§ Order of the Day for the Second Reading read.
§ LORD ELTISLEY
My Lords, I beg to move, That the Marriage Bill be now read a second time. As the House is aware, the Bill has been the subject of critical and sympathetic discussion in another place. Divorce has now for centuries been allowed by law, and this Bill does not raise the question of whether 731 that is a good or a bad thing, whether it should or should not be permitted. I venture, therefore, to express the hope that the debate may be canalised to the narrow issues involved in the Bill itself. For some time past the judiciary and the public have been crying aloud for Parliamentary attention to be given to the problem of divorce. As the House is aware it is not customary for the Government to express any view on Bills promoted by private members. I may, however, perhaps be permitted to remind the House that in the case of this Bill the Government adopted the unusual course of providing time for its Third Reading in another place. That action, many people think, rightly interpreted the view and wish of the country—namely, that this question should as soon as possible, and indeed without further delay, receive the attention and consideration of Parliament.
As introduced in another place the Bill undoubtedly was a controversial and contentious measure, and much time had to be, and was, devoted to it in Committee. In the form in which the Bill now reaches us, however, it represents not full agreement, I am afraid, but a large measure of agreement between its promoters and those who were at first its most severe critics. The Bill attempts not only to deal with individual cases of hardship and unhappiness, but above all it strives to maintain and preserve the great and valued institution of marriage. Its aim is to strengthen and not to relax the marriage tie. It carries out most of the recommendations of the Royal Commission on Divorce and Matrimonial Causes of a long time ago—1912—and it will bring our law more into line with the practice of the majority of civilised States. As at present, adultery by either party will continue under this Bill to remain a ground for divorce, subject, however, to certain safeguards, notably those provided in Clauses 1 and 4—that is, the five years within which no petition for divorce shall be presented and the suspected collusion at law.
I venture to think that the Bill will prove of special benefit to poor persons, as it deals with desertion and the terrible hardships which arise not, unfortunately, only occasionally but frequently. Desertion is one of the most serious matrimonial offences amongst the poorer classes. The Bill will enable injured 732 parties to obtain separation orders on grounds that, subject to proper safeguards, can subsequently be used to obtain divorce. There are far too many distressing cases in which a separation order is granted, and although the marriage is obviously irreparably broken up the only relief is a judicial or separation order. Now this, as a permanent state of life, has been condemned in the strongest possible terms by the Royal Commission, because, as we are all well aware, it almost inevitably must lead to illicit unions and immorality. There are other cases, too, where, owing to lack of means, the poor petitioner, who might easily prove desertion, is unable to produce the necessary evidence, by reason of the expense entailed, in order to obtain the full measure of relief to which he or she is entitled.
In view of the number of your Lordships who are deeply interested in this great social question, and the general desire that at any rate my speech should be as brief as possible, it would perhaps be best that I should devote the few minutes permitted to me to making a brief explanatory reference to the principal clauses of the Bill rather than to making a general and perhaps discursive statement upon it as a whole. I will, therefore, come to the Bill and its various clauses. Clause 1, which still remains somewhat controversial, institutes a very important change in the law. It provides that no petition for divorce shall be presented unless five years have elapsed since the date of the marriage. At present, as your Lordships are aware, it is possible to take proceedings for divorce at any time after the celebration of the marriage. This may be thought, in some cases, to provide an encouragement, to certain young persons particularly, to treat the marriage state rather as an experiment, in the full knowledge that the parties to the marriage can secure a divorce, which may or may not be done by collusion, if the experiment of marriage proves to be unsuccessful in their case. Clause 1 therefore introduces a waiting period before divorce proceedings can be instituted, and I venture to suggest that this clause goes far to meet the criticism that this Bill is in any way a Bill for providing easy divorce or that it strikes at the root of marriage as a permanent institution. The clause definitely discourages persons from frivolously 733 or rashly marrying, and irresponsibly assuming the obligations of marriage, in the belief that in the event of disagreement or differences arising they can obtain early and easy divorce.
During the first few years and, as they sometimes are, difficult years of marriage, a waiting period, a time for cool reflection, will under this proposal now be imposed. That waiting period may lead to a reconciliation instead of a rash determination to try to obtain a divorce; it may, and probably will, tend in many cases to bring the parties nearer together rather than to separate them. It should be noticed that the clause does not affect the right of either party to sue for a decree of nullity or judicial separation. If a marriage is clearly beyond redemption after five years this separation order, again under due safeguards, may be used as a foundation for a decree of divorce.
With regard to Clause 2, while it may be argued that Clause 1, owing to the five years wait, makes divorce more difficult other people may say that Clause 2 makes it somewhat easier, because it adds to the existing sole ground of adultery three new reasons—namely, desertion for three years, cruelly, and incurable insanity. These three new grounds are all grounds which are to be found among the recommendations of the Majority Report of the Royal Commission of 1912, and I would respectfully suggest that each of them inevitably must, in fact, already have brought to an end the marriage of many persons as a permanent and happy institution. There is nothing in the clause or in the Bill which opens the door by mutual consent or which weakens the strength and security of the marriage tie. I know that fears have been expressed in many quarters about the question of desertion. In reply I would point out that desertion is to extend over no less a period than three years. That is a long time. Again, I would point out that wilful desertion has long been a ground for divorce in Scotland—for something like three hundred years—although in that case the period is four years, and not three years as provided in this Bill. And, so far as Scotland is concerned, the evil effects which it has sometimes been predicted would follow if this provision were inserted in the Bill, have not been found to exist. This provision has not smashed up homes in Scotland, nor will it, I am confident, do so in England.
734 Now, with regard to cruelty. Cruelty will be a subject of close definition, but I understand, although I do not speak with any personal knowledge of this matter, that cruelty has been defined by case law, and is well-known so far as this aspect of it is concerned. It has been defined in terms which come right down from the days of the Ecclesiastical Courts before even this House exercised jurisdiction in this matter. A third point is that of divorce where the spouse is of incurably unsound mind. Such persons must have been continuously under medical care and treatment for not less than five years immediately preceding the presentation of the petition, and then they must have been found by the Court to be incurably insane. I do not think that, with these safeguards, there can be any legitimate ground for alarm. Clause 3 is a definition clause relating to cases of incurable insanity, and the House will not expect me to go into that at this stage.
Clause 4 deals with the question of collusion. This is an important clause, as it strengthens the existing law with a view to giving the Court more power to deal with cases of suspected collusion, or cases in which adultery appears to have been condoned. The House will remember that in 1920 legislation was passed giving power to a woman to divorce her husband for a single act of adultery, without the need of having to prove cruelty, which was previously necessary. In practice this Act has not operated in quite the manner anticipated by its sponsors. Many divorces have been given where there was more than a mere suspicion of collusion. It has, in fact, tended to encourage perjury on the one hand and immorality on the other.
Clause 5 is closely linked with Clause 1. The separation orders referred to in it are orders given only for reasons which constitute grounds for divorce under this Bill. This clause is intended to enable a person who by reason of the prohibition in Clause 1 is prevented from obtaining a divorce during the first five years of marriage, but has obtained a separation order during that period, to use the evidence for subsequent proceedings for divorce. It has been realised by the promoters of the Bill that unless some proviso of this kind is included in the Bill it would be difficult, if not impossible, after the expiry of so long a period as five years again to obtain the 735 necessary evidence as to time, place and the people concerned with what took place in preceding years. Moreover, those entitled to a separation order instead of a divorce would not be, and ought not to be, prejudiced if they subsequently desire to obtain a divorce.
Clause 6 prescribes the grounds on which marriage is voidable. It enacts certain new grounds if a marriage is being set aside by reason of nullity. They are all grounds that have been recommended by the majority of the Royal Commission of 1912. Put briefly, these are, firstly, wilful refusal to consummate the marriage; secondly, that either party at the date of the marriage was of unsound mind or epilptic; thirdly, that the respondent was suffering from venereal disease; and, fourthly, that the respondent was already pregnant by another person. In this connection it should be noted that any proceedings under the last three of these headings must be instituted within one year of the marriage, and that the petitioner was at the time of the marriage ignorant of the facts.
Clause 7 deals with desertion. I think I might here interpose the observation that this Bill is sometimes represented merely as a Bill for the extension of grounds of divorce, whereas in fact, apart from the proposals of Clause 2, it contains some extremely useful amendments of existing law, which I have reason to believe will be strongly welcomed by those whose duty it is to administer it. Clause 7 deals with a subject which is a cause of much hardship, particularly in the case of the poorer members of the community—namely, the question of presumption of death in cases of disappearance and prolonged absence. In the present state of the law if a married person disappears and the deserted spouse subsequently contracts another union, although it may well be that seven years have elapsed and he or she cannot be convicted for bigamy, both parties still remain bound in law by the first marriage. This clause in such a case will enable a person to present a petition asking the Court to presume the death of the absent spouse. If the petition is successful, a final decree presuming death of the absent party is to have the effect of dissolving the first marriage.
Clause 8 deals with the question of making a decree nisi absolute. I draw the 736 attention of the House especially to this clause because I believe it to be the only clause and the only respect in which the guilty party receives any consideration, not to say sympathy, at all in the Bill. The clause is designed to prevent an abuse of the process of the Court. It deals with a difficulty which is understood to be quite a common one existing under the present law. As the law now stands the only person who can make application for a decree nisi to be made absolute is the petitioner who can, therefore by the threat of refusing to make such an application, extort an improper advantage from the respondent and hold up the making of a decree absolute at his pleasure. This power has been often used as a means of blackmailing the other party by demanding extortionate monetary provision from the respondent. It seems highly desirable that the petitioner should be deprived of this unpleasing and unsatisfactory weapon. The clause therefore provides that if nothing is done for three months after the first date on which the decree could have been made absolute the other party can apply to the Court to make the decree absolute, and full power is given to the Court to make such order as it thinks proper.
Clause 9 deals with matters of machinery of a technical nature. The powers of the Court are enlarged, enabling it to deal with property from the inception of any case coming under this Bill. There is one important subsection to which I would draw the attention of the House, subsection (2), which gives a new and much-needed power to the Court to require a wife with means of her own to provide for a lunatic husband. Clause 10 extends the powers of courts of summary jurisdiction (petty sessional courts and stipendiary courts) to make separation orders, and for the first time such courts will be given direct power to deal with cases of adultery on the part of husband or wife. These orders, I should point out, may be used subsequently as the basis for petitions for divorce. Subsection (3) of Clause 10 requires that the applicant for a separation order shall have complied with all the conditions that a petitioner in the Divorce Court would have had to comply with. Put briefly, that is to say, there must be no neglect, no misconduct, no collusion 737 —above all, no connivance. An important side issue arising out of this transfer of powers is that many poor persons will in future be able to obtain the valuable help of the conciliatory machinery which is associated with these lower courts but which has never been available in the High Court. In short, for the poorer classes it brings the question of adultery into the area of conciliation. It is felt that that may be very valuable in our social life.
Clause 11 is self-explanatory and provides relief for clergy of the Church of England. There has been some question, I understand, in respect of extending this provision to the clergy of the Church of Wales, but that is not for me to touch upon now. I am only dealing with the Bill as I have the honour to present it to the House. In the present state of the law no clergyman is compelled to marry any person whose former marriage has been dissolved on the ground of adultery, but although no clergyman is compelled to marry such a person, a clergyman is bound to allow and permit any other clergyman who is willing to do so to marry them in his own church. Serious difficulties have already arisen about this when the only ground for divorce has been adultery. This clause provides that a clergyman shall no longer be bound to allow another clergyman to officiate in his church. It limits, however, the relief to cases in which the former husband or wife is still living. If the former husband or wife is dead, the fact that a person had his or her previous marriage dissolved by divorce is no longer a material issue. It appears reasonable, now that we are adding further and additional grounds in this Bill, as we are, that complete freedom from this civil obligation should be given to the Church to deal with the new situation which is now being created under this Bill.
Clause 12 requires no explanation except this, that it enables a wife of British domicile who is deserted by her husband—or vice versa—to obtain a divorce in this country whether or not the absent party has changed his or her domicile. Clause 13 prescribes; the date upon which the Act shall come into operation as being January 1 next year. A doubt may arise as to the machinery being ready by that time, in which case it may be necessary by way of an amendment of this measure 738 to consider postponement of the prescribed date for a month or so.
In moving the Second Reading of this Bill, I feel that the House will be more than conscious that I am doing so as a mere back-bencher and layman, and I tender my humble and most respectful thanks for the sympathetic consideration which has been so generously extended to me to-day. I have endeavoured to steer as clear as may be of both Scylla and Charybdis, of the ecclesiastical and legal aspects of the Bill, because such aspects will be dealt with, and dealt with effectively, by others who are competent and qualified to do so. We all recognise the fact that this Bill stretches down to the very foundations of our domestic life and happiness. It has been, and will remain, my earnest endeavour to pay the fullest measure of respect to the beliefs and the deep-rooted convictions of any who may be opposed to this Bill. The Bill is promoted with the sincerest and most earnest hope that, while it is impossible to deal with every hard case which has arisen and will continue to arise in future—for hard cases, we have long ago learned, make bad laws—nevertheless the Bill will prevent a number of illicit unions, and it will tend in our belief generally to strengthen the bonds of marriage. I beg to move.
§ Moved, That the Bill be now read 2a. —(Lord Ellisley.)
§ VISCOUNT FITZALAN OF DERWENT
My Lords, I am sure we can all agree that my noble friend who has introduced this Bill has done so with exquisite tact and judgment and freedom from any acrimony, a thing not always very easy to escape from on this particular question. I shall certainly endeavour to follow his example, but I must be allowed to sin a little in the opposite direction, because I feel I must call attention to certain words which fell from the senior Member for Oxford University on the Third Reading of this Bill in another place. I should like to say that he is a personal acquaintance of mine, and I am quite certain in my own mind that in saying what he did say he had not the slightest idea of being offensive. He used these words—I think I have got them accurately—that there is not a single word in the Bill of which Christ would not approve. Considering that almost every word in this Bill is contrary to the doctrines and teachings held 739 by the vast majority of Christians throughout the world, I think that was a rather absurd statement and also rather a lapse from good taste. I know it has given offence in certain quarters. I repeat that I do not think for one moment that the honourable member meant to be in the least offensive, but I do find it necessary to make this statement in the opposite direction.
There are certain features of this Bill which some people think would tend to mitigate the chaos at present existing in matters regarding divorce; but none the less the Bill strikes at the root of marriage as a sacrament. At the same time I know there is a very prevalent feeling that there are certain points in the Bill that should be considered in Committee. I partly share that feeling. At any rate, so far as I am concerned, I do not intend to move the rejection of the Bill on Second Reading. But that must not be understood as implying that many of us will not find it advisable or necessary to support its rejection on the Third Reading when we come to it. This Bill treats marriage as a question of convenience and sentiment. It ignores the fact that in the minds and hearts of the vast majority of Christians throughout the world, marriage is a sacrament ordained by God; that it is not to be treated according to the whims and fancies of popular opinion changing from time to time, but should be governed by clearly defined, definite ecclesiastical authority rigidly enforced.
I know, of course, that those of the Communion to which it is my privilege to belong enjoy an enviable position in this respect. We have authority to guide us, a fact apparently and unfortunately not to be found elsewhere, and if we should have difficulties as to the interpretation we put, let us say, for example, on St. Matthew's Gospel, which is so often disputed in this connection, we know where to go to be told definitely what our Church teaches. Because we are helped and governed by this authority, some think we ought to stand aside and not endeavour to press our views on others. That would be a perfectly tenable position for us to take up. This Bill is not compulsory; no compulsion can be exercised on my Communion with reference to it; and therefore we are perfectly free, if we choose so to do, to say: "Do you your worst; it has nothing to do with 740 us." But we share the opinion of many, not only of our own denomination but of other denominations, who regard this question as interfering gravely with the sanctity of marriage, and we take our side and join with them in doing all we think right and proper with regard to our criticism of and opposition to this Bill.
I cannot help feeling that more noise has been made, both in Parliament and in certain sections of the Press, with regard to this Bill than is warranted by public opinion outside. I know well enough that too much importance must not be attached to what happens on a Friday in another place. The fact remains that out of 600 Members of Parliament in the other place only 227 turned up to vote one way or the other on the Third Reading of the Bill. That does not point to any great extent of violent enthusiasm on behalf of the measure. Also, I think that amongst the people of this country, especially amongst the middle classes, and to a very large extent amongst the poor, there is a feeling that the sanctity of marriage ought not to be interfered with, that quite enough has been done already in that direction, and that it is deteriorating the character of the people to do away with or weaken in any degree the marriage tie.
As regards Clause 1, I should like to say that, as at present advised and subject to what may transpire in Committee, if this Bill obtains a Second Reading, which God forbid! I should be glad to find that clause still in the Bill unaltered. I am aware that it is said, I think in America, that it would lead to what are called in America "companionship marriages." Well, that may be, and would be deplorable, but none the less I believe Clause 1 will tend to diminish divorces, though the rest of the Bill I fear will tend to increase them. When I talk of diminishing divorces my mind goes back to the late Lord Carson. It was well known that Lord Carson had a huge practice in the Divorce Court. What is not so well known is that Lord Carson had a holy horror of divorce. I had the privilege of his friendship and he confided to me his intense animosity to the whole idea of divorce. I know that he exercised his influence over and over again in many cases that came before him, and by his persevering advice persuaded people who had embarked on divorce to 741 abandon proceedings. By so doing he rendered many an unhappy marriage a happy one.
Now about collusion. If I understand the matter aright, collusion connected with divorce is one of the gravest scandals of the day, and there is no excuse for not dealing with it. Whether this Bill deals with it properly I am not competent to judge. I have no doubt that as our debate proceeds we shall be helped and aided by sound legal opinion which will enable us, possibly, to come to a decision; but I cannot help feeling that this particular point is one which the Government ought to deal with ad hoc. I am aware that some people consider that the Government ought themselves to take up this Bill. I have had enough Parliamentary experience to know that they would be very foolish if they attempted to do anything of the kind. At the same time it does appear to me that this question of the scandal of collusion should be dealt with by a measure ad hoc without dealing in any way with the merits or demerits of the question of divorce itself.
The promoters of this Bill seem to think that it is going to settle the question for a long time—for a quarter of a century it has been suggested. Well, and what is going to happen then? The slippery slope is again going to be greased, and the way it will lead us God only knows. I cannot help feeling that the time has come when we should check this tendency. What about children? We people in England are very fond of our children. The increase in the number of divorces must be doing a great deal of harm to the children. It creates an atmosphere which they cannot get clear of, they must hear about it often, and that must familiarise them with the idea of divorce. Again take those cases where there are already children of parents seeking divorce. It entirely deprives those children of any proper idea of home or family life. Sometimes I wonder whether, it this tendency to divorce continues to increase, there may not be a revulsion of opinion on account of the effect it is having on the character of the nation through the children deteriorating because of it. I only venture to hope and pray that something may happen in the course of the not far distant future that will cause this tendency for divorce to diminish.
§ LORD SNELL
My Lords, before the debate proceeds further, I should like to ask the noble Lord who has introduced this Bill whether he has made any arrangements for the continuance of this debate. I understand that it would be a convenience to noble Lords if they knew, for instance, whether the House is expected to sit after dinner to-night.
§ THE MARQUESS OF SALISBURY
My Lords, as this is in the nature of a point of order and does not concern the main current of the debate, I wonder whether my noble friend who has introduced this Bill would think what the position would be if we sat after dinner for the Second Reading debate of a Bill such as this. Of course, if we were going to a Division no doubt noble Lords would wish to attend after dinner, but if there is going to be no Division, or at any rate no probability of a Division, it seems very unlikely that a great number of noble Lords will attend after dinner. My experience is that on the occasion of after-dinner sittings your Lordships' House does not present a spectacle which is as edifying as it ought to be when there is before us a subject of this very grave importance. I think if my noble friend the Leader of the House could provide Opportunity for debate on another day, it would be for the convenience of the House.
THE EARL OF ONSLOW
My Lords, speaking not because I am at the moment taking the place of the noble and learned Viscount on the Woolsack, but as one who has been a member of your Lordships' House for a good many years, I should like to say that I think it is unusual for a Second Reading debate to run on after dinner on the first day. In saying that I do not want it to be taken that I have any objection to an after-dinner sitting, but it is usual in a Second Reading debate for the case for the Bill to be generally stated on the first day, and even two or three days are allowed to elapse so that other noble Lords who wish to speak have the opportunity of studying the first speeches. If the noble Lord who introduced the Bill can see his way to agreeing to an adjournment to another day, I think, as the noble Marquess, Lord Salisbury, said, that that would perhaps be for the convenience of your Lordships.
§ THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT HALIFAX)
My Lords, if I may be allowed to say a word before my noble friend replies to the question put to him, it may perhaps help him in coming to a decision. The question which has been put is one for him to reply to, no doubt after consultation with those who are acting with him. So far as I am in a position to speak about the business of the House, I think it would be quite possible for the Government to give him most of Tuesday's sitting if that is convenient to him and to other members of your Lordships' House. There is a certain amount of business on the Paper, and I do not quite know how long it will take. If, after placing himself in consultation with others, he thought Monday would be more convenient, so far as we are concerned we should be glad to meet his convenience and that of your Lordships. There is the choice of those two days after the disposal of the business on the Paper, which, according to my advice, is not likely to take very long.
§ LORD ELTISLEY
My Lords, I suppose I am unduly optimistic because I had hoped, first of all, that we might finish this debate before dinner. The Second Reading debate in another place occupied only between three and four hours. However, I understand that that hope is not likely to be realised, and my second hope in that case was that we might sit after dinner this evening. That, I understand, is a matter for the determination of the House itself. I was rather inclined to press for that because it is of the greatest importance that this Bill should reach the Committee stage as soon as possible. Time is passing and Bills are coming from another place, some of which will require a good deal of time for consideration. Therefore the time available for the Committee stage is a matter of considerable importance. As, however, a great many more noble Lords want to speak than was at first expected, and in view of the offer of the Government to give us either Monday or Tuesday to bring the debate to a conclusion, I feel that perhaps no useful purpose would be served in carrying on the debate after the usual hour this evening.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, as I have some measure of special responsibility in 744 this matter it may be convenient if I state at the outset as clearly and shortly as possible the position I feel obliged to take with regard to this Bill. The existing law of the State in the matter of divorce has proved, and is proving, unsatisfactory in its operation, and has given rise to abuses detrimental not only to marriage itself but to public morality. This Bill proposes some timely and valuable remedies of those abuses. It has other useful provisions including a reasonable and welcome relief to the conscience of the clergy. For those reasons, although I hope it may be amended in various respects in Committee, I think as a citizen and a member of a House of Parliament, that it is entitled to the careful consideration of your Lordships' House. I cannot therefore honestly vote against its Second Reading.
On the other hand I cannot divest myself of my responsibility as a representative and officer of the Church. In my judgment divorce, and certainly re-marriage after divorce, is inconsistent with the principles laid down by Christ and accepted in its own law and formularies by the Church. It may be that the State is unable to impose the Christian principles of marriage by law upon a population which is only partially or imperfectly Christian, but for that very reason it is of the greater importance that the Church should maintain those principles for its own members and uphold its own standard for the good of the whole community. In view, therefore, of the position which I hold in the Church, I cannot take the responsibility of seeming to promote legislation which in some of its principal proposals is inconsistent with those principles and with that standard. Thus I cannot give a vote for the Second Reading of the Bill. In those circumstances, if a Division is challenged on the Second Reading, in that Division I can take no part. It may be that some noble Lords, conscious as I am of the difficulties arising in these matters from the dual responsibility of citizenship concerned with the administration of State law and of membership of the Church, may be disposed to join me in taking this position. In any case I must now try to explain and justify it so far as I can.
The law of the State exists, permitting and regulating conditions of divorce. Whatever we may think about it, no one 745 seriously proposes that it should be repealed. The public law of marriage must have a great effect upon public morality and upon the whole conception of marriage in the community. Our belief as Christians, or Churchmen, that divorce and re-marriage after divorce are inconsistent with the principles laid down by Christ and accepted by the Church, cannot preclude us as citizens from the right or even the duty to improve the existing law where it demands improvement, or to remedy abuses which have been disclosed. I have just said that the existing law has given rise to such abuses. There is no question about this. They are notorious. My noble friend Lord FitzAlan spoke of that with by no means too great severity. The abuses I have in mind are due largely to making proof of adultery the only ground of divorce. Your Lordships are well aware that formerly in the case of a man, though not of a woman, adultery could be a ground of divorce but it had to be combined with cruelty or desertion. That seemed to be the public recognition of a double standard of morality for men and women. Accordingly recently the change was made by which men and women were placed in the same position. To many of us that seemed to be undoubtedly right, but this has been one of those cases in which in this perverse world evil comes out of good as well as good coming out of evil.
Now the proof of a single act of adultery by a man or woman is sufficient as a ground of divorce. Now it is the actual operation of this change that has led to the abuses which cry for remedy. Three things have become exposed to contempt which ought to be held in respect—the reality and gravity of the act of adultery, the cause of truth, and the law itself. Let me try to explain. First of all, adultery is being treated with a levity which is really shocking to any sort of moral sense. It reaches its extreme position, of course, in what are known as these "hotel bill cases." Parties no longer wishing to live together make an arrangement by which a single act of adultery is committed. A woman asks her husband in this manner to do what is called "giving her her liberty" and sometimes appeals to a son of perverted sense of chivalry on his part. Thus this great sin is not here the result of passion, but is regarded simply as a permissible 746 episode in a mutual arrangement; and, as is well known, ample assistance for carrying it out is given by the solicitors concerned.
In the second place it is sometimes claimed that this has only been a mere form when no actual adultery has in fact taken place, but, my Lords, it was necessary to represent to the Court that it had taken place and on this false representation the marriage is dissolved. It is to me astonishing that men otherwise honourable can have recourse to such a device as this. It can only be described as a sort of constructive perjury. It is in itself a flagrant contempt of the three first principles of truth. In the third place, all this brings the law itself into contempt. The law exists to maintain that the dissolution of marriage is no mere private arrangement and for this end to prevent collusion. Yet these methods, notoriously involved in collusion but yet under the existing law extraordinarily difficult to prove, create the situation with which the State has to deal. No doubt these cases may be few, limited possibly to certain classes, but the effect upon public morality of this flouting of the law—known but successfully concealed from the Court—is sufficient to cry out for some immediate reform.
This Bill in its fourth clause aims at strengthening the protection and prevention of this sort of collusion. I do not propose to go into any detail about that clause. It is a matter for lawyers and we have abundant opportunity of the best advice in the matter from members of your Lordship's House, but it is enough for me to say that I have reason to believe—I hope I am betraying no confidence—that those who are chiefly responsible for the administration of the law regard this clause as sufficient to give the Court powers which it at present does not possess to deal with this admitted evil. I regard this clause as vital and one of the principal merits of the Bill.
Another means of avoiding this particular abuse would no doubt be the addition of divorce for desertion for three years. I am not dealing now with the rightness or wrongness of adding new grounds for divorce, but I feel bound to say that I hold with the best scholars that the old belief that our Lord himself 747 had made an exception in the case of adultery, cannot be maintained. It is very difficult, apart from this belief, to regard adultery as standing wholly by itself. If there be any grounds of divorce which are permissible, it is difficult not to place wilful desertion in the same position as adultery. Certainly recourse to this ground would undoubtedly prevent some of the present abuse. No doubt this clause may give rise itself to collusion, although I am informed by the Scottish Judges that where this particular provision obtains in the law they have not been aware of any considerable degree of collusion. But if any divorce by arrangement is ever to be made possible in spite of efforts to prevent it, this at least is a more decent course than the one which is at present adopted. I regard Clause 4, therefore, as the principal merit of the Bill in so far as it affords some chance of remedy for these notorious evils.
As regards the other provisions of the Bill I do not wish to dwell on them in any detail. They will be considered in. Committee, but I am bound to say if there are to be these causes of divorce I myself cannot support the inclusion of insanity among them as defined and described in Clause 2 of the Bill, and if an Amendment is proposed I shall be ready to give reasons for my belief. For the present it is enough for me to say that this is an entirely different matter from any other. This ground of divorce lies not in the fault but in the misfortune of the person concerned, a misfortune for which that person is in no sort of way to blame. I believe it marks a retrograde step in the progress of medical science, which is increasingly regarding this disease as capable of cure, and I believe it would create far more hardships that it is intended to relieve. No doubt there would be some partial remedy in Clause 6, which deals with grounds of nullity, and that particular clause I am prepared to support.
I turn for a moment to Clause 1 of the Bill to which my noble friend Lord FitzAlan alluded. I confess I have no great enthusiasm for it. I think it is arguable that it may be interpreted as a statutory declaration that the first five years of marriage may be regarded as an experimental period. Abuses might occur under this clause as it stands which would 748 call for some remedy, but inasmuch as it does lay down a certain time in which the parties may settle down and adjust their personalities, and as no doubt experience shows that it is often in the first five years that that process gives rise to most difficulties, I am not prepared to oppose the clause.
I come now to Clause 11, which deals with the relief of the clergy. I need scarcely say that I welcome it. The position is this. The last Lambeth Conference, representing the Bishops of the whole Anglican Communion throughout the world, recommended that the marriage of one whose former partner is still living should not be celebrated according to the rites of the Church. Here in England both Convocations have decided that, in order to maintain the principle of a lifelong obligation which is clearly expressed in the Marriage Service, the Church should not allow the use of that Service to anyone who has a partner still living. I believe your Lordships will recognise that that is entirely right. So long as the Marriage Service exists—and no one has ever proposed that in this respect it should be changed—it must be allowed to preserve its solemn character. There is often, as we all know, far too much unreality about the use of it. That unreality will be aggravated, must be aggravated, by the use of these most solemn words when the circumstances of the parties contradict the words they use. This utter unreality in a matter of the greatest solemnity and in a religious service must be bad for the whole cause of religion.
But what is the present position of the law? The clergy are under obligation, as the noble Lord, Lord Eltisley, pointed out, to marry divorced persons like any duly-qualified parishioner, except parties found guilty of adultery in a divorce suit. Even then, according to the present law, they may permit some other minister to celebrate the marriage. The penalties incurred by a clergyman who refuses in this way to violate his conscience and the plain meaning of the terms he has to use are very doubtful, but at any rate the existence of the present legal obligation makes it difficult for Bishops to insist that what I think is a rightful principle of what I may call religious honesty shall be fulfilled. This clause, timely and equitable, removes that difficulty, and, as the noble 749 Lord pointed out, it becomes the more necessary if the grounds of divorce are to be extended. There are, indeed, some who go farther and press for a clause which would definitely forbid the clergy of the Church of England to celebrate such marriages. In my judgment, however, while it is entirely appropriate for Parliament to grant exemptions from the existing law, I think it is for the Church rather than for Parliament to give orders to the clergy as to what services they shall or shall not celebrate in their churches.
Thus, though I think this Bill is certainly capable of amendment and hope it will be amended, it has its real merits within the sphere of State law. Of course I associate myself with what my noble friend Lord FitzAlan said: that if in its passage through Committee there were any tampering with those clauses which I have described as in my judgment vital, or if other Amendments were introduced which made the Bill worse instead of better, I might be compelled to vote against the Third Reading. But, taking it as it stands, I cannot honestly, as a member of this House, vote against the Second Reading. Does it follow that I ought to vote for that Second Reading? That might seem to be a logical conclusion, but logic is very one-sided, and there is another side which I at least cannot ignore. There is no doubt whatever about the increase in the number of divorces from one cause or another. It is most significant and sinister. No statistics are needed; the congestion in the Courts is sufficient proof. Moreover, as we all know, opinions are expressed in quarters where we might least expect to hear the expression, that it is legitimate to regard marriage as an experiment which, after trial, may very fitly be brought to an end if it is not wholly successful. All this means a serious shaking of the stability of marriage in the community. Surely, therefore, it is the more necessary that the Church at least should maintain and uphold the standard which it believes to be in accordance with the mind of Christ. It has done so recently with some emphasis.
May I remind your Lordships—or rather, inform your Lordships, as I do not suppose you are familiar with the proceedings of Convocation—of what it has recently decided? Here may I say that, though authority in the Church 750 which I represent may not be so absolute as that which the noble Viscount enjoys, yet it is real. There is the authority of the Book of Common Prayer, which is binding upon us all, and the Convocations of the Church have some very real authority. This is what they have recently affirmed. They affirmedas our Lord's principle and standard of marriage a lifelong and indissoluble union for better or for worse of one man with one woman to the exclusion of all others on either side.And they have laid down the consequences that a Christian man or woman cannot re-marry during the lifetime of a former wife or husband without a breach of this Christian principle, and the further consequence which I have already mentioned, that the Marriage Service, which explicitly embodies that principle, cannot be used in any such remarriage. In the face of tendencies so rife among us the Church must with increasing consistency maintain this principle for its own members.
But more, in so doing I would venture to claim that it is rendering a great service to the whole community. The cause of the stability of marriage, and with it of family life, which all serious persons desire, including the promoters of this Bill, can only be strengthened if one body which still has some considerable influence within the community asserts and upholds the witness of a high standard. Without some such witness, strenuously and consistently upheld, the danger may be, not of the dissolution of individual marriages, but of the gradual dissolution of the institution of marriage itself. In these circumstances, my Lords, how can I resist the conclusion that I might be contributing to that danger if, as the chief officer of the Church and therefore in a sense its representative, I were by a formal vote in this House to associate myself with the promotion of a Bill which, whatever merits it may have, contains proposals which are inconsistent with the specifically Christian principle of marriage? I cannot take that responsibility. I think many of your Lordships who share my convictions about marriage would be unwilling to take it, even if you were willing on other grounds to give all that is useful in this Bill the most careful consideration.
751 For these reasons, if there is to be a Division I must simply stand aside. I cannot give a vote either against or for the Second Reading of the Bill. I am well aware that some of my brother Bishops may take a different view. I think I shall be supported by the Archbishop of York, the Bishop of London and others, but there are other Bishops who would feel bound to record a vote definitely either for or against this Bill. These are the results of that independence of thought and judgment which may be awkward but which otherwise has its intrinsic value. I think, however, that some of your Lordships will be prepared to take the line which I have sketched. It may seem to be a somewhat negative conclusion. I am well aware of the kind of taunts that may be levelled against it and I am not troubled by them, for I believe that in truth this position represents two positive duties, the one to be ready to make the law of the State better in its operation, and the other to do nothing which would weaken the witness to the high standards of the Christian marriage on which the welfare of the community so greatly depends.
§ LORD SNELL
My Lords, this measure, the Second Reading of which your Lordships are asked to give, is not one to which any of the Parties in the State is committed by definite electoral pledges, but it is nevertheless one of outstanding importance, which every serious-minded citizen is bound to take into account. The subject with which it deals is one of admitted difficulty and also of general anxiety. When we are called upon in Parliament to deal with an economic or a political question we are able to check our impressions by verified data, which are generally applicable. When we are dealing with national or Imperial questions there are certain definite needs to which appropriate remedies can be applied; but here we are not dealing with inanimate things. We are dealing with imperfectly understood human nature, with the mysteries of personality, with the relationships of individual happiness to the State, and with the character life of the nation as a whole.
These uncertainties arouse in all of us certain anxieties. The most reverend Primate has explained the difficulty in which he, as chief officer of the Church, is in relation to his individual position as a 752 citizen, but we are all more or less in that position. All of us have to make peace, as it were, between our duties as a citizen and the obligations which are upon us by reason of any office which we fill, and especially in our position as moral beings. I venture to suggest to those who are opposed to this measure that no one in your Lordships' House, no one in another place, no one who has been behind the promotion of this Bill, is in the least concerned to undermine those great moral traditions which have come down to us from past times, but we have to recognise that what is proposed does arouse the anxiety of certain sections of the community, and it is our business to treat that anxiety with great respect. Those anxieties are also deep-rooted, and they come to us from a great and honoured past, but if I may say so without appearing to be too critical, and certainly not offensive, some of those who oppose this measure appear to be willing to let the past decide the issues of the present.
The noble Viscount, Lord FitzAlan of Derwent, says that this Bill strikes at the root of the doctrine of marriage as a sacrament. Put in the crudest form, the reply to that statement would be that we are to be relieved of our responsibility for our domestic institutions, in our own country in our own time, by the views of marriage that have come down to us from other, and not too intelligent ages. I feel that to bind changing human nature to the standards of bygone ages, or even to ignore the facts of the present situation, is to justify ancient theories, but not to help our present needs. This Bill represents no careless gamble with the moral life of our community. We sympathise with those who are anxious about it, but we cannot let our actions be determined by those anxieties. By all that we know of present circumstances, by our best solemn judgment, we believe that this reform is very much overdue, that it is urgent, and that it cannot, with safety, be longer denied. It is nearly thirty years since the famous Royal Commission was appointed. Ever since that time these questions have been canvassed by thinkers, by moralists and by statesmen, and from every point of view they come to us with a great record of thought behind them. There have, in addition, been Bills of a more drastic kind than the present one, which on previous occasions have passed your Lordships' 753 House. Therefore your Lordships' House has an honourable record in this matter, and to-day it is only required to re-affirm previous decisions which have been made.
The noble Lord who introduced this Bill did so with complete clarity, if he will allow me to say so. He explained the significance of the various clauses, and I therefore do not propose to cover that same ground. I would like to justify the Bill, first of all, by the relief that it will give to individuals, and, as I believe, also by the moral renewal that it will give to the State. In every part of the community there are many thousands of unhappy individuals who are looking to your Lordships' House to give to them the chance of a new and happier life. They are not moral anarchists, they are not irresponsible persons, but decent-minded and, on the whole, clean-living people, who ask for relief from a great accumulation of unhappiness. If that is not accorded to them it may be that their finer spirit will be undermined, that they may be tempted to give up the struggle for an ordered life. and if they do, it will be not only to their own personal debasement, but also to the increase of public disorder.
To take the view that there can be no relief from a vow once made, that a promise made under certain conditions is irrevocable, seems to many of us to mock human tragedy and human suffering. I would remind your Lordships that this Bill is not as has indeed been admitted, forced upon those who do not want to use it. Those who are happily married should be humbly thankful, and in their thankfulness they should not be ungenerous to those who have had to bear misfortunes from which they themselves have been spared. But if the strict view is to be taken about these matters it is not improper to ask what preparation had been given to young people to shape their minds for the responsibilities of marriage, first of all by the Church, secondly by the State, and thirdly by any of us who are responsible in this matter. It seems to me that it would have been possible to have instructed young people as to what the married life means—the infinite patience that is required, the frequent frustration that men and women are called on to bear—and when all that was in their minds then, if they undertook these vows, they would at least have known 754 what they were doing. Therefore I feel that this Bill is of considerable use to the State as well as to the individual. The extent of the evil is partly known, but the social effect of the evil has in part to be imagined.
I have heard the argument that the safest thing on the whole would be to leave things as they are. But to do nothing in this matter would in reality be to do a great deal; it would be to do the wrong thing in the wrong way at the wrong time; and if that course were followed it might be that the very institution of marriage itself would break down, for sensible people will not put upon themselves eternal fetters, fetters from which there is no chance of relief. And at this time when the State is getting anxious as to a decreased birth-rate the number of people who remain unmarried might be given some thought when dealing with that question. I have tried to deal with the moral and the social aspects, rather than with the practical aspect, of this Bill, because that can be tackled at a later stage. I will therefore not go into the question as to the position of a man with children whose wife has unfortunately become mentally sick and for whom there is no relief, except just to say this, that a man with children has to have his children looked after. There is the incoming housekeeper, with results that everybody must be able to understand, and there is the drunkard or the criminal or the abnormal personality—how can we refuse to give some relief to people who are placed in that position?
I believe finally that this Bill deals with a great human, moral and social problem. It offers hope of a new life in the shape of a home and a family. It at the same time serves one of the highest purposes of the State; first, by striking a blow at promiscuous relationships; secondly, by giving to decent people a chance to rear a family; and thirdly, to make marriage a desirable and revered institution rather than, as it is in too many cases at the present time, a degraded and dreaded prison from which there is no escape. Therefore with a sense of responsibility which is not less than that of any one in this House I very earnestly plead that your Lordships will give to this Bill an uncontested Second Reading.
§ LORD ATKIN
My Lords, I have no claim at all to intrude at this stage in this debate, but I happen from my professional position for a long time to have taken an unimportant part and had some experience in the administration of the marriage law, and it may be that it will be of some assistance to your Lordships to hear the point of view of a lawyer. I do not propose to discuss the ecclesiastical question at all. I speak as a lawyer and I recognise that the law of England for the last eighty years has been that relief can be given. So far as this Bill is concerned I am wholly in favour of those provisions which do give further relief to married people whose marriages have been thwarted in the different ways that are provided for in the Bill. And so far as this Bill is founded—as indeed most of it is founded—upon the very careful deliberations of the Royal Commission of 1912, presided over by a great and experienced judge, Lord Gorell, I am entirely in favour of it and I shall do all that I can to support it. But there are parts of this Bill which appear to me to be reactionary in the extreme, which make much worse the position of people who are suffering from unhappy marriages, provisions which I trust will disappear before this Bill leaves your Lordships' House.
Clause 1 is a terrible clause. It makes the position of married people intolerable, and it seems to have been forgotten that the cases that do occur where the right to divorce is desired in the first one or two years of marriage, especially the first year of marriage, are the very worst cases very often that ever come before the Courts. And when it is suggested that this clause serves a valuable purpose, that it will prompt people to consider whether they should enter into marriage or not and, when they are married, give them time to consider whether they shall get divorced or not—I think the most reverend Primate said had time to settle down and adjust their personalities—I venture to think that the supporters of this clause have not realised what the real facts of divorce cases are. I propose with your Lordships' permission to give you two or three instances. I am bound to speak plainly. It is quite impossible to discuss a Divorce Bill without realising what the facts are. This is 756 not a case where you can talk in generalities. You must remember what the facts are.
I had a case before me when I was a Judge of First Instance where a young man was charged with the murder of his wife, and the admitted facts were these. He was a young soldier. He had married his wife. They had a child. He left her in their home in charge of the child. He had gone to the Front, and was starting to go over the top with his corps when he got a message from his father that his wife had deserted the home and the child and had gone off with an officer. This is in the second year of the marriage. He returned home on short leave. The first or second day he was at home he met his wife by accident. She made up to him, so he took her home. They went to his bedroom. They slept together, and after the first act of marital intercourse she told him she had deceived him throughout, that she did not love him, that she was attached to an officer and that she had infected him with venereal disease. Perhaps he ought to have "considered his position and adjusted his personality. "What he did do was to draw his revolver and shoot the woman. Though that, of course, would not be defended, it does give a typical instance of some of the evils that happen in the first year. It seems to me a monstrous thing to think that man would not be entitled to be free from that woman and to engage in marriage in order that he might have someone to protect his home and child.
There is another case I remember not very long ago where a girl of most excellent position and character married a man rather older than herself. He was a man apparently of excellent character and position, but within a few months of marriage he had left her and had gone and resumed relations with his former mistress. She got a divorce and afterwards married, and she is living happily with her second husband, though apparently she is a "notorious evil liver" to whom the Church would deny the consolations of religion. I heard of another case not very long ago where a man married a woman aged about forty who had an attractive daughter of about eighteen. Within a year of marriage he had seduced his step-daughter. There are cases over and over again which 757 come before the Court where men engage themselves in marriage to a woman merely for the purpose of getting possession of her for a short time. They leave her sometimes with a child, sometimes not, and they leave her after having taken from her all the money they can obtain. It is intolerable, I think, that a law should be passed preventing these people from getting relief.
This is a clause which my noble friend who spoke before me would probably agree affects in a very high degree the working classes, because they are the people who are dependent on getting someone to maintain the house and the children. It also affects them in this way. Your Lordships must have experience very often of women in the working classes who do their daily job up to a certain period in life and then begin to look for a home. Unfortunately they are very hasty in choosing their husbands or in accepting the approaches of a husband. A woman in the late thirties or in the forties gets married to a man who is nothing but a rogue and leaves her in the first year of marriage; he deserts her and goes off with another woman. You deny divorce to that woman and for five years you leave her without any protector at all. You leave her probably until she has reached an age when she has ceased to be child-bearing. I consider that that is a grave hardship, and I see no reason at all why the present law which gives relief in all these cases should be altered, nor any advantage.
It is said that it will prevent people from rushing hurriedly into marriage. I think that must be, greatly exaggerated. Does that show a real appreciation of human nature? Do people really choose their partners, choose whom they are going to marry, by considering whether or not they can get divorce from them within five years? People who enter into marriage on these considerations are not worth considering. I should not like in your Lordships' House to venture upon the epithet with which I should describe both the man and the woman. It is a mistake. The real truth is that this clause in the Bill is avowedly a compromise. It was said so in the other House over and over again. It is a compromise. I do not think the supporters of the Bill admire it, and I noticed that 758 one of them, the one member of the Committee, above all others, with practical experience of it, the member for Cambridge University, strongly disapproved of this clause. He knew what the facts of divorce really were. It is a compromise. It looks like saying to those who do not approve of divorce at all, "At any rate you shall have five years without divorce." It is a kind of 12½ per cent. discount offered to the opponents of the Bill. In matters in life of vital importance to the community such as this, you have got no business to compromise. You have got to make up your mind whether or not it is or is not to the advantage of the community that there should be divorce; and if, as I think, it is of vital importance to the community that divorce should be possible within the first five years—sometimes these are the very worst cases of all—then there is no reason why you should adopt a reactionary proposal such as this. When the real facts are put forward I feel that the compromise will disappear, and I believe that if your Lordships are bold enough to act logically and bravely in this matter it will have no effect on the Bill at all either here or in another place.
There is one other proposal which from the point of view of the lawyer I view with the greatest apprehension. That is the clause which the most reverend Primate considered vital. It is Clause 4, in reference to collusion. I share with every speaker and with the most reverend Primate in his most eloquent words the condemnation of collusion. If it can be avoided or discovered and put down, so be it. If you can arm the Courts with further powers for the purpose of discovering collusion and, when they have discovered it, of giving effect to their discovery, nobody would deny that such provision would be most beneficial. But it is an entirely different thing to say that every person who comes to apply for a divorce must satisfy the Court that he, or she, has not been guilty of collusion and connivance, throwing the whole burden upon them of disproving it, of acquitting themselves from a most serious social offence, and leaving it to the Courts to say that if they still retain any kind of suspicion that an offence has been committed then the parties are not entitled to relief. It goes contrary to every rule that has ever been applied in Courts of Justice, except by occasional Statutes 759 which have always been resisted, and in respect of which your Lordships not very long ago, on quite a different matter, took a decided view and threw out the clause.
Just think what the suggestion is. Collusion deserves everything that has been said about it. It is a fraud, and if there is collusion it must be the result of perjury, because I do not know whether your Lordships are aware that every petitioner, before he files his petition, must swear an affidavit that he has not been guilty of collusion. It is not only a fraud, but I think there is very excellent ground for suggesting that it is a criminal offence, for the parties, it seems to me, must have conspired to defeat the ends of justice. Though I do not think any case has ever been tried on that footing, it would be a very good thing if it were. The other charge is connivance. It is unnecessary to explain to your Lordships what connivance means, but it means, as a rule, that the husband has procured the seduction of his wife and been an accessory to it—I suppose the most despicable offence short of crime that a man could possibly commit. I do not know why, if he brings his petition for divorce, it should be left to a judge to say: "Well, I am not satisfied that you have disproved connivance; there is no evidence to prove connivance, but I am not satisfied that there was no connivance, and therefore I dismiss the charge." That man would be a marked figure in all his social circles for the rest of his life. That, it seems to me, with great respect, is quite wrong.
The present provisions are that the Judge must inquire about collusion. He can take what steps he likes. He can refer the matter to the King's Proctor under the existing rules. The King's Proctor, under the existing Act, which is not, by the way, repealed by this Bill, has a duty to bring evidence to prove collusion. But this is all to disappear apparently. The Judge—any judge who has to try a divorce case, a Judge on circuit—can merely say: "I am not satisfied about this"; and there is no appeal, because, as far as I can see, it is quite impossible to appeal from a decision of the Judge that he is not satisfied that the onus has been discharged. Those seem to me to be very serious grounds of objection, and I hope very much that they will be removed in Committee.
760 There are other points, with which I will not trouble your Lordships, which I think indicate that the Bill has not been worked out quite as thoroughly as it might have been. There is a very unusual clause about nullity, providing that the spouses, not may obtain a divorce but can have their marriage annulled if there have been recurrent attacks of epilepsy, or if one of the spouses was suffering from venereal disease. There is no definition of the latter, though it was promised in Committee in another place. It does not mean venereal disease communicable, because if communicated that would constitute cruelty, and that cause would be enough to secure divorce. What I wanted to call attention to at the present moment was that these causes, which are entirely new in respect of annulment, are obviously causes which may not be discovered within twelve months, and in cases where there may be or there will be, a child of the marriage, no provision is made at all as to the legitimacy of the child. Unless some provision is made of that kind the child born of a marriage which is annulled will be illegitimate. That must be wrong, and I have no doubt that it can be altered in Committee.
I shall have something to say in Committee about the provision as to presumption of death. The Bill provides for an entirely new process by which you obtain a decree nisi on presumption of death. I am not quite sure how it is proposed to deal with this, but I suppose that somebody says within the next six months that the man is alive. I do not necessarily object to that, but the provision is, not that the marriage is declared to be dissolved but that it is to be dissolved at a date which depends upon whether or not there is an appeal from the decree absolute. That is most unsatisfactory. If a marriage is to be declared dissolved at all, it ought to be declared dissolved by an Order of the Court and the time fixed. That would he quite an easy matter to arrange. I suggest that that provision ought to be altered so that the petition would be one that the marriage is at an end because of the presumed death of the other party, and then there would be no trouble hereafter. Those facts are rather Committee points. Speaking generally, as I have said, I approve of the progressive parts of the Bill and I am strongly opposed to the reactionary parts of it. I 761 hope that your Lordships will support the Second Reading, and that these will be removed in Committee.
THE LORD BISHOP OF ST. ALBANS
My Lords, I am quite sure that all of us would find ourselves in hearty agreement with the objects of this Bill as stated in the Preamble, "for the true support of marriage, the protection of children, the removal of hardships" where that can be done, "respect for the law," and for the prevention of illicit unions. But I suppose the real question at issue, and there is only one, is whether this Bill will reduce divorce and advance those objects. For my part I am absolutely convinced that in the long run it will have precisely the opposite result. The first consideration is the institution of marriage, and surely there might have been some provision in this Bill for a process by which some sort of conciliation might have been possible in the High Court, as it has proved so beneficial in stabilising marriage in the lower courts. Why was that not done? We have had all sorts of things put into this Bill, but there is no mention of that at all.
I believe the Bill will weaken instead of strengthen the institution of marriage, lead to an increasing number of divorces, and, quite obviously, expose more children than are exposed to-day to the dangers and the ill consequences that come from broken-up homes. I know that it has been said that it is far better to break up a home that is unhappy, but I have been very much struck by what is said by some headmasters and some headmistresses of schools. I do not say that it represents the last word on the subject, but they are all responsible people and they have all had experience, not from the point of view of the divorced home in itself, but of the results on the boys and girls with whom they have to deal when they come to school. They maintain that they would far rather have to deal with boys and girls that come from homes, however unhappy those homes may have been and are, than with boys and girls from homes broken up by divorce. They say that has a worse moral effect on the boys and girls. I can see that some of your Lordships very much doubt that. I am not telling you that it is absolutely true, but that is what these headmasters and headmistresses say. I know myself of many 762 cases where it is true. I believe that this Bill will create more hard cases and illicit unions. I do not believe anything can be invented that will prevent illicit unions and ultimately collusion in divorce.
It has been said that this Bill has got a very large amount of support in the country. I do not know what is the evidence of that. It has never been put before the country as a direct issue. It is quite easy to say that, but really the vast amount of opinion in this country is never known until you get down to it. The rank and file of the people in this country I believe are against the extension of the facilities for divorce. It has been suggested that those who hold official positions such as I and other Prelates hold should refrain, if the Church is given freedom to deal with its own discipline in this matter, from interfering with the State in passing such legislation as the State thinks fit to enact. This is a free country and of course the State can pass any legislation it likes. No one has suggested that it cannot do so. But it is suggested that if the Church is given its freedom—and I maintain that it has not always had its freedom; that sometimes it has been taken away unconstitutionally—then the Church should let the State do what it likes for people who, so far as a great number of them are concerned, are avowedly not Christians and have no sort of connection, and do not want to have any connection, with the Church of England. I submit that that is not really the position. We come here to this House summoned by His Majesty to give him counsel, and we are bound to give our advice even if it conflicts with the advice which others may give during the course of the debate.
I want if I may to take this debate away from any idea that this question is based on a few obscure texts in Holy Scripture some two thousand years old. I have read a great deal of the debates in another place and a good deal of literature on the subject, and I want to put before your Lordships an aspect of the question which I think has not been given sufficient weight. It is this. The Christian view of marriage as a lifelong, indissoluble union between one man and one woman to the exclusion of all others, is not merely based on a text or two taken from the New Testament, but I suggest is part and parcel of the original plan of the Creator in bringing men into the world and in fulfilling His purpose 763 that the whole of the human race should have the fullest possible life. I know that your Lordships will all agree that marriage is an institution that ought to be maintained, but it is, I submit, fundamental not only to the well-being of this nation but to the well-being of all the nations, of the whole of the human race. Marriage we believe is not primarily for self gratification or merely to produce the happiness of one man or one woman. It is a vocation for service of a threefold character.
It has been said that all human problems can be reduced to one, and that is, how to live together as members of one family. To the solution of that problem the best brains and the best energies of the best statesmen in the world to-day are being addressed. They have not yet discovered the solution of that problem, but I think everyone will admit that if we could learn as nations to live together as members of one family we should have solved a very large portion of the problems that confront us to-day. What is going to teach the human race to live together as members of one family? By learning to do so in the family. The making of a home is the first object of marriage. That depends on the husband and the wife loving each other. Yes, and we believe that love really means primarily not to get but to give. It means the highest form of mutual service one to the other, to create a home where children can be brought up in the proper environment. The procreation of children is the next object; and thirdly, the education of them in the problem of living together. Some of us have been fortunate enough to be members of a large family. Some of you no doubt came first, and there are others sitting in this House who perhaps came later. It is a case of the first being last and the last being first. At any rate I was born seventh of a family of ten and, looking back, I know that it is the best education any one could have had. Subsequently I think I had the best education that could be offered. If you happen to be born seventh you get to know things from both ends and when you have done that you have really learned to live together with all sorts of people. There are only three things we are not responsible for—first, parents; secondly, brothers and sisters; and thirdly, the 764 weather. It is in this environment of the home and this spirit of mutual service that we have to learn to live together. If we could learn to live together as brothers and sisters we could probably solve the problem of how to live together with any one.
I am absolutely serious over this. I believe it is again and again overlooked. We think we can play about with the institution of marriage as if it were something that man had made—an organisation like the M.C.C., for example, in which you could alter the rules, or the Leander or any other club to which your Lordships may belong—even the Athenæum. Here is something which is absolutely fundamental which we are trying to bring up to date. I think that is what the noble Lord, Lord Snell, suggested—that we must not live too much in the past. I am always being told that we must be up to date and that we must be in touch with modern thought. I submit that this is no time to be trifling with such a fundamental thing with an almost total disregard of the meaning of marriage. Surely the object of legislation is to produce the greatest happiness for the greatest number, and yet as I read this Bill it does not consider the greatest number. A large number of people are entirely overlooked in this Bill—just people like your Lordships and myself. I do not care what people say, but to every marriage worth its salt there come difficult times. Most people are sensible, wise and sound enough at heart to say: "This is a life sentence and what is the good of making trouble over a stupid thing like this?" These troubles are surmounted, and there are hundreds and thousands in this country who, we know, are just holding on by their eyelashes because they believe it is the right thing to do.
I myself can look back over thirty-four years of happy married life, and I may say that it would not have been happy if I had not got a wife who was capable of putting up with all sorts of things. There are hundreds of cases of this kind. What is this Bill going to do? It is weakening the defences. We have heard much about public opinion. What makes public opinion in the long run and what most controls the conduct of the individual? It is the public opinion around him. Lord Snell referred to the lack of 765 education both in the Church and, I am delighted to hear, in the State. What is being done now? Your Lordships are asked to pass an educational Bill. In passing this your Lordships are letting it be known to young and old that marriage has got to last five years, but after that they can get out. You are weakening public opinion, the one stronghold which is upholding hundreds and thousands of cases of men and women who are gallantly holding on for the sake of other people. Do not despise them. They are the finest people in the world. You know perfectly well that people have felt there is a way of escape, and you are making more ways of escape. This is the education that you are giving and we have been educating the country in this way since 1857. What is happening to-day? Fewer and fewer people care a snap of the fingers about the sanctity of marriage. I take that as a most serious fact and I beg your Lordships not to be influenced by the fact that twenty-five years ago there was a Royal Commission on the subject. We ought to have learned something since 1912 and I believe a great many of us have done so. There are to-day people who even ten years ago thought it might be advisable to increase the facilities for divorce but who now would be absolutely dead against it.
I only want to add this. I believe that to-day we are really suffering from an overdose of sentimentality which goes about dressed up in the guise of the most glorious thing in the world, which is Christian charity. Two things have made this country great through the character of its people—and I have seen them in every part of the world and lived cheek by jowl with them in many odd places—standing by your word when you have given it, even when it is to your own cost to keep it, and seeing a difficult situation through and not whining about it, and not talking about "hard cases" and not "writing home" about them. I believe that what is wanted to-day is to get rid of this over-sentimentality disguised as Christian charity, and what your Lordships ought to administer to-day to this country is a moral tonic, so that all of us may face with greater courage and persistence the difficulties and hardships which are inevitable and, I believe, essential in the production of the finest human character.
§ LORD ROCHE
My Lords, I intervene in this debate for the same reason as actuated my noble friend Lord Atkin. I also have had some experience of the administration of the Divorce Law and therefore may be able to assist your Lordships; but I am afraid that, just as it appears that the Bench of Prelates is not entirely harmonious, your Lordships may not find that lawyers in this matter have all arrived at the same conclusions. Although I agree with much that fell from my noble friend Lord Atkin, there are some points in which my experience has led me to a different conclusion from that which he has expressed. In my judgment, based on an experience of seventeen years as a King's Bench judge, during a considerable part of which time it was the law that divorces were granted by King's Bench Judges on circuit, and of two lengthy periods during which I acted as an additional Judge of the Probate, Divorce and Admiralty Division, in which capacities I had the task of divorcing many hundreds of persons, this is a necessary Bill, a beneficial Bill and, on the whole, a wisely-conceived Bill. It is quite unnecessary that I should now examine the Bill in detail, and I will deal with two parts of it only.
Clause 2, extending the grounds of divorce, is, as my noble friend has said, based upon the Report of the Commission of 1912, which was presided over, as he said, by a great and wise judge, Lord Gorell. May I be permitted to say that it must be a peculiar satisfaction to my noble friend, his son, to be able to support those conclusions with so happy a hope that they may now at length receive the sanction of law? I say nothing about cruelty and insanity, though I have views on them. They, if necessary, can be dealt with in Committee. The provisions with regard to desertion, however, go to the very core and heart of this Bill. The present position is deplorable; it has been sketched with perfect accuracy by the most reverend Primate. It is a situation where adultery is committed for evidential purposes and, it is said, is sometimes feigned, when the real cause of the trouble is loss of affection beginning on one side and ending with one spouse forsaking the other. The evidential commission of adultery and the situation which has been evolved out of it is degrading to the Courts and thoroughly mis- 767 chievous to the community. It is because I believe that the provisions of this Bill will tend to diminish that state of things—it is too sanguine, I suppose, to hope that they will terminate them altogether—that I support that clause. I base my opinion that the Bill will tend to diminish the evil on this cardinal fact: that the mass of English people are lovers of honesty and truth, and if you give them an honest and a clean way out they will take it rather than a dirty one.
I ought to say a word about that part of the Bill over which I find myself in disagreement with my noble friend Lord Atkin, and that is Clause 1. I gather that there are other noble Lords who like Clause I better than they like Clause 2. I think the noble Viscount who spoke second in the debate was in that position, and that if the Bill had only contained Clause r he would even have felt entitled to vote for it. I am not sure that my noble friend Lord Atkin is not in a similar position and wants the Bill only to contain Clause 2 and the consequential provisions. I am afraid we cannot have everything we want in this world. This is a balanced Bill. The noble Lord says it is a compromise. I am not afraid of the word "compromise"; the English have succeeded because they are capable of compromise. At all events, it is a balanced Bill, intended to carry out the object of the Preamble, and in my humble judgment it would not succeed in doing that unless it contained some clause like Clause 1. Whether the clause should be amended or not to meet the hard cases described by my noble friend is another matter, but unless the Bill contained some such clause it would not be the balanced Bill which it now is, which it ought to be, and which in my judgment it will have to remain if it is going to stand the slightest chance of satisfying moderate opinion in this country and passing through the necessary stages in another place.
I will justify that position by saying this. I should be sorry to put my knowledge and experience of the world in competition with that of my noble friend, but I am bound to say with regard to experience in divorcing persons that, owing to the rapidity with which his abilities carried my noble friend to the Court of Appeal and to this House, he departed from the Courts of King's Bench 768 before they had long had important duties in divorcing people. I, on the other hand, owing to the contrary situation, spent seventeen years in the King's Bench Division and have had the misfortune to divorce many persons. Now, it is extra-ordinary how people's experiences differ. I do not deny that there are hard cases such as my noble friend has pathetically described, but my experience is that, though they exist, marital misconduct seldom follows hard on marriage. I should say that it is rare, and it is rare because it seldom exists among the working classes at all. There are reasons why the working classes, when they marry, are better known to one another than those in other classes.
But what is extremely common, and what strikes my mind as more sad and more pathetic even than the hard cases which have been described, is to see a procession of young people come into Court—especially during and after the events of the Great War—asking to be divorced though they had obviously not made the slightest effort to try it out and see whether they could not make the thing work. If I ever felt inclined—I hope I have not yielded to it—to preach a sermon to anyone in Court, it was on that topic; and although I agree that people do not often say to themselves that they will marry, meaning to get a divorce, I am satisfied that there are scores and hundreds of people who marry without due circumspection, with the thought, sometimes conscious but more often subconscious, in their minds, that if they do not agree there is a speedy way out. Without being wedded to a provision in the Bill exactly in the terms used in Clause 1, I have thought that on a matter as to which experiences may inevitably differ, it was right I should give to your Lordships the results of an experience which differs from that of my noble friend. For reasons I have given I commend this Bill to your Lordships' attention and consideration substantially as it is, as a whole and as a balanced Bill, which I am satisfied commends itself to the moderate opinion of this country.
THE LORD BISHOP OF DURHAM
My Lords, I think I owe it to the House, if I venture to intrude myself upon your Lordships' attention, to say that having had thirty years of ministry in the Church of England I have had a great deal of 769 opportunity for observing the movements of society and the way they react upon the existing law. I do not propose to deal at any length with the speech of my friend the right reverend Prelate, nor will he think me discourteous if I refer to him in a phrase often used in the seventeenth century. "He talked at large," that is, without addressing himself to the Bill, which I strongly suspect he has not read. He also delighted us with much intimate and curious information.
I want rather to address myself to one aspect of this measure which, albeit it may seem a little difficult to debate on the floor of this House, has been brought by the noble Viscount and by the right reverend Prelate conspicuously into the discussion. For at present I think anybody who knows the English people at all well knows that they have a profound respect and veneration for the Christian tradition as expressed in the New Testament, and if it were to go out that the law of England had parted company with the Christian law, I think it would be a great disaster to the nation. It is because I believe that—and I will indicate the reasons for my belief presently—that I think that this Bill, if it were passed into law, so far from bringing the law of England into conflict with the law of Christ, would bring the law of England into deeper and truer harmony with that law. I believe that the law of England as it is at present is in some conspicuous particulars inequitable, and I believe that this Bill will remedy a great many hard cases which a just law ought to be able to remedy.
I suppose in these discussions no cliché is more often used than "Hard cases make bad law." Yet, if those hard cases are so extraordinary in their circumstances that they do stand outside the proper reach of the law, and if those hard cases are so numerous, and of a character which ought to be covered by the law, then the number of hard cases is the most convincing indication which we can have of the need for revising the law. I have recently read both Reports of the great Royal Commission over which the late Lord Gorell presided, and I think it is quite impossible for any intelligent and candid person to read through those Reports, let alone the evidence upon which they are based, without seeing clearly that so far from the demand for a revision of the marriage law being 770 frivolous, there is a great body of grievances which ought to be redressed. However, I put that aside, and I beg leave to assume that there is a very real demand for this Bill. That is the answer to the first question which I put to myself: Is the Bill needed? Yes, it is, and if you have no experience to provide you with that answer then be at pains to read carefully the great Report of the Commission.
My second question is this, and it is one that I want to deal with a little more carefully: Will this Bill, if it be passed, bring the law of England into conflict with the law of Christ? I have already indicated the answer which I should give. The noble Viscount, speaking with the courtesy and moderation which always distinguish his utterances, declared the position which his own great Church takes up and he admitted, as he was bound to admit, that that position was not one which all professing Christians accepted. And I would observe that we must remember that in his great Church, as indeed he reminded us, there is no legitimate possibility of difference being manifested. But there is this fact, that the corruptest communities known to the world have been those in which divorce is absolutely prohibited. If the number of divorces were a safe indication of social morals it were indeed possible to make the whole community pure at a stroke by prohibiting divorce. True it is that divorce may mean not a desire to degrade but to raise the standard of human life.
I would ask any considering person who is acquainted with the history of this subject what period in the evolution of our marriage law, what period in the history of English society, should we select as the purest and best, and as approaching most nearly to the ideal of social relations? Would it be the Middle Ages, when no divorce was permitted? Would it be the eighteenth century when the corruption of society was so gross and extensive that every moralist of the age exhausted the resources of the language in order to describe it? Would it be the period up to the Divorce Act, 1857? We all know in point of fact that the mere fact of the number of divorces has very little reference to the main question, which is how we shall secure that the marriage union shall be stable and society pure, and the children guaranteed in a stable and well ordered home.
771 Then the most reverend Primate—I am sorry he is not in his place—told us as if it were an admitted fact which in any scholarly company would pass unchallenged that it was an agreed point that our Lord's teaching as certified by the critical scholars of our time is represented by the teaching in St. Mark's Gospel. I would allow myself this observation. So far as I know, the Church of Christ has never allowed itself to draw a distinction in religious authority between one canonical Gospel and another. I would ask him, if he were here, Are you then prepared to minimise the authority of the first of the four canonical Gospels, and is it not the case that it is that Gospel which authorises you to use the Trinitarian form in baptism?
I observe that the most reverend Primate is now in his place, and my desire is soon satisfied. I was pointing out that whatever weight of critical authority there may be behind the statement which the most reverend Primate made that the overwhelming balance of critical authority was in favour of regarding the version of Christ's teaching in the Gospel of St. Mark as authoritative, I would ask him to remember that the Church has never distinguished between one canonical Gospel and another, and if you do not admit that you are led to some inconvenient results, because it is the first of the canonical Gospels which gives you authority to use the Trinitarian form in baptism. So it is apparent that it is a very risky ground you get on when you begin to thrust the critical faculty into canonical authority. No, I prefer to stand on the general position of the Church, and to say that our Lord's teaching, as we have it transmitted to us in the four canonical Gospels, teaches with every adequate reason that the marriage union is dissoluble. If that be not so, then it is incumbent upon the most reverend Primate to explain away what St. Matthew says, and I submit—and I think no one can challenge the statement—that even if that clause "saving for fornication" is read in the strict sense we are entitled to say that it is yet a canonical version of the Apostolic understanding of Christ's words. It is the most authoritative word of exegesis that you can find, and we are on the strongest possible ground when we say that we are entitled to claim that our blessed Lord, as under- 772 stood by the historic Church, did authorise in certain circumstances the dissolution of the marriage union.
But I will not dwell further upon that. I pass to the Bill itself. If we pass this Bill, will it lead to a lower standard of marriage and the contracting of marriage? That is the root of the matter. Marriage is contracted with such reckless haste, and in circumstances so ridiculously inadequate, that you cannot wonder that unions so contracted should be dissolved with the same frivolity. I was in America thirty years ago when there was celebrated a marriage in a balloon, in which a minister had been taken up and a sort of service had taken place, and they announced the event by the showering of sentimental handbills upon the watching multitude. But my point is that it is a matter of personal consideration when we touch the law of marriage what the effect of the changes we are making will be upon the attitude of mind of the people contracting it. I have considered with very anxious care the proposed new grounds for divorce, and I ask myself, will these naturally and normally have the effect of encouraging in the mind of the young man and young woman a low view of the obligations of the marriage relationship, and will they in fact tend to build up in their minds a belief that they can easily get rid of the obligations?
Look at the grounds. Desertion for three years. Cruelty as defined in the Courts and as set out in the Majority Report of the Royal Commission—cruelty of such a character that co-habitation is impossible. Insanity. Now here is a subject, I admit, of very great difficulty. It is so difficult because here we are confronting human calamity. Therefore we must be very cautious in the way we deal with this particular suggestion of a ground of divorce. But when I look at the conditions under which insanity is declared to be a ground, and when I seek to learn the mind of medical authority on the point as to how far those conditions are satisfied, and there is any real probability of the insanity being cured, I find that the probability is so slight, so fractional, that it would really be irrational to make so slight a possibility a basis for refusing a relief which may be fairly claimed by a very large number of people. For remember, it is too often in these discussions assumed, especially by those 773 opposed to the Bill, that when you say that a new ground shall be recognised as the basis of divorce you are enacting that everybody will take advantage of that ground of divorce. What you are in fact saying is that if the suffering and aggrieved partner desires to be relieved, then the law will accept that ground. There are, especially in the case of the insane, romantic devotions, attachments so loyal and lasting that the very idea of terminating the union would be utterly remote; they would not part from the afflicted partner; they would be able to go on. But I remember the very large number of people joined to partners who, to all intents and purposes, are stricken out of the category of personality, absolutely incapable of serving any human purpose. It is with regard to them that this proposal seems to be so justifiable.
I want to suggest to your Lordships that it is time we cleared our minds of the canonical figment by which marriage is conceived as something independent of the possibility of the partners exercising any of the purposes for which marriage exists. These purposes are set out in the well-known preface to the Marriage Service in the Prayer Book. According to the plain purposes there set out, marriage is intended, of course, obviously for the continuance of the human race, the procreation of children. It is intended for the satisfaction of the strongest of all physical appetites, and for the avoidance of sin. It is intended to provide that fellowship, society, help, and comfort which men and women, by the Creator's ordinance, really need. None of these purposes can possibly be fulfilled if the parties drift apart, if the desertion has continued year after year, if the cruelty is such that it is not safe or reasonable to expect these people to live together, or if insanity has clouded the mind or disordered the tastes and affections so that the unfortunate partner who is insane may be locked away under guard, and may continue in that state until death. It is impossible in these cases to see what there is which has survived the marriage. This doctrine that marriage is independent of the purposes for which marriage is ordained is merely a legacy from the sacramentalism of the Middle Ages—a sacramentalism, unfortunately, which is due to the inadequate interpretation of a word. 774 Of all the grounds suggested in this measure, I see none that lies outside the four-dimensional principle or governing consideration which I have suggested. Therefore, I heartily commend this Bill to your support. I do hope it will not go out from this Chamber that, if this Bill is passed, this great House is consciously and deliberately setting itself against the Christian law of marriage. I would rather urge your Lordships to take the view that we are enacting in the spirit and mind of Him who, confronted by another law, said: "The Sabbath was made for man and not man for the Sabbath." We should say "The marriage union is made for man, not man for the marriage union," and that we have no ground to withhold the liberty of divorce. Therefore, I propose to support this Bill. I do so because I believe it will roll away from marriage the great volume of scandal and misunderstanding which prejudices the marriage law in the minds of great numbers of people, and thus facilitates the breaking of that law by those nefarious people whom I wish to heaven we could bring to some penal retribution; those adulterers who are breaking into the home and violating it at its centre.
I wish we had some means of making adultery a criminal offence. I am told that is impossible. But that is not in this Bill, so we need not trouble about it. I support this Bill because I believe it will strengthen the hands of those of us who are seriously perturbed by the wave of licentiousness which has swept over the Western world in the wake of the Great War. There is, too, the population question, dark, menacing and apparently insoluble, affecting the whole of our Western world. I believe if we pass this Bill we shall rebuild a great many broken homes, and shall once more enable many children to have strength and comfort in an ordered domestic life, and shall, in that measure, strengthen the State by helping to rebuild it.
My Lords, in following the speeches which your Lordships have had the privilege of hearing, I feel almost intrusive in taking part in the debate, at any rate at this stage. I can promise your Lordships, however, that in what I say I shall not occupy many minutes of your time. This is so comprehensive a Bill, and it includes so many unrelated provisions. that I find 775 it extremely difficult, if not impossible, in a Second Reading de-date, to avoid dealing with what are really Committee points. At the same time, to my mind the pivotal part of the Bill, its pith and marrow are to be found in Clause 2—namely, the extension of the grounds upon which divorce may be granted.
The first thing I want to say about the Bill is that it comes before your Lordships' House thoroughly well documented. I make no excuse in that connection for reverting for a moment to the Report of the Majority of the Royal Commission to which reference has been made in this House today. I say, with all responsibility, that any one who criticises this Bill without having read that Report is ill-equipped for the task. That Report, as your Lordships will remember, followed sittings of the Commission which extended over three years, during which they heard evidence from distinguished alienists, ecclesiastics, lawyers, social workers, and others, before they reached their considered conclusions. To my mind it is one of the most weighty and authoritative State documents which it has been my privilege to read. I venture to reiterate what was said in your Lordships' House seventeen years ago by Viscount Buckmaster, that to him it was incredible that such a Report as that should be thrown upon the rubbish heap. The Bill therefore comes before your Lordships' House well documented, for all the provisions in Clause 2 are included in the Majority Report.
But I venture to go further. The Bill is not only well documented, but it is well supported by precedents in your Lordships' House. Viscount Buckmaster introduced a Bill in 1920 which included the same grounds of divorce as this Bill includes, and others, and, after the most exhaustive debate, taken part in by all representatives of importance in Church and State—a debate extending over many days—the Bill passed through all its stages in your Lordships' House by substantial majorities. It is quite true that it did not suffer a kindly fate in another place, but that is not my point. My point is that your Lordships have in Lord Buckmaster's Bill a direct precedent for supporting what I regard as the pith 776 and marrow of the Bill under consideration now. If I may be forgiven the reference, I would add that I had the honour this Session of sponsoring a Divorce Bill in your Lordships' House, which applies to Scotland alone, which passed through all its stages in this House wit lout a Division and without Amendment, and which contains all the provisions which Clause 2 of the present Bill includes, as well as others.
We sometimes think in Scotland that we are more advanced in these matters than you are on this side of the Border. We may be right or we may be wrong, but in that connection I want to say just a word or two about two of the provisions in the Bill—namely, desertion and insanity. I was very glad to hear what the most reverend Primate said on the subject of desertion. Here your Lordships are not asked to follow a doubtful precedent. You are asked to adopt a system which has been tried out for 350 years in sister country at your doors. Divorce on the ground of desertion has been the law of Scotland since the year 1575, and, so far as I know, not a voice has been raised in criticism of desertion as a ground for divorce, and not a suggestion has been ma le in any quarter that the right so conferred has in any way been abused. Is it not reasonable to suggest that if that system has been a complete success on the other side of the Border and has resulted in no abuses at all, it should be tried in England as well?
As regards insanity, I quite appreciate from my experience in connection with the other measure that that is a subject upon which opinions may very widely and, if I may say so, legitimately differ, but I would ask your Lordships to bear in mind just one or two considerations which I venture to put before your Lordships' House in that connection. In the first place the Royal Commission devoted more time and space to the consideration of that as a proper ground of divorce than to any of the others which were included in their Report. If your Lordships take the trouble to study the Majority Report I think you will find that I am right in saying that they devoted twice as much space to the consideration of that topic as to any other. That may be because of its inherent difficulties, and because of division of opinion, but, however that may be, the fact remains that the Royal Commission's Majority Report was entirely in 777 favour, having heard all the pros and cons, of making insanity as well as desertion a ground of divorce.
They pointed out that insanity differed from all other maladies, except perhaps the almost extinct disease of leprosy, in that it involved a complete break-up of the household, and involved also the removal of the patient from the household into an institution, it might be for years. Therefore they regarded insanity as suigeneris and to be treated from that point of view. And if it be said that insanity is clue rather to misfortune than to fault, well, then, I have yet to learn that decrees of divorce are handed out on the ground of reward or punishment. I venture to think that, in the very special circumstances which are detailed in the Royal Commission Report, that, too, is a sound ground of divorce.
Of course there will be those who say "but this" and "but that" Ah! these "buts"; they have stayed and paralysed many a noble enterprise. Your Lordships' House, if I may respectfully say so, has always been regarded as having a reputation for liberal-mindedness in these consistorial matters. I venture to hope and believe that that reputation will not be belied on this occasion, and that the Bill which has been so felicitously placed before your Lordships' House to-day, if I may say so, will have accorded to it an unopposed Second Reading. All of us, I apprehend, desire to keep our hands prefectly free to consider each of the proposals upon its merits in Committee, and to decide, for example, whether the machinery of the proposals, whether each or all of the new grounds for divorce, and whether Clause I should be included in the Bill. All these matters, I venture to think, are much more appropriate to the Committee stage than to the Second Reading, which I have very great pleasure in supporting.
THE MARQUESS OF READING
My Lords, obviously it would be impertinent of me to touch upon the religious aspect of the question which has been debated this afternoon, but your Lordships have heard two eminent Judges on the subject and it may not be without interest to your Lordships to hear the views humbly expressed by a member of the Bar who, though in no formal sense a member of the Divorce Court Bar, has 778 at least for a number of years made not infrequent incursions into that Division. I am so wholeheartedly in support of this measure that I regret to have to start with a note of criticism. It may perhaps be presumptuous and indeed foolhardy on my part to differ from the noble Lord, Lord Roche, but I cannot but take exception to Clause 1 of the Bill. Here is surely yet another attempt, of which we have seen all too many in recent years, still further to encroach upon and to restrict the existing liberty of the individual. For eighty years a husband or a wife who has been able to bring himself or herself within the scope of the existing divorce law has been entitled to apply to the Courts for redress, and now we are asked to accept an oppressive, arbitrary and retrograde clause and to say that there shall be imposed a time limit of five years during which they are not entitled to ask for any succour from the Courts.
It is difficult to see the logical basis on which a demand of that kind can be put before your Lordships. I believe, if I may say so respectfully, that the argument in favour of this five years' limitation depends upon three fallacies. The first is one that has been fostered by a section of the Press which diligently selects from the divorce list, published at the beginning of term, any names which look as if they could be expected to provide news, and sets them out as samples of the bulk so that the uninitiated are apt to regard the divorce list as a sort of combination between Debrett and the Exchange and Mart. Those of us who from time to time or daily frequent those Courts know that there can be no falser picture of the procession of people who pass through those Courts than to depict them as running into marriage with the casual impetuosity of Hollywood and out of it with the airy nonchalance of Reno. They are not people whom photographers would necessarily pursue with great enthusiasm. They are commonplace, ordinary everyday people, perhaps no more virtuous and no more vicious than their fellows, but only more unfortunate—of a sort you can see at any hour in any busy street.
And they are mostly not very young people. That I believe to be the second fallacy of these three—the argument suggesting that by introducing this 779 five years' limit you are protecting youth from its own immaturity and instability. The majority of members of the public in this country do not marry very young, if only for economic reasons. They have mostly come not only to years of comparative discretion but to years at which it is important that they should not have to wait for a further five years before they get a second chance. I believe that the third fallacy, and the greatest, is to believe that you can make people live together by law. What is the good of saying to people who are living in conditions of deadly enmity with each other, "You must live together for another five years because the law says you cannot get a divorce for five years"? This Bill is said to be a Bill for the reduction of illicit unions. If you are going to prevent people from getting a divorce for five years, are you going to reduce the number of illicit unions? Or are you going to increase them? Is a man who may find after his marriage that he has married a woman with the habits and instincts of a prostitute going to remain what is known as "faithful" to her for five years? If he is not, he may be imperilling his own chance of ever getting a divorce from that woman, because he may have gone and committed adultery himself. And our law still provides that if only both husband and wife commit adultery flagrant and sustained enough, public interest demands that they shall never get a decree but that they be compelled to continue living in adultery as long as nature or opportunity permits.
I believe that to introduce a limitation of this five years' type would be a tragic blunder. If something of the nature of Clause 1 must go in, I trust that this House in Committee will consider whether it should not give to the Court a discretion as to whether in a proper case it should not reduce that present fixed and immutable limit. I have known cases where within a few days of marriage a husband or a wife has gone away. There is one certainly authentic and extreme case where a soldier married a girl at 12 o'clock in the day and at 4 o'clock in the afternoon discovered her in bed with his best man and at 10 o'clock next morning presented himself at the proper offices of the Court asking for a divorce. It would have been a poor comfort for that man to tell him, "We are 780 very sorry for you but you must come back in five years. Nothing can be done for you till then."
As regards Clause 2, which is the real operative clause of this Bill from my point of view, I desire as one who has to tike occasionally some humble part in the administration of the law of divorce to welcome the provisions contained in that clause. It may be to some people a very dreadful thing that we should pass into law a provision which displaces adultery from the position of splendid isolation which it has hitherto held as a cause of divorce. It may be that we are doing a very rash and precipitate thing in allowing a husband or a wife to be divorced, not only for one single and perhaps unpremeditated act of adultery, but for persistent cruelty, for protracted desertion or incurable unsoundness of mind. If we are thought to be very precipitate or very rash it may be some comfort to reflect that four hundred years ago Archbishop Cranmer had the temerity to introduce a similar measure, the only difference being than for unsoundness of mind he substituted the much more advanced and drastic principle of "deadly hostility between the spouses," and that if it had not been for the premature death of King Edward VI and the somewhat fiery temper of his successor, it might well be that the measure would have passed into law four centuries ago and your Lordships would not be occupied in discussing it as a revolutionary principle to-day.
It is both a tragedy and a scandal that people should be driven to commit a sort of synthetic adultery in order to bring themselves within the scope of the existing law, and to escape from a marriage which has become either a mockery or a martyrdom; and if we do introduce in this Bill some ground for divorce other than adultery it will at least cleanse the Courts of some of the accumulation of horror and of filth that that particular Division necessarily abounds in to-day. It will at least, perhaps, stop the procession of hotel porters remembering a particular petitioner after a period of years and a succession of some thousands of guests, and of hotel chambermaids opportunely arriving with the morning coffee when the couple are still in bed. It will perhaps save the self-respect of some of the people who have to go through these revolting machinations in order to get 781 their freedom under the present law, and it will, I hope, do something to restore to the high level that it ought to hold a branch of the law which has undoubtedly fallen into disrepute in the public opinion because of these collusive divorces which, difficult and indeed impossible as we all know they are to trace, form a large proportion of the work of the Court.
It is with great pleasure that I welcome Clause 8 of the Bill, a clause which allows application for a decree absolute to be made by the respondent if the petitioner unduly delays. I believe it to be long overdue and I think I have had sufficient experience of the exercise made of the weapon of application for a decree absolute to know how often it is used as an instrument of blackmail, and as an abuse of the process of the Court. I wish that it had been possible to go further and to abolish the second decree altogether, and to have one decree alone, as there is in Scotland. I wish it, if only for the reason that it might have had the effect of abolishing that invidious and anomalous officer, the King's Proctor, once and for all. It may be too ambitious for the scope of the present Bill, but it is horrible to think there is an office of that kind which necessarily depends upon anonymous letters for the bulk of its information, and upon chance as to the particular case out of a number that it has to deal with. Marriage may be a lottery, but that is no particular reason why divorce should become a lottery as well; and if it could be possible, even at the cost of adding a few more divorces to the list, to abolish that functionary, I believe, with all respect to him as an individual but with little respect to the office he holds, that it would be to the great advantage of the respect shown to the legal system as a whole.
Because I believe that this Bill will introduce reforms temperate, beneficent and long overdue, because I believe that it will go far to alleviate a great volume of human unhappiness, and because I believe that it will do much to restore dignity and reality to the law, I desire to offer it my sincere and convinced support.
THE LORD ARCHBISHOP OF YORK
My Lords, I hope I may be forgiven for speaking a few words to indicate the position which I feel myself obliged to take up in connection with this Bill. The 782 position occupied by the Lords Spiritual in this House is, in some ways, rather peculiar, and it has become more peculiar in these modern times, when it is impossible for the great majority of Bishops to be absent from their dioceses for more than comparatively short periods together, so that our opportunity of taking part in the general business of the House is greatly curtailed. Consequently, we have become more and more representatives here of the Church of England. Whether it is desirable to have that special representation may be open to debate; but while we hold our places here it must be in that special representative capacity, and it seems to me that it is necessary for us, and it is certainly necessary for me, to distinguish rather sharply between that and what I might be if I were a member of your Lordships' House in any other capacity. I say that in order to justify, if I can—for I think it must seem to the public to need some justification—a position which, apart from any argument, is bound to strike the public as rather a lame one.
While I believe it is desirable that this Bill should pass into law, I do not think it is appropriate that an occupant of the Bishops' Bench should vote for it. We have, for a long time past, acted on the assumption that the law of the State and the law of the Church in this matter should be the same. What I desire to suggest is that the grounds on which the law of State and the Church should be determined should certainly be different, and it is at least possible that the difference in grounds may lead to a difference in the law itself. That I believe to be the case. The functions of Church and State in relation to the promotion of human welfare at large are not the same. May I submit my position in the words of F. D. Maurice:The office of the nation is by stern and righteous punishment to restrain man's self-will when it breaks out into acts; the office of the Church is, by gracious and loving methods, to bring out the true free will of which it is the base counterfeit.I believe that the law which should be imposed by the State under penalty ought not to be the same as that which represents the ideal towards which the Church summons its members.
In the past this assumption has led those who spoke for the Church to demand that the law of the State should 783 be conformed to that of the Church. It is one main feature of this Bill, from our point of view, that it does not reverse that process and demand that the law of the Church shall be conformed to a modified law of the State, but expressly, in Clause 11, gives liberty to the clergyman, which liberty, of course, he may exercise in accordance with directions drawn up for him by the Church itself. I have no doubt—it has been already indicated by the most reverend Primate—that it is essential from our point of view and for the withholding of resistance to this Bill that the Church should have the freedom secured in that clause. If it were true that the passing of this Bill would lead to the damage of public morals, no doubt it would be our duty to resist it, but, as I have indicated, I am persuaded that it ought to be passed, and for the reason that I believe it will improve rather than damage public morals.
It would appear to me that the present condition of affairs combines very nearly all the available disadvantages. There is a clash of principles between the law as it stands and the point of view of many of those who put it into operation. That is one cause of the most disastrous state of affairs to which the noble Marquess who has just spoken has called attention. I mean that whereas the law regards divorce as a means by which the injured partner obtains freedom from an unfaithful spouse, it is, in fact, very commonly regarded as the means whereby the injured partner is expected to provide freedom for the offending party. If that assumption is to be adopted, then certainly the whole structure of the law of divorce would need to be rewritten, but this Bill does not go in that direction at all. It will, however, deliver us, I think, very largely from the horrible situation in which people are willing—the noble Marquess says driven, but I remember the note of Aristotle that no one is compelled to kill his mother, and I imagine that no one is compelled to commit what he calls synthetic adultery. It means that he wants something very much, and that is the only way to get it, and therefore he takes that way. But what compulsion there can be said to be, it is not easy to perceive.
However, that is the way in which many people have secured a separation between married persons, and it will continue so 784 long as there are people who are ready to pose before the world as adulterers and the world is prepared to tolerate their doing so. While that shameful condition of things continues, it seems to me quite necessary that the State, in the interest of public morals, should adopt some action which secures wider possibilities of divorce than exist now. That view, however, must not be held in any way to modify the right and the obligation of the Church to uphold its own ideal and to require the conformity to that ideal of those who would be its full members. Church and State have no doubt one service—namely, the service of the people, to be rendered according to their several trusts; but the trusts are several, and they will render that service best not by making their functions identical but by pursuing their several functions in full and friendly association, each with complete respect for the liberty of the other.
THE EARL OF DROGHEDA
My Lords, I venture to address your Lordships on this important measure because for a little time I have been practising at the Divorce Bar. I do not, of course, pretend to claim more than the merest fraction of the great legal knowledge in which your Lordships' House is so rich, although I am glad to see it does not always result in unanimity between the great lawyers. But I am, at any rate, and have for the last two years been, in daily touch with the work of the Divorce Division, and I welcome this Bill as a sane and practical attempt to introduce some very much-needed decency and humanity into our divorce laws. I know of no alternative to this Bill except that the present divorce laws should remain in force. That is a dreadful alternative. In my opinion they are nothing but a direct incitement to perjury and collusion. Too often they open the door to those who are willing to deceive the Court while they deny all relief to those cases of real and genuine hardship which are entitled to it.
It has been stated, and it is quite true, that it is difficult to gauge public opinion on this measure. One can, however, perhaps gauge it from the elected representatives s of this country in another place. They show that public opinion thinks two things: that it is not prepared at present to accept divorce by mutual consent although it has a very great distaste 785 for collusion; but that it does desire to see a reasonable extension of the grounds on which a divorce may be granted. I have no time now to say anything about the two grounds of insanity and cruelty, but I desire to say one word about desertion, because I think that is the most important provisions in the Bill. Desertion is a matter in which there is, though not willingly, one law for the rich and another for the poor. In nearly every case where a man or woman deserts the partner, it is to go away with another man or woman. If the parties are well-to-do it is a comparatively easy matter for the one who has been deserted to trace the one who has left and to establish the adultery which exists in ninety-nine cases out of a hundred. If, however, the people are poor there is no such relief at all. Possibly the deserted spouse is quite young when he or she is left, and he or she may be bound to the other person throughout life, never able to find him or her and get any relief.
I cannot say too strongly how much I agree with what was said by the noble Marquess, Lord Reading. One is much too apt to think of divorce in terms of the prominent persons whose matrimonial troubles attract publicity in the Press. They are a very small minority. More than 40 per cent. of the total number of divorce cases every year come under the Poor Persons' Rules, and there is another very large percentage of people who, though not coming under the Poor Persons Rules, are yet in very humble circumstances. There is practically no collusion at all in these cases. I doubt whether the parties to those marriages have ever heard of the word "collusion." I should like to say one word on the subject of collusion. We all listened, I know, with the greatest admiration to the speech of the most reverend Primate, who I am sorry to see is not in his place now because one remark fell from him with which I must quarrel. He said that it was notorious that solicitors lent themselves to the practice of collusion. I was very glad to hear that he did not add "the 786 Bar" to that remark, because nothing could have been more unfair. I could assure the most reverend Primate and the House that no barrister, whether practising in the Divorce Division or in any other Division of the High Court, would present a case without seeing that the most frank disclosure was made to the Court. I do not think that I have any right to speak for the solicitors, except that I do not think that there is any member of that profession here. I do not, however, think it is right that that should go from this House as an unchallenged statement. So far as I have observed in my practice at the Bar, no reputable solicitor would lend himself to any practice of the sort. There may be some cases in which a solicitor might do so, but to brand the whole profession as notoriously lending themselves to collusion is in my view most unjust, and I am sure that the most reverend Primate would never wish to be anything like unjust.
The promoters of this Bill do not desire to attack the sanctity of marriage or to make divorce any easier. What they desire is to give relief in cases where the union has irretrievably broken down and where the only sacred thing left about the marriage is the name of marriage. It is very easy, if one looks at this Bill line by line, for each of us to find some provision in one clause or another which we do not particularly like. It is, however, no mean feat by those responsible for the measure to have reconciled so many divergent opinions so strongly held and to have brought to your Lordships' House a measure containing so much practical reform. I ask your Lordships to look at the Bill as a whole, because it is only as a whole that it can fairly be judged, and I do hope that it will become part of our law at an early date.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at ten minutes before eight o'clock.