§ Amendments reported (according to Order).
§ 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: My Lords, this matter was left over from the Committee stage because the noble and learned Lord in charge of the Bill rather threw a bomb at me, in telling me that the Government were preparing a very much wider measure, which covered the matter. I know it seems a very bold thing to oppose a Bill conducted by the noble and learned Lord on a point which occurs in the practice of the Courts, but, if your Lordships will consider, there is no point arising on a Divorce Bill which does not 884 concern the practice of the Courts, and I am so conscious of having support in the country that I feel I must draw your Lordships' attention to this matter.
§ The arguments used in the last debate against me are three. It is said that I am changing by this Amendment what has been the law of Scotland for the last three or four hundred years. The noble Lord does not defend the law as it stands, but he says that a private member cannot venture on so drastic an alteration. The Bill, as a matter of fact, extends the range of what has always been a bad law, and the noble and learned Lord's argument, if pressed, would prove too much—that is, that no private member ought to bring in a Divorce Bill if he dare not produce the best Divorce Bill. The other points are that I am seeking to change the law of intestate succession in Scotland, and that the Government are preparing a Bill to change that ancient law, and the noble and learned Lord expressed the opinion that the proper place for my Amendment is when that Bill comes before your Lordships. It was that startling information which led me to ask if the Government could give any information with regard to their attitude towards this Bill, and to defer the Amendment now before your Lordships until to-day. In the first place, the Amendment before your Lordships does not alter the law of intestate succession one tittle. If the Amendment were carried the law of intestate succession in Scotland would be just the same as it was yesterday. In the second place, a Divorce Bill must be the proper place to decide what is to happen to the property of the parties after a decree of divorce is made. With what countenance could I come to your Lordships, when you have before you a complicated and highly contentious measure on intestate succession, and ask you to insert a digression on divorce?
§ The only way the law of intestate succession comes into this matter is that the law of Scotland says that when a man is divorced his property is to be treated as if he were dead. The truth is that the whole legal profession is divided on this question according to individual experience, and this, together with what the noble and learned Lord himself said, goes to show that this Bill is premature. Let us wait until the profession as a whole is agreed upon the matter and until the 885 law of intestate succession has emerged from the melting pot; we can then see what we are doing. I think that by that time the noble and learned Lord himself will have got so far forward with the Government that he feels himself able to produce, not a Bill but the best Bill.
Page 1, leave out subsections (1) and (2) and insert the said new subsection.—(Lord Saltoun.)
My Lords, my noble friend, just a week ago to-day, moved an Amendment on the Committee stage of this Bill in precisely the same terms as the Amendment which is on the Paper this afternoon, and then I gave him a very full and considered reply; and I feel that it would be quite improper, especially in view of the debate which is pending in your Lordships' House, that I should delay your Lordships by recapitulating in detail the arguments which I then ventured to present. In a sentence they are these, first, that the proposal, as my noble friend admits, is a revolutionary proposal, which is designed to alter the law of Scotland as it has existed for four centuries; in the second place, that so far as I know it is unsupported by any responsible organisation, legal or otherwise, or indeed by any responsible individual outside this House; and, thirdly, that its insertion in the Bill would endanger the passage of the Bill in another place. Therefore, apart altogether from what the Government attitude may be—and that is not for me to say—I cannot, for the same reasons as I stated a week ago, entertain the Amendment proposed, and I hope that my noble friend w ill see his way to withdraw it.
My Lords, I do not wish to press the Amendment, but I should like to give a representative of the Government an opportunity of stating what is their attitude.
§ THE UNDER-SECRETARY OF STATE FOR WAR (LORD STRATHCONA AND MOUNT ROYAL)
My Lords, as I pointed out on the Second Reading, this is not a Government Bill, and therefore I cannot express on behalf of the Government approval or disapproval of the principles which it embodies. I can only say, as I said then, that the Government will watch very closely the debates on the Bill in your Lordships' House, and will 886 have due regard to the views which are expressed here. The position remains the same now, and no views can be expressed on behalf of the Government either in regard to the noble Lord's Amendment or in regard to the Bill in general.
§ Amendment, by leave, withdrawn.