§ 2.43 p.m.
§ LORD SILKIN rose to call attention to the Report of the Royal Commission on Marriage and Divorce (Cmd. 9678); and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The Royal Commission whose Report I am inviting your Lordships to consider this afternoon was set up following a debate in another place on the Second Reading of a Private Member's Bill, the Matrimonial Causes Bill. This Bill had been introduced by Mrs. Eirene White in March, 1951, and the Second Reading of that Bill was carried by 131 votes to 60. The Bill had for its object, broadly speaking, that either husband or wife should be entitled to obtain a divorce if the parties had been separated for not less than seven years.
§ The Bill was not proceeded with. following an undertaking by the then Government that a Royal Commission covering the whole subject of marriage and divorce would be set up. As your Lordships will be aware, this is a recognised and timely method of shelving inconvenient questions, and this very inconvenient question was shelved for a number of years. The trouble about Royal Commissions, however, is that they do eventually report, and the Report comes home to roost. It does not always come home to roost in the nest of the particular bird that hatched it, however, and in this case it was a Labour Government that set up the Commission but it is for the present Government to deal with the Report. The Commission was duly appointed in September, 1951, and reported four and a quarter years later, in December, 1955. Throughout the whole period it sat under the distinguished 973 chairmanship of a Member of your Lordships' House, the noble and learned Lord, Lord Morton of Henryton, who I am very glad to know is to follow me in this debate. Incidentally, that will save me a good deal of my speech, because I imagine that he will say many of the things that I might otherwise have wanted to say.
§ Just to complete the picture of the Royal Commission, I would mention that it. held 102 meetings and heard evidence from 67 organisations and 48 individual witnesses; and it spent £35,463 4s. 6d. I am sure your Lordships will agree that every penny of it was well spent. The Commission published a long, comprehensive and most interesting Report and I think that your Lordships would like me, first of all, to thank the noble and learned Chairman and his Commission for the great service they have rendered am for their long and arduous labours, which arc greatly appreciated by all concerned. Their Report will long be a reference book on the vital problems that they studied.
§ My Lords, I:feel that an organisation should be set up for the protection of Royal Commissions. This Commission reported after four and a quarter years, and there was then dead silence. They have no idea whether their Report is being considered, whether it has even been read; and still less have they any idea of what action Her Majesty's Government 'propose to take on it. I am not criticising this Government alone, for this is an occupational disease which seems to affect all Governments alike, I feel that, when we set up a Royal Commission and invite people to spend four years of their life in a monumental task of this kind, the least one can do is expeditiously to consider the Report and make some statement on it; and it is largely for that reason that I have thought it right this afternoon to introduce this Motion. I hope that, as a result of this Motion, it will be possible for Her Majesty's Government to make some statement showing whether they have come to any decision on the matter, what their decision may be, what action they propose to take, and when.
In the past there have been two previous Royal Commissions on Marriage, one in 1350 and one in 1909. It is a
relatively rare thing to have a Royal Commission of this kind, and on each of the two previous occasions, in due course but after long years, some action was taken. It was twenty-five years before any action was taken following the second of those Reports; but, as I say, in each case action was eventually taken, and in each it was in the direction of easing the law of divorce and facilitating divorce in the case of unfortunate marriages. The scope of the Report of the most recent Commission is contained in paragraph 13 of the Report, which I believe it is worth reading, so that your Lordships may see the comprehensive character of the investigations made by the Commission. This is what they say:
The scope of our inquiry was very wide, embracing not only the law relating to divorce and other matrimonial proceedings but also the administration of that law in all courts, and the law governing the property rights of husband and wife. Moreover, for the first time, the subject of the inquiry extended to Scotland, as well as to England and Wales.
§ In this very long document the Commission have dealt with their terms of reference at some length and, as I have said, in a most interesting and readable way. I cannot remember Beading a Report of a Royal Commission which is so clearly expressed and which puts the case in such an interesting way. If any of your Lordships is ever in need of a little light reading I would recommend this particular Report as one which is worthy of consideration.
§ On the whole, however, public interest is confined to that part of the Report which deals with grounds of divorce. The Commission draw attention to the large number of marriages which end each year in divorce, and they say (as I am sure we all agree) that this is a matter of very grave concern. The fact is that the number of divorces is, in part, a reflection on social conditions, as the Report recognises, and the amount of human unhappiness which those conditions cause, not only to the parties to marriage but to others, including children. And may I put in a word for parents as well? Divorce is, after all, the last resort. It is the recognition of the fact that the marriage has broken down. It is usually the culmination of years of misery; the partners have, in the end, found life together quite intolerable. At the stage of the complete breakdown of marriage, it is usually too late for there to be any 975 hope of mending or alleviating the conditions of the marriage by conciliation or reconciliation.
§ The only real hope of making the marriage institution more successful is by action at the beginning. If it were possible, the right solution would be to make marriage more difficult and divorce more easy; but that is not a matter which is within the realms of possibility, except when the parties are too young. The fact remains that one of the great difficulties is that in many cases marriages are too hastily entered into by people without guidance and without experience. That, I would say, is probaly the greatest cause of the breakdown of marriages. Frequently they are entered into without a realisation on the part of either party of what the obligations of marriage are.
§ I have known many young women enter into marriage who were not in a position to employ domestic assistance at the outset, even if they could have found it, yet who had no idea how to cook a meal. I should have thought that that was the worst possible beginning for a marriage. I have even known of marriages of young people in which the husband, after doing his day's work, has had to return home and cook a meal for both himself and his wife. That is a bad start. I believe that one of the things that can be done—and the Report recommends it—is to arrange for far more guidance and help to be given to the partners to a marriage at the outset, so that they do at least know what they are going to be in for and what their responsibilities will be. For that reason I am glad to know that there will be a considerable number of speakers in your Lordships' House this afternoon and that they will include the noble Lord, Lord Merthyr, who is Chairman of the Marriage Guidance Council.
§ I come back to the fundamental question which the Commission was primarily set up to consider—that is, the grounds upon which there should be divorce; whether or not an irretrievable breakdown of a marriage should be a ground for divorce, in addition to the existing grounds. The particular point which the Commission considered was naturally based upon the Bill put forward by Mrs. Eirene White, which was based upon the view that if the parties had been 976 separated and living apart for seven years or more that should be, automatically, a ground for divorce, in addition to any other grounds that may be available. It is unfortunate—I am sure that it is due to no fault on the part of the noble and learned Lord who was Chairman of the Commission—that on this fundamental question the Commission were evenly divided. Nine members, including the Chairman, took the view that there should be no change in the grounds for divorce. Nine supported the introduction of a new ground for divorce founded on the complete, irretrievable breakdown of the marriage.
§ I should like to take up a little of your Lordships' time in dealing with the case as presented by each side. And may I say that the way in which the respective cases of the two sides have been presented in the Report is wholly admirable. The case for each side has been fairly, objectively and clearly set out. The case for one side has been countered by the other, and it is for any one of us interested in this subject to read the conclusions of the two sides and to form his own judgment. I want to say straight away that I take the view, after careful consideration, that the grounds for divorce should be extended to cases in which the parties have been separated for seven years or more. But I should like to add that this is not an easy decision to reach. The grounds against such a decision are formidable. In the end, one has to take the cases for the two sides and weigh them up and then come to one conclusion or the other. I do not think—and I believe that the noble and learned Lord will agree with me—that the two views are reconcilable. One must accept one or the other. I see no way of compromising.
§ The main objection to the principle of breakdown of marriage as a ground for divorce which has been put forward by its opponents was that it would amount to divorce by consent if, at the end of seven years of separation, either party to the marriage could apply for a divorce, and that it would tend to make marriage seem as something of less concern if it should be possible automatically to terminate it in this way. It was further contended that it would encourage the ending of marriage more lightly. I suppose that is true, and one must concede 977 the fact that. to the extent that divorce is made easier, there may always be people who will enter into marriage more lightly than they otherwise would do. I would invite your Lordships, however, to consider how much there is in this argument. When they are about to get married, people do not really sit down and weigh the pros and cons of the divorce law and what will be the grounds of divorce. I should not think that they go to their solicitors and get counsel's opinion of what will be the possibilities of getting a divorce if they do not get on together. People rush into marriage because they want to rush into it, and one of the problems is that they rush into marriage much too impetuously. I cannot conceive that they will enter into marriage more rashly if they realise that, if their marriage does break down and they live apart for seven years, it will be possible to get a divorce, particularly as it is possible to get a divorce on other grounds without waiting seven years.
In the course of the Second Reading debate to which I have referred, Sir Hartley Shawcross, who was then Attorney-General, stated (I have not the reference readily available) that at the 1912 inquiry made by the Royal Commission the King's Proctor gave evidence and stated, in the words used by Sir Hartley:
The truth was that 75 per cent. of divorces obtained in this country were in fact divorces by consent.
§ These are divorces which have been obtained by agreement between the parties, although, of course, it is illegal, not at the end of seven years, but in accordance with the then law, which was on the ground of misconduct. Speaking from memory, I think that at that time that was the main ground for divorce. Desertion was not a ground, nor, I think, was cruelty. That was the evidence of the King's Proctor, that 75 per cent. of divorces based upon the misconduct of one of the parties were arranged divorces.
§ LORD WINSTER
My Lords, would my noble friend allow me to interrupt him? Would it not be true to say that they were arranged divorces which, in a great many cases, involved perjury?
§ LORD SILKIN
Not necessarily, because the parties would not have to make any statement on whether or not it was an arranged divorce. In an undefended 978 divorce case which has been arranged, either implicitly or explicitly—and I imagine that the King's Proctor would include divorces which had been arranged in the sense that the parties had acquiesced or agreed, although they had not come to a definite legal understanding—] think one could get by without committing perjury at all. It must be within the experience of many noble Lords that there was a time—the idea is not so prevalent today—when it was regarded as the right thing, where the parties wanted a divorce, for the husband to provide the grounds. If he did, whether 113 was the guilty party or not, he acted like a gentleman. If he refused, he was a cad. Everybody knows that that was the case for many years, until additional grounds were provided, such as desertion for three years, and cruelty. My own view is that, as a result, the proportion of divorces secured by consent has been substantially reduced from the figure of 75 per cent. quoted. I doubt whether it is correct to say that, to any material extent, people will enter into marriage more lightly as a result of facilitating divorce where marriage has substantially broken down.
Then there is the objection that, in the form is which the case is put by most people, a divorce can be applied for at the instance of either party, which may mean that the guilty party can apply for a divorce at the end of seven years. That is perfectly true, but I think that the nine members of the Royal Commission who took the view that divorce should be possible where a marriage had substantially broken down did not all agree that it should be at the instance of either party. Four took the further view that divorce should be at the instance of either party, whether that party was guilty or not. I would associate myself with the four who took that view. In view of what I have said, it is very difficult to see who is the guilty party and who is the innocent. Of course, there are cases where the position is clear, but in a large number of the cases which come before the courts, if we were to go behind the formal fact that one is the petitioner and proves his case against the court—and I have suggested that it would be right to go behind that and get the true facts—we should find that it is unrealistic to say, in the majority of cases, that there is a guilty party and an innocent party. My own view is that, where a marriage has 979 broken down, both parties, possibly not equally, have some responsibility for the breakdown.
At the present time, where there are grounds for divorce for the innocent party, where there has been misconduct or desertion for three years, or cruelty, or where other grounds are available, it is possible to file a petition; but there are cases where, although this remedy is open, the injured party is unwilling, for reasons of spite or vindictiveness, to take the necessary action. Therefore it is suggested by those in favour of the divorce for breakdown of marriage that if, at the end of seven years, such a party has not taken the necessary proceedings, it should be open to either party. I recognise, of course, the force of the statement contained in the view of the relentionists (if I may so call them), that it would be allowing the guilty party to take advantage of his own wrong, which I am sure would be repugnant to any lawyer, but I have already suggested that this conception of a guilty and an innocent party in the breakdown of a marriage is, to a large extent—though I do not suggest wholly—unrealistic.
After all, we have to look at this from the point of view of the total amount of human happiness involved. In many cases, at the end of seven years' separation one or other of the parties has entered into fresh quasi-matrimonial relationships, and may have children; and to refuse to permit divorce purely on the ground of the seven years' separation would condemn a considerable number of other people who have entered into these relationships, as well as their children, to the continuation of a most unsatisfactory kind of life. I would say that, from that point of view alone, it should be possible for the whole matter to be straightened out by a divorce.
The retentionists put great reliance on the fact that divorce is injurious to children; and so it is. The trouble about all these points that they make is that there is an clement of truth in them. But in the case that we are examining, where the parties have been separated for seven years, or more, it will follow that the children will have been without the guidance of one parent or the other for at least seven years, and they will have become materially older in the process.
980 I cannot conceive that refusing the parents the opportunity of divorce at the end of seven years is in any way going to benefit the children.
Those, I believe, are the main bases upon which the extension of the grounds for divorce were put forward. I hope that I have been fair to the case presented by the nine retentionists. I imagine that some, at any rate, of the retentionists are opposed to divorce at all, and that they would have equally resisted the existing grounds for divorce at the time when they were submitted. I should like to ask them whether they think that, if we had no divorce and no means of putting an end to an unhappy marriage, whatever the circumstances might be. that would add to the total of human happiness. The question arose whether, even if you permitted a divorce on the ground that the parties had not lived together for seven years, it should be only with the consent of both parties. I think that I largely dealt with that point when I said that I took the view that it should be at the instance of either party, and that unless there were strong grounds for refusing a divorce, or it was unreasonable for a divorce to take place —and that I feel would be a rare case—a divorce should be granted at the end of that period. Of course, it would be conditional upon many things, such as the custody of the children and making provision for them. Certain financial arrangements and other matters of that kind would have to be dealt with in a satisfactory manner. But I have already expressed my view that, subject to that, it should be possible to get a divorce; that it should be at the instance of either party, and that no regard should be paid to the question of guilt or innocence or the commission of a matrimonial offence.
I recognise that Her Majesty's Government have a difficult decision to make. I have no doubt that the general trend of opinion and the climate of our increasingly complex and nerve-racking society all lead in the direction of loosening a tie which has become intolerable and without hope of alleviation. However, it is for the Government of the day to weigh up faithfully and without bias the case for and against change and to come to an early decision, I recognise that they are bound to be influenced by the fact that the Commission were evenly divided; but I hope 981 that they will be influenced also by the fact that, when this matter came before another place, a Bill for providing for divorce on this same ground was carried by 131 to 60 on Second Reading: and I have little doubt that if a vote were taken in the present Parliament the result 'would be much the same. What would 'be intolerable would be for the Government to make no decision, or, worse still, not even to consider the problem because of its great difficulties. These difficulties do not diminish with time. I hope that, if not to-day, Her Majesty's Government will make an early announcement of what they are prepared to do. I have expressed my opinion as to what should be done.
Of course, it is conceivable that the Government would be prepared to facilitate the passage of a Private Member's Bill. In that case, I would ask them to stand by that Bill once it is passed, and to ensure that such a Bill is carried into effect, if that is the will of Parliament. That is the real question upon which the public are desirous of having a decision. It is not enough merely to give some encouragement to the recommendations dealing with advice and guidance, with a view to helping to prevent the subsequent breakdown of a marriage, important as they are. If I have not dealt with these recommendations in any detail, and if I ask for something more than that, I am not in any way diminishing the importance of the pre-marital guidance that can be given, which I am sure would have great effect in making marriages more successful.
It is for these reasons that I have called attention to the Report of the Royal Commission. I have dealt with the main issue which was before the Committee, and I have tried to put both sides of the case, not concealing my own view. I. have not suggested that there is no substantial ground for the view taken by the retentionists but I do suggest that they have over-stated and magnified the objections to the proposed change, and that they have assumed that conditions will obtain on a large scale when, in my view, the cases which they refer to as the hard cases will be few indeed. I believe they have underestimated the great amount of unhappiness and misery which the 982 retention of the present grounds of divorce creates.
I have deliberately not dealt with the views of the Churches on divorce and marriage, and whether such persons as are divorced should be allowed to remarry. I have not dealt with it, partly because I cannot claim to have any particular contribution to make to the subject, and, further, because I do not think the Royal Commission dealt with that aspect of the matter. I recognise that the Churches have an important contribution to make to a consideration of this subject. They have great experience anti great knowledge of the lives of people. and I know that we shall listen to what the members of the clergy have to say to us this afternoon with great respect and attention. I hope they will not feel that they are being treated disrespectfully if I do not deal with some of the problems which know they have been facing in the recent past. I hope that the result of this debate will be to afford the Government an opportunity of making some statement as to what they propose doing. and at least of giving the Royal Commission, which has laboured so long and so patiently, some kind of recognition for their great and long efforts. I beg to move for Papers.
§ 3.22 p.m.
§ LORD MORTON OF HENRYTON
My Lords, may I start by thanking the noble Lord, Lord Silkin, most sincerely for the kind things that he has said about the work of the Commission and its Report. We did work hard. Our terms of reference were very wide, and we ourselves were scattered over the whole of England. Scotland and Wales. We are sure that all our recommendations will be carefully considered, and we hope that some, at least, will be put into force. It may seem ungrateful, after the kind things that the noble Lord, Lord Silk in, has said, that I confess at once that I am quite unrepentant in thinking that the proposals in the Bill brought forward in another place by Mrs. Eirene White would do infinitely more harm than good. I shall no'. take up your Lordships' time by repeating the arguments which are set out in the Report for that view.
Here I think as Chairman, and do not wish to be controversial. but I would say this at once. The noble Lord is quite wrong in thinking that the retentionists, as he calls them, were against all 983 divorce. There is no foundation whatever for that view which he put forward. I must point out one rather important aspect of the matter. Of the nineteen members of the Commission, not a single one supported in its entirety the Bill which was put forward in another place by Mrs. Eirene White. I should like to make that good by telling you what we did think. Although there is nothing of a Party nature about this topic at all, the Division in another place did follow, to some extent, Party lines. I am sure that the two largest Parties were represented in our Commission, although, of course, we never talked politics. The remarkable thing is that all the nineteen people were unanimous in rejecting one feature of Mrs. White's proposals.
Nine of the Commission, including myself, were against divorce by consent, and we were against divorce at the option of either party where no matrimonial offence had been committed. Nine of the Commission went further and were in favour of divorce by consent of both parties after seven years' separation. Four of the nine went further still, and were in favour of divorce after seven years' separation at the option of either party, provided—and this is very important—that that party could prove that the separation was due at least in part to the unreasonable conduct of the other party. But what nobody supported was that men who had gone off leaving a guiltless wife for seven years, should come back and divorce her against her will, notwithstanding that she might have conscientious scruples, and thereby deprive her, she having committed no matrimonial offence at all, of her status as wife; of her right to maintenance as a wife—although that might be provided for by something in the order—of her rights, such as they are, to remain in the matrimonial home, and of her rights to claim against the estate of her late husband under the Inheritance (Family Provision) Act, 1938, which provides, in effect, that if due provision is not made for a wife she can come to the court and claim it. That would be gone because she had been divorced on no grounds except the seven years' separation, which may not have been her fault at all.
I pass from that to another Bill which was before this House shortly before the 984 Royal Commission was appointed. We had to consider matters which were dealt with in that Bill. It was a Bill produced by the noble Lord, Lord Mancroft, and if I may state its purport quite shortly, and somewhat inaccurately, it was directed to this: that a man should be able to marry his divorced wife's sister, or a woman should be able to marry her divorced husband's brother. In the Commission, the noble Lord's suggestions received a satisfactory majority—sixteen to three. I happened to be one of the three, but I should like to say this in the presence of the noble Lord: that it was only after great hesitation that I did take that view, and what influenced me was the evidence given before the Royal Commission by the most reverend Primate, the Lord Archbishop of Canterbury, and by Dr. Hutchison Cockburn on behalf of the Church of Scotland. It was after considering this that I came down on that side.
I had expected, when I heard that this debate was to take place, that I might sit back and listen to what other people said about our Report; but I was told, and given due warning, that it would be helpful if I made some observations about the work of the Commission generally, and then perhaps called attention to some particular proposals. I shall deal only with those recommendations which were unanimous, or nearly so. In general, one comment that was made has always lived in my mind: it was that it was obvious from the Report that the Commission was dominated by its lawyer members. I should like to see any lawyer, or anyone else, for that matter, try to dominate any one of the lay members of that Commission. In saying that, I do not suggest that they were in any way cantankerous or obstinate. I mean merely that every member of that Commission listened to the evidence, read the documents and made up his or her mind quite independently.
Another comment which rather stuck in my mind was that this was an irreligious Report. That was based, I think, on a sentence in paragraph 38 which is word for word this:This report will contain no discussion of what may be called the religious aspects of marriage or divorce. …That was perhaps an unfortunate phrase, but what it meant to me, and I think to 985 my colleagues, was that there are many people in this country who honestly and firmly believe that in the sight of God a marriage, once solemnised, can never be ended except by the death of one party or the other. It was not for us to go into matters of that kind at all. We were appointed in a country where legislation has been passed to enable people to get a divorce on certain grounds and it was for us to consider simply this: are these the best grounds that can be devised? That, of course, was only one part of our work. The State has to legislate for all its citizens, whatever may be their religious beliefs.
I have one more comment of a general nature. In all comment on our Report attention was focused very much on the differences of opinion, and especially the difference of opinion to which the noble Lord, Lord Silkin, has referred. I should like to say that I think it is remarkable how unanimous the Commission were. Those who have read through the Report —and I expect all your Lordships have—will have seen that the great majority of our recommendations are unanimous. That is rather striking, because we were dealing with human problems. It was impossible to prove anything One way or the other; it was just a matter of what was the best thing. The members of the Commission differed very greatly in their work, and their general outlook, and also, I am sure, although it was never discussed., in their politics. And yet there were all those unanimous recommendations. If I may say so, I think that we formed an average cross-section of reasonably intelligent and reasonably hard-working people in the country, and I suspect that, even if we were divided on certain topics, it may well be that the country also is divided' on them, and possibly our recommendations, where they were unanimous, might be entitled to some weight just because we were all different people of different occupations and outlook.
May I come, I hope briefly, to some of the recommendations that I should like to bring to your Lordships' particular attention? First of all, there is a recommendation as to children. In paragraph 373 we recommend that no couple shall get a decree absolute until the judge is satisfied that the future arrangements made for the children are the best that can be devised. We thought that that might have two good 'results. First of all, 986 we provided that the petitioner—and, if the custody was contested, the respondent —should put down on paper exactly what he or she proposed should be done about the children after the divorce, if it was granted. We thought that that put the children in the proper place. It brought out that there are not only the two parties who arc concerned with the divorce but also the children, and that the State, too, is interested every time that a marriage breaks up.
The second thing we had in mind was this. if two people—or, at least one of them—have to put down those matters on paper and. think them out, we thought there was a considerable hope that in the cases where the parties really should not be going to get a divorce at all, because it was unnecessary—and there are such cases—they might be led to think again and to wonder whether they could not try to "make a go of it" for the sake of the children. As the noble Lord, Lord Silkin, has said, the number of divorces in this country each year is very great. At present the total in Great Britain is nearly 30.000—and that is more than ten years after the war is over. In our Report—I shall not trouble your Lordships with it in detail—we tried to give some of the reasons for that. We made a suggestion as to how the matter might be improved. We did not think that it would remedy it at all to make divorce more difficult, but we suggested that much could be done by free marriage education, in the widest sense, and by other steps which are mentioned in the Report.
We made this suggestion, that a suitable body (I shall comment in a moment on "a suitable body") should be set up at an early date to consider the problems of how people should be educated for marriage and how hasty and ill-considered marriages can be avoided. We said "a suitable body" because we ourselves could not do anything, as it was not within our terms of reference; also because we thought—or at least, I thought—that no body could be suitable for a purpose like that which contained in its number not one clergyman of any denomination and contained, to my mind, for this purpose—and I say only "for this purpose"—too many lawyers. We said a good deal in our Report about marriage guidance and conciliation, and we were satisfied that a great deal of good work is 987 being done by bodies carrying on that work.
We had a great deal of evidence that, when there are available people whom married folk can consult, if they are getting into difficulties with their married life, provided that they are the right people, with the right sort of training, a great many marriages can be saved from breaking up. I shall not deal more fully with that aspect, because I understand that the noble Lord, Lord Merthyr, will be speaking later, but I will say this. Very large sums are spent every year in helping people to get divorced by means of legal aid. I am not saying a word against that, but I think that comparatively little is spent on trying to save marriages which are in danger of breaking up, and it seems to me that more might be done about it.
May I refer briefly to three other matters in the Report? First of all, Part XII, which is perhaps not so easy reading as the rest of the Report, deals with the jurisdiction of courts in various countries to pronounce decrees of divorce. That work—and it was very hard work indeed—was done by a committee consisting of the noble and learned Lord, Lord Keith of Avonholm (as he is now), Mr. Justice Pearce and Professor Geoffrey Cheshire. who was co-opted for the purpose. They have set out in an Appendix a draft code. One of the principal objects that that committee had in mind was to reduce the number of what are sometimes called "limping marriages"—that is, marriages where the parties have been divorced in one country and they re-marry, and their re-marriage is regarded as good in that country but not in another. We felt that much could be done to mitigate that evil, because to some extent it is an evil.
Another topic that gave us great concern was the position of a deserted wife where the house belonged to her husband, or where the husband was the tenant of the house, and also where the furniture, or the greater part of it, belonged to the husband. There have been recent decisions in the Court of Appeal, though they have not yet come to your Lordships' House, which hold that a deserted wife has certain rights, even if she is not the tenant or even if the husband, as the owner, is 988 staying on; but we felt that the law on the subject was not altogether clear and that something ought to be suggested by us, as it came clearly within our terms of reference, to make the position of the wife clearer and to give her as much protection as is reasonably possible, consistent with the rights of third parties.
What rights third parties should be given is by no means clear at the moment, and one must have in mind the case of a mortgagee who has lent the husband money on the security of the house in perfect good faith before there was any matrimonial trouble, and who may now find himself in a difficult position; and also the position of the landlord who. again, has nothing to do with the matrimonial troubles but who may find himself in a very strange position if, for instance, he wishes to get possession of the house or, in the case of a mortgagee. if he wishes to sell, because the wife is probably still there. These things we have tried to deal with and we have suggested that legislation should be passed to deal with them.
Lastly, may I say a word about the Appendices. I do not know how many people read Appendices, but these Appendices represent an immense amount of hard work and research in regard not only to this country but to all parts of the world. We did not travel over the world to obtain first-hand information. but your Lordships will find in these Appendices a great deal of information about the divorce laws of other countries and other information. I have read a criticism saying that it is all very well for the Commission to set out these facts in the Appendices, but they might have commented upon them and drawn their conclusions from them. We did not think it right to do that for two reasons: first, it would have enormously increased the length of the Report—and I assure you it took some compression to get our material into 309 pages, exclusive of the Appendices and the Summary; and, second, we felt that those who were sufficiently interested should read the Appendices and ponder them and form their own conclusions.
I have just realised that in all that I have said I have made no mention of Scotland. I need hardly say that I would 989 never overlook my native country. The reason it has not been specifically mentioned, although there are many recommendations which relate to Scotland, is that all the recommendations that I have mentioned apply equally to Scotland as to England and Wales, allowing only for those differences rendered necessary by the differences between the two legal systems. I end as I began by thanking the noble Lord, Lord Silkin, and by expressing the hope that some, at least, of our recommendations may be put into force.