection.—(Lord Maugham.)
§ On Question, Amendment agreed to.
§ LORD MOYNE moved to leave out Clause 1. The noble Lord said: My Lords, since I put this Motion to leave out Clause 1 upon the Order Paper, representations have been made to me that it is unusual to ask the House to reconsider on Report a definite decision reached in Committee. As a very junior member of your Lordships' House I must ask for indulgence if there is indeed any prejudice against the Amendment on this account. I hope it will not be thought impertinent if I remind your Lordships that in the interest of the despatch of business it would seem desirable that our procedure should remain as flexible as possible and that no practice should be allowed to grow up to impede what is, I believe, the ancient and wholesome principle whereby the five successive stages through which each Bill passes are maintained as affording a really effective opportunity for the House to express considered second thoughts. This flexibility seems especially necessary for a revising Chamber.
§ I hope I may remind the House that a parallel freedom for second thoughts has been maintained in another place, though it is true that the growth of public business and the crowding of the time-table there compel the Chair to use more and more rigorously its power of selection, so as to enable discussion of the utmost possible number of different Amendments and to cover on the Report stage as many as possible of the many points that are inevitably crowded out on Committee especially under a Guillotine Resolution. Nevertheless, a very short examination of the OFFICIAL REPORT would convince noble Lords that, on matters of importance like the clause before us, the Report stage in another place is often used to reverse decisions taken in Committee. I have here one case which I have looked up, though I will not take up the time of the House by quoting details. It is a case, fresh in the minds of many noble Lords who served in the House of Commons in recent years, where the Government of the day themselves used the Report stage and put on Government Whips to reinstate a clause which had been omitted in Committee against the advice of the Government. Apart from 480 this, I would urge that there is a special case for reopening the question of retaining Clause 1 in the Bill, on the ground that fresh information has come to light in the interim period. In the Law Courts, I am told, it is possible to apply for a fresh trial on the ground that fresh information has become available since the previous hearing. I hope, therefore, that the House may find some further excuse for my action.
§ I would detain the House as little as possible on the merits of the clause; I wish to deal mainly with the future course of the Bill from the point of view which the noble Lord, Lord Arnold, took on the last occasion, under what he called Parliamentary procedure. I hope to show that the House was in fact wrongly informed as to the possibilities and methods of adjusting views between the two Houses on a Private Member's Bill of this kind. Those not present last week will find in the OFFICIAL REPORT very grave warnings from noble and learned Lords and others as to the hardship to be feared from depriving petitioners of that right to the earliest possible trial and relief in the Divorce Court which they have enjoyed for eighty years. The Amendment passed at the instance of the noble and learned Lord, Lord Maugham, gives relief in cases of exceptional hardship or exceptional depravity, but it does not really meet the injustice of this clause. May I—because I know that many noble Lords were not here last week—read just two quotations, and that is all I should like to do on the general question. First may I read a sentence from Lord Maugham as to the possibility of giving relief in exceptional cases to deal with injustice? Lord Maugham said this—
§ LORD MOYNE
Yes; it is in column 88 of the OFFICIAL REPORT of the Committee stage of the Bill: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?"—
§ LORD MOYNE
The noble and learned Lord continues: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.These provisions for exceptional hardship are not going to touch the need for giving relief to those cases. They may only be few in number, but these very hard cases are among the working classes, who have to live under very difficult conditions. The clause as it stands is to some extent, I think, improved by the Amendment which has been put in by Lord Maugham, but even as amended the clause was thus described by the Lord Chief Justice. He said (in column 100) that the clause seemed to him a most unreasonable concession to unreasonable opposition and that he could not for the life of him understand why the rights of one set of persons should be given away behind their backs in order to secure the admitted rights of another set. The noble Lord, Lord Atkin, has on the Paper a new clause which he proposes to substitute for the clause now standing as Clause 1, if it goes out. He wishes to move out Clause 1, and to substitute a new clause. I suspect that the noble and learned Lord has only a very modified affection for this clause which he suggests to try and deal with some of the hardship.
§ LORD MOYNE
It would widen discretion of the Judge to allow cases not merely on grounds of exceptional hardship and depravity, but also cases without any limitation at all. It seems to me that that is not really going to be a workable system. In The Times of yesterday there was a letter from Sir Ellis Hume-Williams, who has a very great experience of the Divorce Court from the Bar. He writes of this procedure, which will be created under Clause 1, that… such an application [on the ground of hardship] must surely be made in practically every case, and the Judges are already overworked. If a petitioner is to wait, say, two years before presentation of a petition, and several months more before trial, how is he 482 to secure production at the trial of the necessary evidence? It may be available when the offence occurs, but there is no means of perpetuating it for two or three years. Evidence can only be given on commission in a pending suit, and there is none. So as speedy a trial as possible is the only remedy.He goes on to speak of the peculiar type of evidence which has to be dealt with in divorce cases. It seems to the layman that there must be very great difficulty in putting this discretion on the Judges. Some noble Lord mentioned this afternoon, I think it was Lord Maugham, how desirable it was that there should be no difference of standard in the discretion used by one Judge and another, and I am told that in a case where Judges already have to exercise their discretion great dissatisfaction has arisen. They are charged with granting indulgence in divorce cases where a lapse is admitted by the petitioner, but not charged. They are empowered to grant indulgence, and it is notorious that the Judges take different views.
Some of the Judges have been named to me as habitually granting indulgence, almost as a matter of rule, and others who as regularly withhold indulgence. That the fate of a litigant should depend upon which Judge happens to hold the Assize is already a grave hardship, and under this new discretion how can we hope for a level standard of application as to what amount of adultery is going to constitute hardship to a lawful spouse? In the great majority of cases it seems inevitable that a new type of hardship will arise from the variety of ways in which Judges are bound to exercise their discretion, not having anything to guide them, and there being no appeal to the Appeal Court on matters of discretion. The new clause drafted by Lord Atkin shows that even the best architect cannot build a satisfactory superstructure on an unsound foundation, and I hope that the noble and learned Lord will refrain from moving that Amendment at this stage, after we have struck out the clause, and will wait until, if that happens, the Commons reinsert Clause 1. Then it will be open to us to suggest any Amendment in accordance with the procedure which, in a moment, I will outline.
Now I come to the circumstances in which the Division List shows your Lordships voted for a proposal of which many 483 noble Lords, from their speeches, strongly disapproved. Several noble Lords in the debate discussed the prospects of the Bill from the point of view of Parliamentary procedure. Lord Arnold, and others, advised us that if we rejected Clause 1 we should lose the Bill. Immediately after the Division I happened to meet several members from another place, who were sitting on the steps of the Throne and who, while not directly concerned with the details of this Bill, have special responsibilities and opportunities for judging the feeling of members, and the probable course of business. Their immediate reaction was one of regret that the House of Lords had voted against the convictions of many who voted in the contrary direction to satisfy the alleged opinion of the Commons, which my informants believed to be entirely misjudged by those who spoke in this House. I have been to considerable pains to ask individual members of the House of Commons, and everyone I have met has agreed that outside a small group interested in Clause 1 nobody wants to keep it in the Bill. On the law of averages—I have not yet succeeded in meeting anyone in the Commons who did want it—it seems to indicate that the numbers who do want the clause are not very great.
I come back to the argument which induced your Lordships to retain the clause. Lord Arnold's speech, I think, had most weight in this direction, because it was most detailed and the noble Lord reminded us of his long experience of another place. In column 91 of the OFFICIAL REPORT he said: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.I believe his warnings are ill-founded, first of all because it is quite evident that no vote can take place in the other House on the Bill itself. I quote from Erskine May:When the Order of the Day is read for considering Lords Amendments to a Bill, a question is put, 'That the Lords Amendments be now taken into consideration'; but it is not permissible to discuss thereon the provisions of the Bill.Therefore, whereas on other stages innumerable points can be raised, there is 484 no such opportunity on the consideration of the Lords Amendments, and the Amendments are taken one by one.
On the point whether this makes any difference in time when the Commons consider the Amendments in the Bill, we must remember that we have put some more Amendments in the Bill which will all have to be considered seriatim and voted upon seriatim, and that will take up much more time than having one Division on the Question that they disagree with the single Amendment to leave out Clause 1. But, anyhow, my proposal is not going to mean more time in the House of Commons. In any case time must of course be found to discuss it, and the promoters will no doubt move seriatim to agree or disagree. If they disagree with this Amendment, or any other Amendment, it is open to them to suggest an alternative. I apologise for labouring this point, but I talked to so many noble Lords who were impressed by the danger to the Bill that I do not think they can quite appreciate what the procedure in the House of Commons is.
I again quote from Erskine May:A motion is made, 'That the House doth agree (or disagree) with the Lords in the said Amendment.' … the debate also must be confined to that Amendment, and may not extend to other Amendments or the general merits of the Bill.In some cases the Lords have left out clauses or words to the omission of which the Commons have disagreed, but, on restoring such clauses or words, have at the same time proposed to amend them. I quote again:Sometimes one House agrees to the Amendments, with Amendments, to which the other House agrees. Occasionally, this interchange of Amendments is carried even further, and one House agrees to Amendments with Amendments, to which the other House agrees with Amendments.To apply this method to the Bill before us, the Commons, if this clause is taken out, might, though I do not think they would, disagree with the omission, and they might suggest the reinstatement of the clause as it stands amended by Lord Maugham. In that case the noble Lord, Lord Atkin, would have an opportunity to move as a last word the various further Amendments which he has standing on the Paper to-day. I hope therefore that the noble Lord will not move his clause in at this stage. May I summarise? The House of Commons can kill the Bill by 485 rejecting the clause without suggesting an alternative. There is the best reason for believing that they would not dream of such a course. I believe that if the Lords strike out the clause they will accept that decision, hut, if I am wrong in that, the Commons will reinsert the clause in some form which we can amend.
We have heard something in the debate about bargains between promoters and opponents. Such bargains are quite usual and quite proper for the purpose of avoiding opposition which, with the very limited time available for Private Members' business, gives exceptional opportunity for destroying a Bill, not on merits but by the efflux of time. Such arrangements are often rejected when the Bill is considered by the Commons on Report. It appears, indeed, that this Bill has been amended in some of the agreements which had taken place before it was introduced, because I gather from the OFFICIAL REPORT of the Committee stage that there was an understanding originally that the King's Proctor should be abolished and immediate decrees granted and the six months delay for the decree nisi thus avoided, as part consideration for accepting Clause 1. Now this bargain was negotiated before the Bill was printed, and it was rejected during the course of the proceedings.
We all recognise and admire the patience and the ability with which Mr. Herbert has successfully pursued the object of divorce reform, and we feel sure that he is going to carry his measure through, but let us see how these bargains, which he has made in a perfectly proper way, are looked upon by other members of the other House. There was an article in the Sunday Times by an extremely well-informed and active member, Sir Arnold Wilson. He points out that it is likely that the House of Lords, in view of the last debate, will reject this clause, and that it is likely that the House of Commons, when they are called upon to consider the Lords Amendments, will accept the deletion of the clause. He says fiat the promoters, led by Mr. Herbert, will not recommend the House to agree to the abolition of the waiting period. He writes:They feel that the Bill would have encountered much opposition without this clause, to which they have committed themselves unreservedly. But the Bill, having been read a third time in the House of 486 Commons is no longer theirs; it embodies the decisions of the House as a whole, and the House as a whole must decide.Therefore no agreement between parties to a Private Bill can in any way bind others than those who were concerned in the negotiations, and it in no way can derogate from our responsibility to consider the public interest and nothing else.
If there is any uncertainty as to the opinion of the Commons, we have a very clear indication as to the true opinion of the Lords by the Division List, where sufficient noble Lords who spoke strongly against the clause in the debate voted for it on account of Parliamentary procedure. I do not think there is anything inconsistent for noble Lords to vote the other way now because they voted on the Committee stage for a compromise or second best. They are now entitled to vote for what in their opinion really seems best, after having made that gesture of willingness to compromise. And surely it is more satisfactory for the Second Chamber to suggest to the Commons what they think right, and not what they imagine the Commons want us to propose. Those who voted to retain the clause last time on, as I believe, a mistaken opinion that this was necessary in order to save the Bill, will have amply shown their readiness to compromise. Lord Atkin's proposed new clause stands on the Paper as another suggestion, if they want to put the clause back, and I ask noble Lords at this stage to be content with what they have done already to show their reasonableness, and to express their true opinion on a proposal for which I believe there is neither a case on the merits nor any considerable support either in another place or in public opinion.
Leave out Clause 1.—(Lord Moyne.)
My Lords, on behalf of those who have laboured hard to promote the reform of the divorce law I must ask your Lordships not to accept the Amendment. I should like to do so as far as I can without repeating that which is in the knowledge of all your Lordships who were here on the Second Reading and on the Committee stage and certainly without dwelling in any detail upon procedure or extracts from Erskine May. I would like to ask noble Lords not to accept this Amendment on three grounds. 487 The first is that the clause, as amended, is deserving of your support. There are a certain number of noble Lords, but not, I think, a great many, who would rather have no Bill than have a Bill of which Clause 1, as amended, stands part. That attitude is no doubt perfectly logical, but I am sure it only represents a very small minority of opinion. Then there are those who desire to strike out this clause but still are wholeheartedly in favour of the reforms and desire to see them carried into law. All those who heard my noble and learned friend Lord Maugham in the discussion which preceded this one must have received some assistance. He reminded your Lordships that the percentage of cases that will be affected in the first year was excessively small; in the second year it was still a very small percentage of all the cases; and there was no very great hardship in the third year in asking people to wait a few months.
The noble and learned Lord, Lord Atkin, interjected "Why have the clause at all?" To that point of view I would reply that the clause enunciates a principle which it is very important that Parliament should enunciate, that people are discouraged from rushing out of marriage even if they rush into it. The maintenance of the clause, as amended, is a declaration of a definite principle to which I am sure a very great number of your Lordships attach supreme weight. We all know that in the first years of marriage there are many adjustments to be made—points of view and so forth—and I conceive, in a Bill which is designed to strengthen and not weaken regard for marriage, it is vital that a clause enunciating the principle of this clause should be maintained. On the Second Reading there were many noble Lords who felt very doubtful about supporting a Bill with Clause 1 as it was in its original form. It has now been changed to three years, with discretion, and I submit that in that form, with discretion for these particularly hard cases to which attention has been drawn, it is, on its intrinsic merits, a good clause deserving of your support.
The second ground that I will put forward in asking your Lordships to resist the Amendment is that which is concerned with the present position of the 488 Bill. The noble Lord who moved the Amendment spoke as if there had been a bargain. He even said a bargain had been made. It must be clearly emphasised that at no time has there been any form of bargaining. But throughout all the discussions there has been an understanding that this principle was part of the Bill. It would have been perfectly possible to have put forward a Bill of a very extreme character and, if a majority could have been found for it, to have passed it into law. That has not been the attitude of the promoters of the Bill at all. They have sought to provide a Bill which, as far as is reasonably possible, meets every point of view. Some points of view cannot be met, but as far as possible every reasonable attitude towards this great question has been met by the Bill.
If you strike out Clause 1 altogether you entirely disturb that attitude. You present a Bill which is of a slightly different character, and though the noble Lord has informed your Lordships that from inquiries he has made, and as he has stated in his Whip, there is no danger to this Bill if this clause is deleted, that is not the general information. It is perfectly true that many people, some prominent, in another place, take that point of view. I, in common, no doubt, with other noble Lords, have been making what inquiries were possible, and I find there are some—I would not like to say how many—who hold a diametrically opposed view and take the attitude that if the Bill is changed in this radical fashion they will feel bound, when it goes down to another place, to oppose it by all the means in their power. It is impossible to be sure which view is right. It may be that with this clause out the Bill would still pass through all its stages or it may not, but those who have worked hard—
§ LORD MOYNE
May I ask, for the sake of clarity, what stage the noble Lord refers to? How can it get to a vote in the House of Commons at this stage? They cannot vote on anything except the particular Amendments. There is no power in their procedure.
The noble Lord told your Lordships that your Lordships had been misinformed as to the procedure of the House of Commons. A very large number of your Lordships are perfectly 489 familiar with the procedure of the House of Commons, much more familiar with it than I can claim to be. But here we are on the 15th of July. The noble Lord spoke as if it were quite possible for a game of battledore and shuttlecock to go on between the two Houses for a considerable period. We know, as practical people, that at this stage of the Session that is totally impossible. We know that in another place, if there are a number who feel that the balance of the Bill has been definitely altered, even a small number can delay proceedings. We may have a Bill presented to us, as the noble Lord suggested, in which later Amendments would be made. They would then have to go down to another place, and I should have thought it was unarguable, if that procedure is once going to begin, that there is very little chance of the Bill passing into law this Session. At any rate it is very arguable whether the Bill would be received with such favour as would enable it to pass into law. The promoters of the Bill are not prepared to take the risk. We ask your Lordships, having got to this position to-day, to do that which is in our power to ensure that the Bill will pass into law.
As to the third ground on which I ask your Lordships not to accept the Amendment, the noble Lord began with an apology for raising again what had been debated before. Of course, the noble Lord is technically quite in order. He referred to what took place in another place. He confined it, I think, to occasions when a Government had been defeated and exercised its power to carry what it wished.
But whether that be so or not, there are no discoverable precedents in your Lordships' House for doing what you are now asked to do. I do not know that very much weight need be attached to that argument. Your Lordships are perfectly empowered to do what you think right, but this at least is unquestionable, that no new argument has been brought forward whatsoever. As all of your Lordships know who were present during the Second Reading or who have read the Second Reading debate, we had a long and exhaustive debate during which many noble Lords spoke, and with hardly one exception every one of those speakers referred to Clause 1. On 490 July 7 we had a very long and full discussion in which every angle of this question was canvassed. We then had a vote in which more than 160 noble Lords took part. Your Lordships are now being asked to reverse that decision. It is perfectly in your power to do so, but what will be the strength of the argument when your Lordships first vote one way and then vote another? We have been complimented, not for the first time in your Lordships' long history, upon the efficiency and dignity of the debates that have taken place on this Bill. I cannot help feeling we shall be in some measure detracting from the ability with which we have handled this measure if we are now going to reverse the decision so fully come to.
In conclusion, I would say just this one word. There are many noble Lords here who feel very deeply about this. There are many who desire to the full that divorce reform should take place, and there are others of us who have worked for a quarter of a century to see these reforms passed into law. They are not enemies to divorce reform but friends who ask your Lordships not to accept this Amendment. They want to see, without any question, the Bill pass into law this Session, and we are not prepared, if we are empowered to do so, to run a risk which may imperil the chances of the Bill.
§ LORD PONSONBY OF SHULBREDE
My Lords, I should regret casting a vote on this occasion without saying a word, as I did during the Committee stage. I find myself regretfully in opposition to the noble Lord who has just spoken, and I want to say very few words in support of the noble Lord, Lord Moyne, who has moved the deletion of this clause. Let me first say, on merits, only a very few words. I agree with the noble Lord who has just spoken, Lord Gorell, that we want to maintain the sanctity of marriage, but we want it to be marriage. It is not the sanctity of a cat-and-dog life that has to be maintained. Marriage can only exist in its highest and best sense by the consent and the whole-hearted affection of the two parties. I believe that the insertion of this clause, whether it be a three-year time limit or a five-year time limit, is going to impose a very great hardship on people in poor circumstances with small accommodation. I believe, 491 too, that it is too long for those partnerships where one partner can rapidly bring degradation to the other partner if release is not given in a very short time.
But I want chiefly to deal with the fear that the Bill will be lost if this clause is deleted. I am sorry to differ from my noble friend Lord Arnold, who put the case with great weight, and I think influenced a great many votes in the last Division. I disagree with him. I had experience of House of Commons procedure for eighteen years, and I subscribe entirely to what Lord Moyne has said in moving this Amendment. I can assure the noble Lord, Lord Gorell, that discussions about merits do not arise on Lords Amendments. They are ruled out of order at once. Before the House of Commons the Lords Amendments are taken seriatim and nothing else. I believe there are a large number of members in the House of Commons who want us to delete this clause. It is an unpopular clause throughout the country wherever I hear discussions of it. I have had the opportunity of speaking with a number of members of the House of Commons, and I have not heard one of them that does not want it removed. I would point out that in the last Division there were a number of your Lordships who voted against their principles because of the fear of losing the Bill. There is no ground for that fear, I feel convinced. May I say in conclusion that it is an interesting spectacle to me, and one which gives me some secret amusement, to find your Lordships making a great effort to be reactionary in order to placate the House of Commons?
§ LORD ARNOLD
My Lords, the noble Lord who has just spoken, and also the noble Lord, Lord Moyne, made certain references to observations I made last week, and I should like to make some reply and also to speak upon this Amendment generally. First of all—as time presses I will not dwell on this at any undue length—I would like to say a word about the undesirability, to use no stronger word, of your Lordships coming to totally different verdicts on an important matter within a few days. Speaking with a pretty long experience of this House, I myself do not remember a case where it has been attempted on Report to reverse a decision in Committee in 492 circumstances at all analogous to the present. Obviously if this kind of thing is to be done you are going to establish a most dangerous precedent for the future, and a very inconvenient precedent for the future.
If, by any chance, the noble Lord, Lord Moyne, was successful to-day, what is there to prevent those of us who take a different view trying to have to-day's decision reversed on Third Reading? It may be said that is contrary to the custom of the House. But this is contrary to the custom of the House. I can assure the noble Lord, Lord Moyne, that it is contrary to the custom of the House. I have a vague idea that some years ago there was something altered as between Report and Third Reading, but it was some small matter. I think the Government had been caught napping late in the evening or something of that kind. But that is an entirely different thing. When the noble Lord, Lord Moyne, tells your Lordships that second thoughts and so forth are permitted in another place, he did not tell your Lordships what really is the relevant factor, and that is that the Speaker in another place—if we are to discuss procedure in another place and he has done so—does not select on Report an Amendment identical with one that has been decided.
§ LORD MOYNE
On that point I did say—I think the noble Lord will find it in the OFFICIAL REPORT—that in fact, owing to the shortage of time and to the pressure of public business, the Chair was driven more and more to select Amendments, and that it was generally impossible even to discuss all the Amendments which are put down on the two stages of Committee and Report. There is nothing to prevent the Speaker doing it, and there is a particular case—the noble Lord can look it up—in regard to an Electricity Bill, where an Amendment was allowed to reverse a decision and to put back a clause which had been deleted in Committee.
§ LORD ARNOLD
I am not going so far as to say it is never done. There might have been some mistake or special circumstances where clearly a change ought to be made, but, as I understand it, the general and the almost invariable practice is that the Speaker does not choose for discussion on Report an Amendment 493 which has already been decided in Committee, and for very obvious reasons. What has happened since last week which should cause your Lordships to reverse the decision which you then came to? What is it? As a fact nothing has really happened except that the noble Lord and his friends are not satisfied with the verdict and they want to reverse it. That is all that his happened. They come here and tell you that they have made inquiries in another place, and that they are satisfied that this Bill can be got through with Clause 1 out of it. In fact, I saw a statement in The Times in regard to certain matter which they had sent round saying than the taking out of Clause 1 would not in any way endanger the passage of the Bill. A statement so extreme as that carries its own refutation. I think it clearly goes too far, and I should have thought that nobody would go that far.
I am not going so far as to say that if your Lordships take out Clause 1 the Bill will necessarily be defeated and will not get through. I will not overstate my case, but I am going to give reasons why I think that to take out Clause 1 at this stage is a very dangerous thing to do from the point of view of the passage of the Bill. We have seen paragraphs in the Press telling us what we ought to do and what will happen, and then the noble Lord comes here and tells us he is satisfied from inquiries that the Bill will pass. The noble Lord, Lord Ponsonby, oddly enough said the same thing. It is a most curious circumstance, but I myself have made inquiries, not in one quarter but in many quarters and as far as possible in a fair spirit, and I have been told exactly the opposite by everybody, with one exception. That was a member in another place who was really consulting me. When I argued with him I found that he had nothing to go upon, that he had not been long in the House of Commons, and that he had never seen obstruction.
What is the position? On Third Reading in another place there was a minority of thirty-seven. There were thirty-seven members who voted against the Bill on Third Reading and 190 who voted for it. Now thirty-seven is a substantial number. Those thirty-seven members at that stage, having registered their protest and being able to record their votes, were content 494 to do nothing more. So the Bill got through its Third Reading and it has come to your Lordships' House. We have been told that a majority in the other place can be got. Supposing that is true, the question is how long is it going to take to get it. That is the whole point because the time factor is one of supreme importance. I ventured last week to deal with an experience I had with regard to a non-controversial Bill, a Government Bill which was introduced into your Lordships' House at a late stage of the Session two years ago. I think sometimes those who have been in both Houses of Parliament tend to suffer from a superiority complex and it is sometimes suggested that we are the embodiment of all the wisdom of Parliament. I make no such claim. But I think that the experience I had with regard to that Bill two years ago is very valuable.
It was a non-controversial Bill; everybody wanted it. I was authorised on behalf of the Labour Party to intimate that we would do all we could to secure the passage of the Bill, and my noble friends on the Liberal Benches gave a similar undertaking. The Bill went to another place. It was not long before I received a very urgent communication from the Minister in charge of the Bill because one member had put down one Amendment. The Minister beseeched me to use all my influence to get that member to refrain from moving his Amendment. The Minister was very much afraid at that stage of the Session, owing to shortage of time, that if there was one Amendment the Bill would not get through. Happily I was successful in what had been entrusted to me and the Bill did just get through.
Look at the present position. There are thirty-seven members who voted against this Bill with the five-year limit in it. No doubt it was because of that that they allowed the Bill to get through. If you take out the clause altogether, and do not put in the alternative of three years and discretion, I say there is very grave risk that there will be a sufficient number of members in another place to see that the Bill does not get through. The noble Lord, Lord Moyne, himself admits that there is a group which wants this clause. It may not be a question of a group, it may be only one or two members. It is true that the noble Lord, Lord Ponsonby, and others 495 have said that there cannot be a general discussion on Lords Amendments in another place, but there are a lot of Lords Amendments. It will not be only this one. It will be perfectly possible if members in another place feel that they have not been fairly treated and that what is in effect a compromise has broken down, for them to kill the Bill.
It has been suggested that we should delete the clause and that if in another place they do not accept that they will be able to put in the three-year limit. But then the Bill will have to come back here and at this stage of the Session you run grave risks of losing it. The Bill was a compromise. We have been told that there was no definite bargain, but what did Mr. Herbert himself say on the Third Reading of this Bill in another place? He said he himself would not be a party to any substantial modification of the provisions of Clause 1. In view of that is it not clear that it would be a very dangerous thing to take out this clause at this stage? If you need any evidence that the Bill is a compromise you get it in these words of Mr. Herbert's. The noble Lord, Lord Moyne, quoted the noble and learned Lord, Lord Hewart, and said Lord Hewart did not understand Clause r. The noble and learned Lord, Lord Hewart, merely dealt with anything that could be said against three years. He did not suggest by a syllable that that was a compromise made to get the Bill through. That really is the practical case for the three-year limit and the discretion.
Now I would like to say a word or two upon the price you are asked to pay, if I may so put it, to get the Bill through. The noble and learned Lord, Lord Maugham, has given figures to show what it is we are asked to do. Let us analyse those figures and get down to the bone and see what price we are asked to pay. We have been told again and again that the number of divorces within three years of marriage is about 4 per cent. The total number is about 5,500. But the 4 per cent. will be reduced by the exercise of the discretion and I do not think it is unreasonable to suggest that it would be reduced to at least 3 per cent. On 5,500 cases 3 per cent. is 165. That is probably overstating the number of 496 cases which are in question. As the noble and learned Lord, Lord Maugham, pointed out, in the first year there are practically no cases, and so, if I take an average of eighteen months, I am probably putting the matter unfavourably, putting it against myself. To get this Bill through therefore we have to ask 165 persons to defer for eighteen months their release. The total number of cases is only one in thirty.
The noble Lord, Lord Ponsonby, referred to the cases of poor persons. We have the greatest sympathy with them, but let us analyse the figures relating to them. The number of poor persons cases is probably about 1,500 and it has to be remembered that about one-fourth of the population lives in and around London, and probably one-third of the population could quite easily get to London and get relief from the High Court. If you analyse the figures I think you will find as a matter of fact that these cases will be almost trifling. I think perhaps that I should put the number not at 1,500 but at 2,200, and 3 per cent. of that is sixty-six. But if about one-third come to London that reduces it to forty-four. Is it right to be deflected in a very important decision by a consideration which is no more weighty than that?
We have been very much influenced by the noble and learned Lord, Lord Atkin. He has harrowed our feelings with details of most dreadful cases. Perhaps the noble and learned Lord will permit me to say two things. The noble and learned Lord has not been in another place; he does not know the difficulties of getting the Bill through there. That is the first thing I would say to him. And whereas he has harrowed our feelings with particulars of, certainly, dreadful cases, he has not said anything about the other and numerically vastly greater number of cases, very sad and very distressing, of people who are waiting for this Bill to pass. Those are the people about whom we ought to think.
This Bill, my Lords, has got to port, if I may so put it. The ship has been moored along the dockside, but the cargo has not yet been unloaded, and if this Amendment is passed there is a grave risk of its being lost even now. I say that it would be a cruel thing, a doubly cruel thing, when you have these thousands of persons waiting, sick with 497 fear, sick with anxiety, for this Bill to pass if, because of this trifling concession—if I may cut it that way—which we think would be sufficient to get the Bill through, your Lordships should be deflected from your decision of last week and should support the Amendment of the noble Lord, Lord Moyne. If your Lordships were to do that, I honestly think that it would very probably lose the Bill, and it would certainly lose respect for your Lordships' House.
§ VISCOUNT BERTIE OF THAME
My Lords, I am sorry to contradict the noble Lord, Lord Arnold, but he is mistaken when he says that my noble friend is trying to create a precedent in moving an Amendment on Report to upset a decision taken in Committee. His own Leader, Lord Parmoor, when he led this House, did this very thing. I remember the case, because I was fortunate enough to get your Lordships to accept an Amendment in Committee to some Housing Pill for compensation, and the noble Lord, Lord Parmoor, moved on Report to have it out. Therefore we are not creating any precedent, and the noble Lord is wrong.
§ LORD ARNOLD
May I, on a point of Order, point out to the noble Lord that, although I admitted that there might be one or two trifling cases of no importance, I said that the general principle was unshakable?
§ LORD CROMWELL
My Lords, I had hoped, like numerous other noble Lords, that Clause 1, as amended, would receive the universal support of your Lordships at this stage. As has already been pointed out, though such a thing is apparently not unknown, it is seldom that a direct negative is desired to be given to a vote on an earlier stage. It would appear to me as one of the members of your Lordships' House who are not able to attend every debate but who perhaps attend more than some who are here today, that the mover of this Amendment and those who support him may have hoped that they might attract sufficient backwoodsmen into your Lordships' House to-day to upset a truly considered decision arrived at on the Committee stage. The views both in support of and in opposition to the existence of the clause at all would appear to come from such diametrically opposite lines of -thought as 498 to be most confusing to those who have not had the opportunity of listening to this debate through all its stages, as have most of the noble Lords who are here today.
Briefly, one might summarise the holders of these views as made up, firstly, of those who are against divorce altogether; secondly, of those who are prepared to accept a reasonable compromise—and I would emphasise that word "reasonable"—in order as far as is possible to ensure the passing into law of the Bill this Session; and thirdly, of those who are prepared to risk this not being done by refusing any compromise at all. The two latter views would each appear to be held by about an equal number of members in your Lordships' House at the present time. If I read the situation correctly, therefore, the fate of this Bill appears to rest in the hands of those who do not think that there should be any divorce at all. Whatever those people may think about the moral advantages of such a course being taken, no one, I think, would venture to say that such a retrograde step would have the support of the country as a whole. I would respectfully remind your Lordships, therefore, that in my view all those who go into the Division Lobby in favour of this Amendment to delete Clause 1 because they believe that no restriction of time should be placed on divorce, may in reality be denying the extension of grounds for divorce which they equally urgently desire, as it may well be that those who do not believe in divorce at all will swell their numbers in the hope that the Bill with Clause 1 deleted may be wrecked in another place.
If I might say so with great respect, I could not follow the arguments used by the most reverend Primate on the Committee stage. I understood him to say that, although he would be prepared to support a Bill containing a restriction of five years in Clause 1, he would oppose it if this restriction were reduced to three years, as he said that three years was no good at all. I could have understood him if he had said that three years was not as good as five, or that ten years would have been better than five; but the argument that three years is no good at all would not, I humbly and respectfully suggest to the most reverend Primate, hold enough water to induce your Lord 499 ships to vote that way. Unless we are careful we may find ourselves in the same predicament as was experienced in another place before the War, when the members of the Irish Party held the balance of power and did not always, I venture to say, use that power to the general good but sometimes used it to the wrecking of measures purely to suit their own ends.
As has been pointed out before, time is a most important element in relation to this measure, and I think it will be generally agreed that, unless the Bill becomes law this Session, there is a distinct probability that it will be some time before any measure of this sort ever reaches the stage at which this one has arrived. The Government would feel that opinions are so divided as not to consider it necessary to find time for such a discussion to take place again on a Private Member's Bill. They have, I imagine, found it very inconvenient to fit this one in with all their pending legislation. This difficulty will, in my view, certainly not be decreased in the near future. I would therefore urge those of your Lordships who desire an extension of grounds for divorce to sink your personal feelings on the advisability of such an ameliorating clause remaining—that is, Clause 1—and to vote against this Amendment for the deletion of the clause, which, as I have tried to point out, may, if passed, produce exactly the opposite effect to what they desire.
In conclusion, I should like to emphasise what the noble Lord, Lord Gorell, said. Although I have no experience of another place and take as Gospel what other people say about the procedure there, and although it is quite clear that what is said is that each clause must be taken seriatim, yet it is also equally clear that if in the words of Lord Gorell a sort of battledore and shuttlecock fight is to ensue between the two Houses, I am afraid the whole measure will be wrecked.
§ LORD CARNOCK
My Lords, I will only keep you for a very few moments. I am addressing you in favour of the Amendment. I have been a poor person's counsel, and I have appeared hundreds of times in the Divorce Court, appearing for petitioners in divorce cases. Not only have I done that, but I have sat for many weary hours waiting until my case for these poor people should come on for 500 trial. I therefore feel that I really have a knowledge of poor persons' difficulties in this matter. I think I could write out a petition straight off, for I have written so many. The point I wish to call your Lordships' attention to is that if this clause is not deleted it will be almost impossible for a poor person to obtain the evidence which is necessary for a divorce. The point is this: The poor person does not go to an expensive hotel, and does not get the evidence of chambermaids and valets, and hotel proprietors with their books. If this clause is not deleted, I venture to say that the poor person will find it very difficult indeed to obtain evidence years afterwards, and you are going to have a tragedy. If you had sat, as I have, and listened to these cases, you would realise that there are desperate tragedies. I repeat that unless you delete the clause it is going to inflict real hardship upon people who are poor and badly off.
THE LORD BISHOP OF ST. EDMUNDSBURY AND IPSWICH
My Lords, I wish to say one or two words against the Amendment and in support of the Bill as it stands, partly on the ground of the principles which have been expressed so well by Lord Gorell, but apart from that, on the merits of the clause. I want to say something in favour of the clause as it stands. I cannot think it is a serious objection that these cases may have to wait for three years. If the case is really a hard one, the Bill does provide for a divorce being granted sooner, but in such a case as was mentioned by the last speaker—the difficulty of getting evidence three years after the offence—I suggest that people who after having lived together for three years then try to get a divorce, are not trying to get a divorce for an offence which has really ceased to be material. During those three years they will have lived together, and if they have not become reconciled, as will be the case no doubt in some instances, it is because they have found after a trial they cannot succeed in living together. That they should have three years' trial does not seem to me to be a very serious thing. They have entered upon a bond which is supposed to be permanent, and it is only reasonable that they should have time to consider whether they cannot live together.
Objection is found in some quarters that to impose in a Bill of this sort a 501 provision which says that at the end of three years you can obtain a divorce, is apt to lead people to take a lighter view of the responsibilities of marriage. The cases for which divorce may be granted by this Bill are either gross cruelty, desertion or insanity in addition to adultery. These additional causes will not be affected by the delay. But the Bill is designed to get over what is known as collusion. It is therefore only when there is a real grievance because one partner is unfaithful that this Bill will be resorted to, and I cannot think that a disposition to regard marriage as a thing lightly to be entered upon will be increased. A few take their marriage very lightly no doubt, and I am afraid that, Bill or no Bill, they are not likely make marriage a very successful fling; but most people, I believe, get married with the desire to make marriage a workable thing, and the fact that an Act of Parliament says that if you are unfaithful you may ultimately be divorced is not, I think, likely to influence them very much in the attitude which they will take. I am inclined to think that the Bill as amended is one that we ought to pass because I think it will promote the Christian view of marriage and promote and not hinder what we all have at heart.
My Lords, may I attempt for a moment to redress the balance by saying just a word or two in favour of the Amendment? The noble and learned Lords who have addressed your Lordships this afternoon have apologised for speaking too long or too much, and I feel that my apology must go much further, and that I must apologise for presumng to speak on such a momentous topic at all. I do so only because I believe I still remain the only practising solicitor in your Lordships' House, and if you will bear with me for one moment I will tell you very briefly why I support the Amendment. It may surprise your Lordships to hear that to me, as a solicitor, it is profoundly shocking to find such very great divergence of view in—I say it advisedly—high judicial circles, about this Bill as a whole, and about Clause 1 in particular. If I may, for a moment, borrow a metaphor from the Turf, I am in the position of a "starter." I see what is going on at the starting gate. Lord Atkin is in the judges' Box, and sees what happens at the end. I do not propose to weary your 502 Lordships with my views on the Bill. All I want to say is that I agree entirely with every word that has fallen from Lord Atkin about the clause. He described it as a terrible clause, and I endorse all he says. I only wish I had his force and eloquence. This clause as a whole, in my view, is entirely bad, and I think your Lordships should throw it out. Whether or not it is a sort of sop to Cerberus does not seem to matter very much. I think the clause is entirely bad, and the discussions we have had to-day and on previous occasions about procedure in another place, and about matters of expediency, I consider to be very much out of place on a matter which is surely one of very great principle.
§ LORD ELTISLEY
My Lords, I hesitate to intervene in this debate, particularly as it has fallen to my lot to address the House as sponsor of the Bill in this House, but my main object is that there should be the least possible delay in getting the Bill through and down to another place. I feel, however, that I ought perhaps to remind the House that the issue now before it has been most carefully considered, and no attempt has been made to evade that issue. It was referred to on the Second Reading stage and debated at length on the Committee stage, and the question has been prominently before us since the Bill reached your Lordships' House.
I have failed to appreciate the statement which has been publicly made, not on the floor of this House, but in an invitation to members to attend the debate, thatthe majority of the Lords in fact consider that the proposed waiting period after marriage should be altogether deleted from the Bill"—a statement which has received very wide circulation. I must remind your Lordships that the House decided without a Division that there should be a three-year waiting period, with access to our Courts in cases of exceptional hardship or exceptional depravity. Subsequent to that decision, taken by the House without a Division, a direct vote for the retention or otherwise of the clause, as amended, was taken on the basis of a three-year waiting period being included in the clause, and then the House decided quite definitely by a considerable majority that Clause 1 should stand part of the 503 Bill. It may well be that the prestige and the great influence of this House would not be greatly enhanced by the sudden reversal of a decision taken after lengthy debate by the largest House which has assembled for many months, if not years, anyway the largest House this Session, and a decision which was taken quite definitely and which received the widest publicity throughout the country.
The charge is made that a compromise has been entered into on this Bill. It is to some extent a compromise, I admit. It is a compromise between those who favour facilities being given to people who wish to rush into divorce and those on the other side who think there should be some time for reflection and thought before a marriage is finally and irrevocably broken. The provision must tend definitely to discourage the rash and frivolous marriage, and it certainly greatly increases the possibilities, yes, and the probabilities, of reconsideration. Personally I make no apology for a compromise. It is often better to take the middle course
§ than either the extreme right or the extreme left, and I do suggest that the country is crying out for the Bill, which is admittedly so much overdue. May I refer for a moment to the question of a bargain? There has been no sort or kind of bargain made in respect of this Bill. Those responsible for it, however, believe that as it now stands it would certainly be accepted by another place; and in view of the great feeling that there is on this question, and behind it the obvious desire of the country for legislation, we who happen to be mainly concerned with the passing of the Bill through this House cannot afford to contemplate taking a risk which might, and very likely would, jeopardise the passing of the Bill in another place. We therefore earnestly and sincerely hope that the House will not seek to reverse a decision taken after such a lengthy debate and after such deep consideration—a decision which it reached only a few days ago.
§ On Question, Whether Clause I, as amended, shall stand part of the Bill?
§ Their Lordships divided:—Contents, 91; Not-Contents, 67.505
|Hailsham, V. (L. Chancellor.)||Home of Slamannan, V.||Greville, L.|
|Knollys, V.||Holden, L.|
|Halifax, V. (L. President.)||Plumer, V.||Howard of Glossop, L.|
|Ullsvvater, V.||Hutchison of Montrose, L.|
|Argyll, D.||Iliffe, L.|
|St. Albans, L. Bp.||Jessel, L.|
|Aberdeen and Temair, M.||St. Edmundsbury and Ipswich, L. Bp.||Kilmarnock, L. (E. Erroll.)|
|Ailesbury, M.||Kinnaird, L.|
|Reading, M.||Lamington, L.|
|Aberdare, L.||Latymer, L.|
|Airlie, E.||Addington, L.||Luke, L.|
|Albemarle, E.||Addison, L.||Maugham, L.|
|Bathurst, E.||Arnold, L.||Meston, L.|
|Dartmouth, E.||Biddulph, L.||Monkswell, L.|
|Denbigh, E.||Blythswood, L.||Mottistone, L.|
|Drogheda, E.||Boston, L.||O'Hagan, L.|
|Feversham, E.||Cautley, L.||Rankeillour, L.|
|Iddlesleigh, E.||Cromwell, L.||Remnant, L.|
|Mansfield, E.||Daryngton, L.||Rennell, L.|
|Mar and Kellie, E.||Denham, L.||Ritchie of Dundee, L.|
|Midleton, E.||Denman, L.||Roche, L.|
|Minto, E.||Desborough, I,||Rushcliffe, L.|
|St. Aldwyn, E.||Dickinson, L.||Russell of Killowen, L.|
|Selborne, E.||Dunmore, L. (E. Dunmore.)||St. Levan, L.|
|Shaftesbury, E.||Eltisley, L. [Teller.]||Saltoun, L.|
|Stradbroke, E.||Elton, L.||Sandhurst, L.|
|Forres, L.||Seaton, L.|
|Chaplin, V.||Foxford, L. (E. Limerick.)||Shute, L. (V. Barrington.)|
|Dawson of Penn, V.||Gainford, L.||Stonehaven, L.|
|Elibank, V.||Gifford, L.||Strathcarron, L.|
|Exmouth, V.||Gorell, L. [Teller.]||Teynham, L.|
|FitzAlan of Derwent, V.||Greenway, L.||Vernen, L.|
|Hampden, V.||Grenfell, L.||Woodbridge, L.|
|Canterbury, L. Abp.||Samuel, V.||Heneage, L.|
|Trenchard, V.||Hewart, L.|
|De La Warr, E. (L. Privy Seal.)||Lawrence, L.|
|Sheffield, L. Bp.||Macmillan, L.|
|Salisbury, M.||Aberconway, L.||Mendip, L. (V. Clifden.)|
|Ailwyn, L.||Milne, L.|
|Ancaster, E.||Askwith, L.||Morris, L.|
|Bessborough, E.||Atkin, L.||Mount Temple, L.|
|Clarendon, E.||Balfour of Burleigh, L.||Moyne, L. [Teller.]|
|Fortescue, E.||Barnby, L.||Newton, L.|
|Howe, E.||Bayford, L.||Northington, L. (L. Henley.)|
|Iveagh, E.||Camrose, L.||Ponsonby of Shulbrede, L.|
|Lucan, E.||Carnock, L.||Rathcreedan, L.|
|Malmesbury, E.||Clanwilliam, L. (E. Clanwilliam.)||Rea, L.|
|Poulett, E.||Redesdale, L. [Teller.]|
|Sandwich, E.||Cornwallis, L.||Rhayader, L.|
|Strafford, E.||Doverdale, L.||Ruthven of Cowrie, L.|
|Wicklow, E.||Ellenborough, L.||Selsdon, L.|
|Faringdon, L.||Swaythling, L.|
|Bertie of Thame, V.||Fermanagh, L. (E. Erne.)||Waleran, L.|
|Buckmaster, V.||Gage, L. (V. Gage.)||Wigan, L. (E. Crawford.)|
|Dunedin, V.||Hardinge of Penshurst, L.||Wolverton, L.|
|Goschen, V.||Hare, L. (E. Listowel.)||Wright, L.|
|Mersey, V.||Hay, L. (E. Kinnoull.)||Wvfold, L.|
§ Resolved in the affirmative and Amendment disagreed to accordingly.
§ 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 this Act referred to as the Court ') either by the husband or the wife on the ground that the respondent—
(d) is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition;
VISCOUNT DAWSON OF PENN moved, at the end of paragraph (d), to insert "or whose unsoundness of mind is established to the satisfaction of the Court to be of the recurrent type, provided that no petition can be presented until five years have elapsed since the respondent was first declared to be of unsound mind." The noble Viscount said: My Lords, the Amendment concerns paragraph (d), which states as a ground of divorce that the respondent
is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition.
I move this Amendment because, in my submission, paragraph (d) does not fulfil the purpose which the clause is designed
to achieve. In the course of the debate I ventured to say that the purpose of paragraph (d) is to hold the balance of justice and mercy between the possessor of the insane mind and the other spouse. It was for that reason that the five-year period of continuous treatment was instituted. For the majority of cases that will hold good, because at the end of that five years the large majority of insane people are unlikely to be cured, and therefore it is only appropriate that after the five years the considerations of justice and mercy should be transferred from the insane person to the other spouse. It is for that reason that this paragraph exists.
§ There is, however, a very important group of insanities which would be left out if this paragraph exists without the addition which I suggest in my Amendment. They are the group of what I may call shuttlecock cases. They are in and out all the time; in an asylum for six months, out for nine months, in again for six months, out for ten months. It is not a rare thing to find that one spouse may have been in and out of an asylum no fewer than ten times in twenty years, but not necessarily on any particular occasion for a continuous period of five years. It follows that if we are to apply our minds to these cyclical cases, they would not come under paragraph (d) as it stands at present. That is the nature of these cases. They are cases peculiarly distressing in many instances. They are very often cases in which excitation and 507 exaltation are a prominent feature, and when, after a period of such excitement or insanity as makes it impossible for the insane person to remain in the home, they are let out, very often when they are convalescent—I do not say improperly—they go back to their homes convalescent but by no means cured patients.
§ In the early days the healthy spouse is quite willing to put up with that, and that is why in my Amendment I suggest that no petition should be presented until five years have elapsed since the first attack of insanity. But after five years, when it is clear to the Court—and the Court will take medical evidence—that this case of insanity is of a recurrent type, and may go on perhaps for twenty years, in and out all the time, the petition shall be favourably considered. Your Lordships will remember that one of the reasons for transferring the scales of mercy and justice to the healthy spouse is that as time goes on the insanities are liable to be incurable, and the majority are incurable after the time mentioned in my Amendment. But there is a mental degeneration and often degradation, and it is, therefore, a cruel penalty to inflict upon the healthy spouse, after a lapse of a certain number of years, to compel that spouse every time the convalescent patient comes out from an asylum to receive him or her into the home, and be subjected often to manners, treatments and degradations which are particularly felt in small homes in which there is no opportunity of getting any release. The sane spouse is compelled to accept sex advances and knows full well that if she tries to refuse them there is a possibility that that would produce a fresh state of insanity. The fear of spouses is that if they do refuse they might be sending their own husbands or wives back to the asylum. I think this is a most important case, and is quite in keeping with that part of the Bill which has already been passed.
§ I cannot but think that these important cases to which I have referred have escaped notice. By the Amendment that I suggest a fair deal will be given to the healthy spouse. I would point out that in the first instance five years must have elapsed from the date of the first attack of insanity. It is only after that period that the Court may be asked to declare 508 that the insanity is of such a recurrent type that the patient is likely to go in and out of the asylum year after year and inflict grave injustice, not only on the other spouse, but on the family. There is nothing inconsistent with this in paragraph (d). The fact that the patients would know that they are liable to be divorced would have no influence whatever at that late stage in these recurrent cases, and even if it did have an influence, there is a justice due to the healthy spouse. Those who are against all divorce, of course, are against what I am now asking. I know it is true that this cause was not mentioned in the Divorce Commission's Report, but when I hear the Divorce Commission's Report quoted, I ask myself not only what the Divorce Commission say, but I ask myself what that great and progressive man who presided over that Commission would have said twenty-five years after that Report was published. I am unaware of any branch of knowledge upon this subject that has not advanced within the last twenty-five years. I beg to move the Amendment standing in my name.
Page 2, line 30, at end insert the said cords.—(Viscount Dawson of Penn.)
§ LORD ATKIN
Would the noble Viscount, Lord Dawson, be kind enough to say what he means by "first declared to be of unsound mind"? Is he thinking of a question of a certificate? Does he not rather mean "first discovered to be." "First declared to be" is a little difficult.
§ LORD ASKWITH
May I ask the noble Viscount whether it would make any difference if, in his Amendment he changed five years into three years, so as to bring it into line with Clause 1?
§ VISCOUNT DAWSON OF PENN
May I point out that if the noble Lord would look at paragraph (d) he will see that it says "is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years." My Amendment is to make the period correspond with that mentioned in the earlier part of the paragraph.
My Lords, I think that the questions which have already been asked show some of the difficulties which are involved in this Amendment. Whilst I feel great hesitation in suggesting a course on such a subject contrary to that advocated by the noble Viscount, and have very great sympathy for the type of case with which this Amendment is designed to deal, I cannot help hoping that your Lordships will not accept the Amendment. I think, possibly, too much weight might be attached to the findings of the Royal Commission, but at any rate in them we have something which was established after very full inquiry, and if m e are to depart from them I venture to suggest that it should not be in a case of such extreme difficulty. The noble Viscount no doubt has in his own mind quite clearly what he means by the recurrent type, but I suggest that it does arouse considerable difficulty of interpretation to anyone who is not a skilled medical man. "Recurrent" is a word of general and vague type. It might mean somebody who was in a mental institution for a short time and out for a long time, or somebody who was in for a contrary stale of things. Furthermore, as I think the question of the noble and learned Lord, Lord Atkin, has shown, the word "declared" introduces great difficulty. As I understand it there is no authority to declare anybody of unsound mind, and I think that on the whole your Lordships would be well advised, having passed insanity under more strict grounds and well defined as a cause for divorce, to rest with that and not at this stage seek to widen the actual causes of divorce.
§ VISCOUNT DAWSON OF PENN
I would accept an Amendment if I may to put in the words "full certification."
THE EARL OF MANSFIELD
My Lords, like the noble Lord, Lord Gorell, I respectfully hope your Lordships will not agree to this Amendment. It seems to me that it introduces several new dangers into the Bill which are not present as it stands now, particularly in regard to many of these unfortunate people who suffer from intermittent insanity, many of whom are at present in various institutions not as certified but as voluntary patients. I happen to be Chairman of Directors of one of the Royal Asylums of Scotland: and it is our experience that an 510 ever increasing number of our patients are voluntary patients. These conditions, it is true, do not as a rule affect the humbler classes, although special provision is made for certain cases in that category. Usually they affect fairly well-to-do people, but sometimes also middle-class persons of no very great means, and the sane spouse often finds, it a matter of considerable difficulty to make the payments of a few pounds a week or more which are required to keep the insane spouse within these institutions.
If this is going to be a ground for divorce I am afraid a certain number of unscrupulous people will be induced to try and get their periodically insane partner certified insane, which probably has not been the case up to now, simply for the purpose of being able to avoid to a great extent their financial responsibility if and when they are able to get a divorce for this intermittent insanity. I speak subject to correction from noble and learned Lords, but I do not think it is possible that they could be held in law to be required to provide accommodation and comfort on such a scale as patients get at the present time. Moreover, it seems to me that whatever may be the merits or demerits of permitting divorce for any form of insanity, about which I must say I have grave doubt, to go further than the provision now in the Bill would be an unjustifiable loosening of the marriage tie and a distinct degradation of the words "in sickness and in health."
THE LORD BISHOP OF ST. ALBANS
My Lords, I did not speak on this clause when it was before the House in Committee although I do not think there is any clause in the Bill about which I feel more strongly. I can only express what I feel by saying that I regard it as a sort of personal insult to almost all decent men and women to imagine that anyone would want to do what is now suggested. We may not be experts on the matter of insanity, but I think there must be few who have attained to any age who have not had some personal experience of it, and especially of this recurrent type, however you may define it. The noble Viscount, Lord Dawson, said this would have no effect on a patient. I hope I am not misquoting him. I wrote down the words, "no effect on a patient." I have in mind a patient of this kind who as a 511 matter of fact was once certified. He is so sane—this has been going on many years now—that when he feels it is right for him to do so he goes back as a voluntary patient. Should proceedings be taken against a spouse suffering from that recurrent form of insanity when inside or outside an institution? Would it have no effect on a patient in that unfortunate position to find that his home had gone and he could not get back and that someone else was reigning in his stead? I trust that your Lordships will not consider this Amendment.
There is only one other thing I want to say. The noble Viscount spoke on the advance of knowledge, and I suppose it should be inferred that the Royal Commission, if they had had the benefit of the knowledge of the last twenty-five years about insanity, would certainly have introduced this into their recommendations. But surely the noble Viscount will admit that there has been a tremendous advance of knowledge in dealing with patients of this kind. Would he tell us that he is quite sure that if this Amendment becomes part of the Bill and the Bill becomes law, there will be no further advance in that knowledge? Suppose the advance is greater than in the last twenty-five years! Are we really asked to believe that it is impossible when husbands or wives find misfortune has fallen on their spouses, with the help of public opinion to stand by them?
§ LORD GAINFORD
My Lords, as I have had some experience in this matter and have studied statistics from large lunatic asylums very carefully and have been visitor to two private asylums for many years, I realise what a cruel thing it is for husband or wife to be chained to a spouse who is insane. Although there may be lucid intervals that fact does not seem to me to affect the principle. If in such a case the spouse who is suffering most through being chained to an insane person, though that person may have lucid intervals, comes to the conclusion that he or she ought to be liberated, and can prove to the satisfaction of the Court that it is reasonable that relief should be given, there is surely a very strong case for giving relief.
§ LORD MAUGHAM
My Lords, may I be allowed to point out that the Amendment moved by the noble Viscount, Lord 512 Dawson of Penn, really does not fit in with paragraph (d) of subsection (2). At present as the Bill stands it is only in exceptional cases where the unfortunate person is "incurably of unsound mind" that relief is given. The noble Viscount, Lord Dawson, wishes to add to that that somebody who is suffering from a recurrent type of unsoundness of mind can be divorced although the illness is not stated to be incurable. In such circumstances it will be very much easier to divorce somebody suffering the way suggested by the noble Viscount than it will be to divorce a person who is incurably of unsound mind and has been in fact under restraint for five continuous years.
If a person for one month in the first year of the marriage is suffering from some certifiable type of unsoundness of mind, not necessarily that which requires restraint in any kind of institution, and if he comes out and for four years is perfectly sane, then, if some other illness occurs in the course of the last year, five years will have elapsed since the respondent was first certified to be of unsound mind, and, although he is suffering from slight infirmity of mind for only a few months out of the five years, he may be divorced under this Amendment; whereas, according to the paragraph your Lordships have approved, continuous unsoundness of mind and restraint, plus the necessity for proving that the illness is incurable, are required under the clause as it now stands. I would only add that the certificate of a single medical man seems to me to be a very unsatisfactory way of determining whether a person should be divorced. Those who have had experience of lunacy cases, as I have, will be aware that some doctors will certify and other doctors will stoutly decline to do anything of the kind.
§ VISCOUNT DAWSON OF PENN
My Lords, the noble and learned Lord surely belongs to a profession which should be the very last to disparage people who have differences of opinion. If there is a profession which glories in having differences of opinion, it is his. More than that, when members of his profession have differences of opinion, they often spend many happy months in going from Court to Court, and then they have plenty of time in which to give their judgments. So long as science and knowledge exist, there will be differences of opinion. The 513 argument which has been used by the noble and learned Lord has little influence upon me or. I venture to think, upon many other members of your Lordships' House. I am out for consistency and justice. If you are going to hold the balanced scales of justice and mercy, that is your starting point. Of course, with the right reverend Prelate it is not his starting point; he is against all divorce in any circumstances whatever. He is therefore perfectly logical in the position he takes up. I am not, and most of your Lordships' House are not. You have decided in favour of divorce in certain circumstances, and I am putting it to him that paragraph (d) omits a very important group of cases—I hope and believe un intentionally—and a group of cases which produce great suffering: that is, these recurrent cases which go in and out, in and out, over perhaps twenty years, during which the poor insane person goes down hill and down hill into ultimate degeneracy. The spouse has to put up with that, come what may, and so have her or his children.
I only brought this Amendment forward to make the Bill consistent. I know that everybody is not equally good at finding forms of words, and I do not for a moment venture to criticise noble and learned Lords who tell me that my form of words does not fit my intention. If I understand aright my noble and learned friend behind me, he says that, despite all the trouble I have taken, my form of words does not meet my intention; the wording itself is open to objection. Well, if it is open to objection because it does not adequately fit my intention, am quite prepared, under the advice of my noble friend, to withdraw my Amendment now and reserve the right to get a better wording on the Third Reading. Before I sit down, I might mention that the right reverend Prelate said, if I did not mistake him, that in my view knowledge that divorce might occur had no effect.
§ VISCOUNT DAWSON OF PENN
The right reverend Prelate quoted me as saying that the knowledge that divorce might occur had no effect on the patient. If he had continued the sentence, he would have found how inaccurate his quotation 514 was if it is given completely.. What I said was that after a certain number of years, when the patient has deteriorated, his appreciation of what divorce is would get steadily less; and that when it got steadily less, in my judgment the scales of justice and mercy, as applied to the sane spouse, would, after a certain point of deterioration, weigh more with me than they would for the insane person. The whole object of the five years' continuous treatment, the whole justification for it, as the clause now stands is that for five years the scales of justice and mercy are very properly given to the insane person, but that at the end of that time experience shows that the majority do not recover. As the majority do not recover, it is right and proper that after the five years the scales of mercy and justice should go over on behalf of the afflicted spouse. That is my point of view. It is obviously a point of view that cannot commend itself to anyone who thinks that marriage should not be dissolved, but it has already commended itself to your Lordships' House in connection with the class of patient included in paragraph (d). In my view we should try to extend it logically to an equally afflicted class who would not be embraced.
The right reverend Prelate asked, "Would no advance of knowledge give rise to the cure of these afflicted people?" We all hope that such knowledge will come, but there is no great evidence that the group to which I refer will in any way in the near future be so cured that they can become normal members of society. The best test would be: how many of your Lordships would like your son or your daughter to be betrothed to any of such a group?
THE LORD BISHOP OF ST. ALBANS
My Lords, if I might make a personal explanation, I am extremely sorry—
§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
The right reverend Prelate cannot make a speech, but he can make a personal explanation.
THE LORD BISHOP OF ST. ALBANS
My Lords, I wish to express my great regret if I misquoted the noble Viscount, but I said those words in relation to his 515 Amendment which laid down that it must be five years. I was thinking of it after five years. I am sorry if I misunderstood him.
§ VISCOUNT DAWSON OF PENN
May I, my Lords, withdraw the Amendment because the form of words is insufficient, with freedom to bring it up again on the Third Reading?
§ LORD ELTISLEY
On behalf of those in charge of the Bill, I am to say that we should object to the withdrawal of the Amendment with a view to dealing with the matter at a later stage.
§ On Question, Amendment negatived.
§ 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
the Court shall pronounce a decree of divorce, but if the Court is not satisfied with respect to any of the aforesaid matters it shall dismiss the petition:
§ 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—
- (a) of unreasonable delay in presenting or prosecuting the petition; or
- (b) of cruelty towards the other party to the marriage; or
- (c) of having without reasonable excuse deserted, or having without reasonable excuse wilfully separated himself or herself from the other party before the adultery or cruelty complained of; or
- (d) where the ground of the petition is adultery or unsoundness of mind or desertion of such wilful neglect or misconduct as has conduced to the adultery or unsoundness of mind."
§ THE MARQUESS OF SALISBURY moved to insert at the end of subsection (I) of the substituted Section 178: ";and the Court shall require such additional witnesses, if any, to be called, including the respondent, as the Court 516 may consider necessary to enable the Court to make effective inquiry into the matters aforesaid." The noble Marquess said: My Lords, in accordance with the understanding made upon the last stage of the Bill when I withdrew an Amendment somewhat on these lines, I have put the Amendment down again. It is modified a little bit in order to meet an objection which was made in Committee—namely, the objection that I sought to direct the Court to call certain witnesses, and it was thought to be proper that the Court itself should call the witnesses. So the form in which the Amendment now stands is that the Court may require that certain witnesses should be called. The difference is only a small one, and will only bring the language within the etiquette of what I understand to be legal procedure.
I do not want to repeat the arguments which I put forward in Committee. Let me say quite briefly that as the Bill stands the operation of Clause 4 depends upon this. If the Court is satisfied on the evidence that the petition is not presented or prosecuted in collusion—"if the Court is satisfied on the evidence;" that is to say, it is only upon the evidence that the Court can go, and when I looked to see what direction the Bill gives as to the evidence, I find it set forth in the first subsection:
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.
I have read what I believe to be all the material words. So that all that is prescribed about the evidence is that the Court should inquire, "so far as it reasonably can," and it is left entirely to the Court to say what is reasonable and what is not.
§ I am quite sure your Lordships are aware, those who have been engaged in the work of legislation and, even more, in the work of administering the law in the High Court, of the difficulties that arise over the word "reasonable." What is reasonable in one man's opinion is unreasonable in the opinion of another. Therefore, it is very material to point out the extreme ambiguity of the word "reasonable." That is the only direction as to evidence which is to be given. It is what the Court may require in order 517 to make up its mind so far as it reasonably can on the facts alleged. Then it has only got to decide upon whatever evidence is submitted. I suggest that that is left extremely vague, and therefore I have ventured to put my Amendment down, which prescribes that the Court is to take the necessary measures to have the material evidence submitted. I do not throw an absolute obligation upon the Court to do it, because that would be hardly correct to the High Court, but my Amendment says: the Court shall require such additional witnesses, if any, to be called, including the respondent, as the Court may consider necessary to enable the Court to make effective inquiry." So the general saving phrase, that it is only what the Court may consider necessary, is inserted in the Amendment.
§ I suggest that that leaves the necessary elasticity so far as it is required, but there is a direct obligation upon the Court to call all the necessary evidence. It might be asked by noble and learned Lords: Why is it necessary to give the Court any such instruction? Why cannot you leave the Court, in pursuit of its own Court function, to do this? I am bound to say, although I admit with great hesitation, that we have no longer full confidence in the High Court in this matter of divorce. I admit that that is a terrible conclusion to have come to, but I believe that when I say that I am speaking what many people are convinced of. I am, of course, not referring to the Central Court in London—the Probate, Divorce and Admiralty Division. It would not be becoming of me to criticise it, and I have no desire to do so. I believe that its work is done admirably. But that is not true of the Assize Courts in the country. I admit the gravity of having to say that in respect of English courts of justice. If it be not true, I shall be the first to withdraw and apologise, but if it be true that we have not full confidence in the Assize Courts—only, of course, with regard to this divorce jurisdiction—it is the duty of Parliament to take some measure to correct this state of affairs.
§ I dare say my suggestion is not so well considered as it might be, and other noble Lords have perhaps better suggestions, but it seems to me that the best thing is to lay down in clear language that the Courts are to see that the necessary evidence is submitted. It is not against 518 the interests of the promoters of the Bill that this Amendment is moved. The promoters of the Bill—I am afraid I do not agree with them altogether, but that is my misfortune—at any rate are anxious to secure the proper working of the divorce law. They believe it has been unduly restricted up till now. They want it to be extended, and admirably worked. This Amendment does not run in the teeth of any of their desires. The whole object of the Amendment is to see that the real evidence is before the Court, and I submit that the respondent is in many cases a necessary witness. Why should be not be a witness? It is said that you must not ask him if he has committed adultery. I am only a layman, but I cannot see why he should not be asked that question. Even if you could not put that: specific question to him, at any rate you can ask him about the conditions under which the hotel bill passed, and how it came about that he found himself in this position, and had to come before the Court.
§ I submit the Amendment to your Lordships. I do not do it in any hostile spirit, and I hope very much that my noble friend will accept it. It is a most curious thing that when we laymen try to help the lawyers to make the law watertight, they always find difficulties. It is almost impossible to persuade lawyers, except in such rare cases as we have had on this Bill, where they do not agree—it is almost impossible to get through the phalanx of the Law Lords. They say, as they said of me the other night, that it would take too long to explain, but it is easier to explain that the noble Marquess is entirely wrong. They will not be surprised if I say I was not convinced by that argument. I hope very much that this Amendment will be considered. Might I put this argument to the noble and learned Lords, which I think may convince them? It is not only that we want the law to be fully administered and the evidence to be fully collected, but we want everybody in this country to know it is going to be done. And while, after these debates have taken place and the country at large knows that for some reason or other the most material evidence which can be given in the Court is not allowed, the suspicions of the Assize Courts of which I have spoken will be raised a hundredfold. Once the thing has been mooted the best thing you can do 519 is to take every step to prevent the charge being further entertained. Meet it half-way and say at once: "No, of course, we will have all the evidence before the Court."
Page 3, line 21, at end insert the said words.—(The Marquess of Salisbury.)
§ LORD ROCHE
My Lords, this is a matter of legal procedure, and my noble friend has asked me to express his attitude towards the Amendment. He cannot accept this Amendment. Before giving very shortly the reasons why, I should like to be permitted to say a word or two on the much graver matter which the noble Marquess has raised. I think he has said more than he intended with regard to the High Court Judges, meaning thereby the judges of the King's Bench Division. I was proud of my predecessors when I joined that body in the year 1917, I was proud of my brother Judges while I continued to be in the King's Bench, and I am equally proud of my successors now I have left, and I beg to assure the noble Marquess that they have administered the law of divorce with a devotion and skill and a sense of justice which has equalled anything that has been done in the Probate, Divorce and Admiralty Division. They never asked to be put to the task of divorcing people. To many of them it was foreign to their desires and their instincts. They had not joined the army, if I may so say, for that purpose, but they have carried out their duties, and the only thing that is wrong is this. Of course, where discretion has to be exercised, as it has in matters of divorce where one party who is petitioning is an erring party, one man may exercise discretion in one direction where another would exercise it in another, and some people, I take it, have not satisfied my noble friend, who would exercise discretion, I am sure, with great rigour. Others have not exercised discretion in a way which might satisfy my noble friend Lord Atkin, who would perhaps exercise it with a liberality greater than that of the noble Marquess. It may be unsatisfactory. I think it would be more satisfactory if the Probate and Divorce Judges did their own work on circuit as well as elsewhere, and I hope the Lord Chancellor will take that into considera- 520 tion, and see whether at some future time, if it is a necessity to increase the number of the Probate and Divorce Judges, they might do their own work—I will use no epithet with regard to the work. But meanwhile I must repel, with a real regret, the language which the noble Marquess has thought right to use in this matter.
With regard to the Amendment itself, the reason for objecting to it is that it is quite unnecessary and wholly confusing. I have tried to explain this matter to the noble Marquess as he was kind enough to say he would like to consult me. But if I may put it shortly to the House, it is like this. The clause as it stands empowers the Court, if it is not satisfied that the necessary evidence has been called, to dismiss the petition. What more potent argument could be used towards persons who would withhold witnesses from the Court? You do not need to tell the Court that it may call the respondent. It is open to the same objection as the noble Marquess himself urged with regard to the provision that it has to be satisfied as far as it reasonably can be in the matter. His own Amendment only empowers the Court to call such witnesses as the Court may consider necessary. If you find a wrong-doing Judge, King's Bench or other, he will as little find it necessary to call witnesses as he will find it necessary to make reasonable inquiry. It is surplusage, which will be full of embarrassment to the Courts.
There is another and final reason why my noble friend is unable to accept this Amendment. My noble friend Lord Atkin was prepared to move an Amendment on the Committee stage and the clause in its present form was accepted after careful inquiry and adopted as the proper clause by his Majesty's Government through the mouth of the Solicitor-General in another place; and, just as we felt it necessary to stand on that clause when my noble friend Lord Atkin sought to diminish its force, so we find it necessary to stand on the clause when the noble Marquess thinks it right to add something to it which he conceives will make it of greater force. Among other things I think it would be rather a breach of faith with Lord Atkin, who withdrew his Amendment, as I understood it, on the strength of our assurance that we were going to stand by this clause and nothing but the clause.
§ THE EARL OF MIDLETON
My Lords, I do not wish to enter into any controversy with the noble and learned Lord, but I understood that the noble Marquess's remarks were rather addressed to the fact that there were certain limitations which the Judges were inclined to put upon the evidence which should be called, and in particular he alluded to the possibility of calling the respondent. Perhaps it would help your Lordships if the legal members of the House would inform us why the respondent is not to be called as one of the reasonable means of satisfying the Court.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, before the noble and learned Lord replies to that request I should like to ask a plain and simple question. When he says that this Amendment proposed by the noble Marquess is unnecessary, do I gather from that that the Court will have power, without this Amendment, to call the respondent?
§ LORD ROCHE
My Lords, the plain answer is this. The Court can tell the parties that it will not be satisfied unless such and such things are done; or, alternatively, the Court has the power to instruct the King's Proctor to intervene, and the King's Proctor can thereupon call anyone, including the respondent. But with regard to the questions that can be asked of the respondent when he or she gets into the box, the Court and everybody else are limited by Acts of Parliament, and Parliament enacted so recently as 1925, affirming previous enactments, that certain questions as to adultery could not be asked of either spouse.
My Lords, I should like to support the noble Marquess's Amendment on this ground alone, that no effort should be spared to bring the respondent before the Court. I am sure your Lordships will agree that there are many men of perhaps defective principles who will sign almost any statement, or agree to almost any statement, who when brought into Court and put on oath, will back down from that document that they have signed; and that is a characteristic of human nature always.
§ LORD ATKIN
My Lords, may I say with all respect there has been some mistake about this? Speaking for myself, I strongly object to being regarded by my noble and learned friend Lord Roche as 522 a sort of extremist at the opposite pole to the noble Marquess, Lord Salisbury. I am quite content to be on the same side as the noble Marquess in a great many cases, but I am not prepared to be characterised as an extremist on the other side, any more than I should be prepared to describe my noble and learned friend as the person who always pursues the judicious mean. In this particular respect the suggestion is that when there is a grave charge such as collusion or connivance the Court is to have some power of calling the man who is charged with the offence and examining him as to whether he is guilty or not. I strongly protest against that being any part of the procedure of the Court. It never has been, any more than it has been the case where a man is charged with the crime of assault or any other form of misdoing that you have the power to put him in the witness box and make him say whether or not he has committed that particular offence.
That being the difficulty, and the Statute having already said you must not cross-examine a man as to whether he has committed adultery unless he has given evidence denying it himself, there is a special officer of the Court armed with the very powers that the noble Marquess requires. The whole object of the King's Proctor, and the whole of the powers confided to him, expressly are for the purpose of making inquiry into these very matters. He can examine the respondent or anybody else, and if he is not satisfied with the answers he can call the person as a witness. As to the suggestion made by the noble Lord who has just spoken that a man can put any statement on paper, anything he puts on paper would not be regarded in a Court of Law as evidence; it would be entirely disregarded and would be useless. This is seeking to arm the Courts with inquisitorial powers that the Courts have never possessed, to compel a man to go into the witness-box and make statements as to whether he has been guilty of a most serious offence, either a criminal offence or a social offence, such as conniving at his wife's adultery. I hope your Lordships will not accept any such proposal.
§ THE MARQUESS OF SALISBURY
My Lords, I am very much obliged to the many noble Lords in different parts of your Lordships' House for the support 523 they have given to me on this Amendment. I was aware when I spoke that I should be exposed to the heavy artillery of the legal profession. I have great difficulty in following the legal scruples. Let your Lordships observe this. The principal argument which is used against me is that all this power which we want to enact is already possessed. There is the King's Proctor. They say: "In anything of this kind, if the Court is in any doubt, it refers the matter to the King's Proctor, and the King's Proctor can call anybody and examine anybody." So that the legal scruple is that the Judges must not send for a witness of this kind, nor must they see he is called to the
§ THE EARL OF DROGHEDA moved, at the beginning of paragraph (c), after (c), to insert "where the ground of the petition is adultery or cruelty." The noble Earl said: My Lords, the Amendment I have to move is purely of a drafting nature. By its terms paragraph (c) ought to be limited to cases in which a petition is based on the ground of adultery or cruelty. I am advised by the draftsman that these words ought to be in.524
§ Court, but the King's Proctor can. There is no objection to that. What is so shocking is when these questions are put by lawyers in the Court. They are not shocking when put by the King's Proctor. Can there be anything more amazing than the thin edge on which the legal conscience rests? I confess I am amazed. Being nothing but, I am afraid, a very plain layman, all I suggest is that we should have the power to have all the evidence necessary called before the Court, and I hope your Lordships will consent to this.
§ On Question, Whether the said words shall be there inserted?
§ Their Lordships divided:—Contents, 30; Not-Contents, 56.523
|Canterbury, L. Abp.||Minto, E.||Ailwyn, L.|
|Selborne, E.||Daryngton, L. [Teller.]|
|Halifax, V. (L. President.)||Wicklow, E.||Gage, L. (V. Gage.)|
|Argyll, D.||Bertie of Thame, V.||Hutchison of Montrose, L.|
|Exmouth, V.||Kinnaird, L.|
|Aberdeen and Temair, M.||FitzAlan of Derwent, V.||Lawrence, L.|
|Salisbury, M. [Teller.]||Ullswater, V.||Monkswell, L.|
|Albemarle, E.||St. Albans, L. Bp.||Rushcliffe, L.|
|Iddesleigh, E.||Saltoun, L.|
|Midleton, E.||Addington, L.||Seaton, L.|
|Wigan, L. (E. Crawford.)|
|De La Warr, E. (L. Privy Seal.)||Hampden, V.||Gorell, L. [Teller.]|
|Hare, L. (E. Listowel.)|
|St. Edmundsbury and Ipswich, L. Bp.||Heneage, L.|
|Ailesbury, M.||Kilmarnock, L. (E. Erroll.)|
|Reading, M.||Latymer, L.|
|Aberconway, L.||Luke, L.|
|Bathurst, E.||Addison, L.||Mancroft, L.|
|Bessborough, E.||Arnold, L.||Maugham, L.|
|Dartmouth, E.||Askwith, L.||Melchett, L.|
|Denbigh, E.||Atkin, L.||Meston, L.|
|Drogheda, E.||Balfour of Burleigh, L.||Moyne, L.|
|Howe, E.||Bay ford, L.||O'Hagan, L.|
|Iveagh, E.||Carnock, L.||Redesdale, L.|
|Lucan, E.||Cautley, L.||Rennell, L.|
|Malmesbury, E.||Cornwallis, L.||Roche, L.|
|Shaftesbury, E.||Cromwell, L.||Sandhurst, L.|
|Stradbroke, E.||Denham, L.||Snell, L.|
|Strafford, E.||Denman, L.||Swaythling, L.|
|Doverdale, L.||Teynham, L.|
|Dawson of Penn, V.||Eltisley, L. [Teller.]||Vernon, L.|
|Elibank, V.||Gainford, L.||Woodbridge, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
Page 4, line 7, after ("c") insert ("where the ground of the petition is adultery or cruelty").—(The Earl of Drogheda.)
§ On Question, Amendment agreed to.
§ LORD ATKIN moved, in paragraph (d), after "mind," to insert "or desertion." The noble and learned Lord said: This Amendment also is purely a drafting Amendment, and I think my noble friend opposite agrees with me.525
Page 4, line 16, after ("mind") insert ("or desertion").—(Lord A thin.)
§ LORD ELTISLEY
My Lords, we accept this Amendment to put in words which obviously should not be omitted.
§ On Question, Amendment agreed to.
§ Clause 6:
§ Divorce proceedings after grant of judicial separation or other relief.
§ (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.
§ VISCOUNT BERTIE OF THAME moved, in subsection (1), to leave out "of" [petition of divorce] and insert "for." The noble Viscount said: My Lords, I say without fear of contradiction that the proper expression is a "petition for divorce" not "of divorce." In fact, in Clause 1, page r, line 12. Clause 2, page 2, line 14 and Clause 4, page 3, line 14, it is properly so used. I beg to move.
Page 4, line 40, leave out ("of") and insert ("for").—(Viscount Bertie of Thame.)
§ On Question, Amendment agreed to.
§ VISCOUNT BERTIE OF THAME moved to leave out subsection (3). The noble Viscount said: My Lords, I have had the advantage of an interview with one of the leaders in the Divorce Court, and have discussed with him the Bill as amended in Committee. After that conference with him I confess that I do not understand the object of this subsection, and its effect seems to be useless. As an illustration, desertion in fact, say, on December 31, 1937, then a summons and an order by a court of summary jurisdiction on July 1, 1938, with the effect of a decree of judicial separation; no resumption of co-habitation and the order continuously in force until January I, 1941. What is the object of 526 the provision that the period from January r to July 1, 1938 "shall be deemed immediately to precede the petition for divorce," say, on January 2, 1941? It remains what it always was—namely, desertion over a period of six months.
§ Observe that in order to maintain desertion as a ground for divorce, there must exist a state of things which keeps it up during the whole period of three years. The filing of a petition prevents desertion from running during the pendency of the suit (Dodds versus Dodds, 1906, Probate, page 194) and an order under the Summary Jurisdiction Act, 1895, having the effect of a decree of judicial separation prevents the continuance of desertion after the date of the order. That was decided in Harriman versus Harriman, 1909, Probate, page 189. Then observe further, that the only order under the Summary Jurisdiction Act which can give a husband any personal protection is an order having the effect of a decree of judicial separation. If this subsection be designed to alter the existing law as laid down in Dodds versus Dodds and Harriman versus Harriman and cause desertion to continue to run in spite of proceedings for a decree of legal separation or of an order having the effect of a decree of judicial separation, it does not appear to affect the purpose. What I propose to do is to move this Amendment formally and to ask noble and learned Lords to consider it between now and Third Reading.
Page 5, line 12, leave out subsection (3).—(Viscount Bertie of Thame.)
THE EARL OF DROGHEDA
My Lords, my noble friend in charge of the Bill has asked me to deal with this Amendment. In view of what the noble Viscount has said I would like to tell him that the matter has been very carefully considered and that it will be considered again in order to see if the wording does effect what is wanted. I hope therefore that he will not press the Amendment.
§ VISCOUNT BERTIE OF THAME
My Lords, I should certainly not think of pressing the Amendment in the circumstances. I am much obliged to my noble friend and I beg leave to withdraw.
§ Amendment, by leave, withdrawn.527
§ Clause 7:
§ New grounds for nullity.
7.—(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—
(b) 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 Deciency Acts, 1913 to 1927, or 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
§ 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 MARQUESS OF SALISBURY moved, in paragraph (b) of subsection (1), after "epilepsy," to insert:
Provided that if either party to the marriage shall within twelve months after the marriage become manifestly of unsound mind or mentally deficient that fact shall be prima facie evidence that such party was of unsound mind or was mentally deficient at the time of the marriage.
The noble Marquess said: My Lords, on behalf of my noble friend Viscount Cecil of Chelwood, who is unfortunately unable to be present this afternoon, I beg to move the Amendment standing in his name. I shall not detain you for more than a few moments. Your Lordships will realise, of course, that no marriage is good without a valid consent of the parties. That is essential. If one of the parties is insane at the time there is no marriage. But it has happened, and will often happen again I am afraid, that insanity which is not obvious at the time of the marriage becomes obvious immediately afterwards, and the question arises then how far ought that to be held to make the marriage null. There was, of course, a famous case in which this actually arose.
§ The Amendment standing in the name of my noble friend merely prescribes that if insanity becomes apparent within a certain period after the marriage then that should be prima facie evidence—not conclusive evidence—that the consent was not a good one. He has made the period twelve months, but that is obviously a question of detail. If it is 528 thought that twelve months is too long I shall be glad on his behalf to consent to a shorter period. The point is that if within a very short time of marriage insanity becomes obvious it may be, nay, ought to be, prima facie evidence that the marriage is bad. I know that one of the answers made to this contention will be that if after the marriage one spouse should turn out to be insane there is power under other clauses of the Bill to divorce him or her. In the first place I would point out that that could not happen for five years. Upon the assumption that the unfortunate spouse was mad at the time that is evidently too long.
§ Moreover, divorce is not quite the resource which everybody would take. So many noble Lords are in favour of divorce that I hardly like to say anything derogatory of it, but there are certain people—certain pig-headed people—who dislike divorce, and even if it turned out that their spouses were mad, they might be very reluctant, not sharing all the views of the noble Viscount, Lord Dawson, to call in aid the divorce clauses of the Bill. After all, you must respect their prejudices. They are very nice, respectable people who hold these views, and you must respect their prejudices. It is suggested, therefore, that the right way to meet the position, if the spouse is probably mad at the time of the marriage, is to pronounce the marriage null and void at the start, which in fact it is if he or she is mad. That is all that the Amendment proposes. I do not intend to press it unless those in charge of the Bill are willing to accept it, but I submit that the Amendment is very reasonable, and I repeat that if it is thought twelve months is too long a period I should be willing to consent to any shorter period that is considered reasonable.
Page 5, line 30, after ("epilepsy") insert the said proviso.—(The Marquess of Salisbury.)
§ VISCOUNT DAWSON OF PENN
My Lords, I need hardly say how welcome it was to me to hear the noble Marquess advocate a greater liberality towards nullity which he would not give towards divorce. I am afraid, however, much as I would like this to happen, that it will not be possible to carry it out. May I remind the noble Marquess that some of 529 the most difficult cases of insanity we have to deal with are the insanities of pregnancy and childbirth? The period of twelve months would embrace a large number of cases in that group. A great many insanities of pregnancy and childbirth are curable. They are often due to temporary causes, and I think it would inflict an injustice if we passed an Amendment of this kind. With the general desire of the noble Marquess to broaden the Bill even in the direction of nullity I have every sympathy, but I am afraid in this particular instance I must submit to your Lordships that the Amendment would not be effective for the purpose he has in mind.
My Lords, the noble Lord in charge of the Bill has asked me to say that the difficulties are too great to enable him to accept this Amendment. I do not think after what has fallen from the noble Viscount that I need say any more. We are not prepared to accept the Amendment.
§ THE MARQUESS OF SALISBURY
My Lords, I ventured to tell your Lordships that I did not propose to press this Amendment, and I would only say in reply to the noble Viscount that I think he probably did not hear me say that I did not adhere to a period of twelve months if it were thought that a shorter period would be acceptable. However, I do not think that would remove the objections of noble Lords on this side of the House. There is a certain reluctance to enter into argument, I observe, on these Benches. The only argument that seems to have weight with them is that perhaps the Amendment might not be accepted in another place. I do not think very greatly of that kind of argument, but I realise that this subject is very difficult and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ VISCOUNT DAWSON OF PENN had given Notice to move, in paragraph (c) of subsection (1), after "from," to insert "communicable." The noble Viscount said: I hope that I can, in a very few words, convince your Lordships that the addition of the word "communicable" is necessary unless considerable confusion and perhaps injustice is to result. Syphilis, for example, is only communicable from one person to another—530
§ LORD ELTISLEY
My Lords, perhaps it might shorten the debate if I say at once that those in charge of the Bill accept this Amendment.
My Lords, might I ask the noble Viscount, if he is going to move this Amendment, whether he would be prepared to move it in a slightly different form? I cannot help thinking that, instead of speaking of "communicable venereal disease," it would be better to say "venereal disease in a communicable form."
§ LORD ATKIN
My Lords, might I, before that is done, just ask the noble Viscount, Lord Dawson, one question, because this is a matter of some considerable importance?
§ VISCOUNT DAWSON OF PENN
My Lords, I beg to move, in paragraph (c) of subsection (1), after "venereal disease," to insert "in a communicable form." Quite briefly, I think the problem is that syphilis is not communicable from the one spouse to the other, or is only very rarely communicable, after the first year—after a year has elapsed from the time of infection. There is an idea that it is communicable after that, but it very often ceases to be communicable quite early. In practice people who have been properly treated are permitted by some authorities to marry one year afterwards, and I think that the very most that others require is two years. After that date, although syphilis may do damage to the person who was originally infected, it will not do damage by communication to any one else. Then this further difficulty arises, that there is a blood test for this disease. We will suppose, for example, that one of the parties to a marriage was infected five years before the marriage took place. It is quite certain that the disease would not be communicable at the time of the marriage, yet we do find instances where the blood test remains positive; and yet at the same time on other grounds it is quite certain that the disease is not communicable. The paragraph as at present worded might act with great unfairness and bring in confusion. In my belief the whole question could be settled by inserting the word "communicable," or "any form which is communicable." It is indifferent to me what 531 the form of words is, so long as in one form or other the provision is inserted in the Bill.
Page 5, line 32, after ("disease"), insert ("in a communicable form").—(Viscount Dawson of Penn.)
§ LORD ATKIN
My Lords, if I may, I should like to put one question to the noble Viscount. It has created a doubt in my mind, and Lord Dawson could solve it: How far can venereal disease be inherited? Could a man suffer from syphilis in such a way that he might hand it on to his children and yet not communicate it to his wife? That is the point, because I think that the test of voidability ought certainly to apply to a case where a man is suffering from venereal disease which he is capable of handing down to his children. I think that is a fairly just and proper reason for nullity. Would Lord Dawson tell me about that?
§ VISCOUNT DAWSON OF PENN
My Lords, if such a charge were going to be made, the blood test on the wife would be part of the evidence which would show that the wife was positive. The broad answer would be that it would be so rare as not to be worth bringing into the Act, that a child should be infected without the mother being infected too, certainly as regards the blood test of each. Does that answer the noble and learned Lord's question?
§ On Question, Amendment agreed to.
§ THE EARL OF DROGHEDA moved, in subsection (1), to leave out "Provided also that" and insert "(2)". The noble Earl said: My Lords, this and the next Amendment which appear in my name are purely drafting Amendments, suggested because it might seem better to have a new subsection rather than two provisos in the same subsection. I beg to move.
Page 6, line 5, leave out ("Provided also that") and insert ("(2)").—(The Earl of Drogheda.)
§ On Question, Amendment agreed to.532
Page 6, line 6, leave out from ("of") to ("shall") in line 7 and insert ("the last foregoing subsection").—(The Earl of Drogheda.)
§ On Question, Amendment agreed to.
§ Clause 9:
§ Prevention of delay in application for decree absolute.
9. Section one hundred and eighty-three of the principal Act shall be amended by adding thereto a subsection as follows:—
(3) It any party who has obtained 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.
THE MARQUESS OF READING moved, in the new subsection (3), to leave out from the begining down to and including "suit," and insert:
(3) Where a decree nisi has been obtained, whether before or after the passing of this Act, and no application for the decree to be made absolute has been made by the party who obtained the decree, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party
The noble Marquess said: My Lords, in Committee I moved an Amendment which the noble Lord, Lord Eltisley, was good enough to accept in principle, the object of which was to extend the benefits of Clause 9 to decrees nisi obtained before the coming into operation of this Bill. I then had a form of words which the noble Lord disliked almost as much as I disliked it myself. He made me an alternative suggestion which on the spur of the moment I accepted but which we agreed afterwards was inadequate. This present form of words is intended merely to carry into operation the Amendment in precise and unambiguous terms. I beg to move.
Page 6, leave out lines 35 to 38 and insert the said new words.—(The Marquess of Reading.)
§ LORD ELTISLEY
My Lords, this Amendment has been very carefully considered, and I desire to accept it.
§ On Question, Amendment agreed to.533
THE MARQUESS OF READING
My Lords, my second Amendment is purely a drafting Amendment which incorporates in the section of the principal Act, in its new form, words which already appear in it in its existing form and ought obviously to appear again in order to give elasticity to the provisions of the section. I beg to move.
Page 6, line 42, leave out from ("absolute") to the end of the clause and insert ("reverse the decree nisi, require further inquiry or otherwise deal with the case as the Court thinks fit").—(The Marquess of Reading.)
§ On Question, Amendment agreed to.
§ Clause 10 [Amendments as to maintenance, settlement of property, etc]:
§ VISCOUNT BERTIE OF THAME moved, in subsection (4), to leave out "for" ["decree for divorce"] and insert "of," The noble Viscount said: My Lords, again without fear of contradiction I suggest that the proper expression is "a decree of divorce," and not "for divorce"; and I beg to move.
Page 7, line 42, leave out ("for") and insert ("of").—(Viscount Bertie of Thame.)
§ On Question, Amendment agreed to.
§ Clause 11:
§ Extension of jurisdiction of courts of summary jurisdiction.
11,—(1) Among the grounds on which a married woman may apply to a court of summary jurisdiction under the Summary Jurisdiction (Married Women) Act, 1895, for an order or orders under that Act there shall be included the following ground:
that her husband has been guilty of adultery.
§ (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.
§ VISCOUNT BERTIE OF THAME moved, at the beginning of subsection (1), to leave out "Among" and insert "Amongst." The noble Viscount said: My Lords, if the precedent of the Summary Jurisdiction Act, 1895, which this clause seeks to amend, is to be followed, the word "amongst" will be used instead of the word "among." I beg to move.534
Page 8, line 15, leave out ("Among") and insert ("Amongst").—(Viscount Bertie of Theme.)
My Lords, I wish to oppose this Amendment. I hardly like to intervene against such an authority as the noble Viscount, Lord Bertie, but he puts the change he is making on the ground of precedent in another Act. I went to a much greater authority than that: I went to Fowler's "Dictionary of Modem English Usage," because I could not understand why it was necessary to take up the time of your Lordships' House in order to change the word "among" to the word "amongst." I found that I was perfectly justified in doing so, because here are the two words "among" and "amongst," and it says:There is certainly no broad distinction either in meaning or in use between the two" …And, later, it goes on to say:It is remarkable, at any rate, that one of the forms should not by this time have driven out the other … The survival of both without apparent differentiation may possibly be due to the unconscious desire for euphony, or ease; few perhaps would say amongst strangers with among to hand, amongst us is easier to say than among us …And I venture to say that it is easier to say "among the grounds" than it is to say "amongst the grounds." Then Fowler goes on to say this:It may be said with some confidence that (1) among is the normal word, (2)amongst is more usual before vowels, but (3) before the, which so commonly follows as easily to outnumber all other initials, the two forms are used quite indifferently.Well, my Lords, I am going to suggest to my noble friend that perhaps on this occasion—
Might I just be allowed to finish my speech? Perhaps he will withdraw his Amendment. I may say that I have had an opportunity of discussing this Amendment with my honourable friend Mr. A. P. Herbert, who is considerably concerned at the idea that this word "among" should be withdrawn and that the non-euphonious word "amongst" should be included in this clause. I therefore beg my noble friend to withdraw his Amendment and to leave 535 Mr. A. P. Herbert in that peace of mind which he has at present with the wording as it is.
§ VISCOUNT BERTIE OF THAME
I think Lord Elibank rather suggested that I was wasting the time of the House. I tried to interrupt his speech in order to save him from doing the same thing, by telling him that I asked leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
THE EARL OF DROGHEDA
My Lords, the first Amendment in my name is a purely drafting Amendment to remove what seems to be a redundant word.
Page 8, line 9, leave out ("following").—(The Earl of Drogheda.)
§ On Question, Amendment agreed to.
THE EARL OF DROGHEDA moved, in subsection (2), to leave out all words down to and including "make" and to insert:
(2) A husband shall be entitled to apply to a court of summary jurisdiction for an order on the ground that his wife has been guilty of adultery, and the powers of the court under the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925, shall include power to make, upon any such application, any".
§ The noble Earl said: My Lords, this is also really a drafting Amendment designed to deal with a point raised by Lord Atkin on the Committee stage of the Bill. I have reason to believe it is acceptable to the noble and learned Lord, and I beg to move.
Page 8, line 2 1, leave out from the beginning to ("one") in line 24, and insert the said new words.—(The Earl of Drogheda.)
§ VISCOUNT BERTIE OF THAME
My Lords, as I have an Amendment somewhat similar to the noble Earl's I would like to ask why the husband is to be allowed to apply and not the wife. Is there any reason why both spouses should not apply to the same tribunal? Perhaps my noble friend will be able to explain or I will deal with the point on the Third Reading.
§ VISCOUNT BERTIE OF THAME
As my noble friend is prepared to look into this, I shall not move my Amendment.
§ On Question, Amendment agreed to.
§ Clause 12:
§ Relief for clergy of Church of England and of Church in Wales.
12. 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 or of the Church in Wales 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 or of the Church in Wales to perform such a marriage service in his church or chapel.
§ THE EARL OF DROGHEDA moved, in the substituted subsection (2), to leave out all words after "permit" and insert "the marriage of any such person to be solemnised in the church or chapel of which he is the minister." The noble Earl said: My Lords, this Amendment is designed to express the relationship in which the minister of a Church stands to the church or chapel more accurately than do the words "his church or chapel" which are now in the Bill. I have not had an opportunity of asking right reverend Prelates about this Amendment, and if they have any words which they prefer of course my noble friend in charge of the Bill will be delighted to consider them; but this wording does seem better than the wording in the Bill, and I beg to move.
Page 8, line 42, leave out from ("permit") to the end of the clause and insert the said new words.—(The Earl of Drogheda.)
THE LORD BISHOP OF ST. ALBANS
My Lords, I think the Amendment is a great improvement. An individual church is not Mr. Jones's church but the church of which he is the minister.
§ On Question, Amendment agreed to.
§ Clause 14:
§ Short title, construction, commencement and application.
§ (2) This Act shall be construed as one with Part VIII of the principal Act.
THE EARL OF DROGHEDA had Amendments on the Paper to make subsections (1) and (2) read as follows:
This Act may be cited as the Matrimonial Causes Act, 1937, and shall be construed as one with Part VIII of the principal Act, and this Act and that Part may be cited together as the Matrimonial Causes Acts, 1925 and 1937.
§ The noble Earl said: My Lords, This Amendment deals purely with the title of the Bill. The title "Marriage Act" is one which has commonly been applied to Acts dealing with the celebration and conditions of marriage. This Bill deals with the grounds for the dissolution of marriage, and to such Acts the title of "Matrimonial Causes Act" has commonly been applied. It seems desirable to continue this practice.
§ On Question, Amendment agreed to.
Page 9, line 13, at end insert ("and this Act and that Part may be cited together as the Matrimonial Causes Acts, 1925 and 1937").—(The Earl of Drogheda.)
§ On Question, Amendment agreed to.