HL Deb 28 November 1946 vol 144 cc467-510

4.9 p.m.

THE MARQUESS OF READING rose to call attention to the great number of matrimonial causes, especially Service causes, now awaiting trial, the serious delays that take place under present conditions before such causes can be heard and the consequent urgent need for drastic revision of the existing procedure, with special reference to the recommendations of the Committee on Procedure in Matrimonial Causes contained in their Second Interim Report dated November, 1946 (Cmd. 6945); and to move for Papers.

The noble Marquess said: My Lords, in the course of the debate that took place yesterday on the Motion of the noble Viscount, Lord Templewood, the noble and learned Lord, the Lord Chancellor, described the subject as a grave social and moral problem. I do not think it is over-stating the case to say that the general question lying behind my Motion ranks in the same category. It is, however, perhaps worth noticing that, so far as the terms of this Motion go, they do not ask your Lordships either to advocate or to resist any enlargement or any contraction of the present grounds of divorce but merely to give attention to the methods by which progress can be made towards the disposal of the very large numbers of petitions for divorce which are at present on the files of the Courts. The figures are, to put it mildly, alarming, but it should, I think, be made clear from the outset that the fact that these figures have attained their present proportion, and, indeed, the fact of my Motion being upon the paper, does not for one moment cast the slightest reflection upon the noble and learned Lord who presides over the Probate, Divorce and Admiralty Division or upon his colleagues. Indeed, if I may say so respectfully, they have struggled with almost superhuman zeal to battle with the tidal wave of petitions which has for some time threatened to submerge them.

There are, presumably, a number of different ways of meeting the present state of affairs, and they are perhaps worth brief consideration individually. The first possibility, if it be a possibility, is to leave matters as they are. I think that such a course would be no solution and would satisfy nobody. I have seen it stated that there is this partially favourable aspect of the present situation, that people are becoming so desperate at the delay which is taking place before their cases are disposed of that reconciliation is taking place from sheer weariness and husbands and wives are coming together again. It may be that in some cases that is true, but if the problem be objectively regarded it cannot be conceived as a credit to our legal system that people should be driven to abandon their legal rights because they are unable to obtain them within a reasonable space of time Against such few reconciliations as may take place there are in the other scale of the balance people who, if there was a reasonable prospect of their cases being disposed of, would await the result of the trial before entering into matrimony with some other person whom they hope to marry, but who in the existing circumstances are driven by mere delay into abandoning hope of obtaining freedom and into living in more or less permanent adultery with all the unfortunate consequences upon such children as there may be of such association. Therefore I think it may be assumed and will be generally accepted that some substantial speeding up of the present procedure is necessary.

The second possibility, if we are not content to leave matters alone, is, of course, to increase the number of permanent High Court judges of the Divorce Division. That from many angles is an attractive proposition, but I think its merits largely depend upon whether it be considered that the present state of affairs, in which we have these swollen numbers, is a transient or a permanent feature of the life of the country. If it be the view that it is merely an ephemeral though rather a protracted feature, then it would be undesirable and highly uneconomic to appoint a large number of permanent Judges of the High Court whose work might within a reasonably brief period come to an end. What the answer is as to whether this be a permanent or a transient feature of life, I would like to deal with very briefly a little later on. The third possibility is that the Judges of the County Courts should, in their capacity as judges of the County Courts, be accorded powers equivalent to those exercised by the High Court to deal with matters of divorce. They are trained and experienced lawyers of high quality. But there is this objection. I know from conversations I have had that it is in many quarters strongly felt that the County Court, admirable institution as it may be in itself, is not upon the same level in the estimation of the people of the country at large as the High Court, and that if you degrade the status of the Courts which have power to try divorce cases you incur the danger of correspondingly debasing the institution of marriage itself. That is a view which is strongly held and which obviously must be respectfully regarded.

Another possibility is to draw a distinction between the defended case and the undefended case and to say that the Judges of the Divorce Court shall continue to try the defended case but that the various District Registrars, who are located about the country to deal with `the many matters which come up in the course of divorce proceedings (largely of a procedural character), shall be empowered to deal with undefended cases. To that scheme also there are, I suggest, objections, and those objections are in a large measure the same as those to the investing of the County Court Judges with these powers—namely, that you are giving to the District Registrars power to deal with cases which are at present dealt with by judges of the High Court. Be it remembered that the undefended case is very often the one which requires the closest scrutiny because it is in the undefended list that the collusive case will be found, if it is found anywhere at all. Therefore it is important that the undefended case shall not be thought to be of less standing than the defended case and shall not be tried by a less exalted tribunal.

There is one more possibility, of a somewhat extreme kind, which, as I am working through the catalogue, I mention. The view is held in some quarters that we should follow the practice adopted in some continental countries of the parties merely making an application, not to the Registrar I talked about before—the District Registrar of Divorce—but to the ordinary Registrar of Births, Marriages and Deaths, and that after a reasonable period for reflection has been allowed to elapse, a certificate of dissolution of marriage should be automatically issued. No project of that kind would, I 'think, be accepted in this country without, to put it gently, considerable controversy. It would, of course, require legislation before any such steps could be taken, and no doubt such legislation would be bitterly, and I imagine successfully, opposed.

There remains the proposal which is that put forward by what I may call the Denning Committee in its Second Interim Report, the publication of which was the occasion for a statement recently by the noble and learned Lord on the Woolsack and also for my putting down this Motion, which has been on the Paper before and which I removed when the Denning Committee was appointed. The essence of the recommendation of that Committee is that the Judges of the County Courts should be given the status of Commissioners, which would invest them with the full powers and authority of a High Court judge, for the purpose of trying divorce cases and that they should be empowered to deal with both defended and undefended causes. To those who have either followed the law as a profession or followed its workings in the newspapers, there is nothing novel or sensational about the appointment of a Commissioner. There are from time to time occasions when the Lord Chancellor of the day is obliged, because of sickness amongst the. Judges or for other causes, to appoint a Commissioner to go on a particular circuit and assist in disposing of the cases for trial at a particular Assize. There are other occasions when a Judge, finding himself overburdened with the work of a circuit, himself appoints one of the leaders of the circuit to assist him by sitting in another Court and helping him to dispose of the arrears.

Nor would the Denning Committee claim (and indeed in their Report they specifically disavow it) any originality for this proposal to accord to the County Court Judges the status of Commissioners. They refer it back to that extremely capable and farsighted Royal Commission on Divorce which reported as long ago as the year 1912, after sitting for three years under the expert chairmanship of the first Lord Gorell. It took a quarter of a century for the recommendations of that Royal Commission in regard to an extension of the legal grounds for divorce to find their way on to the Statute Book in the Bill originally sponsored by Sir Alan Herbert, which became law in 1937. Nine years later we have so far advanced that we are now contemplating putting into effect some of the procedural recommendations of that Royal Commission. The difference, I think, is merely that the original recommendation of the Royal Commission of 1912 in this matter was selective rather than comprehensive; in other words, it recommended that a certain number of picked County Court Judges should be invested with these powers, whereas the present scheme recommends that all County Court Judges should be given the same status.

There are, I think, one or two things which may be said about this proposal, perhaps more as reservations of judgment than as actual criticisms. I do not profess to be very closely in touch with these matters any more, but I know there have been times—in fact most times have been of that character—when County Court Judges have been extremely hard-worked persons. Although they are, by the passing of the National Insurance Act, relieved of the arduous and complex task of dealing with workmen's compensation, none the less I am bound to wonder whether they have sufficient leisure to take on these very considerable extra duties. It may be that in the country districts there is no great difficulty attaching to it, but my concern is rather with London and with the big cities and towns where I should have thought that the time of County Court Judges was as reasonably fully occupied as might be.

The second reservation is this. The occasional practice, as I have said, of appointing Commissioners is not novel in itself, but I think there is no use pretending that it is liked by litigants. I cannot help thinking that the general feeling of a litigant, when instead of having his case disposed of by the Judge he is having it disposed of by the Commissioner, is that he has not had quite a fair deal and that he has been put off with the second best. It is rather the feeling that we have when we go to a theatre and find that unfortunately the star is ill and the understudy has been called upon the play the part. I think we would all agree that it is important that the litigant should feel amply satisfied with the status of the person who is to deal with his case. The third reservation is that it does, I suggest, make the position of the County Court Judge a slightly anomalous one. On one day he sits in purple and, in spite of his splendour, is addressed as "Your Honour" and paid at the inadequate rate applicable to County Court Judges; on the next day he sits in black and in compensation for his drabness he is addressed as "My Lord" and paid at the slightly less exiguous scale applicable to a High Court Judge, and on the third day he reverts to purple and penury. That does seem to me a curious oscillation in the position of a County Court judge from one day to another, and even though he is sitting in a different capacity and with a slightly artificially different status, it is one that may not favourably impress the public.

So far as I am qualified to express any view, I would respectfully say that of all these various alternatives which I have endeavoured to present, the plan submitted by the Denning Committee seems to me to be that most likely to meet the situation and to receive the approval of your Lordships' House and of the country at large. Admittedly it is more in the nature of a palliative than a panacea, but it may well be that a palliative is all that is necessary. The answer to that question depends upon the question upon which I have already more lightly touched, whether this present condition of affairs is transient or permanent.

The members of the Royal Commission of 1912 would, I think, be dumbfounded if they could see the extent to which the lists in the Divorce Division have grown in the intervening years. At the same time, it must be borne in mind that at the time when they were considering the problem the Poor Person's Procedure did not exist in any form, and until that was introduced in the course of the 1914–18 war the number of persons of very limited means who could come before the Courts and ask for the dissolution of their marriage was circumscribed by the financial demands involved in taking such a step. It was obviously right that that barrier should be, as it has been, removed. It is probably true to say, too, that in the years between the two wars there was a considerable slackening in the seriousness of the view which was taken of divorce in itself. There we get our old friend the vicious circle, because the slacker the public attitude towards divorce the more divorces there are likely to be; but on the other hand the more divorces there are the slacker becomes the public attitude towards them, because they are accepted as a normal feature of everyday life.

Then came the war with all the breaking down of barriers and discarding of inhibitions which appears inevitable in the train of war. I think it was Mr. Eric Linklater who, in a recent book, wrote that in any war the first casualties are always the Ten Commandments. That is picturesquely phrased but there is, I am afraid, a good deal of truth lying behind it. You get the situation where you have numbers of young people of both sexes, uprooted from their normal lives, and herded together. They are young, fit and full blooded. You get marriages taking place after a very short acquaintance, perhaps a few days of married life, and then as many years of separation following immediately after. You also get the invasion of this country, happily not by enemies but by friends, on a very large scale. Again, they are young men in the prime of life separated by oceans from their own womenkind, and others coming from Continental countries of Europe who have little hope of ever seeing their own wives and families again.

You have also in a total war not only the Service problem, but the problem created by direction in industry, where men are sent to other parts of the country and forced to leave their wives and families for long periods of time. Those conditions should now be abating and it may well be—as I hope and believe it will be—that the acute congestion which has prevailed during these past years in the matter of divorce petitions will subside, as the last aftermath of those particular war conditions subsides. But I think it is probably true to say that if this new procedure be adopted there is likely to be, temporarily, an increase in the number of petitions, since there will be people who have held their hand in filing petitions during these past years because of the apparent hopelessness of ever getting their case tried. If they see new machinery set up which will enable them, within a reasonably short time, to get a decision upon their petition then they are likely, I think, to take the necessary action. In consequence we must be prepared, perhaps, to face not a decrease but, for a relatively short time, an actual increase in the numbers of divorce petitions to be heard.

Viewing the whole position, I submit to your Lordships that the proposals which have been put forward by the Denning Committee are, looking as far ahead as we can, those most likely to deal expeditiously and effectively with the present situation if we accept, and I have suggested reasons why we should accept, that that condition is not one of permanent duration but of a temporary character only. If I may say so, in conclusion, the thanks not only of your Lordships' House but of the public at large are due to that Committee for the zeal and promptitude with which they have acted. I have always a certain hesitation in approving the course taken when a problem is brought up and is immediately farmed out to a Committee. It at least opens up the possibility that, so far from producing a rapid solution, it will merely increase the delay. Happily, in this case any such fears have already been proved entirely groundless. The Committee has produced these two Interim Reports, the second of which we are discussing to-day, and has put forward propositions and proposals which are carefully set out, objectively argued, and designed to remove what is a real and serious problem that is obsessing the minds of many persons to-day. My Lords, I beg to move.

4.34 p.m.


My Lords, I am sorry to be making so belated an appeal for the indulgence which is always accorded to those who address your Lordships' House for the first time. I can only plead by way of excuse two otherwise entirely unrelated facts. The first is that since I first had the honour of becoming a member of your Lordships' House, now nearly six years ago, your Lordships have been accustomed to sit at half-past two o'clock in the afternoon, and the other is that this Motion calls attention to the great number of matrimonial cases, especially Service cases, now awaiting trial. I think you can be trusted, if I may say so, so draw the necessary connexion between these two facts.

I do most cordially agree with an observation made by the noble Marquess at the outset of his speech. It is utterly impossible for any right-minded person not to deplore the swollen state of the divorce, lists. I prefer to think that, in part at any rate, it can be described in words which I came across accidentally only today; words used by one Sir Leoline Jenkins, who held the three offices which are now combined in one just after the Restoration, as being "the sad black, lasting effects of the late confusions." The Motion deplores the serious delays that take place under the present conditions before such cases can be heard. I am speaking, of course, only so far as the Courts are concerned. I have nothing to do with any delay which occurs before the case comes to Court. That has been dealt with in a debate which I had the pleasure of hearing some time ago. I think I shall be able, in the course of a few moments, to give the noble Marquess some reassurance so far as the Courts are concerned.

May I begin with the provinces? As your Lordships know the Autumn Assizes—the last of the year—are at present in full progress. So far as divorce business is concerned, at any rate, in the three largest towns, the Divorce Assizes have already concluded and the rest will be finished in the course of the next three weeks. I am told that there is not the slightest doubt that all lists, both of defended and undefended cases, in the provinces which have been set down for trial at the Autumn Assizes will be cleared before the end of the term, and that in spite of the fact that during the present year the number of cases tried at Assizes has risen from 12,000 last year to no fewer than 20,000 this year. As the Denning Committee point out, that has undoubtedly been achieved to some extent at the expense of London suitors. Attention is called, perfectly accurately, to the figure of 6,100 undefended cases which were in this term's list. To this, in fairness, must be added another 1,200 from the separate Registry which has been set up to deal with the cases of men and women in the Services. The Denning Committee estimated that only one-third of these would be disposed of during the present term, and that behind that there would be all the fresh cases piling up for next term's lists.

If I may be allowed to say this in parenthesis, the noble and learned Lord on the Woolsack has met with unfailing sympathy and promptitude every request which I have been compelled to make to him, and I am afraid they have been many and insistent. He has appointed four additional Commissioners, in addition to those who were sitting, to deal mainly with the Service cases. I am given to understand that there is practically no doubt that, unless we have an unexpected setback in the course of the next three weeks, the whole of the undefended lists will have been disposed of by the end of this term. That is in spite of the fact that there have been rather exceptionally heavy demands on the services of two Judges sitting at one time to deal, by way of appeal, with the cases which come up from the magistrates' courts—I think your Lordships will agree that this is by no means the least important part of our jurisdiction—and that there has been a considerable number of Admiralty cases and sittings in Prize. The Divisional Court and the Admiralty and Prize will also have been cleared by the end of term so far as dates have been demanded. There is only one qualification to this which I must make. I am bound to admit that the defended cases in London, though not the defended cases in the provinces, are causing me some anxiety. The time-lag is not as great as it has been in the bad days of the past, but it is serious. The only thing I can say about it is that the fact that we have been able to make these very great inroads on the undefended list will enable us to make a much more determined attack on the defended list than might otherwise have been the case.

The Motion goes on to refer to the "consequent urgent need for drastic revision of the existing procedure "with special reference to the recommendations of the Denning Committee contained in their Second Interim Report. I expect your Lordships will wish me to say something about this Report. It is divided into two parts. The first deals with the proposal for the appointment of the County Court judges as a body as Commissioners of the High Court, and the other deals with certain procedural reforms. I am not going to deal in detail with the questions of procedure. I only wish to say that no one reading that Report I think would realize that there was a complete revision and simplification of the whole procedure and practice of the Division in the anticipation of the passing of what is commonly known as the "Herbert Act" in 1937, and that the whole thing was revised again in 1944 to give effect to such amendments as became necessary in the meanwhile and to adopt certain suggestions put forward by the Law Society. In fact, neither I nor any of the Judges—and particularly those two who are most versed in this matter, having spent all their professional lives in the Court—were consulted about any of these procedural recommendations. I therefore propose merely to say that at the moment I am not wholly convinced of the wisdom and efficacy of all of them. I feel that it is only fair that I should say that here and now, so that no false hopes shall be raised.

There is one other thing which, if your Lordships will allow me, I desire to say in justice to myself. There is a suggestion in this Report that our practice is, at any rate in part, governed by obscure directions. It really is not so. I have been scrupulously careful during the time that I have been President to do by Rule of Court everything that can properly be done by Rule of Court. Everything that could not be done in that way has been done by means of a "Practice Note" published with all the publicity which is the custom of all other Divisions of the High Court.

Now I come to the substantive recommendation, the one which lays down that "The County Court Judges should be appointed Commissioners for matrimonial causes so as to supplement the number of Judges available for such cases in London and the provinces." I was a little surprised to find on the next page a statement that on this proposal there was general agreement by all the witnesses. As a matter of fact, I myself was the first witness on behalf of all the Judges of the Division. I presented an entirely different scheme, one which has not been referred to by the noble Marquess. I am not going to dilate upon it, but perhaps your Lordships will allow me to summarize it in a sentence or two, more particularly as I am given to understand that it was supported without reserve by the most reverend. Primate the Archbishop of Canterbury, who gave evidence at a later date.

The scheme was this. The underlying idea was to try to get rid of the unreality which so often attends undefended divorce cases and, at the same time, to introduce an element of conciliation. What we proposed was that there should be set up a Commission of Conciliation and Inquiry which would work in Tribunals. Each Tribunal would consist of a lawyer and either a Welfare or a Probation Officer before whom the parties—both of them—should be encouraged to attend. The idea was that the Tribunal should first of all attempt reconciliation. If that failed, as no doubt it would fail in a great number of cases—possibly the majority of cases—there would be an investigation of the facts, about which, again, in the great number of cases, there would be very little dispute. We also suggested that the Commission should have power, by consent of the parties, to deal with all the other things which matter so tremendously in a divorce suit—questions, for instance, of custody, maintenance of the wife and the like—and then, when all these things were done, report to the Court. We felt that if a Commission such as that had reported to the Court all that would be necessary would be the publication in the locality where the parties were known of something in the nature of what I might perhaps be allowed to call "Banns of Divorce." Upon that, if there was no intervention or objection by anybody, a decree could be pronounced without the necessity of public trial.

I have had sufficient Parliamentary experience to realize two things. The first is that any Government is bound, particularly in connexion with this thorny subject of divorce, to prefer a solution which can be dealt with by administrative methods. Whatever the merits of our scheme may have been, it had this one defect that it would have required legislation. The other thing which I think one must realize is that when a Committee has been set up and has either rejected a solution or has, as in this case, not even paid it the tribute of a passing reference, it is hopeless to expect that the question will be reopened. That being so I regard that scheme as being ruled out, at any rate for the time being, and do not propose to discuss it any more. I have said these things not by way of criticizing the admirable expedition with which this Committee have worked, but because I would not like your Lordships to think that those who are responsible for the day-to-day handling of these matters are so blind to the need for procedural reforms and the like as might possibly be suggested to a casual reader of this Report.

With regard to the substantive recommendations, I absolutely agree with the Committee that the existing High Court Judge Bench is not sufficient to deal with the present situation, and I do not advocate that it should be increased for the purpose. Moreover, I would like to add that the present situation is absolutely intolerable for the Judges themselves. I have said something about the lists which have been disposed of this year at the Assizes—8,000 more cases than last year. That has only been done by Judges sitting day after day, very likely for four or five weeks on end, dealing in the main, though not entirely, with undefended cases until six or seven o'clock at night. I know from my own experience on circuit that that is an extremely exacting task.

Another thing in regard to which I entirely agree with the Committee is this—that the cost of divorce cases can be and ought to be reduced. In particular, with regard to the question of counsel's fees, if the Government are proposing to put into force the recommendations of the Committee presided over by my noble friend Lord Rushcliffe, which recommended assistance to all litigants according to their means, there would at once be an immense reduction of costs. For this reason; it would no longer be necessary (if I may borrow a metaphor from the card table) for the paying cases to "carry" the Poor Person cases. You cannot expect counsel to make expensive journeys to do a number of Poor Person cases, unless they can legitimately expect to receive full remuneration on those which are paying cases. To some extent that difficulty has been solved, or at any rate alleviated, by the modest remuneration which has recently been awarded to counsel in Poor Person cases.

I heartily agree that the King's Bench Judges should be relieved of undefended divorce on circuit, and I absolutely agree, also, that County Court Judges are fully qualified to undertake this work. Your Lordships will understand that although I have no sort of responsibility for the decision, I have given a good deal of anxious thought to the solution put forward and, like the noble Marquess, I have come to the conclusion that, on the whole, it is the best solution in the circumstances. The noble Marquess mentioned the question of the Registrars. Very clearly, there can be no advantage in a scheme which would result in the appointment of the Registrars, nearly all of whom are in fact County Court Registrars, as distinct from their own judges.

So far as the perpetuation of the system of Special Commissioners is concerned, having regard to what I said about tedium on circuit, I feel bound to say that I doubt whether any man ought to be asked to do merely undefended divorce cases, year in and year out, or whether he could do so without getting utterly and absolutely stale. At the same time I do most earnestly reinforce one condition which the Committee regard as essential. I hope your Lordships will bear with me a moment while I speak about it. The Committee lays stress on the absolute necessity of retaining the sole audience of the Bar. I regard that as absolutely vital. I do not attach the slightest importance to this question about whether County Court Judges should sit in black robes or purple robes, or even in what divorce sitting day is kept absolutely distinct from the ordinary County Court court they sit, so long, always, as the day. This question of the Bar is a delicate subject. Judges for whom I speak feel very strongly about it, and so, I am given to understand, do the County Court Judges themselves.

I should never attempt to deny the high standard of skill and honour which the best type of solicitor advocate sets for himself. I myself was articled to one of them, who stood deservedly high in his profession, and I know what it means. But in this divorce business—to the peculiarities of which I will refer in a moment—every Judge knows the value of having the assistance of counsel. And so, I believe, do the best type of solicitors, because they know and can warn their client that the case will have to pass through the mesh of very severe scrutiny by counsel before it is presented to the Court. To that extent they are relieved of responsibility. The solicitor himself in this matter is too near the client; and the client may be a valuable client in other respects. It would be simply deplorable if this business got into the hands of advocates who were concerned only to get any case through, by any method, and unchecked by the very high standard of honour in this matter which is habitually observed by the Bar to the Court. If I may make one practical suggestion—I think things are working out like this, so I need not dilate on it—I hope that as few additions as possible will be made to the existing Assize towns. Some additions must be made, of course. I hope that the County Court judges will, so to speak, work in a pool round each of the towns at which divorce is heard, and that system will have a distinct advantage to which I would like now to allude.

I said that I wanted to say something about this jurisdiction, and if I have not wearied your Lordships I hope you will allow me a moment or two more. I have never said, and I have never thought, that this divorce business is such that it cannot be dealt with, and mastered, by any person of average intelligence. But it is, a peculiar jurisdiction, because of the duty put upon the Court by Act of Parliament. May I read a short passage from the Report of the Committee appointed by the noble Viscount, Lord Simon, and presided by Sir Ralph Wedgwood? The matter, I think, is put as well as it possibly can be in a couple of sentences, and the Report draws the distinction between the ordinary common law cases and the divorce suits. The Committee say: In a divorce suit the question decided is the status of the parties to the suit, and the State has a direct interest in the maintenance of the institution of marriage and the status not only of the parties to the suit but of any children who may be born of the marriage. It is, therefore, the business of the Court to see that the decision reached is in accordance with law, even though it may be contrary to the wishes of both parties, and consequently, in certain cases, to refuse to alter that status, even though both parties desire it, if the Court reaches the opinion that the parties are acting in collusion or that one of them has connived at the matrimonial offence of the other or has condoned that offence … I hope it will not be taken amiss by any of the County Court judges if I say that it would be simply disastrous if there should arise a Gallio among them who cares for none of these things. It is all a question of approach. It is not a question of intellectual attainments. The Judge must allow himself time to be sure that he performs his statutory duties and the parties, to whom this may be one of the great events in their lives, are entitled to time to tell the world why the marriage has broken down. If there should be such a Gallio the effect▀×believe me—would not be that the suitors would be driven from the judgment seat; it would be just precisely at that seat that the disreputable and fraudulent cases would tend to congregate.

I have the most profound belief that, so long as we stick to this method of judicial divorce, that is to say, so long as it is ordained by Parliament that divorce is only to be granted as a, remedy for a proved matrimonial offence, established to the satisfaction of a Judge, the administration of this jurisdiction is a cardinal test of respect for the rule of law. I wish this experiment well. I hope that it will succeed. But I am convinced that it will succeed or fail precisely as those who conduct it are or are not guided by this criterion.

5.2 p.m.


My Lords, it gives me peculiar personal satisfaction that I should have the opportunity of being the first person to congratulate my noble and learned friend upon his maiden speech in this House. Whatever may be the delay in the hearing of divorce cases, there has been, as the noble Lord confessed, delay in the delivery of his first speech in this House, but we shall accept the reasons which he gave for that fact. The noble and learned Lord has had the advantage of making his first speech in this House on a topic of which he is an acknowledged master and in the service of which he has rendered the greatest possible benefit. We have listened to him with respect and with pleasure, and I feel that we can assure him that, whenever he speaks on any other topic in your Lordships' House, we shall listen to him with equal respect and pleasure.

To a Churchman divorce is always a tragedy. It is always the outcome of human sin and it is infected by that sin. But since to develop that line of thought would not be appropriate on this Motion, I wish to speak, if I may, entirely on the general ground of social welfare. Divorce has become a social phenomenon, so large in its scale and so dire in its social effects as to disturb and indeed to alarm, I doubt not, every one of your Lordships and every thinking citizen. Some of those, I suspect, who, moved by sympathy for "hard cases" and the desire to provide them with relief, have in the past encouraged and assisted extended facilities for divorce, may very well now be wondering whether they were right in taking that course. Hard cases there are, and they are problems both to the Church and to the State. The Church, having a clear principle and standard of marriage entrusted to it, can deal with hard cases without catastrophe, because marriage is always viewed in relation to that first governing principle. The State is in an entirely different position. So far as it opens the door of divorce to hard cases, it opens it also to everybody who, from whatever motive, may desire to pass through it. The State has no doctrine, as the Church has, by which to judge and to discriminate. It makes the law of divorce, and thereby everybody who satisfies the legal requirements can obtain a divorce. So it is that the number of petitions has increased from under 1,000 a year in 1911 to the present gigantic figure.

The noble Marquess has indicated some of the causes which have led to that increase. I doubt myself whether there is any evidence that, when the local causes and the moral strain of war have passed, there will be any great reduction in the number unless there is a real change in the whole public attitude to marriage and divorce. Familiar though it is to your Lordships, I must say that divorce sets up a train of possible evils, first to the parties to it, whose sense of obligation, fidelity to the pledged word, and integrity of soul are grievously threatened. Secondly, with regard to the children of all these broken homes, there is almost the certainty—and there is almost overwhelming evidence for this—that where homes have been broken, the sins of the parents are, in fact, visited upon the children in a grievous moral and psychological disturbance. I doubt not that if I had been able, as I was not able, to be here for the debate yesterday, there would have been some kind of reference to that fact on the question of juvenile delinquency. Any schoolmaster will tell you that in his own school the difficult pupils—sometimes terribly difficult—in an overwhelming majority of cases come from homes where there have been divorces.

Every divorce is, therefore, a point of disease in the body politic, and, while a robust nation can stand up to a certain amount of slight infection, its strength and its stability are really threatened at the vital point of family life, when one marriage out of six comes to divorce and separation proceedings. And, of course, as the noble Marquess has said, the disease is infectious. Every divorce breeds more divorces, and its prevalence renders every marriage that much less secure than it would otherwise have been, by the mere fact that it is common. When many people are coveting their neighbours' wives and husbands, and then by legal process gaining possession of them, it is an encouragement to others, who lack some surely-based sense of obligation, to think of doing the same thing.

It is against that background, sombre as it is, that the proposals of the Denning Committee have to be considered. I do not wish in any way to resist them. If the community desires the divorce laws to be as they are, then the legal provisions must be accessible to all, and administered with efficiency and with reasonable rapidity. That is only common sense. These proposals do not in any way widen the grounds for divorce, but they do make divorce easier in so far as it can be obtained on the existing grounds more rapidly and more cheaply. I certainly would not wish to resist that. But let us be fully aware that the mere fact that the procedure becomes cheaper and more rapid does at the same time inevitably cheapen marriage. You cannot cheapen divorce in terms of time and money without at the same time cheapening marriage in its spiritual significance. The more easily the procedure works, the more easily the conception of marriage is devalued. That is not at all the purpose of the proposals of the Denning Committee, but I draw your Lordships' attention to the fact that that is the inevitable concomitant of its proposals. So the State finds itself in a very strange position. Here is a social disease, which the State recognizes as a social disease. The guardians of the public welfare know that they must deplore it; at the same time they are put into a position in which they must assist to spread it more quickly. So do not let us imagine for a moment that these proposals are in any way constructive or deal with the real problem.

As to the Committee's proposals themselves, one suggestion is, as you have heard, that all County Court Judges should become Commissioners of the High Court for this purpose. As has been put before you with authority, there are reservations to be made about accepting this proposal and there are dangers in it. From my own point of view, however, so long as the audience of the Bar is retained—and I there associate myself with all that was said by the noble and learned Lord—I do not wish to quarrel with the proposal. I would merely say that if ever as a further step for some convenience it is proposed that the High Court status should be surrendered, or the audience of 'the Bar no longer maintained, I personally, and I think all those for whom I can speak, would resist that most resolutely.

Before I finish I would like to mention 'two other matters. The first is that the Denning Committee have not yet discharged their most important duty, that of devising machinery for reconciliation. They have, indeed, rejected, and indicated that they rejected, the proposal put forward by the noble and learned Lord which won ray approval. Their own scheme they reserve for their final Report. I know they are most earnestly engaged upon it. It is, all the same, a great pity that what first has come to the public knowledge are their proposals for making divorce more easy and more rapid in its machinery. These having come first to the public mind will be what the public mind will retain, and much less will be thought of the constructive proposals for machinery of reconciliation when they come. These things happen like that, but how one could wish that it could have been that the first utterance of the Denning Committee had been on the constructive and not merely on the administrative side! Reconciliation is, I would say in a few words, the really constructive and the only constructive thing with which the Denning Committee are concerned. Reconciliation is really a pastoral office. Here, as in some other fields, the State is being forced into a pastoral relationship to the community, doing in the interests of the nation for non-Church people what the Churches do for their own members. Here as in other fields the State finds that it is not well-suited for such pastoral work; it has no doctrine of forgiveness, no doctrine of redemption or of grace to work with. That does not so much matter if it has the wisdom to employ in reconciliation workers who have such things in their power to give, but because it is forced into this pastoral position the State must provide the machinery by which reconciliation can be brought about as often as possible. The Array experience has proved again and again in a very large number of cases that reconciliation can be effected. This is not the time to pursue that topic, and I only wish to say this. I trust that the Denning Committee will, as rapidly as possible, produce 'this machinery for reconciliation and that the Government will be as rapid in adopting it as they have been in adopting these administrative proposals.

There is one last matter I would like to mention, if I may. If the State rightly and necessarily is concerning itself with reconciliation at the one end, must it not look rather anxiously at the conditions under which the State admits people to the married state, and ask whether the conditions of civil marriage are calculated to help those who are so married to set their marriage from the start on a true and lasting basis so that it is less likely ever to reach the danger of breaking down? The civil marriage must be such as to make plain to everybody the seriousness and nature of the responsibility, the personal and social obligations of marriage itself. Such evidence as I have been able to get goes to show that Registrars go to a great deal of trouble to provide in the best way that they can decent surroundings and decent behaviour, though that is not always easy, for the legal ceremony, but inevitably in those conditions even at their best the ceremony cannot rise above the purely legal level—the name of the office and of the official; the connexion with births and deaths; the attendance at an office and filling up the necessary forms, and the startling brevity of the actual ceremony followed by the sentence "Next please" to the waiting couples. All that cannot possibly create on the minds of the persons concerned, unless they themselves put it there, the real seriousness, the real nature and the real obligations of marriage. It may be that the State cannot produce anything more impressive than that, but if that is all that can be done it is essential in that case that the State should make absolutely clear what the legal contract is which it thus enables to be undertaken.

I have referred to the startling brevity of the actual ceremony. It takes, I believe, three minutes, and it consists of two sentences only spoken by each of the two parties. In the first sentence each party declares that there is no impediment to the marriage; and the second sentence is simply this: "I call upon these persons here present to witness that I A.B. do take thee C.D. to be my lawful wedded husband" or "wife," as the case may be. There the ceremony ends. A ring may be exchanged, and the register is signed, and the whole of the actual completion of the marriage takes three minutes. That is a jejune ceremony, but what is worse is that it fails to make clear what the ceremony is intended to effect. I am told that the Registrar may not add to the words prescribed by law, and may not even remind the couple of the seriousness of the step they are taking, or that marriage is a lifelong contract. Quite certainly many people civilly married are unaware that they are entering upon a lifelong contract. The words they use do not convey that meaning to them. "Lawfully wedded wife" means to them simply "legally registered and therefore mine."

But "lawful" does in fact mean in this context "lifelong." Is that not so? I ask that question with some certainty. In Halsbury's Laws of England it is stated: The only kind of marriage which the English Law recognizes is one which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. "Lawful" means that in the English law and nothing else, although that lifelong union may be, as the noble and learned Lord has said, put an end to for some misdemeanour which cancels it. If the State does not mean that, and if the State attaches to the word "lawful" any other meaning than that of "lifelong," then it must say so, and for it to say so would be a disaster to the nation. But even further than that, the Church would then be put into a position in which it could no longer recognize civil marriages as such in any true sense for their purposes, because there would be a lack of lifelong intention. But I take it that the State still means what it always has meant by the word "lawful"—namely, that it is lifelong. If it means that, then surely it must be made absolutely clear to those who are being married that that is what they are committing themselves to.

I would say that not only when the ceremony takes place must it be made clear that "lawful" means "lifelong," but that when the notice is given beforehand there should be on the notice some description of marriage and a declaration by the parties that in the proper sense of the word they desire to enter upon the married state. It seems to me quite intolerable that we should allow the use of a form of words to go on which admittedly vast numbers of people misunderstand and which they think means merely "registered" and not "lifelong." I feel that this is a matter of real moment. If the State cares, as it must, for the stability of marriage, if it is so concerned as to be considering methods of reconciliation where marriages break down, it must strengthen the foundations when it solemnizes marriages and must make sure that they are, in fact, solemn and solemnized by a clear indication of the responsibilities and the obligations which are therein involved.

I hope that these matters will not be regarded as irrelevant to the Motion which is now under discussion. I have the comfortable knowledge that in this House one can be as irrelevant as one likes, but I would, in fact, maintain that my observations are not in the least irrelevant and that the State must see to it that its pastoral function, so important, is fulfilled to the best of its ability.

5.33 p.m.


My Lords, I should not have ventured to intervene in this debate had I not felt, as a member of the Denning Committee, that I ought, to say one or two words in support of the Report which is under discussion. May I first say how very gratified I am at the reception which has been given to the Report and the proposals contained in it by the noble Lords who have already spoken? I want to say, however, that I cannot accept the suggestion which has been made that the increase in the number of divorces must necessarily be due to a deterioration in moral standards and that the number of divorces which are going through indicate a growth in the marital disharmony which exists in this country. It seems to me that there must at all stages of history have been unhappy marriages. I think none of your Lordships would deny that. What we have to recognize is that there has been a very definite change in the attitude of the people towards marital disharmony and that there has been a variation in the law permitting divorces to take place now which could not have taken place in years gone by because the facilities for divorce then were not such as exist now.

It seems to me very possible indeed that many people now are prepared to bring to the light of day the fact that their marriage is an unhappy one, whereas in previous decades they would have been prepared to continue to live in what would have been, to my mind, intolerable conditions. If it is a fact that the different attitude of people towards divorce and the improved facilities for divorce have resulted in married couples being released from intolerable married conditions, then it seems to me that that is all to the common good. It is, of course, a fact, as your Lordships well know, that the attitude of the public mind towards divorce has altered considerably. As I understand it, in the Victorian era, and probably in the Edwardian era, any person who was concerned in a divorce suit, whether innocent or guilty, was regarded as a person who could not enter into respectable society. That, fortunately, is not the case to-day.

Whilst I make these general remarks on the subject of the increase in the number of divorces, I do not fail to recognize that there is a very serious problem confronting the community, as is made clear to us by the very large number of divorce cases which annually come before the Courts; but I suggest that that problem is not one with which we are dealing to-day. The problem, it seems to me, is how can we ensure that marriages, when they do take place, take place in conditions and in circumstances which are likely to lead to them becoming permanent and happy unions. That seems to be the problem with which we are faced and it is a problem which we are doing little, in an organized way, to deal with. From the startling figures which are now available and from the number of marriages undertaken in the best of hopes which fail to last, it seems to me that we cannot very much longer defer dealing with the problem of how we can ensure those circumstances which will lead to permanent and happy unions. It seems to me that many failures in married life could have been made successes had those who were contemplating matrimony had the benefit of advice at that time, and if those married couples who were facing difficulties in their married life had been able to get some advice and assistance which would have helped them to get over their difficulties.

I have said that the figures in relation to the increase in the number of divorces granted annually are startling, and they certainly are. I understand that the figures are 5,000 in 1937, 7,500 in 1938. 10,700 in 1942, 14,700 in 1944 and, so it is suggested to me, about 20,000 in 1945. I realize, of course, that those figures cover an entirely exceptional period in the life of our nation. They cover mainly the war years. Many of the applications for divorce and many of the divorces granted relate to men and women in the Forces who have been taken away from their homes. Those are conditions which will not normally apply in peace-time, and we have as a consequence grounds for hoping that the situation will improve. But so long as people are separated for long periods and so long as young married couples cannot get their own homes, then I am afraid we shall be faced with very heavy calls upon the services of our Divorce Courts.

Those times were, of course, exceptional, but I cannot accept the view which has been put forward that we can hope that in the years ahead there will be a very heavy decrease in the number of cases which annually come before our Divorce Courts—at least not until such time as some active steps are taken to see that advice is available to young people contemplating matrimony or to people who are meeting the snags of married life. The view put forward in evidence submitted to the Committee by persons and representatives of organizations who have considered this question very seriously is that there does not appear to be any prospect of a reduction in the number of divorce causes annually awaiting trial unless there is a reversal of the public attitude in its approach towards divorce. It would therefore appear that for many years to come there will be very heavy calls indeed upon the services of our Divorce Courts.

I am very glad that it has been made clear during the course of the debate that the Committee of which I had the honour to be a member has not been concerned to vary or to consider in any degree the present grounds which exist for divorce. That was quite specifically outside the terms of reference. It is true that we are making proposals which will, in my view, make the procedure which operates before cases come before the Courts operate very much more smoothly than it does at the present time. But I cannot accept the view that those proposals will in fact make the grounds easier for divorce, or tend to make the number of applications for divorce greater. It seems to me that if the law exists then we ought to take such steps as are available to make that law operate easily, smoothly and expeditiously, and any proposal which is directed towards that end in my view cannot be stated to be a means of encouraging or enticing people to make an application for a divorce.

As the Denning Committee, all that we have been concerned with has been to see whether we can speed up the legal processes and whether we could make them less costly than they necessarily are at the present time. Now it was made quite clear to the Committee from the evidence that was submitted that a situation had undoubtedly arisen which made it absolutely necessary that a review should be undertaken of the procedure both in the Courts and before the cases come to the Courts. The increase in the number of divorces, to which reference has been made several times in the course of this debate, has undoubtedly created an impossible situation from the standpoint of delay. So much so in fact that I am given to understand that the President himself stated at Leeds on November 16, 1945, that the saturation point of trial at Assizes had been reached, if not passed. The Denning Report says that out of 7,284 cases in the London List for the present term, it is expected that little more than one-third will be taken. It is clear, I think, from that that the increase in the number of cases has quite clearly outstripped the capacity of the present Courts to deal with them.

I was very glad indeed to hear the noble and learned Lord, Lord Merriman, refer to the fact that the cases in the provinces had almost been cleared from the lists. I am delighted to think that there is some improvement, but if I am correctly advised, in the Manchester Autumn Assize of 1945 no fewer than 300 cases out of 716 went over to the Winter Assize, with the consequence of course that the Winter Assize was obviously overcrowded. Take the position in regard to the capacity of the Courts to deal with these cases. In Manchester, a city with which I am quite familiar, there were 900 causes set down for trial in 1943; the number had grown to 1,441 in 1944, and a year later, in 1945, it increased still further to 1,990. I suggest that it is not surprising that an increase in the number of cases within two gears of over 100 per cent, should create tremendous difficulties for any organization which had to attempt to expand and develop its organization to deal with that increase. The important point about the delay of these cases is that it does undoubtedly lead litigants to believe that the delay is due to a desire to prevent divorce from taking place, and that they are in fact not getting a square deal. Well, I think the figures which I have quoted prove quite conclusively that the present system has in effect broken down and that the legal process in connexion with divorce proceedings is quite incapable of dealing in a reasonable period with the number of cases which are coming forward.


I wonder if the noble Lord would allow me to interrupt. It is the fact that at Manchester three hundred cases were sent over from the corresponding Assize this time last year. I believe I am right in saying that this is the only occasion on which that has happened.


I accept the noble Lord's statement, of course. May I assure the noble Lord that I quoted that case not because it had been specifically picked for me, but that I was able to choose it out of some of the evidence which had been submitted. At all events, I am bound to say that I am quite confident that the recommendations which are made by the Denning Committee in their Report will have the effect of dealing satisfactorily with the present difficulties which cause such great delay. The conclusions which are before you in the Denning Report have, of course, been reached only after careful consideration of all aspects of the problem, and after hearing evidence from individuals and representatives of organizations who are interested in this question of divorce, both from the legal and the moral standpoint. If I may digress for a moment, I would like to say that it is a very admirable trait in the British character which leads persons to disregard time and trouble to themselves as individuals to come forward voluntarily, readily and willingly to give of their knowledge to inquiring committees, merely in the hope that they will thus be able to serve the common good. I have been very much impressed by that attitude of the people who came to see us.

The proposals have been well discussed during the course of the debate, and I do not propose to go into detail in connexion with many of them. But with regard to the proposal that the County Court Judges should be appointed Commissioners, I would just say, first, that we do attach very great importance to the fact that nothing should be done to detract from the conditions under which these cases are heard; and, secondly, whilst we have suggested that the County Court judges should be appointed Commissioners, we have also suggested that they should in effect act as High Court Judges with all the conditions attaching to High Court Judges. The noble Marquess, Lord Reading, semed to think that there was some difficulty in connexion with this suggestion, although I am very glad to see that he finally accepted it as being the best in the circumstances. The noble Marquess asked, for example, whether the County Court Judges had time to undertake this work. As I understand it, the County Court Judges are quite certain that they have time. The noble Marquess was afraid that the County Court Judges would only be looked upon as understudies, and that litigants appearing before them might have the feeling that they were not getting the best from the legal system of this country,. Well, may I suggest that in fact the County Court Judges in this particular case will not be understudies; they will in fact be seconded for duties as Commissioners in divorce proceedings, and will be recognized as taking on that job not merely as a temporary job but as something of a permanent character.

The noble Marquess suggested that it would be placing our County Court Judges in rather an anomalous position for them to have to act as High Court Judges on one day and County Court Judges on the other. May I say that we who serve democratic movements would find no difficulty in acting on one capacity one day and in another capacity another day? Indeed, one day I am occupying the chair at gatherings and the next day I am responsible to the chair as an official of that organizaion. I do suggest that the County Court Judges would have no greater difficulty in accommodating themselves to the situation. It does seem to me important, if the number of divorce cases are to continue on the high level of the present time, that some step must be taken to enable hearings to be dealt with more rapidly. By our proposals, which, I am glad to see, are generally acceptable to your Lordships, we bring in an additional fifty-seven judges to deal with these cases. These additional Judges would be capable of handling, we suggest, something like 28,000 cases a year.

May I pass on from the recommendations which relate to the hearing of cases in the Courts to the recommendations in respect of the machinery of legal processes before the cases actually come up for hearing? This part of the Report of the Committee seems to me to be equal in importance to the portions with which I have already dealt. In the Report you will find that there are no fewer than twenty-seven steps in procedure recommended for abolition. The reasons are fully set out in the Report and I do not need, therefore, to go over them. I must say that as I listened to the evidence whim was submitted to us with regard to clerks waiting for hours in long queues, with regard to "Office Copies" having to be waited for from one to six weeks, I did get the impression that the procedure had been framed with the object of giving the maximum difficulty both to the legal profession and to litigants alike. I am bound to say I was somewhat surprised when I heard the most reverend Primate on the subject of easy divorce making a remark which I took to be all in favour of making the procedure to be followed as difficult as it could be made.


I said no such thing.


I beg the most reverend Primate's pardon but that was the impression I received.


I am perfectly certain I said no such thing, and I think the other noble Lords will agree.


I withdraw. It seemed to me from the evidence which was submitted that it would be possible, quite easily, to cut out some of the procedure which had to be followed and make the machinery run much more easily, sympathetically, and speedily. There is one case in point to which I would refer. May I read Recommendation 23? I do not want to delay your Lordships, but I would like to make this point. The Recommendation says: At present there is often difficulty and delay in the Divorce Registry in finding the papers in a particular case. We are of opinion that the system could be much improved if each petition when filed, were distinguished from the outset by the year, a letter and a number in the same way as causes in other Divisions of the High Court are distinguished, and a cause book kept on the same lines as the cause books in other Divisions. I must say that I am very surprised that the course the Committee suggests is not one which is now followed. I should have thought that an adequate and complete filing system was a basic necessity. I should have thought that a filing system which enables documents to be found with the minimum of delay was something which would be in every up-to-date office. I am not saying this in any critical spirit, because I know we are all content to accept and retain that with which we are familiar as being the best method to be followed. I am led to wonder whether it might not be advisable in connexion with Government offices to have some means whereby there could be what I would call an efficiency audit. This would ensure that the best and most up-to-date methods in connexion with office routine were brought into operation.

We found that the procedure in many respects in the Divorce Division of the High Court varied from that which was followed in other Divisions. I must say that it did appear, where these variations did exist, that they had the effect of being a handicap and a hindrance rather than an improvement. You will also find that in the Report it is said "In our opinion the rules as to the service in the Divorce Court are more elaborate than is necessary." A very frequent phrase in the Report is "that is the case in other Divisions in the High Court, and we see no reason why it should be different in the Divorce Division." In these cases we have suggested that the procedure to be followed should be similar to that of other Divisions of the High Court. These proposals are made with the approval of the legal profession, whom we have had the opportunity of seeing, and as they appear acceptable to the solicitors and to counsel, I am quite prepared as a layman to accept them as being an advantage over the present methods of procedure. These changes which we propose have the merit that not only will they save a great deal of time and trouble, but they will also be instrumental in effecting a considerable saving of expense.

I think it is correct to say that in the course of our investigations we have found that there is very little ground for any suggestion that the Court costs, the solicitors' costs, or the counsel's fees, are unduly high. If any saving is to be effected in connexion with the procedure which has to be followed in the Divorce Court, then that saving can only be effected by cutting out many of the items of procedure which have to be followed. I will not delay you any longer, but I do wish to say that the proposals which the Denning Committee place before you will achieve the object for which the Committee was set up. They will save both time and money. In brief, the Committee's proposals, which I am commending to the Government for their approval, are not concerned with the grounds for divorce but are directed towards simplifying procedure and lessening the costs. In my view these proposals will result, if adopted, as the Manchester Guardian has quite correctly said, "in the present law being applied with decency and dispatch."

5.49 p.m.


My Lords, I think it will be generally agreed that we are indebted to the noble Marquess for having initiated a debate to-day which is both important and timely. I do not want to go over the ground at any great length. I knew very little about the subject during my years at the Bar, having only very occasionally appeared in the Divorce Court as counsel. Every Lord Chancellor of recent years has found the problems connected with this subject among the innumerable matters to which he has to give his gravest and most devoted attention. It is true beyond any manner of doubt, of course, that there has been a rapid and startling increase in the number of divorces. I do not myself think that that is entirely due to the circumstances of the war. There is, if we speak frankly as we ought to do in this House, another reason. And the other reason is that there has grown up in the lifetime of some of us a tolerance in these matters, a tolerance of proved infidelity, whether in the case of a respondent who is found guilty by the Court or a co-respondent who is similarly found guilty, which is quite different from the attitude taken up by large classes of the people earlier in our lifetime.

It may have been—some people say that it was—due to the standard which was set by Queen Victoria. I think that she had very good reason for doing her best to alter the standards which had prevailed before her time. She, as your Lordships well know, would not allow a person to go to Court who had been involved as a guilty party in a divorce case. I rather think that a rule on those lines is still in operation. But if we take Parliament—I go back to my own early days in the House of Commons, and I dare say there are others here who can go back a long way also, though not many, perhaps, who can go back so far as I can—there is no doubt at all that at the time when I first got into Parliament if a Member was found to be a guilty party in a divorce case he was certainly not expected to retain office, and he was regarded as a person who had been stamped publicly with disgrace.

That change in the attitude of a very large part of the community to divorce is, I think, one of the reasons why there has been such an increase in the numbers of divorce suits. When a person was found guilty in the Divorce Court of what was at one time practically the only ground upon which a suit could be brought—namely, infidelity—and that was visited by, I will not say complete social ostracism, but by the view that he or she was not an acceptable member of a large part of decent society, people, whether men or women, went to all possible lengths to try to avoid such consequences. Manifestly that situation has fundamentally changed if what I have called a greater tolerance obtains. I am not at the moment concerned to discuss that matter, and I do not propose to express an opinion as to whether the more benevolent attitude now adopted is for the public good or not; but I really cannot doubt that before there was any difficulty due to the long absence of spouses owing to war, this tide was rapidly rising. Then when the war came—and here I speak from very personal knowledge on the subject because I was Lord Chancellor for nearly the whole of the war period—we had the added difficulties due to the great numbers of Service cases about which the noble Marquess has spoken. The result was really alarming to the last degree. No machinery which we had then could hope to cope with it except at the cost of immense delay.

Here, I would like to point out, with great respect, to the most reverend Primate and to your Lordships, that there is an aspect of this matter of delay towards which I feel sure the Archbishop as well as others would be warmly sympathetic. So long as there is great delay in getting what, after all, the law of the land provides you with, the right to be divorced, there is a most unjust discrimination between the poor and the rich. A serving soldier learns from his home town, perhaps learns from letters written by his wife or her relations, that unhappily the home to which he is going to return has been utterly broken up by the conduct of his partner. He comes back on leave. He may have got advice—if he is wise he certainly will have got advice from the officer in his unit who was specially appointed during the war to help in such cases—but what is he to do?

I know quite well what a man who has adequate resources would do. Nothing is clearer in the law on this distasteful subject than that if you condone the offence of adultery by continuing to live with the spouse who you say has betrayed you, you thereby wipe out any right to apply to the Court for a divorce. But when a poor man comes back on leave where is he to go? He is almost bound, at any rate in many cases, to go to his own home. It is the only place to which he can go, and even though, in fact, he keeps himself apart to the extent of using a different room to sleep in, he would find it very difficult indeed to persuade those who administer this law, and rightly administer it with great strictness, that he had not condoned the adultery. But take the man with plenty of resources who has a good and upright reason in law for saying "I want my marriage dissolved." When he comes home he is in no such difficulty as the poor man. He goes to stay at an hotel. He takes very good care to do that for it is the first thing which his solicitor would advise him about. He would be strongly advised to take no action of any kind which might possibly be misunderstood as being a resumption of cohabitation.

The same thing applies either way. What is to happen to the poor woman who is, possibly, dependent on her husband's earnings and who lives with him in a small house in a town in this country? If she is going to rely upon her husband's unfaithfulness—it may be notorious unfaithfulness, it may even be as between the husband and somebody else an admitted unfaithfulness—she must keep away from him. But it becomes very difficult for her to do so if there is a long period of time to wait. She might perhaps go to live with an unmarried daughter for a short time or something of that kind. But look at the strain that is put upon her which is not put upon a lady of different position, a lady of means. She is able, without any strain, to go to live with relations or friends who will no doubt be willing to take her in and keep her. I say that, to my mind, it is one of the fundamental facts—and I am certain that the Archbishop would be willing to take it into account—that as long as there is considerable delay in dealing with cases of this sort, you are, in fact, getting an example of what we all wish to avoid, that is of the law working out for the very poor in a manner different from that in which it works out for people of larger means.

It is not in the least true that there is one law for the rich and another for the poor. That is a foolish, criminal, ignorant proposition wherever it is advanced. But what is true is that the delay in these proceedings in the case of divorce is sometimes quite fatal to giving the rights which the law gives and which ought to be given equally to all citizens whatever their means. I mention the point because it is one which in the course of this most interesting debate, so far as I know, has not been referred to previously. I am sure that some of us, at least, have had such actual cases brought to our personal knowledge.

During the war, what we did in connexion with this difficulty of the long delay was, first, to set up a special organization for Service cases. If the truth be told, a very large part of the credit for that should go to a former official who is very well known to many of your Lordships in this House, Sir Claud Schuster. I happened to be Lord Chancellor at the time, and I know that he had a very large hand in gutting each of the Service Departments to join with us. The noble Lord, Lord Merriman, was also constantly assisting in the whole matter, so that we might have in the Army, Navy and Air Force an officer who was known to be a person to whom the serving man could go if he had trouble at home. In suitable cases the serving man would be told: "You are making too much of this. Write to your friends and see if there is any substance in it." In other cases the man might be told: "If you wish to do this, and have really thought it over, I can put you in the way of communicating with the committee set up." That committee was drawn from the solicitors' profession, and we owe them a very great deal for the unselfish and devoted service—unpaid—by which they and the barristers who volunteered helped these men in their trouble. The difficulty was to arrange that the man's case should be taken when he was at home. The President of the Divorce Division, my noble friend Lord Merriman, took endless trouble to arrange matters so that the case could be heard when the man was available in this country. That was a good piece of work.

The other thing which we attempted to do in my time may not have been, in all respects, so successful as we had hoped. I was very much interested to see in the Denning Report—a Report in whose preparation the noble Lord opposite, Lord Rusholme, took part—the steps taken to have these cases disposed of at Assizes. I took the view—and I think there is great force in it—that there is something very unnatural in saying that in the ordinary way divorce cases must be tried in London. When you are dealing with a divorce suit you are dealing with a dispute between two spouses who presumably live in the same town, and almost certainly their witnesses will be in the same town. To make all these people come to London because there is a dispute seemed not a good and economical use of our legal machinery. With the consent of Parliament, therefore, we devised the system by which we were going to enlarge the jurisdiction of Assizes. We owe a very great deal to the Judges from the Divorce Court who have gone to the Assize towns—or to the more important of them—and undertaken a particularly heavy burden of what must be most disagreeable work. We all heard what my noble friend Lord Merriman said about that just now. I know from my own experience that even when one is sitting with colleagues and trying a case in much 'more pleasant circumstances—very probably a quite interesting case—one finds that five or six hours of close attention to the case are a very considerable strain on one's powers of attention and judgment. We owe an immense debt to the gentlemen who have discharged a much heavier, a much longer and certainly a much less interesting job than that.

The Report says that as far as we have extra Divorce Judges on circuit—they go on circuit in turn—we have not only undefended but defended cases heard by a man who is a Divorce Judge. I think that has been a great success. What my noble friend said, I think, proves it. I am not surprised, however, at the comment in the Report on the old arrangement by which a King's Bench judge went to an Assize town and was normally concerned in trying either civil or criminal cases. If one were to say to that King's Bench Judge: "At the end of your list there are three hundred divorce cases, will you deal with them?" the result in some cases would be quite appalling. May I read one extract on this matter from the Report? At other towns the King's Bench Judges have tried to take the divorce work in addition to their other work, but in fact they have not the time for this and there have been many complaints of chaotic and indecorous conditions. We have been informed of one town where 'at the Summer Assize in 1946 no less than 320 cases, including twenty defended cases (not merely discretion cases) were heard in six and a half days and the scenes outside the Courts were described as more reminiscent of Epsom Downs than a court of Justice.' The Report does not reveal the identity of the town, nor does it state the date. I am very glad that the recommendation was made to relieve that pressure. I am sure that it was right to increase the number of Divorce Judges from aye to eight, for the express purpose of securing that we might have through the country Judges who deal with divorce, rather than concentrate a certain class of divorce case entirely in London.

I now come to the question of what we are to do. For my part, I would entirely exonerate the most reverend Primate from any suggestion of saying that there was a certain satisfaction to be obtained from delay in dealing with these matters because it tended to discourage people. He did reflect, of course, that if divorce could be more promptly obtained, it might lead to there being more divorces. If I may say so, that is true; indeed it is obvious. But I doubt very much whether people who discuss this subject to-day always bear in mind how enormous is this influx of new divorce cases. During the debate I reminded myself that some years ago (as is the duty of every Lord Chancellor in turn) I read the Life of Lord Campbell—not The Lives of the Chancellors, by Lord Campbell, but his autobiography. He is not only a great writer on other Lord Chancellors, -but he wrote something about himself, and I came across an interesting passage. It was in 1857 that a Statute was passed, under the influence of Lord Lyndhurst, to set up the Divorce Courts, and I believe it came into operation in 1858. Lord Campbell had been a very vigorous member of this House, either as lord Chancellor or ex-Lord Chancellor for many years and had taken part in this promotion of that legislation. Here is an extract from his diary, dated January 10, 1859: I have been sitting two days in the Divorce Court, and, like Frankenstein, I am afraid of the monster I have called into existence. … Upon an average, I believe there were not in England above three divorces a year, a vinculo matrimonii, and I had no idea that the number would be materially increased if the dissolution were judicially decreed by a court of justice instead of being enacted by the Legislature, but I understand"— said the old gentleman— that there are now 300 cases of divorce pending before the new court. This is rather appalling. That was the reaction of Lord Campbell.

And now unquestionably divorce cases have assumed most stupendous dimensions. It is very rash indeed to question another man's arithmetic without having seen it on paper, but I must say that I was rather taken aback by being told that we can now consider a situation where one marriage out of six is going to find its way into the Divorce Court. It may be so. It rather depends on how one takes one's figures. It may be true for all I know that, if you take the number of people married last year, and compare it with the number of divorces last year, you get such a fraction. But, speaking with much humility, I rather doubt whether that is the proper way to deal with the matter. Marriages, fortunately, do not go on for a year. Happy marriages go on as long as the two parties live. If one considers how many married people there are in the country in one year—not the number of people who are married in that year—I cannot think, and I hope it is not the case, that we are living in a society in which one out of six marriages is destroyed every twelve months.


Perhaps I had better explain. The figures are reached by comparing the number of applications for divorce and separation in one year with the number of marriages solemnized in that year, and by that computation one out of six marriages solemnized will eventually end in divorce proceedings. On the same computation, the ratio before the war was one in twenty; it is now one in six, and the comparison between those two sets of figures indicates the increase.


I rather guessed that that was the way it was done. I did not want it to be thought that the situation with regard to marriage (which I trust we regard as a permanent state, except in these very unhappy cases which are increasing) was that, if you took all the married people in the land, one out of six would find themselves in the Divorce Court. That obviously could not have been intended. I do not wish to detain your Lordships any longer. We all want to hear the noble and learned Lord, the Lord Chancellor. I hope, however, that I may be excused for making these few observations. I particularly desire to stress that, rightly or wrongly, I feel very keenly that undue delay in dealing with these matrimonial causes inflicts a great deal of injustice on people who might thereby lose a right to which they are entitled.

6.15 p.m.


My Lords, I shall not detain your Lordships for more than three minutes. I desire to mention in this debate one point which is very near to my heart and which I believe is very near to the heart of every noble Lord in this Chamber. That point is the proper protection of children, the marriage of whose parents is before a Divorce Court. The parents of children are, of course, their proper guardians. When a marriage is before a Divorce Court—and indeed generally many months before—these guardians are unable to fulfil their proper functions in protecting the children, for the reason that they are at loggerheads with each other; the interests of one pull against the interests of the other, and frequently against those of the children. The parties to the cause go to a Court. Each parent, naturally, is represented by counsel. But the children of that marriage also have an interest in the case, and, since the interests of their proper guardians are not at that moment theirs, there is no way in which those children can properly be defended.

I believe that divorce will always be a subject which cannot properly be dealt with by the Courts until there is some person—possibly an officer appointed by the Lord Chancellor—who can step into the Court and say: "The proper guardians of these children are at loggerheads. I am here to represent their interests." While this matter is before the House, I should like to put in a plea for the appointment of some such person, who could take up this matter, because, while that marriage is before the Court, the entire issue of a child's career is also before the Court. Until some proper counsel can step into the Court and defend these helpless children, there remains a large body of our citizens, weak, young and unrepresented, who are unable to defend themselves.

6.17 p.m.


My Lords, although as the most reverend Primate has reminded us, we can in this House he as irrelevant as we like, yet he will I think agree with me that this is not the moment for me to indulge in my right of irrelevancy. I am very glad that we have had this debate. I rather invited it. I am very grateful to the noble Marquess for letting us have it. It has been a very remarkable debate, remarkable if for no other reason than that we have had the advantage of hearing a most splendid maiden speech from my noble and learned friend Lord Merriman. He was good enough in that speech to refer kindly to myself. I should like to tell your Lordships that, since I have been Lord Chancellor and this matter has been one of the greatest worry to me, I have gone to him with all my difficulties. We have treated those difficulties as difficulties common to both of us. I can say for myself, at any rate, that, having done that, I believe I have halved the weight of the difficulties which rested upon me. With regard to the matters which still remain to be considered, I propose to continue in the course I have adopted, and I know that I shall not ask in vain for the assistance of the noble and learned Lord, who has, of course, a greater knowledge of this matter than any man.

The debate has also been illuminated by the speech of the most reverend Primate, and it does reveal the truth of what I said yesterday, when we were discussing a question also of public morals and public concern. While I realize to the full what heavy calls are made on the time of the most reverend Primate and of his brother Bishops, I should like to stress the value that we get from the contributions they are able to make on these social problems, which are just as much the concern and the work of the Church as they are of the State. It was in' that sense, and in that sense only, that I said what I did yesterday.

I should like to repeat what I have said before about the Denning Committee. When it was appointed, as the noble Marquess reminds us, he was rather sad that we had adopted this well-known expedient for shelving a question; but I had my eye on an appropriate chairman and impressed upon him the urgency of the question. Furthermore I was able to get to work with him what I think was an exceptionally strong Committee. Both sections of your Lordships' House were represented on it; the legal element was strong, and the lay element was strong. They have applied themselves to their task with splendid energy, and have given us already two Reports. I am bound to say on my own behalf that I think I have not done too badly either. I think I accepted and got the first recommendation working within about two days of the Report being published, and so far as the substantive recommendation here is concerned, I hope to have it working in January. There will, of course, be teething troubles at first, but the scheme has been worked out and I shall certainly bear in mind in applying that scheme what has been said in this House.

We still await the Third Report, and I agree with the most reverend Primate that the Third Report is the most important of all three and the most constructive. It will concern itself, I understand, with the problem of reconciliation and also, I hope, with the problem of children to which the noble Lord who has just spoken has referred. There again I do not doubt that I shall, directly I get that Report, make it public, and if, as is very probable, your Lordships want to debate the matter, I shall certainly facilitate a debate, because I think these debates do nothing but good and give strength to many in working out these schemes. Judging from the general rapidity of the Denning Committee, I shall be very surprised if I do not get that Report in the month of January or very shortly thereafter.

That leaves me to refer to one or two figures. Many have already been given. I would like to say quite plainly that, whatever the explanation may be, I regard these figures with very great concern. I was certainly brought up to believe that marriage involved a union for life. I believe that that is the only lawful conception of marriage. I cannot help saying that if people start with some lesser idea and regard those little disturbances and bickerings which are bound to occur in the course of marriage as a reason for dissolving the marriage instead of taking them in their stride and getting over them, then I think it is a great disaster.

It is a great disaster, particularly having regard to the children. I entirely agree with what was said, that the children of an unhappy marriage do have a difficult time in life. It may be better sometimes—let us face this—that the marriage should be ended rather than that it should continue with constant nagging and that children should be brought up in an atmosphere of unhappiness. But if parents take the responsibility of bringing children into the world then surely it is their responsibility also to see that those children have a fair chance of life, and those children will not have a fair change of life unless they are brought up in an atmosphere of happy married life. That I believe is the foundation on which society rests.

I give you just these few striking figures which show the position. In 1905 there were 670 petitions; in 1915, ten years later, 1,100; in 1925, 3,000; in 1935, 5,000; and in 1945, 25,000. I omit the post-war years of 1919 and 1920 when the figures were 5,000 and 4,500 respectively, and I also omit the freak year of 1938 when the figure reached 10,000 owing to the passing of the Herbert Divorce Act. This year is nearly concluded and my estimate is that we shall exceed 38,000. For next year I find myself faced with a total which I estimate at 50,000. When we think of all the unhappiness which that means, I think we shall realize that there is an immensely serious problem here. Of course it is the fact, and I do not want it to be overlooked for a moment, that in the old days, before the Poor Person Procedure, it was impossible for many of these people to obtain a divorce. In those circumstances I dare say they did not bother very much about it, but contracted irregular unions. You must always remember that, in comparing the figures of today with the figures of the past. But, whatever comparisons you may make, I maintain that it is quite clear that these figures which relate to the number of petitions which I anticipate will be filed in the course of this year and next are figures which must give us the gravest concern.

Before I go on may I tell your Lordships the reason why I anticipate that the 38,000 of this year will go up to 50,000 next year? Your Lordships will remember that in March I came to your Lordships' House and told you all about the delay there was in the working of the Services divorce scheme. I pointed out that it was not a delay in the Courts at all, but a delay in getting the cases ready for hearing. We have now set up an organization under the auspices of the Law Society. I am not going to trouble your Lordships with the details, but having kept very careful and close touch with the thing, I would like to express my indebtedness to the President of the Law Society and his devoted band of workers for the work which they are doing. They are now dealing with this vast mass of papers, which was really getting almost overgrown with moss because there was no staff to deal with it, and they are now bringing these cases forward. So that next year you will begin to get in the Courts the results of their labours, and that is why I anticipate that we shall have a very much larger number of petitions brought on. That is all to the good.

I felt then, whatever I may feel about divorce myself, that I was confronted with this position. The law decrees and allows that in certain cases a husband shall have the right to bring an action for divorce, or the wife shall have the right to bring an action for divorce. That being the law, it is quite plain that I should not put obstacles in the way of that right being exercised by creating unnecessary hurdles which people have to jump over, creating unnecessary expense or creating or tolerating undue delay. I am sure everybody will agree with that. So we have battled with a vast number of cases this year. I appointed this Committee and it gave me a unanimous Report. We have had this matter discussed from all angles, and I think every speaker in this House has expressed the view that I am right to go on with this scheme and give it a fair trial. That is what I intend to do.

The County Court Judges are collaborating and co-operating. It is difficult to generalize about the County Court Judges. If you ask me whether they are all busy or slack, I should say the answer is "Neither." Some of them are very busy and some of them are comparatively slack. But most of them have some spare leisure days to themselves, and the working of this scheme does involve that many of them will have to give up those spare days and their little leisure time. I should like to express the sense of indebtedness that I feel to them for coming in and trying to make this scheme work. Knowing them as I do, I feel that our County Court Bench now is as good as ever it was, and I feel quite certain that your Lordships need not fear that the work will be shirked. It is the duty of a Judge to see that these cases are properly and carefully considered, and I feel sure that the County Court judges who are to be entrusted with this very responsible work will be most anxious to make good and will do their work carefully and with due regard to the most important public issues which are involved.

That is the position so far as the County Court Judges are concerned. I may have still to appoint a Special Commissioner or two. I shall have, I think, to appoint two further County Court judges for the London area, and I can do that without exceeding sixty, which is the statutory limit. I do feel, although I hesitated for a time, that on the whole it is better to have sixty Judges, each one of whom is giving 10 per cent. of his time, than to have six Judges, each of whom is giving one hundred per cent. of his time. I think that judicially as well as gastronomically a change of diet is useful. That, therefore, is the scheme I am proposing to adopt.

With regard to the questions of procedure to which the noble Lord, Lord Rusholme, referred, I cannot help saying that I think it is a pity that he did not have the advantage of hearing from the President in regard to these various proposals. As it is, he may be in the position of a man who has not heard both sides of the case. Consequently, it is very difficult to express a final opinion. I feel sure that the President (with whom I am going to confer on this matter) will be most ready to see that all the obstacles which can be put on one side without interfering with the satisfactory nature of the work, and with the necessity of arriving at the truth, shall be eliminated. I say quite frankly that I regard the cost of a normal divorce case (which is, I think, something of the order of £65 or £75) as too high. We must take steps to bring the expenditure down if we can. I think that would be the wish of all your Lordships because, if this is the law, it is not right that there should be an obstacle placed in the way of people who want to exercise their rights because they have got to expend a sum of money which they can ill afford.

That is really all I have to say. I am very grateful to the noble Marquess for raising this matter. In trying to work out the details of my scheme, as I said before, I am sure to have teething troubles at first, but I shall learn by experience, and I go forward in working out my scheme refreshed and reinvigorated by the thought that all of your Lordships in all sections of the House wish me well.

6.35 p.m.


My Lords, I am glad that your Lordships think that this Motion has provided a valuable debate. I said something earlier on about understudies. As producer this-afternoon I certainly cannot complain that any but the stars themselves have appeared. I am particularly grateful to the most reverend Primate for having found it possible to take part in the debate. I would add just this. I have in the past sat behind and stood before the noble and learned Lord the President of the Divorce Division so often that I am particularly glad that a Motion of mine should have given him the opportunity to make the first of what I hope will be many speeches in your Lordships' House. The great advantage of the Denning scheme as we have been discussing it is that it can be put into operation by administrative action only. With the blessing it has had from your Lordships' House and in the knowledge that its examination by the noble and learned Lord on the Woolsack will proceed as rapidly as possible, I think we may leave it in his hands to deal with the matter. I beg leave to withdraw my Motion.

Motion for Papers, by leave, withdrawn.