§ 4.13 p.m.
§ LORD MANCROFT rose to ask His Majesty's Government whether they are now prepared to appoint a Royal Com-mission to inquire into the confused state of the law regarding marriage, separation and divorce; and to move for Papers. The noble Lord said: My Lords, in introducing the Motion which I desire to bring before your Lordships' House to-day, I should like to begin by saying that this afternoon I am speaking only for myself, and that my views are not necessarily those of noble Lords who sit with me on these Benches. I should also like to make it clear that I am not asking your Lord-ships to discuss the pros and cons of easier-divorce or more difficult marriage. I am not asking your Lordships to discuss any of the well-known arguments concerning divorce problems. All I am asking, is that 475 you agree with me that the state of the law is confused, and that somebody ought to inquire into the matter.
§ Two or three days ago, His Majesty's Government introduced a new Bill on the subject of leasehold reform, and The Times commented upon that Bill with the remark that the law of landlord and tenant in this country had now become a veritable jungle. There are, however, those who believe that the law of leasehold, and of landlord and tenant, is a little spinney compared with the jungle that matrimonial laws have become or are in danger of becoming. The reason for that confusion, which I hope to show your Lordships exists, is not difficult to find. Social progress and social development do not always run parallel with social legislation. Governments are reluctant to take legislative action on matters which keenly affect the conscience and religious principles of a large number of people. Governments are reluctant to pass into law legislation which is bound to offend somebody. That applies to all Governments even to one— and I have in mind no specific Govern-ment—which it might be thought had already so offended everybody that a little more offence could not do much harm. However, the result is that the question is usually left to reformers, to amateur legislators, and amateur draftsmen, and to general "crackpots" like myself; and the result is piecemeal reform, which does not deal with the whole problem and which leaves many gaps to be filled. It is this matter which I am asking the Government to look into, and I am asking them to overhaul the whole system. That is what I have to try and justify to your Lord-ships this afternoon.
§ May I turn for my first point to the subject which I think is probably freshest in your Lordships' memories? It will be remembered that on March 10 last year, my noble friend Lord Reading, assisted by the noble Lord, Lord Brabazon, initiated a most remarkable debate in your Lordships' House on a subject which Lord Reading himself described as being both "intricate and incendiary." That subject was artificial insemination and legitimacy. The Archbishop of Canter-bury, in one of the most remarkable pieces of advocacy which many of us had ever heard, described the situation and the subject as "distasteful," but he had to admit that it was a growing and an 476 increasing social problem which the laws of this country were never designed to meet; it involved social and legal problems of the greatest possible complexity. Here, my Lords, were some of the matters that were raised and left unsolved in that debate: Is A.I.D.—that is to say, artificial insemination by a donor—adultery? Is it not a fact that those involved in this practice, including doctors and registrars. commit perjury, fraud or conspiracy? What about the problems of inheritance, of titles and estates? And what about all the problems of legitimacy arising?— here I do not necessarily mean the problems which arose in the celebrated case of Baxter v. Baxter, to which my noble friend Lord Reading referred, and which to a certain degree have been met by the Law Reform (Miscellaneous Pro-visions) Act of 1949.
§ The other pundits who spoke in that debate differed on almost every essential point. The only point of agreement was that the matter was a very complex one and ought to be investigated. I was sufficiently confused in my own mind, even before the noble Lord, Lord Chorley, rose to wind up the debate on behalf of His Majesty's Government. If I may say so with the greatest possible respect, by the time Lord Chorley had finished I felt that the debate was not the only thing that had been wound up. The noble and learned Viscount on the Woolsack did not speak in that debate, but on another occasion a few days later he admitted in your Lordships' House that this was a matter of the greatest complexity and of high social importance; and, further, that it was one which eventually we should have to investigate. My Lords, here is the Lord Chancellor's chance. To do him justice he did add that he devoutly hoped that the initiative for such an inquiry would be in the hands of his successor. All I can promise the Lord Chancellor is that we on these Benches will continue as we have done in the past to do our level best to assist him in this matter. He can hardly blame us that so far we have not been entirely successful.
The next question I bring to your Lordships' attention with some diffidence, because I have already mentioned it my-self. I ventured on March 24 last year to introduce into your Lordships' House a Private Member's Bill and as, some-what naturally, I strongly supported that
Bill myself, I am unable now to adopt an impartial attitude, because, of course, I am politically, though not personally, compromised on the matter. I cannot bring the same impartiality to this matter as I should like and as I can to the other points. I had the assistance of the noble Lord, the late Lord Uthwatt, whom we all still so keenly miss in this House, in the drafting of that Bill. On looking through my papers the other day, how-ever, I was interested to find that in the copy of the draft which I gave to him for his approval there was this comment in his own handwriting:
Do not let us try to make this Bill too comprehensive, or we shall only go and spoil it.
§ That is another lesson for the amateur draftsman. Very briefly, the point of that Bill was to make it legal for a man to marry his divorced wife's sister, which he cannot do at the moment, even though both parties may be innocent morally and in the eyes of the law—and, my Lords, the two things are not necessarily always quite the same. It is not legal, even though both parties were unknown to each other before the divorce took place. The proposal made in that Bill has been the law in New Zealand for nearly thirty years. Fourteen of your Lordships spoke in that debate and ten were good enough to give me their support. Though I say it myself, who should not. there was a certain amount of support in the Press and in the country generally for that measure. Indeed, I was able to persuade a friend of mine to include support for the measure in his Election address last February. I attribute to other causes the fact that he nearly forfeited his deposit.
§ The Archbishop of Canterbury and the Bishop of London spoke strongly against the Bill, but the Bishop of Truro, whose death we still mourn, promised me his support, and the Bishop of Winchester said that while he could not actively sup-port me he thought that a sufficient case had been made out to prevent him from opposing me. The Lord Chancellor, however, from quite a different point of view—that of political tactics—per-suaded me to withdraw the Bill. I had to admit the validity of his argument. He expressed no very strong views upon the actual merits or otherwise of the Bill, but pointed out at the time I was introducing the measure that two Private Members' Bills were going through an- 478 other place. One was the Law Reform (Miscellaneous Provisions) Bill, which was sponsored by my honourable friend the Member for Daventry, and the other was the Adoption Bill, which was being sponsored by my honourable friend the Member for Chester The Lord Chancellor pointed out that both those measures were uncontroversial and their passage through another place had been assured by His Majesty's Government only on condition that they remained uncontroversial; therefore he would be in a difficult position if he granted passage to my admittedly controversial Bill while the passage of those two Bills continued in another place. I had to acknowledge the validity of that argument. I realised that there were more people concerned with the other two Bills which I have just mentioned, and I also wished to retain the friendship of the two honourable Members in question.
§ I therefore withdrew the Bill, but I was forced to point out to the noble and learned Viscount on the Woolsack that I had 271 good reasons for bringing the matter once again 10 your Lordships' attention. These were 271 couples of whom I knew, who would be permitted to marry if my Bill became law. I now have 417 reasons for bringing the matter once again to the notice of your Lordships, because in the succeeding eighteen months I have been acquainted with the fact that there are 417 couples who would be enabled to marry if my Bill became law. The noble and learned Viscount the Lord Chancellor, winding in the debate on that occasion, again admitted that this was a subject where confusion existed. It was, he said, a matter which would eventually require investigation. Once again I am glad to be able to be of service to the noble and learned Viscount who sits on the Woolsack.
The next matter which I wish to raise is, I am afraid, much more controversial. In the Report of the Committee upon Divorce Procedure, a Committee which was presided over by Lord Justice Denning and which resorted two or three years ago, there occurs the following observation:
There appears to be a large number of cases where husband and wife have been separated for many years, and there is no possibility of their ever coming together again, but a divorce cannot be obtained because the separation was by mutual consent and did not amount in law to desertion. It is
suggested for consideration whether seven years or more should not be ground for divorce if there is no prospect of reconciliation.
I would here pause to remind your Lordships of the narrow distinction that sometimes exists between separation and desertion. Desertion after three years is ground for divorce; in other cases adultery must be proved. As late as March 25 this year the Court of Appeal, in the case of Hosegood v. Hosegood, said:
The Court is not at liberty to grant divorce simply because the marriage has utterly broken down. It might be a good thing if it could do so after long years of separation, even if the separation was originally by agreement or for some cause short of cruelty. But the Statute does not permit it.
§ I do not want to express any strong personal opinion about this matter. I would merely remind your Lordships of strong opinions which are held about it. Last Session 200 Members of all Parties in another place put their names to a Bill to carry this suggestion into effect. I have been interested to see that within the last few days the honourable lady the Member for East Flint has been successful in the ballot and proposes early in the New Year to introduce a Bill on this matter in another place—a Bill of which I have been enabled to see a draft copy. This has been the law in Western Aus-tralia—though the period there is five years—since 1945. Inquiries which I have made show that no great social harm or any increase in divorce appears to have resulted. It has been the law in New Zealand for many years, but the period there is only three years. As to the number of people involved, it is difficult to estimate, but perhaps the courts of summary jurisdiction may be some guide. In 1946, some 25,000 maintenance orders were made by the magistrates. That figure is some guide to the marriages which have completely broken down. The average now appears to be about 16,000 a year. It is estimated that about 200,000 such orders are in existence. These, together with orders made under the Guardianship of Infants Act and together with voluntary and private agreements, probably mean that there are upwards of the now politically fashionable number of 300,000 couples who are thus more or less permanently separated and unable to remarry.480
§ I think one of the things that shocked me most as a young officer was the number of occasions on which I had to make provision to arrange for the payment of allowances in the case of men who were living in a permanent state with women other than their wives. I have inquired into this matter and I find that during the war the three Service Ministries were paying out something like 8,000 Service allowances a year to un-married wives. That meant that the tax-payer was subsidising immorality to the tune of something like £500,000 a year. Last year 3,400 husbands went to gaol rather than pay sums which they had been ordered to pay by courts. Many of them were obviously blackguards—but not all. Some of them, if my correspondence is reliable evidence, refused to pay because they regarded this law as harsh and tyrannical and thought they were victims of vindictive women. They had many other grievances also, with which I will not weary your Lordships now. The fact remains that since the beginning of the war nearly 30,000 men have been to gaol rather than pay these sums. I make no comment except to ask this. Is this a matter for complacency? Is it not rather a matter which we should investigate?
In this connection I have found one or two other interesting sidelights. In Scotland, where they are much more sensible in nearly everything than we are in this country, before a man receives his pay they deduct from his pay packet the amount which he is due to pay under one of these maintenance orders; so P.A.Y.E. in Scotland appears to mean not only "Pay as you earn" but "Pay as you err" as well. I have discovered another point of some interest. Since 1946, something like three or four hundred apparently unattached men from this country have gone to Guernsey, seemingly genuinely seeking employment. The authorities of that pleasant island were originally under the impression that it was the well-known attractions of the place which had brought the men there. But on the evidence of the Attorney-General of Guernsey, it seems that it was one of the less well-known attractions which took these separated men to Guern-sey—namely that an English maintenance order is not enforceable in Guernsey. I should next like to quote what the then
President of the Divorce Division, Lord Gorell, said in 1906. His words were:
The direct tendency of these orders seems to be to encourage immorality.
§ That view may be worth investigating. Then we have clear evidence that enforced celibacy, childlessness or illegitimacy are widespread. It is the children, however, for whom I am principally concerned in this matter. There are also extra-marital unions in very large numbers, and women change their names and falsify registers in order to give their children a name.
I ask your Lordships: Is the condition of affairs which I have described, are these figures which I have adduced, really good for the state of society? Should we tolerate it or should we see whether some improvement in the situation can be brought about? I appreciate the opposition to the recommendation hinted at in the Denning Report. I realise that it will be said: "The moment you increase grounds for divorce, up go the number of divorces. The moment you add to them you are giving one more reason for throwing up the sponge, without trying to 'make a go' of marriage." That may be so. There are two evils, therefore, to be adjudged: whether it is better to let this situation continue, and allow people who have failed to make a marriage successful to go on living in misery or immorality, or whether the matter should be investigated. I should like at this point to quote to your Lordships the observations of Lord Gorell which the late Lord Birkenhead read from the Woolsack in your Lordships' House on March 24, 1920-I quote from Hansard, Volume 39, column 665. Lord Gorell declared
that divorce is not a disease but a remedy for disease, that homes are not broken up by a court but by causes to which we have already sufficiently referred, and that the law should be such as would give relief where serious cases intervene, which are generally and properly recognised as leading to the break-up of married life. If a reasonable law, based upon human needs, be adopted, we think that the standard of morality will be raised and regard for the sanctity of marriage increased. Public opinion will be far more severe upon those who refuse to conform to a reasonable law than it is when that law is generally regarded (as we infer from the evidence) as too harsh, and as not meeting the necessities of life.
§ These are true and wise remarks.
§ At the risk of wearying your Lordships I should like to put before you shortly three or four more points which 482 might be considered. I express no opinion about them; they are merely evidence of conclusions arrived at by other people. As your Lordships know, collusion—agreement between husband and wife to provide evidence to deceive the court—is an absolute bar to divorce. It has been estimated, with what accuracy I do not know, that nearly 50 per cent. of undefended divorces are collusion. Lying and perjury exist, therefore, in half the undefended divorces heard by the courts to-day.
§ THE LORD CHANCELLOR
Would the noble Lord tell me, as a matter of interest, where that was estimated and by whom?
§ LORD MANCROFT
I read it in a paper issued on the subject by the Marriage Law Reform Society, but I will find the exact reference and give it to the noble and learned Viscount later. I would remind him that I am not putting it for-ward as my own view. If this is untrue, it should certainly be investigated: and if it is true, it is lamentable. It seems to me a serious tragedy if the fate of children can be used as a bargaining factor in divorce, if arrangements can be made on the telephone about the cost of divorce and the children's welfare, and these used as a method of screwing an extra penny out of an unfortunate person. I think this should be looked into. I am not advocating for one moment divorce by agreement, but there is a strong view for saying that if a matrimonial offence has been committed and a divorce is in-evitable, it should be possible to conduct it with as little rancour and ill-will as possible, for the sake of the children.
In petitioning for divorce, the petitioner's solicitor is compelled to ask whether the petitioner has committed any matrimonial offence. Rightly or wrongly, that is often resented and the lie inevitably told is seldom detected. I am given to understand that that is not the case in Scotland, where the rule about discretion clauses is not the same as in England. There is also the question of the standard of proof required in divorce cases. Should it be the same in adultery as is required in criminal law? The views on this matter held in this country, in Australia and in America differ fairly sharply. There is also the question whether incurable and habitual drunkenness and imprisonment 483 for life should be grounds for divorce. There are anomalies where insanity is the ground for divorce. I will not weary your Lordships with what would be a dreary catalogue of cases—there are all too many of them; and other noble Lords who are to speak will doubtless elaborate upon them.
In conclusion, may I say this? To my certain knowledge there are seven bodies of varying importance investigating this problem on their own behalf. In my opinion, however, a Royal Commission is the only body which can possibly investigate it and which can hear the necessary evidence and hear it in public —a Royal Commission, mark you, of the importance and carrying the weight of the Royal Commission in 1912. Some people say that a Royal Commission is merely a convenient way of shelving an awkward problem. Whether the Government believe that or not I do not know, but they certainly have been favourably disposed towards Royal Commissions since they took office in 1945. They have had Royal Commissions on justices of the peace, equal pay, the Press, capital punishment, betting, lotteries and gaming, and population.
§ LORD MANCROFT
And legal aid—I thank the noble and learned Viscount. The 1853 Royal Commission produced the Matrimonial Causes Act of 1857, and the 1912 Commission produced the 1937 Act. What are the grounds for refusal? Not, I hope, because people fear that the Royal Commission will find some-thing which they themselves do not like: that seems to be the negation of justice. Not, I trust, because the matter is inopportune: awkward matters are always inopportune. The noble Lord, the first Duke of Wellington, speaking on a different matter in your Lordships' House many years ago, said:This problem bristles with difficulties. Let us look it squarely in the face, and pass on.I hope that is not going to be the attitude of the Government to-day. Divorce, separation and marriage must be considered rationally, impartially and calmly. They are difficult and complicated problems. A matter of conscience is involved; religious principles are involved —I sincerely hope that I have said 484 nothing to-day to trespass on any of those. Human happiness is involved. That is something which, unlike so many things to-day, cannot be controlled by issuing an order, rule or regulation upon which a Minister of the Crown has set his signature or, in certain notable cases, made his mark.
I repeat that divorce is not the cause of the break-up of marriages; broken marriages are not prevented by illiberal or illogical divorce law. Divorce is merely a relief for a disease, and our worry is not the number of divorces that exist in the country, but the number of broken marriages—and the two are not the same. That is a distinction which I desire to emphasise. I do not seek in any way to enlarge the number of reasons for divorce; I merely ask whether the evidence shows that the law is confused, illogical and, in some cases, falling into disrepute. Too often lying and perjury are regarded as matters of no importance. Too often the taking of the oath means nothing. In my opinion there is only one really bad law—the law that is despised. I submit that there is a demand, and a valid demand, throughout the country for a Royal Commission, if only because a great number of His Majesty's subjects genuinely but unhappily think that the matrimonial laws exist only to be broken, or ignored; and that is a wholly wrong thing. It is the composition and terms of reference of that Royal Commission, which I submit to your Lordships' is needed, that I hope to find in the Papers for which I now beg to move.
§ 4.39 p.m.
THE LORD ARCHBISHOP OF YORK
My Lords, I shall detain the House but a very short time. I should like to congratulate the noble Lord, Lord Mancroft, on the persuasive and fair way in which he has stated his case. I find myself asking two questions. First, is the proposed Commission intended as a kind of rampart behind which additional causes for divorce may be advanced? Although the noble Lord repeatedly told us that he was not taking any sides in this matter, the whole weight of his argument was that there should be an increase in the various grounds for divorce. I venture to say that at the present time, as I think it always is, this would be against the public interest.
485 The atmosphere to-day is very different from what it was when the so-called "Herbert Act" was passed. At that time, undoubtedly, in the country there was a strong demand for increased facilities for divorce. The demand was so strong that I do not see how any Government, to whatever Party it belonged, in a democratic country could have refused it. We on these: Benches regretted the demand. We recognised it, and we felt that it was unreasonable to expect that the laws of the Church should apply to a nation which very largely rejected some of the fundamental views of Christian faith. Therefore, we did not offer from these Benches any very strong opposition to these facilities for divorce, provided that we were allowed to administer our own discipline to our own members under our own rules.
To-day, however, the position is entirely different. To-day, the country as a whole is shocked at the very large number of divorces, and the large number of broken homes. Not even the most pessimistic opponent of the Herbert Act would have ventured to suggest that there might be something like 50,000 divorces in a year. The anxiety in the country to-day is not how to increase the grounds for divorce, but how to decrease divorce. We have been told again and again lately that a large number of our social problems to-day arise from the broken homes: report after report on delinquency goes back to the broken home. I agree with much that the noble Lord said. I agree that divorces are not in themselves the cause of the broken home, but that the divorce is the result of the broken home. But when there are easy facilities for divorce, then the whole idea of marriage becomes weakened and undermined, and marriage is no longer regarded as a sacrament, as a lifelong union, but as a contract which may more or less be easily broken. When once we have that atmosphere in the country, then divorces are bound to increase— and that is what is happening at the pre-sent time. Therefore I say that it is inopportune and against the public interest that at this time, when we are most anxious about preserving our homes, there should be put forward a suggestion which, if the noble Lord's figures are correct, would undoubtedly result in a considerable in-crease in the number of divorces, and at 486 the same time would shake still further our home life.
The noble Lord mentioned the number of cases in which he felt there might be increased facilities for divorce. I am not going to discuss the 417 sisters-in-law who are eager to take their divorced sister's place in the affections of their brother-in-law; I have no particularly strong views on that matter. But I have very strong views on the other proposal—that after seven years of separation there should, if required, follow divorce. The noble Lord gave us some striking figures about the number of separation orders issued each year. I have not the figures, but I know that at one time a large number of those orders were withdrawn or came to an end every year. I have known people who repeatedly had separation orders: there was then a reconciliation, then another quarrel, and a further separation order. I am speaking more of the past than of the present time, when I was personally in contact with a large working-class parish. My content on is that if we allow divorce after seven years separation we are really agreeing to divorce by consent, and so introducing a new principle into English law. Why seven years? The noble Lord has told us that in New Zealand it is three years Why not five years? Why not three years? Why should it not eventually be down to one year? I am not sure whether in Russia it is now one year. It will be introducing a most dangerous principle to say that, because people have been separated for three, five or seven years, a divorce may be granted.
Moreover, in some cases such a principle would mean doing most grievous harm to the conscience of one of these people. We have 1o recognise, whether we agree or not, that there are certain people who believe that divorce is utterly and completely wrong. Take the case of a woman—it might easily be the case of a man—who has these deep convictions that divorce is utterly wrong. The man wrongs her by committing adultery. Then, after an interval of a certain number of years, he is able to wrong her again by putting her in the position of a divorced person. I venture to think that the respect that we in this country have for conscience will make us most careful about passing any legislation which might in this way violate the conscience of the people.
For these reasons, I am very doubtful indeed whether we ought to ask the Gov- 487 ernment to set up a Royal Commission, which would probably be used as a method of propaganda in favour of in-creased divorce, and which might possibly start an agitation in this direction. But supposing that on other grounds this Commission is set up, possibly on the grounds of the confusion in the law—and here I am speaking doubtfully. The noble Lord gave us several reasons why he felt that the confused law needs straightening out. Incidentally, one of the arguments put forward was that there is a large amount of collusion to-day. The noble Lord gave us striking figures about collusion, and I must say that some of the remarks he made about collusion and perjury in the divorce courts are a grave reflection on our courts. But this is what I want to point out. When we had the Herbert Act in this House, and elsewhere, again and again we were assured that when these greater facilities were granted collusion would come to an end. Now, after these years' experience, we are told that 50 per cent. of the undefended cases before the courts are cases of collusion. I leave it to the noble Lord who is to follow me, who has much greater experience in these matters than anyone else in this House, to deal with those remarks.
What I should like to ask is this: Is there really such confusion about the law at the present time? That is where I am most anxious. If, for instance, the noble and learned Lord, Lord Merriman, and the noble and learned Viscount the Lord Chancellor, get up and say: "Yes, we are hopelessly confused about the law to-day. We do not really know what the law is, and we are getting contradictory decisions," then I should find it difficult to oppose this proposal for a Royal Com-mission, although I should hope that it would be limited to certain subjects, and would not cover the whole ground. How-ever, my own feeling on this matter depends very much on the advice which the noble and learned Lords give us. It is possible that there is no confusion in the higher ranks of the legal profession, although there is a certain amount of confusion in what I might call some of the lower ranks. If there is no confusion in the upper ranks, gradually things will get right. I am sorry that I have to disagree with the noble Lord so definitely— as I say, I admire the lucidity with which he presented the subject to us—but at the 488 moment I feel that it is inopportune, undesirable and unnecessary to appoint a Royal Commission.
§ 4.47 p.m.
§ LORD MERRIMAN
My Lords, on earlier occasions when this sort of subject has been debated I have expressly disclaimed, and I disclaim again, that my office gives me any special right to pronounce upon the social aspects of divorce. I intervene merely in the hope of being able to clarify some of the points that have been raised. In his delightful speech, the noble Lord, Lord Mancroft, classed the law of the divorce with the Rent Restrictions Acts. It so happens that I have had a little practical experience of both, and in qualifying for the "jungle" I should plump for the Rent Restrictions Acts every time.
I thought that in mentioning that it is a long time since there has been an inquiry by a Royal Commission into these matters, the noble Lord underrated a little what has actually been done; he dismissed it, so to speak, by saying: "Well, Private Members and private draftsmen have done a little bit of tinkering, but that is all that has happened in recent years." That is not really the way things have happened. When the Herbert Bill was before the House, the Law Officers took part in the Committee and, when it became certain that the Bill was going through, they placed the Parliamentary draftsmen at the service, so to speak, of both sides. I had a little to do with discussing that matter with the draftsmen behind the scenes. Advantage was taken of that Bill to make a very wide sweep about divorce and, after all, three major grounds of divorce and four new major grounds of nullity were added to the Bill. Advantage was taken to re-form the procedure. That was done again after the Denning Report, and we are going before the Rules Committee again on Monday in the hope of bringing procedure up to date. In the meantime, advantage was taken of the Private Members' Bills to introduce one major reform into the divorce law last year—that which enabled a wife to sue for maintenance without having to sue either for divorce or judicial separation. At the same time, advantage was taken to clear up defects which had been found in the practical working of the Herbert Act. Really there has been a good deal of clarification of 489 the law and, I think, a good deal of substantial amendment.
That brings me straight away to this point about collusion. I want to deal with it in that aspect first. There is not the slightest doubt that there was a certain amount of collusion in connection with divorce before the Herbert Act was passed. At that time the Judges of my Division were trying all the undefended cases, which were taken in London. We tried to exercise such vigilance as we were bound to exercise about these matters, and I regard as absolutely fantastic the estimate that 50 per cent. of divorce cases are collusive. At the very outside, when, so far as I know, things were at their worst—and I used to talk this over with my colleagues—I should place the estimate, at its highest, at about 7 per cent. of the undefended divorce cases. Of course, I am talking of collusion in the real sense of the word. I should like to disabuse the noble Lord, Lord Mancroft, of the idea that merely to discuss in decency and amity the necessary arrangements which follow from a divorce makes it a collusive suit. Nothing of the sort. The essence of collusion is that there is corruption and fraud. Without going into too great detail, obviously collusion may take one of two forms. There may be a bargain by both parties to impose a case upon the court which they know to be false. That, to put it perfectly plainly, is nothing less than a conspiracy to defeat the ends of justice, and it has been so stated in high places.
There may be another case in which there is indeed a genuine grievance but where—to speak plainly—the genuine grievance is used as a lever for black-mail, if impossible terms are imposed. The wife or the husband says: "I will not divorce you unless you will pay me so and so, or unless you do this, that or the other." That again has been held to be a corrupt bargain, but the real essence of the thing is that there should be the element of corruption or fraud. It is perfectly true that, in the ordinary case where there has been, quits naturally and properly, some talk about what shall be done about the children, and some talk about maintenance and all the rest of it, the wise party lays the whole thing before the court so that there shall be no suspicion of collusion—not because there is collusion, but so that there shall be no suspicion of it. I do think that it is 490 extremely important to disabuse the public mind of the idea that half, or any tremendous proportion of divorce cases are collusive. One could not sit day after day trying that class of case without realising that the vast majority of them are absolutely genuine: cases, about which there is no question whatever.
May I pass from that to this question of artificial insemination'? So far as I am concerned I can deal with that in a sentence. I took Dart in the previous debate, but there are only two points which I think concern me. The first is the grave questions of legitimacy which were raised by the noble Marquess, Lord Reading. I think he will agree with me that every one of those cases has now been disposed of. In the Act to which I alluded a moment ago—the Law Reform (Miscellaneous Provisions) Act— there was a drastic reform about the question of legitimacy, not only in the cases of artificial insemination but in all nullity cases. The result is that where a marriage is declared to be voidable on any grounds upon which nullity can be granted, the children are regarded as legitimate as if a decree for divorce had been pronounced instead of a decree for nullity. Those objections have been completely removed.
There is only one other point to which I need refer, as the noble Lord mentioned it. I remain completely unrepentant on the subject of whether artificial insemination by a donor of seed is or is not adultery. I have thought it over, and I see no reason whatever to withdraw the opinion which I expressed then, that as the law stands it cannot possibly be held to be adultery.
From there let me go straight away to one or two of the other points, and deal with them quite shortly. The noble Lord mentioned the question of discretion statements. Now may I just clear up that point? There are a good many discretionary bars to divorce. But only with regard to one of those—namely, adultery —is the petitioner obliged to do anything at all in the way of making any declaration. But it has been found convenient —it has been tested, and has been working, I think, reasonably well for years— that there should be a statement which cannot be used until it is produced and sworn to in evidence. That system saves a lot of trouble. I do not say, of course, that such statements are always true: that 491 would be quite impossible to say. It is a useful procedure, but the point is this. Unless the noble Lord is prepared to say that there shall be no discretionary bars at all, that conduct conducing to adultery, desertion and the rest shall not be grounds which entitle a court to refuse to pronounce a decree, there is no question involved at all except the stage at which the petitioner shall make the required disclosure. That is the only point concerned. I cannot see that a Royal Com-mission would be able to clarify that point very much.
I can pass quickly over the question of the divorced wife's sister. I should think it is fair to say that that controversy can be summarised by putting the two extreme cases. There is the case in which an aunt, who has nothing whatever to do with the divorce, but is obviously the person to come and look after the children, may be embarrassed by the fact that she has to live under the same roof as the husband. That is one end of the scale. At the other end of the scale is the rare, but by no means unknown, case where the sister herself has been involved in the divorce case. There is no doubt that many people may feel that it is some-what shocking that that possibility should be encouraged in the slightest degree by any provision of this sort. There I leave the matter. It is one upon which I, like the most reverend Primate, do not feel particularly strongly, one way or the other. It is a matter of social policy and I leave it at that.
I should like to say one word about the seven years' separation. I am bound to say that I regard that as being in a different category altogether. As I see it, that would be not merely a new ground for divorce. I agree with the most reverend Primate that it would be a complete and fundamental departure from the principle upon which divorce has hitherto been granted. This can be stated, I think, without controversy. Leaving aside the special case of insanity, where what used to be called the "act of God" intervenes, where there is no fault attributed one way or the other, the principle on which for over one hundred years in one form or another matrimonial relief has been granted is as a remedy for a proved wrong. The moment you introduce— and in particular introduce, with reference to separation agreements as distinct from 492 separation orders—the idea that the will of the parties, and nothing but the will of the parties, is decisive, provided a certain length of time has elapsed, you have introduced an entirely new principle into divorce. There is no escape from it.
Coming back indirectly to the question of collusion, it is no answer to say that many divorces now take place by the con-sent of both parties. I am not really talking now about collusion, but in common parlance people say: "Oh, they have agreed on a divorce." In one sense they have. One spouse or the other has made it perfectly clear by his or her conduct that he or she is finished with the marriage, and it necessarily follows that the other spouse in bringing the petition is willing that there should be a divorce. But, of course, that is a hundred miles away from saying that you can base divorce upon agreement and nothing but agreement. That assumes the existence of the offence and the readiness to take advantage of it, which is an entirely different thing. There, I leave the matter. It is not for me to say whether a Royal Commission can clarify the position. That is for my noble and learned friend on the Woolsack. I should welcome any further clarification that is possible, but for my part I do not regard things as quite so confused as the noble Lord would have your Lordships believe.
§ 5.7 p.m.
§ LORD CHORLEY
My Lords, I rise to support the proposal which the noble Lord, Lord Mancroft, has made to His Majesty's Government, that the time has come when a Royal Commission should be appointed to investigate the numerous problems which he drew to your Lord-ships' attention. When reading a most interesting speech which was delivered in another place on the Address, I was sorry to note that apparently the Prime Minister had already stated that, in the view of the Government, it would be inappropriate at the present time to appoint a Royal Com-mission to make an investigation of the kind for which the noble Lord is asking. In that speech it was stated that the noble and learned Viscount on the Woolsack had refused to receive a deputation from an organisation which was supporting this proposal, on the ground that no useful purpose would be served by it. That indicates that the Government have given some consideration to this matter and that 493 they have reached at any rate a provisional decision against it.
I hope that what the noble Lord, Lord Mancroft, has said this afternoon will show the Government that there is really a case which calls for further consideration of this matter. It may very well be that there are strong and over-whelming reasons why at the present time it is inappropriate that such an investigation should be made. If that is so, we should very much like to know what they are. It is all very well to say that it is inappropriate at the present time, but that does not carry conviction unless it is buttressed by argument and reason. The present situation is such a tragic scandal that it is very difficult to see why the preliminary work of dealing with it—because that is all that is asked for— should be regarded as inappropriate at the present time or, indeed, at any time. The most reverend Primate and the noble and learned Lord the President of the Probate, Divorce and Admiralty Division have rather suggested that the present situation is not really so bad after all. I must say that I find it extraordinarily difficult at a time like this to accept that view. Recently, I was discussing this matter with an eminent solicitor whose firm handles a large number of problems of this kind as well as a great deal of other general legal business, and he said that the whole administration of the law was being brought into discredit by the divorce situation at the present time. I would suggest that solicitors, who, after all. are brought much more closely in contact with the wretched people who are suffering under the law as it at present stands, are in an even better position to judge than the judges in the divorce courts, who undoubtedly see a very great deal of the problem.
My Lords, I find it difficult to believe that the noble and learned Viscount, who has throughout his occupation of his high office shown himself so very sensitive to the needs for reforming the law wherever it presses hardly upon the individual citizen, should take the view that it is inappropriate at present to look into this problem and to see whether it cannot be put right. He himself has taken part in a number of actions which have come before your Lordships' House in its judicial capacity. I remember reading 494 with very great interest his opinion in the case of Baxter v Baxter, which has been mentioned more than once this afternoon. The cases referred to on one side or the other in the argument in that case, I think made it perfectly clear that there is a great deal of difficulty in this aspect of the legal situation. Moreover, there are many other aspects of the law which I would suggest are equally as confused as was the law in relation to non-access; in Baxter v. Baxter. There is the problem of cruelty, which of course was very much bound up with the case of Baxter v. Baxter. The question of condonation has been referred to: and also the problem of desertion and separation. If we lad unlimited time at our disposal and it was appropriate in a discussion of this kind to go into the technical aspects, one could produce on every one of these points conflicting decisions in the court of first instance and also in the Court of Appeal.
It may well be the case, as the most reverend Primate suggested, that if these problems; were brought before your Lord-ships' tribunal they could, and no doubt would, be resolved; but it is not possible for these wretched litigants to bring all these problems on which there are differences of opinion in the court below to this august tribunal. It is an exceedingly expensive business to do that, and these people are not in a position to pay the cost. The problem of the children was also mentioned by the noble Lord, Lord Mancroft. The situation in regard to that matter is exceedingly difficult and complicated, and I suggest that it requires investigation.
When the noble Lord, Lord Mancroft, was referring to collusion, he of course had in mind the type of case mentioned by the noble and learned Lord, the President—namely, a case where the parties have come to the obvious conclusion that the marriage is a failure, and very often they agree, through the medium of some friend or possibly the family solicitor, that because the marriage has in fact broken up the best thing to do is to have a divorce. It may be that the husband goes away and goes through a sort of formal act which everybody knows is not really adultery, and it may be that adultery never actually takes place at all. Technically, a divorce of that kind may possibly not be a collusive divorce—
§ VISCOUNT HAILSHAM
Surely the noble Lord is not suggesting for an instant that what he is now describing— namely, a bogus act of adultery—was what the noble and learned Lord, Lord Merriman, meant when he spoke of collusion in the popular sense. The noble Lord is now describing a conspiracy to defeat the ends of justice.
§ LORD MERRIMAN
Perhaps the noble Lord will allow me to say that it was precisely that class of case which I was describing as a conspiracy to defeat the ends of justice, but I said that it represented a much smaller percentage of the whole than was suggested.
§ LORD CHORLEY
My Lords, I am surprised that the noble Lord calls that a conspiracy to defeat the ends of justice, but he must know that a great deal of it takes place. It is not that the husband and wife agree that the husband should go through this business, but every-body knows quite well that that is what happens. Lord Mancroft mentioned that some society has estimated the proportion of these cases as 50 per cent. Whether that is right or no I do not know; but I think it is quite clear that a good deal of divorce of this kind does take place. I am surprised if the noble Lord who has been practising at the Bar so recently, and I believe still does practise, has not himself frequently heard people discussing that kind of thing.
§ VISCOUNT HAILSHAM
Perhaps the noble Lord will allow me to say that if anybody did discuss it at the Bar, he would be disbarred at once, and that if any solicitor discussed it he would be struck off the Roll. I still practise at the Bar, and have done ever since I was about twenty-four years of age, and I personally have never come across such a case.
§ LORD CHORLEY
I think the noble Lord must be misunderstanding what I am saying. I am not suggesting that the husband and wife themselves fix this matter up. All that I am suggesting is that the parties to the marriage find that it has broken up, and that then as a rule the husband goes away and in effect goes through a formal act of adultery. It is not because he is in love with the woman who is taken down to Brighton, or wherever it may be. Everybody knows 496 that this sort of thing happens, and that is what the public means by "collusive divorce." It is that kind of divorce to which I am sure the noble Lord's figure of 50 per cent. was directed. It is really quite wrong that the law should be brought into contempt in this sort of way, because it means that the general standard of morality and respect for the law in the country is lowered among thousands and even tens of thousands of people.
My Lords, all the problems I have mentioned, together with the problem of artificial insemination, are not only legal problems but are problems with a most important social aspect, which from many points of view is more important than the legal aspect. I had the honour to take part in the debate on artifical insemination —a debate in which we were much helped by the fact that the most reverend Primate the Archbishop of Canterbury had appointed a Committee which had made a most useful inquiry into the problem. Indeed, without the work which had been done by that Committee it would have been exceedingly difficult to carry on that debate. But that Committee had at its disposal a comparatively small amount of material, and a comparatively small personnel to make the investigation. Surely, an investigation of that kind is much better made by a body like a Royal Com-mission, which has a great deal more personnel and material at its disposal and is much better qualified to come to a decision in respect of such an important matter.
The question of the seven years' separation is a burning question. In the speech made in another place to which I have referred, the honourable Member said he had received no fewer than 4,000 letters from different people over the last twelve months. That represents a very large number of people. The present position really puts a premium on dishonesty. If the husband, instead of just deserting his wife and then after three years providing grounds for divorce under the Herbert Act, behaves decently, enters into a deed of separation and agrees to pay maintenance instead of going away and paying nothing, by that very act of gentlemanly conduct he makes it impossible to have a divorce, unless he is prepared to go through the mock adultery business in the way I described earlier in my speech. I suggest that this sort of thing brings the administration of the Law into contempt, and if it is in any way 497 possible to have it put right that ought to be done. I suggest that a proper inquiry should be made into this problem, in order to see whether some method of effectively redressing the situation cannot be found. We are discussing matters which touch profoundly the lives of men and women, which go to the very roots of their emotional make-up, and which, if handled as, unfortunately, they often are handled under the present Law, cause intense suffering to tens of thousands of our fellow men and women. I suggest that, instead of those nine out of ten people whose marriages are happy passing by on the other side of the street, they should see to it that every possible step is taken to provide a system of law which will make that suffering unnecessary.
§ 5.22 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, Lord Mancroft said in the course of his speech that divorce did not cause broken marriages. I am afraid that that is a view on which I must differ from him. I believe that the existence of cheap and easy divorce has done a great deal to undermine the foundations of marriage in this country. During the war my Staff duties compelled me to see a certain amount of the correspondence which was sent to the War Office in substantiation of divorce procedure under the Services scheme. Much of that correspondence— which fortunately I did not have to deal with, but merely to forward—made one deeply pitiful. Also, I formed the impression, from reading a number of letters, that a substantial number of our fellow countrymen were contracting marriage with no intention of its being permanent.
I will not be so rash as to embark on the evidently dangerous topic of collusive divorce. I know that any person who attempts to get a divorce by means of mock adultery is risking very serious trouble. I know someone who did try that line, and he found himself, as a result, in grave embarrassment, as well as in considerable peril. But it is true that a great many people in the country are under the impression that it is easy to terminate a marriage, and enter into marriages with that idea in mind. Some of the letters which I had to see during the war gave me the impression that marital fidelity was hardly even con- 498 sidered a virtue. Therefore, I suggest that, if it is found expedient to have any further inquiry into the state of the law relating to marriage, it would be well for that inquiry to commence by an analysis of public opinion on the subject of marriage. Those concerned in such an inquiry should inquire what people believe and what people are being taught to think.
I have often wondered what effect is produced on the public mind by the large amount of space which is devoted in the Press to the matrimonial affairs of American film stars. It is a smiling matter for us, but we must remember that these ladies and gentlemen, whose artistic talents are so much more in evidence than their moral stability, are objects of the devoted and fanatical admiration of a very large number of our people. The Press has an immense responsibility in this matter. Quite recently, I was given a copy of a Sunday newspaper which de-voted its front page to a photograph of a woman surrounded by a large family of illegitimate children whom she had had by various fathers. It astonished me that, even in the present state of the law relating to public decency, such a publication was possible.
The Denning Report deals extremely well with the importance of convincing the public of the permanent character of marriage The Committee make a number of suggestions, and I hope that we shall hear from the noble and learned Viscount who sits on the Woolsack that they will be adopted. One suggestion related to the form used at marriages in register offices. The Denning Committee were anxious that the ceremony should be made more solemn in character. I believe that not a few of the registrars themselves have the same desire.
§ THE LORD CHANCELLOR
I do not speak with any authority, but my impression is that that has been done.
§ THE EARL OF IDDESLEIGH
I am obliged to the noble and learned Viscount. That, if I may say so with respect, is typical of the careful and prompt attention which the noble and learned Viscount pays to concrete suggestions regarding 499 these questions that affect marriage. There was also the question of the appointment of court welfare officers. I hope that we shall hear from the noble and learned Viscount some words on the position regarding the appointment of these officers, which was recommended by the Denning Committee. That Committee proposed that the court welfare officers should have functions both for conciliation and for the care of the children's interests. I am well aware that the main difficulty in the implementation of those recommendations is the enormous number of welfare officers who will have to be appointed and trained if the work is to be done efficiently. Nevertheless, I strongly hope that we shall proceed in that direction, so that we may one day see established an official reconciliation service which will work in harmony with, and in addition to, the unofficial service of the marriage advisory councils.
After all, we live to-day in an age of advice. The citizen has advice on nearly every topic readily available to him, and there are many topics on which the citizen is bound to listen to a great amount of advice. If we are strongly encouraged to listen to advice from housing officers, infant welfare officers, health officers, probation officers, juvenile employment officers, and all the many other welfare officers who so benevolently supervise our activities, I can see no great harm and much advantage in compelling applicants for divorce to go before an official reconciliation officer, even though in many cases his services would be of very little avail at that late stage.
I am grateful to His Majesty's Government for the support they have given to the Marriage Advisory Councils. I hope the time is drawing near when these councils will cease to be regarded as being experimental. I trust that His Majesty's Government will soon be able to conclude that they have proved their worth, and that they have proved the case which they are well able to make for increased funds, granted on a much larger scale and on a regular basis. I say that because I know how desirable it is that these councils should be able to establish branches in all the great cities. Perhaps it is especially true of the Catholic Marriage Advisory Council, which is most anxious as soon as possible to be able to 500 establish branches in the great industrial cities in Scotland and the North of Eng-land, where the bulk of our population live. I know, and I am sure that His Majesty's Government know, the great difficulty in these days of raising funds for the best objects by appeal to private charity.
May I pass to the topic of artificial insemination? Eighteen months ago I attended a valuable debate upon the subject in your Lordships' House. With other noble Lords I am awaiting with some impatience an announcement from His Majesty's Government that they have sufficiently considered this matter—it was, I think, to be considered in the light of the Report on Population which has now been in our hands for a considerable time. I hope very strongly that action will be taken with regard to A.I.D. For my own part, I should rejoice to know that the suggestion of the most reverend Primate for complete prevention of that method of insemination had been decided upon.
I should not have it thought that my own attitude towards divorce makes me any less anxious than other citizens to see that the established machinery, how-ever much I regret its establishment, is working fairly, humanely and smoothly. But I do not know, and I shall not know until the noble and learned Viscount the Lord Chancellor has spoken, whether or not I am supporting the Motion of the noble Lord, Lord Mancroft. If it is possible for the Government to announce that they will shortly be taking action on some of the points I have raised, I shall rejoice that it will be unnecessary to waste time while a Commission is considering the questions; but if they do not feel them-selves in a position to recommend action to Parliament—and I realise the immense difficulty that confronts them in dealing with these controversial topics—I shall feel that our next best course would be to appoint a Royal Commission. Therefore, with other noble Lords I await with great interest the speech that will be made by the noble and learned Viscount.
§ 5.37 p.m.
§ VISCOUNT HAILSHAM
My Lords, with one remark of the many remarks made by the noble Earl in the speech to which we have just listened, I most cordially agree: I think it would be rash to assume that divorce does not cause broken marriages. It would be certainly 501 a great effrontery on my part to pretend in this place that I had a wide and varied professional experience of divorce, but I have conducted divorce cases on a small scale throughout my career at the Bar, and therefore after nearly twenty years I think I have some basis for what I am going to say. Again and again we come across cases where a spouse who is really guilty of breaking up a marriage has deliberately done so because he or she knows that if he goes beyond a point the innocent party will have no other course but to invoke the law in his own favour. I could cite case after case where that has been the real origin of the break-up of a marriage. Someone is tempted to marry somebody else, and commits acts of cruelty knowing that if he goes on being cruel to his wife, his wife will have to seek protection. I am not saying that that is an argument against giving a remedy to the innocent party—quite the reverse, for reasons which I will give; but I am saying that it is rash to assume that to increase the grounds for divorce and the opportunities for divorce does not actually create broken marriages. I am disposed to think it does so on a greater scale if the divorce is consensual. Even after a relatively long period of separation a man may go on to do things which would lead in due course to the right to divorce.
I have been at some pains to ascertain what that branch of the profession to which I belong which is engaged rather more than I am in conducting divorce cases, thinks about the Motion before the House. As I understand it, the real question which we are discussing is not so much the immediate desirability of a Royal Commission as the question whether the time is approaching when a wide departure should be made in the law of marriage, increasing the grounds for divorce. It would be idle to pretend that the legal profession is united upon this subject, any more than any other body of men and women who have studied it, but, so far as I am able to ascertain, the practitioners in the Divorce and Admiralty Division tend to take what seems to me to be rather a sensible view about the matter. It is that in 1937 a radical departure was made; that marriage, being one of our permanent institutions, is not something with which we can be perpetually tinkering, whether the existing state of the law is a good one or not; and that, on the whole, it is 502 rather too early at the present time, before the experience of the results of the Act of 1937 is really complete—and with due respect to my noble Mend Lord Mancroft, I do not think it will be complete for at least thirty years from its passing—to make a new radical departure in the law of marriage. I am not by any means saying that a strong case will not ultimately have to be faced. My own conviction, however, is that marriage is something the law of which should be altered as seldom as possible, and then only at considerable intervals of time.
I owe an apology to my noble friend Lord Mancroft because I happened to miss his speech, a circumstance which grieves me considerably. I did think from what I heard, however, that it was rather unfortunate that a reference should be made to the question of collusion. As I understand, a figure was given, which I can scarcely credit, that 50 per cent. of the cases were collusive. I feel it my duty to my profession to say that, so far as I know, there is absolutely no basis for that assertion at all.
§ LORD MANCROFT
Perhaps I may interrupt the noble Viscount, as he did not actually hear my remarks. I did not attribute that figure to myself in any way. I merely stated that I had heard of an estimate of 50 per cent. On being asked by the noble and learned Viscount on the Woolsack where that estimate had come from, and where I had heard it, I said that, to the best of my memory— and I would check it—it was an estimate given in an article that I read last year, under the authorship of the Marriage Law Reform Society. I have since checked it and found that the information I gave the Lord Chancellor was quite correct— namely, that the figure was 50 per cent., and that the authors were the Marriage Law Reform Society, I should not like the noble Viscount to think for one moment that I was the author, or that I even agree with that figure.
§ VISCOUNT HAILSHAM
But, since the figure has been given in this debate, and since I have some connection with that part of the profession which deals with this matter, it is perhaps not inappropriate for me to give my experience. I wish people who made remarks like that would realise how wicked and serious collusion is. I am not talking about the desirability or undesirability of divorce. Collusion 503 always involves perjury and conspiracy, and no respectable member of the legal profession would willingly give his aid in a case where he even thought that collusion was present. Having heard the wildest statements outside and, I think, some excessive statements in this debate, as to the prevalence of collusion, I can only say that, in a serious sense, I have never personally come across a case. I have absolutely no doubt that of the vast majority of cases which are tried, undefended or defended, the cause of action is genuine and that no collusion whatever in a sinister sense has taken place. Obviously, where the parties desired a divorce there would be a minority of cases where, unknown to their legal advisers, they conspired to defeat the ends of justice. But I must say that the kind of wild statement that has been put about ought to be repudiated, because it involves a serious slander upon the legal profession. I must say, with respect to the noble Lord, Lord Chorley, that I was disappointed that he did not even seem to realise how serious the offence was when he came to describe it.
§ LORD CHORLEY
With great respect to the noble Viscount, in the sort of situation that I was describing the legal advisers do not come into it at all. except that they may possibly suspect that adultery has not taken place. I refer to the hotel case, which is the case one looks at and which the noble Viscount must have seen, if he has been in the divorce courts as often as he says. When I was practising at the Bar I was in the courts, probably in the same sort of way as the noble Viscount—only occasionally. But one could not be in the courts without seeing a certain number of hotel cases; and that type of case, I suggest, is often a bogus adultery case.
§ VISCOUNT HAILSHAM
Adultery is commonly committed in hotels, my Lords. Forgive me for pursuing this matter, but I had really passed from legal advisers. I must say that it rather perturbed me that the noble Lord, Lord Chorley, did not seem to think that, from the point of view of the husband, there was something radically wrong with that situation. To pretend that you have committed adultery is, in the first place, to pretend that you have done a disgraceful act; in the second place, to pretend it 504 for the purpose of getting a legal remedy to which you are not entitled is a criminal act; and thirdly, to swear that you have not, is to commit perjury. I wish that noble Lords in this House, and people outside, would not speak about collusion as if it were something that did not matter. It is something that matters intensely, and I believe that there is relatively little of it about.
Having said that, and having indicated that in my view, at any rate, the time has probably not come to institute a radical departure in the law of marriage, I should like to say this. There is, of course, no doubt that the proposed con-sensual divorce after a period of seven years does institute a radical departure of a totally new kind. Hitherto, our law of divorce has been based upon the theory of marital wrong. The proposed divorce based upon the breakdown of the marriage is certainly not based on any such theory, but upon the factual break-down, which undoubtedly is a totally different principle.
I should like to close with a word of respectful criticism of something which I thought underlay the speech of the most reverend Primate. Of course we all of us wish to see the permanence of marriage, and those of us who are members of one Christian Communion or another accept for ourselves that standard of marriage which is laid down by divine authority in the books of the Bible. But let us face this fact. In legislating for the people of this country we are not primarily talking about the Christian Sacrament at all. The Christian Sacrament is something which Christians accept for themselves. But we are told that Moses out of the hardness of men's hearts permitted divorce.
THE LORD ARCHBISHOP OF YORK
I think I made it clear that when the Herbert Bill was discussed in this House we on this Bench recognised the point that we could not expect our rules to apply to the whole country.
§ VISCOUNT HAILSHAM
I believe the most reverend Primate is entirely right on that. But then he went on to give, as an argument against divorce based on separation, that it might well violate the conscience of one of the two spouses. With the greatest respect, that is not a valid argument. We in this House are at least no better than Moses; we are legislating for the hardness of men's hearts.
505 I must say this in favour of the pro-posed new ground of divorce: that it is probably very much less dangerous than some of the grounds which are already recognised in practice. I can see a party to an unhappy marriage committing cruelty because he or she believes that divorce will follow. I can see they would do even that to which the noble Lord, Lord Chorley, referred—pretend to commit adultery in order to deceive the court—so that divorce may follow. But what I do not see as quite such a realistic picture is the theory that parties might voluntarily condemn themselves to seven years' solitary misery in order that, at the end of that period, they might marry somebody else. Therefore, I am not my-self convinced as some speakers have shown themselves to be in this debate— although I am not sure that the moment has come to legislate on marriage at all— that the proposed new ground of dissolution is anything like so dangerous as has been thought.
I must add this, with respect to the most reverend Primate. The recent Lambeth Conference considered this question of marriage, and put forward a majority and a minority view of what the nature of marriage should be in the Church of England. The majority view is that which is well known. The minority view was that when a marriage had in fact broken down, whether from the wrong of a particular party or not, there did come a point at which it might be better to recognise the breakdown de facto. It is not for me, in this place, to choose between those rival and, as I believe, legitimate views. But, with due respect to the most reverend Primates in this House, whose influence is so great in such matters, I do say that it would be unwise to try to prevent by legislation people acting on a view which at any rate a minority in the Lambeth Conference recognised as at least legitimate.
I believe that the law of marriage, as enforced and established under the Presidency of the noble and learned Lord, Lord Merriman, is nothing like so con-fused as people pretend. I think I have the right to say that, because the Divorce Court is probably the court in which I practise least. And if I had to choose a good example of fairly coherent law, largely made by Judges interpreting the Statutes in recent years, I should on the 506 whole hesitate whether I should not pick out the divorce law. What is confused and extraordinarily baffling is the complication of life, and the complication between the law of the land and the law of the different religious communions, which impose different degrees of responsibility upon their members, and the different degrees with which those religious communions recognise the law of the land. The Church of England, for instance, is unwilling to admit to the Sacrament of its marriage a person who has been married previously in a register office in circumstance; which the Roman Catholic Church would not recognise as constituting a marriage at all, if that marriage has been ended in dissolution. I could give case after case in which nullity would be granted by the Roman Curia, on the ground that there had been a secret arrangement between the parties at the time of a register office marriage, but in which the Church of England would not recognise divorce between those parties. There is the real anomaly; there is the real confusion. Let them put their own house in order first, and then let them come and accuse the civil divorce law of this country of being confused.
§ THE EARL OF IDDESLEIGH
My Lords, may I intervene to say that the secret arrangements made at the time of the register office wedding, to which my noble friend Lord Hailsham has referred, would have to be strictly proved.
§ VISCOUNT HAILSHAM
I fully accept that, and if the noble Earl will forgive my saying so, I was not criticising the practice of the Roman Curia in this matter, which I vastly prefer to the practice of the Church of England. I was only pointing out the complications into which we are getting. Personally, if any Inquiry were to be instituted into the law of marriage, I should urge and strongly press upon the Church of England to try to get its own idea of marriage a little clearer before it seeks to criticise the present practice of the civil courts.
THE LORD ARCHBISHOP OF YORK
I have not been criticising the practices of the court. I definitely said that I did not believe there was confusion. The noble Viscount has completely misrepresented me.
§ VISCOUNT HAILSHAM
My Lords, I did not mean to misrepresent the most reverend Primate. I think he is taking to himself a criticism which I intended for the whole body of the Church of England.
THE LORD ARCHBISHOP OF YORK
I think the noble Viscount's debating zeal has carried him away from his fairness.
§ VISCOUNT HAILSHAM
If I have caused the most reverend Primate any personal offence, I am extremely sorry. I certainly did not mean it for him. I find that a great deal of criticism is directed at the general public by those who speak in the name of the Church of England, and those people are always a little sensitive to criticism of the attitude of that organised body when it is presented by members of the public.
THE LORD ARCHBISHOP OF YORK
My Lords, I am sorry to interrupt the noble Viscount again, but he still misrepresents me. I do not wish to defend it now, but I could state perfectly clearly the Church of England law about marriage. There is no confusion about it.
§ VISCOUNT HAILSHAM
I am very glad to hear it, but we are of course only able to express our own opinions. I have studied all that is said in official cases by the Church of England, and I have found it very confusing.
THE LORD ARCHBISHOP OF YORK
The Lambeth Conference was representing the Anglican community, and not the Church of England.
§ VISCOUNT HAILSHAM
Again I am very anxious not to misrepresent anything which the most reverend Primate has said. All I can say is that I have spent some time trying to study what various persons in authority in the Church of England feel about this subject, and I do find it very confusing.
§ 5.57 p.m.
THE MARQUESS OF READING
My Lords, I wonder whether it would be irrelevant or untimely to read the terms of the Motion before the House? The words are:To ask His Majesty's Government whether they are now prepared to appoint a Royal 508 Commission to inquire into the confused state of the law regarding marriage, separation, and divorce.I desire, very briefly and in quite general terms, to support that Motion. I was in some difficulty in understanding why the noble Viscount, Lord Hailsham, said at the beginning of his speech that he took the question we were discussing to be that of whether it was desirable, and to what extent, that there should be increased grounds for divorce. That does not happen to be the question which we are discussing.
If I might very respectfully say so, I would agree with the most reverend Primate in not being anxious to see grounds for divorce increased, but I think the general position we should bear in mind is this. This Motion, of course, is not to be taken in any way as a reflection, direct or indirect, upon the competence or the learning of the judges who function in the Divorce Division. But judges do not make laws, although they may at times make law; it is for Parliament to make laws. Now Parliament, in making laws, requires in a complex and delicate question of this kind some foundation upon which ultimately to frame a Bill. One of the factors—perhaps the main factor which should be taken into account—is the trend of informed public opinion in regard to the problem under discussion. The fact remains that on this very complex matter there are in people's minds and on people's lips a considerable number of questions which are causing them doubt and anxiety and upon which they would like to see some authoritative ruling, based upon an examination of available evidence. From our post-bag, we all know that there are a not inconsiderable number of societies which approach this question from different points of view and which from time to time circularise all those who they think may be amenable to their persuasion. They advocate from different angles various reforms which might take place in the law of divorce. Those views are known to a large section of the public who in present circumstances have not very solid material upon which to form a considered judgment.
It is some thirty-eight years since the Royal Commission on Divorce reported in 1912. Since then, although there has 509 been the "Herbert" Bill, now the Act of 1937, I think it is right to say that in regard to these very complex and intricate matters there has never been any authoritative public inquiry the course of which the public could follow, the evidence in regard to which the public could read, and upon the report of which it could ultimately base a considered judgment. From that point of view alone, considering the number of various remedies—if you like, quack nostrums—that there are floating about at the present time, I believe it would be an advantage to have an inquiry; but it must be an inquiry which would carry real weight in public opinion by reason of the persons selected to constitute it. If an inquiry of that kind were set up, I believe it would have a soothing effect in many ways on public opinion, and would give the public some solid material. I do not want for a moment to go into the merits or dements of any of the numerous proposals which have been mentioned, either directly or inferentially, in the course of this evening's debate. That is not what we are discussing to-day. What we must bear in mind is that there are a number of proposals about, and unless the Government are prepared to take action upon them and produce a Bill upon which Parliamentary discussion can take place, it is advantageous in the public interest that there should be an inquiry, staffed, as I say, by people of the highest standing and commanding the respect of the community.
At the time when I raised the debate on the subject of artificial insemination, in March of last year, the noble and learned Viscount on the Woolsack was unfortunately absent through illness, but he took an opportunity shortly after-wards on another somewhat cognate subject of saying that sooner or later these matters would have to be inquired into. If I may say so, in any official mouth "sooner or later" almost always means "later." A period of some eighteen months has already passed. Public interest in these matters does not de-crease, and I think public bewilderment as to many of them increases. Therefore, I desire to support what seems to me to be a most reasonable request, as embodied in this Motion, that there should be an Inquiry before which these various matters might be ventilated on both sides. 510 At the present moment, people are very apt to hear only the propaganda arguments in favour of a particular reform, and not to hear the arguments which may be raised on the other side. A Royal Commission has the great advantage that it takes evidence from both supporters and opponents of any particular plan laid before it. Therefore, the public has the balanced views set on one side and on the other and can arrive at its judgment upon a summing up of the two. I think that that course would allay a great deal of public disquiet. I believe there is public disquiet. Such public disquiet will not decrease with the passing of time. Therefore I hope that this is a "later" and not a "sooner" moment at which the noble and learned Viscount will agree to carry out the suggestion embodied in the Motion by my noble friend.
§ 6.6 p.m.
§ THE LORD CHANCELLOR
My Lords, I intend to be quite brief with your Lordships on this matter. There are one or two things that I should like to say at the outset. The first is to refer to the estimate which was quoted as to the proportion of collusive divorces. It is all very well to say, "Well, I did not say it; I am only quoting that somebody else said." If any noble Lord tries that, he will find himself in serious trouble about other matters. If you say, "I am not saying that X is a murderer; I am saying only that I read somewhere that X is a murderer," then if X brought a libel action against you, you would find yourself in a very awkward position.
I want to say, quite categorically, that anybody who says that the proportion of collusive divorce cases is 50 per cent., or anything like 50 per cent., is either not an honest man or is completely ignorant. I make a point of keeping myself very closely in touch with this matter. The noble and learned Lord the President and I discuss it from time to time. I have access to his brother Judges, and I discuss this matter with those who are sitting as Commissioners. I think I get a very fair impression of what is going on in this branch of the law, and in other branches of the law, and I say without hesitation that the proportion of collusive divorce cases has gone down rapidly, and is not so great to-day as it was twenty 511 years ago. I cannot prove that, but I think I am in about as good a position—with the exception of my noble and learned friend the President of the Divorce Divi-sion—as anybody else to express an opinion, and that is most certainly the opinion which I express. Nobody could quantify the exact number, but I believe that anything like 50 per cent. is an entirely ridiculous figure. Incidentally, I think the noble Lord, Lord Mancroft, will find that the number of hotel divorce cases has also gone down; it is nothing like so great as it was in the old days. I should like some sort of accuracy in these statements as well as some sort of attempt—I am not blaming the noble Lord at all; he is quoting figures—to make that sort of figure good. Really, I can assure him that the figure he quoted is an absolutely farcical one.
The next general observation I would make is this. The noble Lord based his arguments rather, I think, on the grounds that the law of divorce is in a confused state. In the sense that on any branch of the law I could suggest very interesting subjects for moots or for discussions, on which some people might take one view and other equally eminent people might take another view, that is so; but I believe it is quite wrong to say that the divorce law is confused as compared with other branches of the law. I believe it to be plain, although I agree that there are a few outstanding difficult points upon which ultimately this House might have to pronounce in its judicial capacity, and therefore with regard to them I am naturally anxious to say nothing.
The two questions raised by Lord Mancroft, quite properly, were, first, whether A.I.D. involved an act of adultery. Of course he has the high authority of at any rate some of the members of the Archbishop's Commission, amongst whom was Mr. Justice Vaisey, and I think Mr. Willink. The more I think about that problem the more I should like to ask the simple question, who is the adulterer? Is it the donor of the seed, who will never have met the woman, will never know of her existence, will never come within miles of her? Is he the adulterer, or is the doctor the adulterer? I should have thought perhaps the latter was the better line of argument. But it does seem to me to be extraordinarily difficult, whatever else one may say, 512 to say of this practice, which I do not find a very attractive practice, that there is any adultery involved in it. It may be, and indeed it is the fact because these authorities said so, that there is an element of doubt about it. I can only say that I should rather welcome such a case coming to the courts in order that it may be cleared up.
There was another matter of doubt which the noble Lord raised—namely, what is the effect where a couple to whom a child has been born by this type of artificial insemination, who know perfectly well that the child is not the child of the husband, go and sign the register declaring that the husband is the father of the child. I should have thought it perfectly plain that they committed an offence, either conspiracy or perjury—I am not concerned at the moment to differentiate between the two. But to have inserted in a register a statement which to your knowledge is untrue: that "A. B." is the father of the child, when you know he is not, I should have thought left no room for doubt that thereby an offence was committed. I am not expressing a final opinion because I may have to decide it one day. But, speaking for myself, I find it exceedingly difficult to regard either of those illustrations as illustrations which lead to doubt or uncertainty. I should have thought they were both quite plain.
What are the other points which the noble Lord, Lord Mancroft, raised? He touched upon the question which he raised before: that of marriage with the divorced wife's sister. We discussed the arguments pro and con in that connection before. There is no uncertainty about that. You make up your mind as to what you think is the right thing to do in the public interest, and I venture to think that a Royal Commission will not help very much about that. Then, of course, there is the big outstanding question as to whether a separation which has ex-tended for seven years should entitle, if you like, the guilty party to obtain a divorce as of right from the innocent party. It has been discussed to-day as to whether that was divorce by consent. It is not divorce by consent. It is a divorce which the party who may be the guilty party forces upon the innocent party.
Now, my Lords, I quite realise the arguments on both sides. I have known cases where a marriage has been 513 obviously hopelessly wrecked, and where the husband has gone off with some woman and has begged his wife to divorce him. She has not done so, sometimes because she has religious scruples, some-times because she has been vindictive, and often because she is determined that he shall not be able to lead a regular life. Sometimes I have known cases where, being in that position, she has extorted very harsh terms. I have known all those things happen. On the other hand, if we are going to allow this sort of divorce, are we not in a danger of making people think more and more that marriage is a contract at will and not a union for life? After all, the proposal to-day is for seven years, but who knows that next year, if we pass such an Act, somebody will not propose five years, and that then some-body will reduce the period to three, and. later, somebody else to one?
The long and short of the matter is that all marriages tend to have their ups and downs, and the give-and-take which is necessary to make a happy marriage, the concessions and understandings and sympathy, are the very things which get one over difficulties; and the more one advertises to the world at large that if a couple have a difficulty there is an easy method of getting a divorce, the less people will try to be tolerant and sympathetic to each other. There your Lordships get the argument. Speaking for myself I should like to hear a considered discussion upon this. I very much doubt whether I should derive much help from a Royal Commission. I have not formed a definite and concluded view upon it, but if I had formed such a view I should not be removed from that view because I realised (and this is all it would come to) that other people had formed a different view. Therefore I am hesitant about appointing a Royal Commission to deal with this matter.
But there is another reason why I am hesitant at the present moment. I agree with what Lord Hailsham said— namely, that we should not be digging up this divorce question by the roots too often and looking at the plant to see how it grows. There have been a considerable number of reforms recently —reforms in the matter of administration, which we have been enabled to bring in, and reforms to the substantive law since the Herbert Act. Another matter which 514 is pressing me at the present time is that I have just started my legal aid scheme, and I very much want to see what is going to be the impact of that scheme on the divorce lists. At the present moment I have had practically none of the legal aid cases in; the most I have had, I believe, is three or four in one week. I think we shall know very much more about this matter when we have had a little longer to see how the legal aid scheme works. Therefore it seems to me that there I have a practical ground for not being anxious at this present time to commit myself to a Royal Commission. I am nor. committing myself to the contrary view; I am merely pointing out reasons which are affecting my mind at the present.
This matter is not going to be burked. As your Lordships know, it is going to be the subject in all probability of Parliamentary discussion. I understand that at the present time there is actually a Private Member's Bill in another place, which, I think, is likely to come on early in March, to discuss this question of divorce. When that Bill comes up, the whole matter will be discussed and considered, and we shall have to see what position emerges as a result of all that discussion. I do not turn down the idea of a Royal Commission. I say quite frankly that I am not in any way committing myself to a Commission at the present time. For the reasons I have given, particularly having regard to the legal aid scheme. I think the time is not opportune.
My Lords, that is really all I have to say to your Lordships. There were one or two specific questions which the noble Earl, Lord Iddesleigh, particularly wanted me to answer. He asked me a question in regard to the marriage advisory councils. I think they are doing good work, and I am ready to support them on one condition: I am certain that they must not be official bodies. We have contributed to the work, and the amount which we shall contribute is a matter for con-sideration—there is nothing necessarily fixed about it. But they must not be under public control. They must be completely free in their work. That is the system to which we intend to adhere. With regard to the noble Earl's question concerning court welfare officers. I think it is of interest that one such officer was appointed last term, and we have just begun to make 515 a trial of the value of such an appointment. His function is to be in court so that if the Judges who have to deal with a disputed custody case find themselves in difficulty, and come to the conclusion that they would like his assistance, they can send him around to make his own investigations. In such a case he reports back to the court. The appointment, I believe I am right in saying, has existed only for one term. During that term the officer has undertaken investigations in twelve cases. There have been altogether about 150 cases of disputed custody, so that means that he has been called in upon roughly 10 per cent. of such cases.
§ THE LORD CHANCELLOR
Yes, I think I am right in saying that that is in London. This service has not yet been extended to the provinces as well. Of course, the Judges will be able to tell me how valuable this work is, and if we find that the work is proving of value in London, we shall naturally consider in due course extending it to the provinces. That is all I have to say about this problem. I am most grateful to the noble Lords who have taken part in the debate. I think we have had an interesting discussion, and I hope that the noble Lord who moved the Motion will feel that it has been useful.
§ 6.23 p.m.
§ LORD MANCROFT
My Lords, I am grateful to the noble and learned Viscount who sits on the Woolsack for the gentle way in which he has trounced me. He has certainly not shut the door upon my request. In view of that and also in view of the very strong point which the noble and learned Viscount made about his legal aid scheme. I must ask leave to withdraw my Motion. I cannot now enter into any discussion of the issue 516 which arose between the noble Viscount. Lord Hailsham, and the most reverend Primate the Lord Archbishop of York. In fact I lost track of it at an early stage. I would, if I may, refer to one point, and one point only. That relates to the figure of 50 per cent. I am sorry that the noble and learned Viscount the Lord Chancellor was angry with me. I did not mean to be irresponsible. Nor do I think I was. The figure is taken from a publication which has been very widely circulated over the name of a responsible law reform society. I merely thought it was a subject which should be brought to your Lord-ships' attention, for it was one of the matters which I considered might properly be investigated in the course of the discussion of such a Motion as mine. I put it no higher than that: and I would repeat that I am myself in no way associated with that figure. Still, I do not think that prevents me from bringing it to your Lordships' notice. It is customary at the end of such debates as this to express the hope that the discussion has cleared the air. I trust that it has. I can only add that I am still a little confused as to whether in fact I am confused or not. With those few words. I ask leave to withdraw my Motion.
§ Motion for Papers, by leave, with-drawn.