HL Deb 17 February 1938 vol 107 cc745-52

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Alness.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1 agreed to.

Clause 2:

Effects of divorce on property rights.

2.—(1) A decree of divorce granted on any of the grounds specified in the foregoing section, except that specified in paragraph (b) thereof, shall have the like effect as regards the estates of the parties and their rights and interests in and to any property, whether under marriage contract or otherwise, as if the decree had been granted on the ground of the defender's adultery.

(2) Where a decree of divorce has been granted on the ground specified in paragraph (b) of the foregoing section, the Court may make such order, if any, as having regard to the respective means of the parties it shall think fit, either for the payment to the pursuer out of any estate belonging to the defender of an alimentary allowance for the maintenance of the pursuer and any children of the marriage or for the payment by the pursuer of a contribution towards the maintenance of the defender.

(3) Any order made under the last foregoing subsection may be varied or recalled by a subsequent order.

LORD SALTOUN moved to leave out subsections (1) and (2) and insert: (1) Where a decree of divorce has been granted on any of the grounds specified in the foregoing section or on the ground of the defender's adultery, the Court may make such order, if any, as, having regard to the respective means of the parties it shall think fit, as regards the estates of the parties and their rights and interests therein.

The noble Lord said: I know it is a very bold thing to put down an Amendment to a Bill of this kind when it is sponsored by my noble and learned friend Lord Alness, but at the same time this is a matter of first-class importance to Scotland, and every part of it should be very carefully considered. As I understand it, this Bill proposes to assimilate the law of Scotland in respect of divorce to that which now obtains in England, and, if that is so, my noble and learned friend must, I think, accept this Amendment because, unless it is accepted or carried, the law of Scotland will in fact be very different.

At the present moment the law of Scotland is that on a decree of divorce the defender—that is, the technically guilty party—is presumed to be dead in the determination of the rights of parties to property. Where persons of any property marry in Scotland, the marriage is usually, but not always, preceded by an ante-nuptial contract whereby the wife expressly contracts out of her Common Law rights in the marriage. These rights are very extensive. Where there are children, on the death of her husband she is entitled to one-third of the rents of all the heritable property—that is, real property—for her life, and she is also entitled to one-third of the capital where the property is movable—in England that would be personal—and if there are no children of the marriage she is entitled to one-half. After the marriage has taken place the woman is deemed to be incapable of contracting out of these rights, and it is for this reason that the terms of the ante-nuptial settlement are so carefully canvassed in Scotland. Your Lordships will see that from time immemorial our wives have held a much more favourable position than is the case in most European countries, and the fact that there has never been any genuine demand to cut down those rights proves that the women of Scotland have proved worthy of their privileges.

I am aware that the penalty for divorce on the ground of adultery—I mean what amounts to confiscation of property—is also very old. I believe it goes back to the Canon Law of pre-Reformation days, but I took the opportunity of pointing out to your Lordships on the Second Reading that while it was felt by the people of Scotland that the extensive rights of the wife were a proper reward of years of faithful companionship and motherhood, I also showed from public documents and old family papers that even before the Reformation it was felt that a much smaller sum was the proper compensation for the breaking of a marriage in its early stages where there were no children. I therefore can claim, quite fairly, that the Amendment now before your Lordships does give voice to the true feeling of the people of Scotland.

However enthusiastically one may wish to preserve the rights of the married women in Scotland—and I myself consider them very well worth preserving—it is difficult to defend the full enforcement of these rights as a penalty of divorce. In the first place, whether we like it or not, a great change has come over public opinion with regard to divorce within our own lifetime, and there has grown up what I regard as a very reprehensible opinion, but one which, however much I dislike it, has got to be reckoned with—namely, that it is the duty of a husband, in the case of an incompatible marriage, to furnish his wife with what are called grounds for divorce. I have even seen reported in the newspapers remarks of learned judges condemning strongly the conduct of married men and women who refused to proceed to divorce. I am not always very strongly impressed by these pronouncements ex cathedra on public morals, but one must admit their influence on the thought of the generation in which they are expressed. Legal practitioners in Scotland tell me that there is a type of case which is becoming increasingly common where a girl of great attractions, having been fortunate enough to gain the affections of a young man of means, and to have married him, deliberately proceeds to make his life a burden to him until he consents to allow her to divorce him. I should like to emphasize to your Lordships that it is precisely in this type of case where the parties are not careful to make marriage settlements in advance.

Most people who marry do not know the law of marriage until they are in immediate contemplation of that step, and in such marriages of passion it is extremely improbable that a young man will consider the proper legal preliminaries. It may be very silly of a young man to fall into the toils of a designing woman, but I should like to point out that it is not only young men who have done that. I think myself that very often such a young man is a more useful member of society than the cold calculator who succeeds in avoiding the snare. In any case I do not think it is becoming of the modern State deliberately and automatically to inflict upon him a penalty which is inspired by that vindictive spirit in which I am sorry to say churches are rather apt to regard this particular sin. Moreover, I would like to point out to your Lordships that this Amendment does not remove the possibility of such penalty; it merely leaves its infliction within the discretion of the Court. In fact it puts the law of divorce in Scotland in regard to property on the same basis as the law in England to-day.

The point of putting it within the discretion of the Court, apart from one other point that I will bring to your Lordships' notice, is that this measure of uncertainty will prevent the kind of enterprise to which I have drawn your Lorsdhips' attention. There is this further point, that the very extensive rights enjoyed by the wife at present on a decree of divorce may in difficult cases actually take away from the Court the power of making proper provision for the children, because the wife's title is absolute. I cannot emphasize too often that in my opinion the children should be the first consideration when any question arises which leads to a decree of divorce. I beg to move.

Amendment moved— Page 1, leave out subsections 1 and 2 and insert the said new subsection.—(Lord Saltoun.)

LORD ALNESS

I am well aware that your Lordships' House at the present time is looking forward to an important debate at a later stage of the day and in these circumstances I shall restrict my observations in answer to my noble friend within the very narrowest possible compass. On the Second Reading of the Bill my noble friend adumbrated the proposals which he has now embodied in the Amendment before your Lordships, and I then promised him that I would give those proposals mist careful consideration. I have done so and in the result I regret that I am unable to see my way to accept the Amendment which he has moved. I have told my noble friend in advance some of the reasons why.

May I invite your Lordships for a moment to consider first of all the effect of the provisions of the Bill at it stands and then to consider the effect of the Amendment moved by my noble friend upon those provisions if your Lordships should accept it? The effect of the Bill as it stands is that the position of a divorced person, as my noble friend has rightly said, is equiparated by the law of Scotland so far as property rights are concerned to the position of that person as if he had died at the date of the decree of divorce. That is to say on the pronouncement of a decree of divorce certain rights emerge under the law of succession in Scotland to the innocent party. I will not trouble your Lordships by enumerating them in detail; they are called rights of courtesy, of tierce, of jus relictœ and the like. These emerge directly the decree is pronounced just in the same way as if the divorced person had been naturally dead at that moment. That system, so far as divorce for adultery and divorce for desertion are concerned, has been in vogue in Scotland for several centuries—I think for four centuries—and it has worked, so far as I know, quite well. What my noble friend proposes to do is to subvert these fundamental principles of Scottish law sanctioned by the long usage to which I have referred, to throw the whole thing loose, and, instead of having the law of succession applied as it is by Statute and by inveterate usage, to leave the matter to the judge in each particular case to decide.

I say nothing about the merits of that proposal, but the long history of usage to which I have referred is in itself enough in limine to give one pause before lightly assenting to a proposal so revolutionary as that which lurks under the apparently innocent language of this Amendment. But there is a great deal more than that. I am not taking my stand solely upon inveterate usage or custom. This Amendment and the proposals which it contains are very closely intertwined with the law of succession in Scotland. Now, at this very moment, as announced in another place a few weeks ago by the Lord Advocate, replying to a question put to him, the whole question of intestate succession according to the law of Scotland is under review in his office, with a view to legislation if that should be thought desirable. There is my noble friend's opportunity, and an apt and proper opportunity, in a suitable place and at a suitable time, to move his Amendment or to get it moved by those who think with him, and to embody it in a Statute which, if it comes along, will be entirely relevant to the present proposals.

What I do very respectfully venture to protest against is that one should be expected as a private member moving a Divorce Bill in this House to accept an Amendment the terms of which are really alien to its purpose. My noble friend was quite wrong, if he will allow me to say so, when he informed the House that the purpose of this Bill was to assimilate the law of Scotland to that of England. Far from it. The law of Scotland will continue quite different in many particulars—and I am glad to think it will—from the law of England for a long time to come. I suggest with respect to your Lordships, that to expect me as a private member introducing a Divorce Bill to embody proposals of so sweeping and so revolutionary a character in this measure is not appropriate. Such an Amendment would be appropriate to a Government measure in the other place introduced with all the responsibility of the Government of the day behind it and—what is also important—after due consultation with and consideration by the Scottish Judiciary, the legal profession, and all the interests which are largely and vitally concerned with this technical and thorny subject.

My noble friend does not profess to have consulted anyone in authority before introducing this Amendment to your Lordships' House. I tell him quite frankly, and I tell your Lordships if I may, that to include this Amendment would be seriously and gravely to imperil the passage of this Bill in another place where I know that opinions on this topic are conflicting. At any rate, I content myself by saying that it seems to me inappropriate to a Private Member's Bill. It is appropriate to a Government Bill, such a Bill as is now under contemplation, and therefore I very respectfully invite my noble friend to postpone his proposals, on the merits of which I have not a word to say. I do not say whether they are good or whether they are not, but I suggest that he should postpone them to a more suitable time and place. I accordingly invite my noble friend to withdraw the Amendment which he has moved.

LORD SALTOUN

I accept my noble and learned friend's correction as to the purpose of this Bill, but perhaps he will allow me to give him a Roland for his Oliver. I think he will agree that I am not trying to alter the law of succession. I am trying to alter the law of the redistribution of property upon a decree of divorce, and I believe that if my Amendment was made part of the Bill it would not alter the law of succession in Scotland one whit, but would only alter what happens on a decree of divorce being made. I think he will probably admit that that is true. My noble and learned friend raised a very important point when he said that the whole law of intestate succession in Scotland is now in the melting pot and is going to be changed, and that that would be the appropriate place for making an Amendment of this kind. I think that a Divorce Bill is the appropriate place for making arrangements for the redistribution of property on a decree of divorce. But the point that emerges from what my noble and learned friend said is that it is high time that the Government stated their attitude to the Bill that is now before your Lordships. I myself would view with very great alarm the suggestion that the whole law of intestate succession in Scotland is to be changed One of the reasons why we have such good wives is that we treat them so well, and I should be very sorry that the Government should use the confidence that was placed in them by the women of Scotland in returning them to power by making use of that power to deprive them of their ancient rights. With the permission of your Lordships I will withdraw my Amendment now and bring it forward again at a later stage when I hope the Government's attitude towards the Bill will have been determined.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3:

Divorce proceedings after grant of judicial separation.

(2) In any such action of divorce, the Court may treat the decree of separation as sufficient proof of the adultery or cruelty in respect of which the decree was granted, but the Court shall not pronounce a decree of divorce without administering the oath of calumny to the pursuer and hearing evidence from him.

LORD ALNESS moved, in subsection (2), to leave out "hearing" and insert "receiving." The noble and learned Lord said: This is a very simple Amendment which has been suggested to me by the Church Committee which has been considering this Bill. The purpose and effect of the Amendment is to cover the case of evidence taken not in Court but on commission.

Amendment moved— Page 2, line 29, leave out ("hearing") and insert ("receiving").—(Lord Alness.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4 agreed to.

Clause 5:

Proceedings for decree of presumption of death and dissolution of marriage.

(2) In any proceedings on a petition presented under the last foregoing subsection the fact that for a period of seven years or upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.

LORD ALNESS moved, in subsection (2), to leave out "until" and insert "unless." The noble and learned Lord said: This is a purely drafting Amendment. The word "unless" is thought by the Church Committee to be better than the word "until."

Amendment moved— Page 3, line 40, leave out ("until") and insert ("unless").—(Lord Alness.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Remaining clauses agreed to.