§ 3.49 p.m.
§ Debate resumed.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE HOME DEPARTMENT (LORD MANCROFT)
My Lords, I thought it might be of some help to your Lordships if I were to intervene at this stage in the debate on the Royal Commission's Report to make a statement to your Lordships about the conclusions which have been reached so far—I repeat, so far—by Her Majesty's Government on this most difficult and important subject, and to let your Lordships know upon which recommendations in the Report the Government propose to act. My noble and learned friend, the Lord Chancellor, will be winding up the debate from the Government side and he will, of course, be able to deal with other points which will doubtless be raised in the course of the subsequent debate.
I should like to begin by thanking the noble Lord, Lord Silkin. for raising this extremely important matter. He has more than once in recent months put down Motions on similar lines to this one, about other Reports and other Royal Commissions. I suspect that he wishes to go down in history as the Inspector General of Pigeonholes. But I can tell the noble Lord this at once: Her Majesty's Government have already examined, and are continuing to examine, this Report most carefully. The noble Lord suggested that the Report had been received in the New Year, and the rest, he said, was silence. I think that was perhaps hardly fair to my right honourable and learned friend the Attorney-General, who, in another place on June 4, gave some indication of what was in the mind of the Government. I can assure the noble Lord that the Government have studied this Report most carefully. If it is of any comfort to him, I can tell him, here and now, that I myself have read through the Report from cover to cover, including—I am certain my noble and learned friend Lord Morton of Henryton will be happy to hear—the Appendices. Had I wanted to, I could even have read the Report in the course of my summer holiday. I was particularly happy to see a copy of it on sale in a book shop in Venice. I was slightly startled to see that it was listed, 993 not as one would expect under "Law" or "Sociology", but under "Romance".
I should like, on behalf of Her Majesty's Government, to thank the noble and learned Lord, Lord Morton of Henryton, and his colleagues of the Royal Commission for their monumental work. I can do this, standing at this Dispatch Box, in more than a sense of formality, because I myself am in the happy position of having personally given evidence before that Royal Commission, and I therefore can testify to the care and the broadminded thoroughness with which they undertook their most important task. They have produced a Report which is not only one of the most readable Reports a Royal Commission has ever produced, but one of the most socially important. But, as both noble Lords who have so far spoken have indicated, the Royal Commission did not produce any revolutionary conclusions. Their Report falls into two parts: first, the divorce law, and secondly, the matrimonial jurisdiction of the courts. Of course, the second is important, but I suspect that public opinion will be concerned mostly with the first. I suspect that that will probably be the burden of most of the specches in the debate this afternoon.
Many of the Commission's recommendations can, and will, be dealt with by minor legislation, by amendments to the Rules of Court and the like. Some, of course, can be dealt with administratively; but some undoubtedly require major legislation. Of these, the most important and by far the most controversial is the question of allowing divorce after the parties have been separated for seven years—roughly, the subject of Mrs. Eirene White's Bill. I say "roughly" because your Lordships will now have appreciated that there is quite a sharp difference between unilateral divorce and divorce by consent. As the House now realises, the Commission were evenly divided on this question of divorce by consent. I suspect that that probably reflects a similar division of opinion throughout the country and in your Lordships' House. I have no means of controverting the noble Lord, Lord Silkin, but I think that probably he has put a little too much weight on one side rather than on the other.
There being that equal division, few Governments would be ready to legislate 994 in such circumstances without first allowing time for public opinion to crystallise, and, indeed, for Parliament to express its views. As your Lordships may imagine, people feel very strongly on this matter—equally strongly on both sides. I am afraid that I must tell the House that Her Majesty's Government can hold out no present hope of being able to introduce legislation dealing with this or the other principal topics requiring major legislation. I am sorry to appear a little uncompromising in this matter. I regret it, but I should be less than frank if were even to hint otherwise. We will, of course, give full consideration to the views expressed in this debate and in the country, which, incidentally, has been surprisingly restrained, even reticent, about the Report of the Royal Commission; and we can and will take means. short of legislation, for dealing with many of the recommendations of the Royal Commission.
What I have just said applies, I am afraid, in some ways also to the all-important question of the welfare of children. There are a large number of recommendations in the Report, of which I suspect that probably one of the most important is to the effect that no decree absolute should be granted until the court is satisfied about the children's welfare. Naturally, people are uneasy about what happens to children in divorce cases. Something like 20,000 children a year are affected by divorce. Something can and will be done by amending the Rules of Court, but legislation is required to enable the court to go so far as to withhold a decree. I am afraid I cannot hold out much hope of legislation on those lines in the coining Session.
On some of the other topics I am glad to say that Her Majesty's Government can be more forthcoming. My noble and learned friend the Lord Chancellor proposes to invite the Supreme Court Rule Committee to consider what other amend-merits to the Rules of Court are needed, and I believe that similar action is proposed in Scotland. Such procedural amendments might, I suppose, amongst other things ensure that a parent claiming custody must give the court full information about the arrangements proposed for the children's maintenance and upbringing, and also perhaps that the court would he given power to grant an injunction preventing a child from being 995 taken out of the country before a case is heard; and there are others. Her Majesty's Government hope to take action on all the important recommendations falling within these particular categories which can be dealt with by means short of legislation.
Now I will turn to the matrimonial jurisdiction of magistrates in England. The Royal Commission made a large number of recommendations about matrimonial proceedings in magistrates' courts. Many of them would require legislation, some of them present practical difficulties, and all need careful and detailed consideration. I can tell the noble Lord, Lord Silkin, that we are going ahead with this consideration, so that although there is no prospect of finding time for legislation during the next Session we may be clear in our own minds what we want to do, and how to do it, when time for legislation is available. In the meantime, I can tell your Lordships that a Bill is in an advanced state of preparation for consolidating the scattered statutory provisions relating to the matrimonial jurisdiction of magistrates in England and Wales. This Bill should be ready for introduction in the new Session, and the consolidation of the law which it will effect will usefully pave the way for subsequent amending legislation. I think this will go some way to meeting one of the Royal Commission's more important recommendations.
In considering the recommendations in this field, we shall look at those which do not require legislation, to see whether any of them can usefully be implemented in advance of those that do. Unfortunately, financial considerations may preclude action for the present on some of the Royal Commission's recommendations which would involve considerable additional expenditure. For instance, there is the implementation of the provisions of the Legal Aid and Advice Act, and there is the provision of a complete record of proceedings. I think the Royal Commission themselves recognised that expense might make that provision almost impracticable.
There are some less important recommendations which are suitable for Private Members' Bills. After all, that is the only way in which reform of the divorce law has been effected in the last twenty 996 years. I must confess that I could not but note with gratitude that the proposals of my own Marriage Enabling Bill, which the noble and learned Lord, Lord Morton of Henry ton, was good enough to refer to, were supported by the Royal Commission by a majority of sixteen to three. I could not also but fail to note with grief that the noble and learned Lord was amongst the three who voted against me—a blow from which I am recovering, but slowly. I think it would be immodest and tactless of me to suggest any future for my own Bill, but, to give an example of a potential Private Member's Bill, I believe that the noble and learned President of the Probate Divorce and Admiralty Division, whom we are to hear later in the debate, would welcome a Bill on voluntary maintenance agreements. The present law, we know, is unsatisfactory. A husband's promise is not at present enforceable, and a wife should be able to apply for increased maintenance out of her dead husband's estate. Her Majesty's Government are ready to consider proposals for such a Private Member's Bill and, if necessary, to assist with drafting.
I will now say a short word about probation officers. My right honourable friend the Secretary of State for the Home Department proposes, in accordance with the Commission's recommendation, to extend to the Provinces arrangements whereby in London a few probation officers assist the Divorce Division by inquiries about children. He also hopes to amend the Probation Rules to make this a prescribed duty of probation officers. I understand that legislation is needed before probation officers could do this work in Scotland.
On marriage guidance grants, about which noble Lords have spoken with firmness and sincerity—and I think their views will find an echo in nearly every other speech to which we shall listen this afternoon—the Commission unanimously recommended a financial increase. Provision for the coming year is now under consideration. All I can promise is that Her Majesty's Government will look at this problem most sympathetically. My right honourable friends, the Home Secretary and the Minister of Education, have agreed to receive a deputation from the National Marriage Guidance Council on this and 997 other matters, particularly a review of the marriage law and pre-marital training. They will listen most sympathetically to what this deputation will have to say; and I can endorse most heartily the views so far expressed. Her Majesty's Government share the high opinions, expressed by the Royal Commission about the Council's work and the value of that work on this problem.
I appreciate, of course, that Her Majesty's Government may not have promised as much as some noble Lords may have wished. We have, however, promised to do a great deal. But, for all their painstaking examination, the Royal Commission have given us n..-) very clear lead on the major issues of controversy. if the Royal Commission had demonstrated an unquestionable demand for major reform along one particular line or another, then the situation might well have been different; but in view of this position I am sure the House would think it unreasonable to expect Her Majesty's Government to give any more specific undertakings now than I have been able to give. We are doing as much as time permits; and when time and public opinion permit more, well, we must do more.
§ 4.3 p.m.
THE LORD ARCHBISHOP OF YORK
My Lords, I am one of those who welcome the Report of this Royal Commission with warmth and gratitude. It is the third Report on this great subject within a century and, when one reads it in comparison with the other two, its distinctive mark seems to me to be its strong emphasis on the recommendation for steps by education or conciliation, to reduce the number of divorces. The noble Lord, Lord Silkin, in opening this debate, for which we are all grateful, said that he thought public attention was confined to the section of the Report dealing with the, grounds for divorce. I do not believe that public attention is confined to that part. I believe that a great deal of public attention is enormously interested in education for marriage and the conciliatory processes by which the number of divorces can be reduced, and my reading of this Report is that it comes as a kind of summons to the State, the Church, local authorities and voluntary agencies to redouble their efforts in education and conciliatory 998 work to reduce the divorces which take place in this country.
The noble Lord, Lord Mancroft, who has just spoken for Her Majesty s Government, promised certain legislative and administrative changes which he described as "minor". Let me assure the noble Lord that they will not be regarded as minor if they give real, effective help, as I am sure they will, to those who care deeply and work hard for education for marriage and conciliation. I was very glad that the noble Lord promised that Her Majesty's Government would consider the possibility of greater financial aid to marriage guidance councils. The work of those councils goes on with a good. deal of anxiety on account of the need for funds: and many of those who work in the service of those councils as guidance counsellors do so at considerable personal self-sacrifice. T was sorry, however, that the noble Lord said nothing about the recommendation; the Commission's Report that:a suitably qualified body should be set up at an early date charged with the review of the marriage law and the existing arrangements for pre-marital education and training.I think there will be a good deal of disappointment that the noble Lord said nothing about that.
Then there is that aspect of education for marriage which lies very near to the ceremony of marriage itself. When a marriage takes place in church, the great solemnity of the words used certainly say something to the mind and the conscience; but the parish priest always endeavours to ensure that those who are to be married do not have that occasion as their first encounter with the solemn words they are going to say. He will have done everything possible, by meeting the parties beforehand and talking to them and getting them to read the solemn words in advance, to get them to give their minds to what it is they are going to undertake. When the ceremony is in a register office it is good that something on the same lines is done. It was a great step when, a few years ago, registrars were instructed to address the parties, informing them of the life-long character of the undertaking that they were making. It would be a further great help if it were requisite for written help to be available in register offices. to be put into the hands of the parties, showing 999 them where and how they could get help in troubles that might arise.
When we talk of education towards marriage, that inevitably includes the realisation of what a great thing the marriage is going to be; and here I am heartily glad that the noble Lord did not indicate that there would be legislation extending the grounds for divorce, and in particular the proposal for divorce after seven years' separation on the plea of either or both parties. I was heartily glad of that because I believe that a revolution of that character in the grounds for divorce would have a reflex effect upon the approach of couples towards marriage, and an effect which would be thoroughly bad. Your Lordships will remember a debate which took place six years ago, before the appointment of the Royal Commission. It was on November 23, 1950. I was not then a Member of your Lordships' House, but I noted some words used on that occasion by the then Lord Chancellor. the noble and learned Earl. Lord Jowitt. Those words have stuck in my mind ever since, and they seem to me to express powerfully what I should always wish to say. The noble and learned Earl said [OFFICIAL REPORT, Vol. 169. col. 513]:… if we are going to allow this sort of divorce, are we not in danger of making people think more and more that marriage is a contract at will and not a union for life?It is in relation to education for marriage that I am heartily glad that the revolution in the grounds for divorce that has been discussed on these lines is not within the intention of Her Majesty's Government.
One word more about children. Paragraph 373 in the Commission's Report would, if it were translated into legislation, be held to be a children's charter. I am very disappointed, and I think that there will be a good deal of disappointment in the country, that the noble Lord, Lord Mancroft, was not able to promise, on behalf of the Government, legislation to lay down that a decree should not be made absolute until the court had been satisfied concerning the provision for the children. There will be great disappointment at that. If my recollection of the text is correct, it was one of the agreed recommendations of the Report. I have used the term "children's charter." I 1000 believe that that term was used early in the present century in connection with a Bill promoted by the Home Office, at the time when the noble Viscount, Lord Samuel, was its Under-Secretary, for the welfare of children. If Her Majesty's Government had found it possible to introduce legislation for the welfare of children on this specific point in relation to the law courts, the name of the noble Lord would have been associated with what would indeed have been a children's charter. As I say, what we have been told is disappointing, but we were glad to hear that Her Majesty's Government had given only preliminary consideration to what they propose to do and not their full and final consideration.
No doubt it is a very good thing that one of the parties in a divorce suit should have to put on paper what he or she is prepared to do for the children. But the court needs far more satisfaction than that. It is surely very difficult for a court to distinguish between a profession by one of the parties that the children will be looked after and a real conviction that they will be. The only occasion in history on which a court distinguished infallibly between a woman who said she cared for a child and a woman who really cared for the child was that of the judgment of King Solomon, but the method of decision then used is one which is not accessible to Her Majesty's judges to-day. I think that opinion in the country cares greatly for those positive aspects of this Report which Lord Silkin has emphasised so strongly. It will be grateful for what the noble Lord has said on behalf of the Government but, as I say, there will be disappointment that he has not said a great deal more.
§ 4.15 p.m.
§ LORD MERRIMAN
My Lords, after what the most reverend Primate has said, I need only add, very shortly, my tribute to that which Lord Silkin has paid to the Report of the Commission. In my opinion, it is a most valuable social document. The review of the law and the history of this matter is masterly, and I join with both the noble Lord, Lord Silkin, and the most reverend Primate, in thanking and commending the noble and learned Lord the Chairman of the Commission for the Report. I cannot profess to be entirely surprised by the announcement of the noble Lord, Lord Mancroft, that legislation on a large scale was not 1001 immediately contemplated, but I hope that there is one, recommendation of the Commission, at any rate, to which some attention will be paid. It will be remembered that they came down very strongly on the side of the appointment of High Court Judges to deal with this matter, recognising, of course, the qualification that it was impossible to appoint a sufficient number at once, largely because of the lack of accommodation. But I hope that the Government will make a beginning in that direction. And may I add hope that, if and when that happens, the Government will also bear in mind the Commissioners who for nearly nine or:en years have borne the burden and heat of the day without any security of tenure or the right to one penny on their dismissal.
Lord Mancroft has mentioned rules. I should like just to tell the House this simple fact; that everything that can be done by title is, in fact, already in draft and ready for presentation to the Supreme Court Rule Committee. I am not going to weary your Lordships with details; they are highly technical and a matter which would be quite unsuitable for this debate. I also welcome what Lord Man-croft said about the assistance which would be given to a Private Member's Bill dealing with maintenance agreements. There are some matters which do require putting right in that respect.
There is one other matter upon which I should like to touch, before I come to the main subject of Lord Silkin's speech, and the point about which the Commission were divided—again it is a matter of legislation. I imagine that there is likely to be a Finance Bill next year, and I believe that what I want dealt with can be dealt with by a clause in the Finance Bill. It is this. It will be remembered that some years ago a clause was put into the Finance Bill of the year that small orders, which were defined as orders for £2 a week, could be dealt with outside the scope of the Income Tax Act. That applied to orders made by any court, including the Probate, Divorce and Admiralty Division. When the maximum order that could be made in magistrates' courts was increased to £5, that figure was inserted for those courts, but if one of the Registrars of my Division makes an order for £5 a week we are left in the absurd position that it has to go through all the rigmarole of deduction and retention and reclaiming by the wife, instead of being treated, as a corresponding order in a 1002 magistrates' court would be, as a small order escaping the income tax net.
Now I come to the matter which is really the subject of controversy. If your Lordships will allow me to say so, I thought that the noble Lord, Lord Silkin, was less than fair when he said that the retentionists were against divorce in all events. I repudiate that on behalf of many professional friends of mine and everybody ii know who has anything whatever to do with the administration of the existing divorce law. It is simply not true. There is a slightly derogatory reference in the Report to the fact that those who arc retentionists are those (I think the phrase is) "with legal minds accustomed to discourse of legal rights and wrongs." I have observed (and I am sure that the noble and learned Lord, Lord Morton of Henryton, will correct me if I am wrong) that at the two poles on this vital question there is at am: the noble and learned Lord himself and, at the other, the noble and learned Lord, Lord Keith of Avonholm; and nobody can doubt that they have legal minds—indeed, legal minds of so acute a character that without them they would not have attained their present dizzy eminence.
Legal mind or no legal mind, I confess myself at once unashamedly to he a retentionist. I agree with Lord Morton of Henryton's party—hereinafter to be called the "Morton party," as distinct from the "Keith party," as conveyancers say—that the breakdown theory leads at best to divorce by consent and at worst to divorce at the instance of the spouse responsible. The most reverend Primate referred to something that the noble and learned Earl, Lord Jowitt, said some time ago. I remember that debate and I remember that the noble and learned Earl stressed most firmly that particular point, that the proposal would lead to divorce at the instance of the party responsible for the breakdown of the marriage; and I am sure that that is right. When it is said that the retentionists are against the exising divorce law, my own view—and I speak for those whom I know as well as for myself—is that the "Herbert Act" was very beneficial and has met, I hope efficiently, all, or practically all, the hardships it was intended to meet.
I am not going to attempt, like the noble Lord, Lord Silkin, to go through the arguments for the retentionist view, 1003 which are so fully set out in the Commission's Report. But I should like to attempt to deal with one or two of the arguments which are put on the other side. Not only in the Report itself, but also in general conversation outside, I have heard it said that most present divorces are by consent—the noble Lord, Lord Silkin, himself said as much in his speech to-day—and, though the noble Lord did not add this, it is quite commonly said outside that many of those are collusive. It all depends what is meant by divorce by consent and what is meant by collusion, and to what extent collusion, properly understood, goes. Of course. I do not deny for a moment that collusion exists—I will come back to that in a moment.
As regards divorce by consent, I suppose it may be assumed that most petitioners wish to be divorced or they would not have brought a petition, and it may well be that in a great many cases the respondent is glad to be divorced. But that is not divorce by consent. It has been long settled, even with regard to desertion cases, that the mere fact that a party is thankful to see the last of the other is no answer to the charge of desertion, because the parting is by consent. In cases where there is a legitimate grievance, the mere fact that the parties are both thankful to be rid of each other is not an answer to the suit and does not turn what is a remedy for a proved wrong into divorce by consent. What I mean by "divorce by consent", and what I think the Commission mean by it, if I read their Report aright, is divorce where the agreement of the parties is the only basis on which divorce is sought. That, of course, is not the law at present; but my opinion, for what it is worth, is that the introduction of the breakdown theory would greatly increase that tendency.
Now I want to say a word about the proposal itself. I suppose that nobody really imagines—certainly I do not—that people are deliberately going to enter into a separation agreement with a view to bringing a divorce petition in seven years' time. That proposition is too absurd to be considered. The truth is that the introduction of a seven years' period is specious and fallacious. The seven years as a period adds nothing to that which has already happened seven years before— 1004 that is, the breakdown of the marriage. Whatever period is taken, in 99 cases out of 100, it is merely confirming that which already exists. Apart from the avowed intention of reformers to reduce the period from seven years to four or two, or some other figure, the real point, as I see it, is that the period as such is completely irrelevant. The breakdown has already happened.
In the case of practically every separation agreement that I know anything about, and naturally I see a good many in the course of divorce cases, the time-honoured phrase, "whereas unhappy differences have arisen", conceals some serious cause of action. It should be remembered that separation agreements are not always, though they are sometimes, entered into either from religious scruples or because the spouse will not divorce out of spite; often it is in order to avoid doing injury to the career of the wrongdoer, a consideration which, oddly enough, still prevails in this world of ours. The real point about this period is that when eventually the period is reduced, as inevitably it will be, from seven years to some other minimum period, then the easy way out will be provided, easier even than divorce for desertion for three years. And if it is true, as I think to some extent it is (the noble Lord, Lord Silkin, referred to it and it is referred to in the Commission's Report), that, for a time at any rate, easy desertion took the place of easy adultery with a view to getting undefended petitions through, I think there is some evidence that the pendulum has now swung back the other way. Be that as it may, there will always be unscrupulous divorces, and there will always be people who are unscrupulous enough to take advantage of loopholes in the law and to deceive the court. But whatever opportunities for fraud exist in connection with desertion cases, or, for that matter, in connection with adultery cases, they will, in my opinion, be magnified many-fold the moment this breakdown period is introduced.
There is one other small matter in that connection which I should like to mention in passing. It is quite idle and unreal to talk about protecting the financial position of the ex-wife. I have had a good deal of experience of trying motions for committal orders in the High Court and on appeal from magistrates on the question of amount. Over and over again 1005 the point is that there is a new wife—or a so-called "wife"—and a new growing family and, to use the words of the Commission, "there is just not enough money to go round." When the ex-wife is put in competition, not merely with the sentimental rights but also with the legal rights of the new wife and the new family, in ninety-nine cases out of a hundred it is quite futile to talk of making secured financial provision for her.
I do not want to enlarge too much on the differences that have occurred between the two schools of thought in connection with the breakdown agreement itself, but I am very dubious about the proviso which the extremes of the "Keith party" put in: that the objection of the other spouse should not be valid if that spouse had conducted herself or himself unreasonably and was in part responsible for the breakdown. It is one of two things: either unreasonable conduct is a matrimonial offence, or it is not. If. it is, it is raised seven years, or whatever the period is, too late, because it should have been raised by the party as a petitioner himself at the time when the offence occurred. But it will not always be said to be a matrimonial offence, and when we are told, as we are in one paragraph of the Report, that this proviso entirely meets all objections, that argument seems to me not quite to ring true, especially when, in the same context, there is scouted—indeed, the noble Lord, Lord Silkin, has himself scouted it:his afternoon—the existence of such a person as the innocent party, and when in the same context it is suggested that for the aggrieved party not to have sued is itself unreasonable conduct.
I mentioned the question of collusion, and that is a problem with which we must come to grips. I said that it all depends on what is meant by "collusion". To my mind, "collusion" means a corrupt bargain; and the corruptness is the essence of it. It may be to bribe the other party to bring the petition—it need not necessarily be on false grounds, and the bribe need not necessarily be money, though those are merely palliations. The essence is that it is a corrupt bargain to bribe the party to bring the petition, or, it may be, to suppress a defence or falsify the facts. That is the essence of collusion. I must say that I am astonished at the suggestion—it is quite 1006 prevalent, and it is hinted at in the Report itself—that discussion of maintenance, and so forth, beforehand in a responsible way is evidence of collusion.
I should like to remind your Lordships—as I ventured to remind the Commission, though it is not noted in the Report—that in the Herbert Act there is a clause which (if I may be egotistical for a moment) I was responsible for getting inserted, whereby, instead of having to present a separate petition for maintenance after the decree had been granted, the parties could begin as soon as the petition was presented, or even in the petition itself, to claim maintenance, and to deal with all the other matters related to maintenance, such as settlement of wife's property, secured provision for the wife, secured provision for the children, and so forth. Those things can be dealt with the moment the petition is presented. If the order cannot be made until after decree nisi. and cannot become effective until after decree absolute, as is the law, how can it be collusion for the advisers and the parties to discuss the details in order to present them to the court the moment the decree nisi is made?
I feel it very important that the ignorance about what collusion is, or may be, should be dispelled, and I am going to take a rather absurd instance to illustrate my point. As your Lordships know, in practically every case of insanity the official solicitor is appointed the guardian ad litem of the respondent, the insane person. It is the settled practice that, if possible, there should be presented at the hearing an agreed order for maintenance to be embodied in the decree. It really is quite fantastic to assume—nobody in his senses would assume it—that in such circumstances the necessary negotiations, very often cost-saving, should be regarded as collusive. But assuming the line to be drawn where I think it is drawn, if I take the hypothetical but impossible situation that the petitioner offered to double the allowance paid to the official solicitor for the guardian ad litem if the official solicitor would suppress the fact that he or she was living in adultery, or would omit to file a defence that the insanity had been gravely conduced to by a monstrous course of conduct of cruelty, that would be miles the other side of the line.
1007 It is always difficult to know where to draw the line, but it is easy to see that some things are on one side or the ether of any reasonable line that can be drawn. I am sure that most competent solicitors can be trusted to know where to draw the line and, in any case, can protect themselves and their clients by disclosing the facts to the court.
I should like to ask the noble and learned Lord a question about collusion. unless he would prefer that I left it until he has finished this part of his argument.
The noble Lord is so enlightening on this matter that I should like to put this question to him. I understand that he regards corruption, the offer of some kind of bribe, as being of the essence of collusion.
What of the case where the husband and wife grow tired of one another—perhaps the wife wants to get rid of the husband and to marry somebody else, and the husband goes to a seaside watering place and simulates adultery with a maid, or somebody like that, which has not taken place at all? That is the case which has discredited all this sort of thing in the minds of the public, but I would not say that a bribe has passed.
§ LORD MERRIMAN
It is a bribe really. Plainly, on the face of it, it is a corrupt arrangement. That is the common case of a corrupt bargain and certainly, in my mind, without any doubt, would be included as a corrupt bargain. That is, of course, exactly where the question of the extent of collusion comes in.
Before I deal with collusion. may I, in passing, say a word or two about the percentage of cases of divorce by consent? I have tried to deal with cases by consent, but I must say that my withers are unwrung by statistics given about the percentage of cases by consent in 1912. If your Lordships look at Table 1 on page 356. you will find that the total number of petitions presented in that year was 920. As we know, that was long before poor persons' aid, and the courts were concerned with one section of the 1008 community who could afford to pay for their divorces. I do not know in what sense the King's Proctor of the day was dealing with divorce by consent, even at that time; but if that was true at that time, it is certainly not true now; there is nothing like that percentage.
In my opinion, this matter has been gravely exaggerated. I disclaim any particular knowledge of social problems, or that knowledge of social problems in general resides in judges, but after all, when one has, between 1933 and 1947 (when we were relieved of undefended cases), oneself tried between 12,000 and 15,000 undefended cases, I think one is entitled to claim some knowledge of the difference between a case which is perfectly simple and straightforward and one which requires rather more scrutiny because there is some feature in it which suggests that things are not as they should be. I have discussed this matter with my friends, one of whom I regret to say has passed away, and nobody has ever put the percentage of cases which required further consideration higher than 10 per cent. Of those, on adjournment and investigation many proved right, and it is really—I am going to be dogmatic—sheer nonsense to suppose that the bulk of undefended divorce cases are collusive.
I have spoken much too long and I am sorry to have done so, but if your Lordships will give me one moment more I should like to deal with one further point. We have referred during this debate to figures. May I give your Lordships a few? When I was appointed in 1933, we were still under the influence of the First World War and of the 1923 Act, which made divorce for a single act of adultery by a husband at the instance of the wife a ground for divorce—an Act which I am quite certain was largely responsible for what the noble Lord, Lord Silkin, called the "gentlemen's agreement". Those things combined brought about a position in which the number of petitions presented was less than 5,000 a year—not that that is anything to be proud of, but it was less than 5,000 a year. From 1933 to 1937, the figure remained steady at about 5,000. But when the Herbert Act was passed—and this was inevitable, because that Act brought in retrospectively desertion cases and cruelty cases of old standing—there was a sudden leap forward to just under 10,000. By 1940, that again had steadied 1009 at an increase of about 30 per cent. since the Herbert Act, at just under 7,000 petitions a year.
Then came the Second World War, and in 1947 the unprecedented peak figure of 47,000 petitions was reached. Once again it subsided, to less than 30.000 by 1950, but there was another surge forward—the third that I have known—in 1951, due, of course, to legal aid and to the fact that a good many people had held back in the year or two before in the expectation of the coming of legal aid. That rushed the figure up again to 37,000 petitions a year. It has been steadily dropping since then. I have not got the official figures for the whole country after 1954, which are published in the Table to which I have referred, but, taking last year and this year, and using London as a barometer—and I get the figures every week—it is quite apparent that we are stabilising now at what wit probably be, for both those years, something like 27,000 petitions. They are at present running absolutely even with last year, week by week. Now that is bad enough, but at least it is 20,000 better than the peak year of 1947, and 10,000 better than the year when legal aid began to take effect. My Lords, these are dreadful figures. Is it not time to call a halt?
§ 4.48 p.m.
§ THE EARL OF PERTH
My Lords, I speak as a Catholic. First, let me quote from a joint pastoral letter of the Roman Catholic Hierarchy of England and Wales, written several years ago, on marriage and divorce. There it is stated:The main teaching of the Church on marriage is contained in a single sentence from the Gospel of St. Mark—' What therefore God hath joined together, let not man put asunder '.I know, of course, that this teaching is held by many Christians throughout the world, whether or not they are of the Roman Catholic Church. Our conviction is that no degree of civil law can sever the bond of a validly contracted marriage. Some people, wilfully, or in ignorance, may say: "What about annulments granted by the Catholic Church? Is not this divorce in disguise?" But the difference between divorce and annulment is a clear one, known in civil law as well as in Church law. In general, a marriage can be declared null by Church or State when it 13 proved that no true marriage 1010 ever took place: for example, if one party or the other was forced unwillingly to make the marriage contract or is physically incapable of fulfilling it.
But enough of the Catholic position on divorce, and let me turn to the Report itself. The authors are to be congratulated on it, for not only does it show evidence of conscientious and solid work but also it is inspired by the highest regard for the well-being of the family. That, I think, is most important. I do not intend to comment on the three suggestions for new grounds for divorce, since, in the light of my beliefs, divorce is such that it is inadmissible. On the question of divorce by consent after seven years' separation, naturally I strongly side with those who rejected the proposal as—and I quote again:fundamentally incompatible with the concept of marriage as a union for life '',and further that:it would foster a change in the attitude to marriage which would be disastrous to the nation.The duty of a Christian Government is to strengthen, not to loosen, the bond of marriage.
That brings me to my main point, the recommendation in the Report to the Government that aid should continue and be increased for the three existing national bodies dewing with marriage guidance. I know those of our Church concerned with such things welcome it strongly, and I was very happy to hear the most reverend Primate the Lord Archbishop of York also speaking to the same point.
The three bodies—the National Marriage Guidance Council, the Family Welfare Association and the Catholic Marriage Advisory Council—are voluntary and their work falls into two main categories: the work of reconciliation after marriage when difficulties have arisen, and the education of those contemplating marriage. Taking the second category first, the Report of the Corn-mission strongly supports the thorough preparation for marriage. It is unnecessary for me to go into great detail on this subject. Sufficient to say that such pre-marriage preparations must be good and should be actively encouraged by the State in every possible way.
For the second category—helping to resolve difficulties after marriage has 1011 taken place—the value of the three Marriage Councils' work is very obvious and great. I see that the National Marriage Guidance Council estimate that in at least one-third of the cases they deal with in this category they have been helpful, and for the Catholic Marriage Advisory Council the estimated figures are at least as high—over one-half in the case of their London headquarters where last year they dealt with 1,000 cases. What a splendid work it is and how enormously worth while for the State to support! The difficulty is shortage of money to enable these bodies properly to carry out their work.
I will confine my further remarks to the Catholic Marriage Advisory Council, which in no way implies that the other two bodies are not equally good and valuable in their work and worthy of support. To-day, this Council has its headquarters in London and has established over the last five years sixteen new centres in other parts of the country. It has plans afoot to increase its numbers by eight new centres a year for the next five years, and it hopes equally to extend its activities to Scotland and Northern Ireland. But all this needs money. The total Government grants at the present time towards this Council's activities are just over £2,000. The figure is absurdly small. Increase, and a very material increase, must be a sound investment, quite apart from the immense benefit to the nation's happiness and well-being.
Let me give some figures of the costs which were mentioned by the noble and learned Lord, Lord Morton of Henryton. For the last few years the average cost of legal aid to the nation was over £1 million. Of that, no less than 75 per cent., or £750,000, was in connection with divorce proceedings. Or, again, of the 80,000 children at the present time under the care of local authorities, no fewer than 15,000 are under that care because of unhappy marriages. It is estimated that the cost of looking after these children is about £300 for each child. If only 1,000 children a year can remain with their parents owing to the help of the Councils—and I suspect that the actual number is even greater to-day—then there is a saving to the State of £300,000 a year. At the moment, the Government grants to all three bodies total only £13,000. Clearly, any increase 1012 that they may make would be more than offset by the saving that they got on such things as legal aid and the care of children. Let there be no Government pleading of financial considerations. I am encouraged to hear from the noble Lord, Lord Mancroft, that something will be forthcoming. That support should be both directly to the bodies and through grants to local authorities, as the Report advocated.
I have talked in terms of money, but it is not really a matter only of money indeed, it is rather one where the very well-being and existence of the Christian State is at stake, and the happiness and lives of thousands of children. Apart from help to voluntary organisations, the State itself should actively pursue measures to help happy marriages and, as the noble and learned Lord, Lord Morton of Henryton, and the most reverend Primate the Archbishop of York have said, we very much hope that the recommendation to set up some suitable body to consider the further promotion of thorough preparation for marriage will be undertaken. The importance of such a suggestion is seen when one knows of the tragic figures: that the increase in divorce since the beginning of the century is over a hundredfold.
To sum up, some of the Report, as I have already said, is not for us Catholics to comment upon, but we greatly hope that the Government will carry out many of its valuable recommendations and, in particular, will be really generous in the support that they give to the Marriage Councils. That will clearly pay great dividends. Our Church believes, with many, many others, in the fundamental truth that upon stable family life the strength of a nation is built.
§ 4.59 p.m.
§ LORD CHORLEY
My Lords, I find myself in agreement with a great deal of what the noble Lord who has just resumed his seat has said, particularly about the work of the Marriage Guidance Council but, in respect of this Report that we are discussing today, would remind your Lordships that on its first appearance it received a rather mixed reception at the hands of the Press. Many commentators found it a disappointing document, and while I agree with the noble Lord, Lord Silkin, who introduced this discussion this 1013 afternoon, that it has many admirable features, I too found it a disappointing document in regard to the most fundamental matters, or at any rate some of them, with which it deals. That is largely due to the terms of reference, which in my view were altogether too cumbrous and covered so much ground, largely of a rather technical legal character, with the result that the essential matters with which the Commissioners were concerned became rather overlayed by the very large number of technical recommendations which, admirable as they are, are nevertheless, as Lord Mancroft indicated, of somewhat secondary importance. I think that was an unfortunate thing, but the Commissioners themselves are in no sort of way responsible for that.
I think also—and I am sure the noble and learned Lord, Lord Morton of Henryton. will not mind my saying this —that the personnel of the Commission were not at all well selected, though I appreciate that the selection was made by the Labour Government. It seems to me that the fundamental problem with which this Commission were concerned, and which the Commissioners themselves, more than once in the Report, underline as one they should have in mind, wasthe need to promote and maintain healthy and happy married life and to safeguard the interests and well being of children".I feel that a set of lawyers are not the best qualified people for making really valuable recommendations on an essential problem defined in that way. I believe that about eight of the members of the Commission, of whom there, were nineteen altogether, were lawyers.
Presiding over the Commission, of course, was the noble and learned Lord. Nobody could have a greater admiration for his abilities as a lawyer than myself—indeed, ever since I had the great privilege of being associated with him as a junior barrister, when he was one of the leading members of the Chancery Bar, I have felt that he was one of the most eminent practitioners in Equity Law that we have in this generation. But a life spent in that sort of work, with great respect, is hardly a qualification for dealing with the essential and substantial matters with which these Commissioners were called upon to deal. I think that the fact that of his fellow members almost a majority were men who had been 1014 trained at the Bar, rather than trained in the solicitor's profession (I believe there was only one solicitor among the eight lawyers), again makes for a rather top-heavy Commission, because, after all, the barrister is not the person who sees this type of case in the raw; it is the solicitor who does that. If we had to have all these lawyers I think it would have been better to have a number of knowledgeable solicitors.
My other serious criticism of the selection of the personnel is that, while there were schoolmasters and doctors, and other professional people, there were practically no people who could approach this matter in a scientific way. After all, this sort of problem has been intensely studied in the sociology departments of the universities and in other institutions over the last fifty years or more. Yet no social scientist was put on this Commission. Another criticism which might be made is that quite a number of the Commissioners were prominent members of the Marriage Guidance Council. I do not think that one would seriously find fault with this, because the Marriage Guidance Council's work is something that we all agree with and should wish to support. On the other hand, it may well he said that the important recommendations which were made in the Report in respect of the work of the Marriage Guidance Council would have come rather better from the Commission if three or four of its members had not been vice-presidents of that excellent society.
When one conies to study the Report itself, one finds that there is nothing in it that suggests that any of the Commissioners were aware of the important recent work which has been done by outstanding sociologists on the very problems with which the Commission were called upon to deal in their Report. Some of them appear to have been appointed, so far as one can judge, for their practical experience of some of the problems with which they had to deal. That again raises rather an important question which I feel has not been sufficiently studied. I have the impression about a number of the recent Commissions that have been appointed that people who would really be better qualified to be witnesses giving evidence before the Commissions are appointed to the Commissions themselves. That was not. the original idea, I think, 1015 when this method of investigating problems by means of Royal Commissions first became popular in the last century, and I venture to suggest that this aspect of it ought to be looked at.
My third criticism, which is more important than the other two and which I regard as one of really great importance, is in regard to the method of taking evidence. The witnesses who were called before the Commission largely gave evidence on the basis of conjectures and value judgments, and even prejudice. There was very little research into actual facts. It is astonishing, as one goes through this Report, how judgment after judgment is made on matters of very great importance without there being any real factual evidence. It is true that opinions are expressed by witnesses before the Commission, but there is very little real factual evidence. I suggest that a model of how this thing ought to be done is provided by the Report of the Royal Commission on Population which went about its work in quite a different way. It got research workers of high reputation and ability, and put them on specific jobs on which they spent a great deal of time. sometimes extending into more than a year. after which they came back with the results of their work.
It is rather interesting to notice that some of the witnesses before the present Commission—I believe they were witnesses from the Marriage Guidance Council—indicated how extremely difficult it was to come to form conclusions on a number of these problems because of the absence of real research. There is an interesting passage at arms, so to speak, between Mr. Brayshaw, of that Council, and Lord Morton of Henryton, in which the noble and learned Lord says, in effect: "It really is an expensive business. It would take a long time and therefore we cannot do it." That seems to me to be a wrong attitude, especially when the Commission were sitting for a period of something like five years. If they had set about real research at the beginning of that work. I think it might well have been that on a number of these problems they would have been able to obtain factual evidence of real importance. Lord Morton of Henryton was evidently of the opinion that these questions are so intimate that it is not really possible to do research into them, but I do not think that is so; and I think that 1016 if he were aware of some of the work which has been done in this country, in America, and perhaps particularly in some of the Scandinavian countries into this sort of problem, he would be prepared to revise his judgment on this sort of point.
Now I will give one example, which I think is a good example, of the need for further research. I refer to this matter of collusion which has been adumbrated a good deal this afternoon by the noble Lord the President of the Probate Divorce and Admiralty Division of the High Court. There was a good deal of conflicting evidence on this matter before the Commission. Professor Gower, a solicitor of great experience, and I think other solicitors also, gave evidence that, in their opinion, in undefended cases something like 50 per cent. of those which were not legally aided were collusive in the sense that Lord Merriman referred to: the parties say "this marriage is broken", and one of them says to the other "I will go off and provide the necessary evidence so that you can bring your petition." Lord Merriman says that that is collusive, and I agree with him—that is what one understands by a collusive divorce. Undoubtedly. whatever the actual number of such divorces is, in my view it is substantial. and certainly larger than Lord Merriman indicated.
We had a considerable discussion about this point in the earlier debate to which he referred, and I do not want to go into it more than that. But it is interesting that the Bar Council witnesses disagreed pretty well in toto with the evidence given by the solicitors. I should have thought that the barrister was less likely to know, because he does not come in until all that part of the case is over. The interesting thing is that when the Law Society came to give evidence before the Commission, this question was not put to them at all. Although it was put to the representatives of the Bar Council, and there was a great deal of discussion about it in the Minutes of Evidence—it takes up a lot of space—when the solicitors came there, through the Law Society, this matter was not put to them at all; yet they were the people who were more likely to know about it.
There are other things that one can say about this. The county court registrars, I think, said that there was a good 1017 deal of collusion. I think the Law Society wanted to get rid of collusion in connection with this business altogether. But my point is that this is a subject which is open to research and one into which research could have been made by a number of capable research workers. In that way, this matter, in regard to which there is such a conflict of evidence, could be resolved on a factual basis. I think it is a great pity that an effort was not made to do that The question is one of great importance, not only in itself but because it is such a horrible business when people whose marriages have broken down are driven by the law to act in this way, as they undoubtedly are. Does it not prove conclusively that there is a need for an improved divorce law? In my submission it does. For these reasons, there is a good deal to be said against the way in which the work of the Royal Commission was carried through, although I yield to nobody in my admiration for the great amount of detailed work in regard to matters of legal import which is contained in the Report. In my view, however, these matters could have been cleared up without the "heavy artillery" of a Royal Commission—some of them departmentally, and others, perhaps, on the level of a departmental committee.
If I may turn for a few minutes to the Report itself, I again wish to say that it has many good features, most of them of a minor character but at least two of them of fundamental importance. I should like to associate myself strongly with what has been said, particularly by the most reverend Primate, in regard to the children's charter "aspect of this Report, which I regard as its most important aspect. The Commissioners put the question of the children on the same sort of basis of importance as the divorce itself; anti undoubtedly that is a great step forward. One of my colleagues drew my attention to the fact that in all the legislation on the Statute Book of this country dealing with divorce there is only one reference to children. I have not been able to conduct any research to see whether that is true, but I have no doubt that it is, because the colleague in question is a most careful scholar. It is ironic that, when the matter has been dealt with by the Divorce Court, the position of the child is described as an "ancillary relief"—almost a grotesque expression to employ in connection with a subject of such 1018 human importance. I am sure that your Lordships will agree with me on that particular matter.
There is one item which some of your Lordships may think is not very important but which seems to me to be of some importance, and upon which I think the Commission went wrong in regard to this question of the children—namely, legitimation per subsequens matrimonium. The subsequent marriage of the parties ought to legitimate children and, generally speaking, I think the Commission were in agreement with that view; but they felt that if the child had been conceived during the marriage which was subsequently dissolved but had been born after the dissolution took place, then there ought not to be any legitimation. Surely that is going against the very principles upon which they were working, because the interests of the child should be the touchstone in this matter, and the brand of illegitimacy ought not to be put on the child for a reason of that kind. Therefore, if the Government decide to introduce legislation on this matter—I certainly add my supplications to those of the most reverend Primate in asking for such legislation—I hope that they will disregard that particular portion of the Report and will provide for legitimation per subsequens matrintonium in all cases.
Then, my Lords, I agree with everything that was said by the noble Earl, Lord Perth, in regard to the important matter of marriage guidance. I join in everything that has been said by other noble Lords in beseeching the Government to step up their grant to this admirable society rather than to cut it down. Speedy legislation is required in regard to both these matters, and I hope that the noble Lord, Lord Mancroft, will convey to the Minister responsible that it is the wish, as I am sure it is, of all Members of your Lordships' House that these matters which are beyond controversy should be put upon the Statute Book as quickly as possible.
What is so disappointing in the Report is, I feel, the attitude to the fundamental problem of divorce, with the result—indeed, it appears that the Government have taken this view of it, which is quite natural—that there is going to be no change. I regard that as most unfortunate. There is only one member 1019 of the Commission who took what I should regard, and I think what Lord Silkin would regard, as a really forward-looking view on this particular matter, and that was Lord Walker, who wished to make a three years de facto separation a ground for divorce, provided that there was, in addition, evidence upon which the court could come to the conclusion that the marriage had, in fact, broken down. Lord Merriman said that these separations do not, in fact, take place unless a marriage has broken down. In a sense, that is really an argument for allowing divorce at the earlier stage, when the marriage breaks down. But the object of this period of three, four or seven years, as the case may be, is really to pray idea locus penitentiae—a period during which it will become perfectly clear whether or not there is a real breakdown, or only something which might have appeared to be a breakdown for a time and which has been got over by reconciliation, or something like that.
I would remind your Lordships that it has 'been the law of Scotland ever since the time of the Reformation that not only was sexual misconduct a ground for divorce, but also what is called malicious desertion for four years—that is to say, separation for four years caused by the conduct of one of the spouses is also a good ground for divorce. Nine members of the Commission went halfway towards meeting the case put in Mrs. Eirene White's Bill. It seems to me that all the Commissioners were too much obsessed with the divorce figures, with the great increase in the number of divorces which have taken place over the last years. This increase in the number of divorces does not really mean that there has been an equal increase in broken marriages; and I think that is the important point. Sometimes it seems that the Commissioners appreciated it: at other times it seems that they did not. A well-known American sociologist has said:There is hut one cause of divorce—the culmination of the process of marriage disintegration of which specific instances are but the evidences of its retrogressive trend.I think that is a very truthful and searching observation.
The legal grounds which have been adumbrated by legal Members so much 1020 this afternoon are really the symptoms of the decay of the marriage. It is not a case of choosing between divorce by consent and divorce for guilt. We can really have much easier divorce and still stop a good deal short of the divorce by consent which is allowed in some other countries, particularly in some of the Scandinavian countries. This tendency to equate divorce with the broken marriage rate is most unfortunate, because I am sure it was the reason which led the nine Commissioners who wished to be liberal to draw back, so to speak, at the last moment. So far as I can see, there is no kind of evidence anywhere in the Report of the Commissioners to support this view. The increase in the rate of divorce, which has been continuous throughout the century from 1900 onwards (it is continuous, though it is true that it goes in jerks) is the result of many complex changes in the law—and not only in the law but also in the social outlook of the population. If one had time, it would be important to analyse this position in a little more detail, and it is a pity that the Commission did not themselves do so. I have not time to-day to do more than mention just one or two of the points which strike me as being important.
First of all, I will draw attention to the fact that the figures published in the Appendices bring out the astonishingly high proportion of divorces among marriages which have tasted more than ten years. That is not at all the general view of the public and shows the importance of getting at the facts on these occasions. So far as I can make out, about 60 per cent. of divorces—certainly more than 50 per cent.—occur in marriages which have lasted more than ten years and something like 20 per cent. in marriages that have lasted more than twenty years. That is quite contrary to the usual view that frivolous people get married with the idea of having a divorce very shortly afterwards. Another important fact is that about 40 per cent. of the divorces are cases of childless marriages, which indicates that there is intense longing to have a child and that when there is not a child a very large number of spouses feel they had better break up the marriage and start again, because that would enable them to have the blessing of a child.
These figures have not varied very much, in proportion at any rate, since the beginning of the century, and they 1021 seem to me altogether to refute the theory that the population has become more frivolous and immoral in these matters. It is interesting to notice that, according to figures published by the Registrar-General, which are, I believe, contained in one of the appendices to the Report, there has been a continuous rise, over this fifty years, in the proportion of the population who marry. It is difficult to know whether before that time there was a much larger number of illicit unions or a great deal more celibacy; but undoubtedly the marked increase in the marriage rate in proportion per thousand of the population is significant of feeling in favour of the marriage institution. Another highly significant factor of the same type is the very high re-marriage rate among divorced persons. From 60 per cent. to 70 per cent. of divorced persons re-marry. That seems to show (hat the object of the divorce is to try to get a more stable and more happy marriage instead of one that has gone wrong—which seems to me to be a very good reason.
One very important matter which I am not sure comes out very clearly in the Report is that the quite generous provisions which we now have in regard to legal aid, and which have enabled a large number of people in the poorer classes of the community—people who until comparatively recently were completely deprived of the divorce facilities which the middle and upper classes have had, at any rate since the beginning of the century—have obviously led to a substantial increase in the number of divorces. I think that is altogether a very good thing, because it was absolutely indefensible that wealthy people should be able to get a divorce, whereas poor people were denied that type of legal right. I suggest that there is 113 real evidence whatever that marriages have become less stable because of the improved facilities for divorce There is no evidence whatever that marriages are less stable in Scotland, where they have had a more generous divorce system ever since the Middle Ages as I have pointed out; or that marriages are more stable in Italy, where there is no divorce at all, than in France, where divorce is easily obtainable. So one could go on.
My Lords, may I ask the noble. Lord a question, on a point of clarification? Is he saving that 1022 there is no evidence that marriages have become less stable for any reason at all or is he saying only that there is no evidence that marriages seem to have become less stable because of changes in the divorce law?
§ LORD CHORLEY
I am saying there is no evidence at all that marriage is less stable, and it is something on which research should be done, The fact that the divorce rate has gone up in the way it has is no evidence that marriages have become less stable: it is a non sequitur. This phenomenon of increasing divorce is not pecular to England. It is noteworthy that in all countries where Churches are not dominant, and where the religious issue is not in the foreground, the tendency is towards a more liberal divorce law and an increase in the number of divorces. It is in no way peculiar to This country. It is common throughout Scandinavia, New Zealand, Australia and the United States, and in my view it is a sign of an advancing civilisation. I know that that statement will shock a very large number of people but I have no doubt that it is so. It shows that society is becoming more progressive and that we are getting away from the conception of the "guilty party", which I agree with the noble Lord, Lord Silkin, is an entirely wrong one. No doubt there are a few cases where one parry is entirely guilty and the other entirely innocent, but in most cases there are faults on both sides, and this conception of almost criminal guilt is, I believe, altogether wrong and is one of the reasons why we make so little progress in this matter.
One's thoughts go back to the old action of criminal conversation. As a result of the medieval outlook the matter was regarded as a criminal matter, and the noble and learned Lord, Lord Merriman, used the word continually throughout his speech this afternoon in relation to the party responsible for the break-up of a marriage. I believe that most social workers would say that there is seldom a case where one party is solely responsible for the break-up of a marriage. It may be a case of three to two, or four to one, or equal; but almost invariably there are faults on both sides: there is some 'incompatibility of temperament which leads to the breaking up of the marriage.
1023 We are here faced, of course, with fundamental conceptions as to the real meaning of marriage—whether we think that it is a religious institution which ought never to be broken, or a social institution which can be broken, and properly broken, when the interests of the parties and the interests of the community as a whole require that it should be. The test, or one of the tests, as Lord Silkin indicated, is the test of human happiness. The happiness of the parties to the marriage and also (I do not think the noble Lord stressed this as much as it deserves to be stressed) the interests of the community at large are involved.
This was well put by the late Lord Simon, in the case of Blunt v. Blunt, which is referred to by the Commission at one place in their Report. He said in that case that the interest of the community at large has to be considered, and that has to be judged by maintaining a true balance between respect for the binding sanctity of marriage (curiously enough, the Commissioners leave out that important sentence in their quotation from his speech) and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It seems to me that that side of the matter is very important indeed. Lord Merriman discussed at some length what he thought was the altogether wicked case of a spouse who wished to maintain a marriage as against a guilty party, being forced, so to speak, to agree to divorce at the end of, say, seven years' separation. I think that on investigation it would seldom be found by a skilful fact-finding court that there was a completely guiltless party. I think that any doctor or any psychiatrist who has investigated this kind of case will tell you that often the reason a party refuses to agree to divorce in this sort of way is a psychological infirmity, a subconscious weakness which in a large number of cases can be removed. However, even in this type of case, I am told that where such a party has given way, he or she (usually it is a she) has been very much happier in the end and the whole thing becomes a success.
Successful marriage is a very difficult attainment. The idea that it is not is now probably not very widely held. The 1024 fact that it is more and more realised that successful marriage is so difficult of attainment is the reason why the Marriage Guidance Council has figured so largely in the Report. It is surprising to me that there are not more failures. When one looks at the statistics given in the Appendices to the Report, and notes that the number of divorces per 10,000 marriages is only something like twelve —even although the total figure for divorces is something of the order of 30,000 a year—one realises that only a minute proportion of marriages are ended in court. It is interesting to note that the Registrar General, in his Statistical Survey for 1946–50, makes this very point. He warns against exaggeration as to the proportion of marriages which ultimately are broken by divorce. The number of divorce cases viewed against the background of the total number of marriages is really very small indeed.
Where there is failure, where marriage has broken down, I think it is best to face up to the fact frankly and to grant divorce as they do in so many other countries. I think it is time that we followed their example. It is easy to make jokes about divorce in America, but when I was in America I came into personal contact with a number of cases of successful divorce, and I was very much impressed with what I regard as the sensible attitude of the Americans in this matter. I discussed it with an American lady who, incidentally, had deeply religious convictions. She told me that her daughter's first marriage had been unsuccessful. That was recognised by both her daughter and her husband, and they decided to call it off and have a divorce. After that, the daughter made a successful marriage and had a family, and she and her second husband and the children were very happy. That seems to me to be a very sensible and commonsense way of dealing with the matter.
I appreciate that to those who take a deeply religious view it may seem revolting. Nevertheless, I think it is common sense; and I believe the trend of opinion in this country is going the same way. I support that and welcome it. I feel that if the Government do nothing, they will be swimming against the feelings of the people of this country. It is significant that over the last years judgments of the 1025 courts have tended to mould themselves to the feelings of the people. They have been taking a more liberal view, for example, of cruelty for purposes of divorce. It is interesting to notice that mental cruelty, which was hardly a conception to be regarded by the courts at all in the beginning, has been developed over the last years until it is possible to get divorce for mental cruelty. Twenty years ago, of course, it would not have been possible to get a divorce in such cases at all, hut I cannot imagine that what is now held to be mental cruelty would have been regarded as cruelty at all. My Lords, I am afraid that I have taken up a great deal more of your Lordships' time than I originally intended. I believe that, eventually, we shall have a more liberal outlook in regard to this matter; we shall have a really comprehensive Statute dealing with divorce, and I look forward to that time.
§ 5.36 p.m.
My Lords, first I must declare an interest in this matter, though not a personal one, for I ant Chairman of the National Marriage Guidance Council. I wish to correct, if I may, a statement of fact made by the noble Lord who has just sat down. He said, if I heard him aright, that many of the Commissioners were members of the National Marriage Guidance Council. The fact is, I am informed, that no one of them has ever been a member of the National Marriage Guidance Council. One of them was at one time, but is not now, a member of a provincial council. I just wanted to get that right for the purposes of the record.
§ LORD CHORLEY
I am certainly most willing to withdraw the statement, but I must say that I got the impression that several of the Commissioners were vice-presidents. No doubt I have made a mistake. am sorry, and if I have done so I shall certainly apologise to the noble Lord.
In my turn let me say that if I am making a mistake, I shall apologise to the noble Lord later. I should like to urge Her Majesty's Government to implement the provisions of this Repert which are set out in Part IV.
§ LORD CHORLEY
My Lords, I am sorry to interrupt the noble Lord, but I have found the document which was sent to me by the Marriage Guidance Council.
1026 They say that vice-presidents include Lady Bragg and Sir William Russell Brain. I think there was another name also.
Lady Bragg was the one to whom I referred who had been a member of a provincial marriage guidance council.
I do not want to detain the House. I shall apologise to the noble Lord if I am wrong.
As I say, I want to urge Her Majesty's Government to carry out some of the recommendations which were put forward by the whole of the Commission, or very nearly all of them. But, first. before I come to that. I want to mention one other matter, and that is the subject of attachment. of wages which is dealt with in paragraph 1095. In Scotland it is the law that when an order is made against a man to support his wife. money may be compulsorily deducted from his wages, week by week, for the payment of that order. In England Plat is not the law. I want to ask whether in Scotland that is a good thing or a bad thins,. If it is a had thing, why is it continued? We are told by the Commission that it is accepted there as a matter of course. If it is a good thing in Scotland why is it a bad thing in England?
I must confess that I totally fail to understand, nor do I believe, that on one side of the Border this piece of legal machinery works, but on the other side it would work badly. I just do not accept that. Therefore, I regret the conclusion reached by the Royal Commission, after the most careful analysis of the arguments, to which I pay tribute, that it should not. be operated in England. I am told that prisons in Scotland are always empty of debtors. If that is so, or nearly so, it is a formidable argument for the same system to he used in England. It suits nobody that these men should be kept in prison; yet what is the alternative? I am well aware of the differences of opinion that exist on this system, but I urge the Government to look at it again and see whether it should not be tried, at least. in England and Wales. I welcome the conclusion of the Commission in. paragraph 1108 recommending that when a 1027 man goes to prison for non-payment under an order, the arrears should not be cancelled. At present, a man who has accumulated arrears under an order goes to prison and his arrears are wiped out. I do not think that that is right and I welcome the decision of the Commission on that score.
If ever there was a case where prevention is better than cure, I should say it applies to the breakdown of marriages; and for that reason, if for no other, I sincerely welcome the recommendations of the Royal Commission that this matter should be tackled at an early stage by increased facilities for marriage guidance, and even to apply them to couples who intend marriage. I think your Lordships would be surprised to hear to what extent advice is now sought voluntarily by people who intend to marry. I am encouraged by that. This seeking of advice is developing, and I think that, with help, it could be much further developed and would prove a useful source for the improvement of the figures. I particalurly welcome what the noble Lord, Lord Silkin, said on this matter and what was said by other speakers, including, not least, the noble Earl, Lord Perth. In this matter there are some slight differences between Catholics and Protestants, but to a large extent there is common ground upon which we can entirely agree with each other. The question is: will Her Majesty's Government act upon these recommendations, which it is pleasing to find have received so much support, both in this House and outside it.
I am interested in paragraph 330, where it is recommended that a body should be set up to review the Marriage Law and pre-marital education and training, a matter which was referred to by the most reverend Primate and other noble Lords. I want to make one suggestion about that. Would it not be better to have two separate bodies, one to review the Marriage Law and the other for pre-marital education and training? That might be an improvement in detail on the suggestion made by the Commission.
When I come to the financial figures I find myself repeating what has already been said. As the noble Earl, Lord Perth, said, the present sum spent by the taxpayers on marriage guidance annually is 1028 £13,000. The question arises, how much does it cost the taxpayers on the other side of the account? How much do broken marriages and broken homes cost? When we consider such matters as the cost of National Assistance to wives separated from their husbands, of maintaining children in the care of local authorities, of approved schools and Borstal institutions, to say nothing of prisons, and of maintaining unmarried mothers, one begins to wonder what sort of bargain the taxpayer is getting. The total cost of these services approaches £30 million a year. I admit straight away that nothing like all of that could be saved. Much of the cost of such things as Borstal institutions is due to other causes and those institutions could not be closed down merely if there were no broken marriages; but I think it would be agreed by those who have made a study of criminology that a great deal of crime as well as unhappiness is caused by broken homes. I think that that truth is beginning to dawn on social workers more and more every year. So I would ask the House to consider the cost to the taxpayer of the present position, as well as the actual amount that is spent by way of grants.
No one would expect any Government to pay the whole cost of the Marriage Guidance organisation. at least not at the present time. I readily admit that the public ought to contribute by private charitable efforts some part of it, though I do not think they can be expected to pay the whole. In particular, I speak with gratitude of the help which has been given by many business houses already, and I should like to mention that possibly more help might be given by some of the great charitable trusts which have done so much for the improvement of social conditions in this country, and thereby earn the admiration of everybody.
I pass to the subject of legal aid. The Legal Aid and Advice Act was passed in 1949. I wonder what your Lordships would have said seven years ago if the noble and learned Earl who was then the Lord Chancellor had stood by the Woolsack and told us that that portion of the Act which dealt with legal advice would not be brought into force for at least seven years. I wonder what sort of reception the noble and learned Earl would have had for that statement. Yet 1029 that is the case. I think that this has been a profound mistake. If ever there was an example of false economy, I think that this is outstanding. Legal aid was brought into force stage by stage, but legal advice has so far not been touched, although it is the law of the land. A man has to choose between free legal assistance in fighting a case in the courts, and costly legal advice. Which is he going to choose?
I can confirm the figures quoted by the noble Earl, Lord Perth. The small variation in my figures will only, I hope, add to their significance. My figure is that 77 per cent. of all legal aid cases in the courts are divorce cases, and of those, 80 per cent. are receiving aid as petitioners. Over £1 million a year is paid thus to subsidise divorce. Therefore, I urge Her Majesty's Government to bring in legal advice. This much they will admit: that it does not require legislation. It cannot truly be said by the noble Lord, Lord Mancroft, that there is not time to do this. I am sure your Lordships will not let him get away with as much as he expects to from his speech this afternoon. He really cannot say that there is not time to give us legal advice; it is the law of the land and only needs to be put into force.
I welcome the recommendation of the Commission in paragraph 373 on the subject of children. This has been dealt with by several speakers to-day, and I only mention it and wish to support it to the greatest extent possible. It is the provision that, before a decree is made absolute, the welfare of the children must be provided for to the satisfaction of the court. Surely Her Majesty's Government will relent a little on this score. I think everybody is agreed on this particular point, and whatever else must wait, I would ask the Government to do something in this direction. It was a unanimous recommendation, and I was sorry to hear the noble Lord, Lord Mancroft, say that there was no hope at present of its being brought into force. We shall continue to harry the noble Lord until something is done about this matter. I was pleased to hear the noble Lord say, incidentally, that it was proposed to consolidate the law on matrimonial courts.
I should now like to deal with the question raised in paragraph 358 of the 1030 Report, on the subject of privilege of witnesses. 'The recommendation is that facts learnt by marriage guidance counsellors should be inadmissible in evidence in any subsequent matrimonial proceedings. That is a matter of some importance. Fortunately it has never yet come to a head in an unpleasant manner, but there was a case where a marriage guidance counsellor was subpoenaed to attend court to give evidence and went there with her bag packed, ready to go to prison for refusing to do so. Happily, at the last moment it was not made necessary, because the application for her evidence to be given was withdrawn. Only this week another subpoena was served on a marriage guidance counsellor to go to court to give evidence, and who knows but that he may have been asked in cross-'examination to disclose the most intimate and private details given to him in confidence by someone seeking his aid? The mere knowledge that it is possible for that to be compulsorily disclosed in open court must greatly reduce the value of this 'work. Here is a recommendation made by this Commission, and made previously by the Denning Committee, that the law should be altered in this respect. I am the first to agree that the cases in which any witness in any court of law should be able to refuse to answer should be reduced as far as possible—that is obviously desirable and in the public interest—but I submit that this is an exception, and that if privilege is not granted to such witnesses the cause which they serve must inevitably suffer.
The present law, in the view of many people, militates against conciliation—indeed, the Commission themselves say so. If a married couple resume life together, it may prejudice one or both of them if they should ever come before a court. The Royal Commission, I observe, by a majority of figures, fourteen to five recommend that parties should be given what is called a "second try" of up to one month, in which they could resume cohabitation without prejudice subsequently to their rights in a court of law. True, that is not a unanimous recommendation, but it seems to me to be a sensible and desirable one, and at least worthy of a trial. There is another case of the law hindering conciliation. At present a wife must either leave her husband or forgo her order.
1031 Surely, that could be put right. In paragraph 1,042 the Royal Commission say:…the law positively encourages the breaking up of the home where the sole or the main cause of the trouble is financial.Therefore, I would urge Her Majesty's Government, as one of the reforms consequent upon this Report, to make the order enforceable, notwithstanding that the husband and the wife are cohabiting.
Those are only a few of the suggestions which I could have made to the House for the alteration of law and practice and procedure consequent upon this Report. I will conclude by saying this: that I, like so many other noble Lords—in fact, I believe all of us—are grateful to the noble and learned Lord the Chairman of the Commission and his colleagues for the great work which they have put into this matter. I am sure that in due time they will reap their reward.
§ 5.58 p.m.
§ LORD PETHICK-LAWRENCE
My Lords, I feel the utmost diffidence in rising to take part in this debate, for I am fully aware that I have no special claim or qualification to speak, unless it is the fact that I have lived a long life and in the course of it have been brought into direct contact with many persons who are suffering from unhappy marriages, some of whom have asked my advice, sometimes one party and sometimes both in the same case. In view of what I am going to say later on, I should like to put my own position quite clearly at the outset. I am a strong believer in monogamy. I regard the love and affection of one man and one woman for one another as a fundamental of life, and I wish that in all cases it could remain unbroken and untarnished to the end. Every declension from that high ideal means sheer loss and almost certain suffering to all the parties concerned: to the individual man and woman, to the children, if there are any, and to the whole society of which that man and woman are an integral part.
But we are all frail, and most of us, at one time or another, lose our way. Many are the different causes for this event, and many are the forms which it takes. In my opinion, persistent unkindness may cause a much greater scar upon the harmony of married life than a single act of marital sexual infidelity. I am aware, of course, that in taking this view I have 1032 not the support of either the Church or the State. Where a breach has actually taken place, far and away the most important thing is to heal it as quickly and as effectively as possible. The training of young people before marriage should, therefore, be directed towards helping them understand the differing emotional reactions of men and women. Here, I should like to express, in common I am sure with every Member of this House, our appreciation of the work which is being done by the organisation of which the noble Lord who has just spoken is the Chairman. Patience, tolerance, forgiveness and spiritual humility should, therefore, be inculcated and should be what everyone should explain to those intending to get married. Genuine, and what might have been lasting, love may well be broken on the wheel of rough words and so-called righteous indignation of one party at the admitted or alleged wrong committed by the other.
We are living in a world of unreality, however, if we imagine that it is possible in all cases for the breach to be healed. Sometimes one party, sometimes both parties, are irrevocably determined that the union can no longer be held together. The love which must be the ultimate cement of all marriage has completely gene, and, in some cases has been replaced by an irritation or even a hatred which renders the constant presence of the other party unbearable. It is a pitiful situation, fraught with great suffering to all concerned; and, what is worse, there is really no good way out. Neither the State nor the Church can re-create a love that has died, and without love cohabitation is a mockery. Nor is it really possible, in these days, to expect a woman to enter a nunnery or the man to enter a monastery, whether we use those words in a literal or a figurative sense. I do not think I am by any means alone in expressing the view that both Church and State have failed to find a satisfying solution to this problem.
Before I sit down I will try to indicate the direction in which, in my view, they should go. Before I do so, I propose to tell two stories that have recently come into my life and which I think serve as an illustration of the facts as I see them. A friend of mine had a son, and some years ago he was living happily, as it appeared, with his wife and their two 1033 children. He had to go abroad for some months, and when he came back he found that another man was living with his wife in his own house. They suggested to him that he should live there at the same time. Naturally, he could not agree to that, and his wife and her paramour left the house, leaving the children with him. He took out an action for divorce, and succeeded. What was he to do? He had these two children, he had his work, and he was a man with feelings like others. After some time he found another woman whom he could love, and who could love him in return. He married that woman, and she was a mother to the two children and to the additional members of the family that she brought into the world.
That is one story. The other story is this—and it is rather an interesting one. A woman told me —a well-known woman although naturally I will not reveal her name—that many years ago the man who became her husband was married to another woman who left him and went away with another man. He got a divorce, and he wanted to be married to the woman who was telling me this story. The Church refused to marry him. He got married in a register office, but arranged that on the following day he would have a ceremony of a kind in church, which was agreed. He came back with the woman to her house after the civil marriage, and they had tea together. He said, "Now, Mary, I am going away, and I will come back tomorrow." She said, "What do you mean? We have just been married." He said, "I would rather wait until the religious ceremony is over before we enter cohabitation." To my way of thinking, both those men were moral men, with deep religious convictions. I could not bring myself to consider that these men were morally wrong in what they did, nor can I accept the view that the blessing of God could not rest upon the second union which they made. Yet how easily might the way in which they were treated have driven them to disavow and spurn all recognised religion! Owing to their strong innate spiritual faith they withstood that temptation. But how many others of weaker natures have yielded and put religion on one side? It would be pre- I sumptuous for me to bandy texts with high dignitaries of the Church, and I will 1034 say only this. I take my stand with many devout laymen who do not place the same interpretation as the Church on the teaching of our Lord.
I turn now to the State, and what do I find? The State allows dissolution of marriage when one of the parties can be proved in a court of law to have misbehaved in some way or another, but if both the parties are decent folk, who have striven long and earnestly to fulfil their vows and. live together in harmony, but have come to the conclusion that it is no longer possible, the State refuses release. In consequence, as we are all aware, many of them resort to the obscene farce of forging false evidence. To me, it does not make sense. Now we have this Commission on Marriage and Divorce. Half the members want to retain essentially the present law and the other half want to grant a divorce by consent, provided that there has been a seven-year period of separation. Are either of these views in accord with reality to-day? I cannot think so. I would ask those who support the second proposal, this seven years' period: What are the parties expected to do during the seven years of separation? Many of them are young people in their twenties, maybe some of them in their thirties, hut still vigorous, virile people, who go about their ordinary daily lives meeting members of the opposite sex day by day. What are they to do? How are they to comport themselves? They must not offer marriage; they must not show affection for members of the opposite sex, and they cannot bring their original spouse back to live with them because, if they did, it would break the seven years' period. It seems to me to be asking them to live a life which is totally impossible.
For that reason I say that it seems to me that the State has failed. Your Lordships are entitled to ask me what I would do. It is not easy to answer that question. I am not an expert in these questions. There is no time, even if I had the ability, to put down a blueprint of a different course of action, but let me say, first of all, what I would not do. Are we to open the gates wide for licence and accept the view that sex relationship is its own justification and can be indulged in promiscuously. without constraint, in order to gratify the fleeting passions of individual men and women? Any such 1035 suggestion seems to me a denial of everything I hold, sacred in this wonderful world which we see all round us.
What I do suggest, and I suggest it in all humility, is that we should make a new approach to the whole problem and create entirely new machinery for handling it. What I should like, if it is possible—it may not be—is that we should have some different machinery from the law courts, some panel or tribunal; and that, instead of laying stress upon wrong committed and the need for reparation, we should take as our watchword the one word "salvage Every opportunity should be given to heal the breach but, if that is shown to be impossible, then we should secure that at least the innocent persons, particularly the children, should suffer as little as possible; and, further, that all the persons concerned should be given a chance in the future to lead an upright life. I recognise that some steps in this direction are already being taken. I would have them go much further. I have no desire to make divorce too easy and too automatic. I should wish to have a waiting period, but certainly not one lasting as long as seven years. I may remark, in passing. that unless I am mistaken, in the New Zealand prototype it is no more than three years, which is quite a different matter. But, under proper conditions and with proper safeguards, I think that in the last resort we cannot deny divorce to couples agreeing together to ask for it where their marriage, according to them. has broken down. If we do deny it. we are inviting them to adopt illicit and unworthy subterfuges. As I have said, I have no time to elaborate my views in detail. What I desire, above all things, is that Church and State should approach this problem in what I, in all humility, regard as a more realistic and human spirit, recognising that this love of man and woman for one another is one of the noblest instincts of mankind.
§ 6.15 p.m.
THE LORD BISHOP OF EXETER
My Lords, if I have understood that moving speech correctly, it would appear that the noble Lord is in entire agreement with the Report of the Commission when he pleads that there should be much greater scope given to conciliatory work before marriages are ever allowed to reach the 1036 divorce courts. I have no doubt that every one of your Lordships is in profound agreement with that. But, of course, as the Report says, compulsory conciliation is a quite hopeless proposition. The difficulty in which both Church and State stand over this matter is in creating an atmosphere favourable for reconciliation between two parties who are estranged from one another. I am sure the noble Lord realises that it is but idealism to speak as he has done for a change in the attitude of Church and State towards this problem. Certainly the Church, and I hope the State, are concerned as much as possible to effect a reconcilation before any final breakdown occurs.
I am bound to say that, as a churchman, I welcome very much this Report. I believe it is generally welcomed by churchmen of every kind of opinion. But it is also true that the Church has been saved a very great embarrassment by the fact that the Commission have not been able to recommend divorce by consent or any alteration of the existing doctrine that divorce is for matrimonial offence. I will try to explain to your Lordships as briefly as I can why, had this not been done, the Church would have been embarrassed.
The theory of divorce now is that one party to a marriage is released from the duty of discharging the obligations of that marriage, in whole or in part. because, on account of the conduct, past, present or continuing, of the other partner, the discharge of those obligations has become intolerable or incompatible with personal safety. physical or mental. That being the condition, a higher authority relieves the party from the duty of discharging all or part of the obligations of the marriage. That was a practice which was common in the Church and in Church courts when the Church in this country was responsible for the administration of the marriage laws. Later, when this responsibility was transferred from the Church to the State. the same practice continued, with this addition: that the discharge from the duty of fulfilling the obligations of the marriage might be made so final, absolute and complete as to leave both partners to the marriage free to marry again. This extension was accepted by the Church partially and regretfully, if at all, but it was seen to be. at least theoretically, compatible with the old doctrine of marriage 1037 that it is an exclusive, life-long union, the obligations of which may be removed by higher authority for good cause.
But, once the doctrine of divorce for matrimonial offence is removed and there is substituted for it the theory of divorce by consent, inevitably the whole doctrine of marriage as it has been accepted in this country is changed. Those who contract a marriage under such a system of law can only with the greatest difficulty be said to be contracting a lifelong and exclusive union, for they would then be contracting a union which could be terminated by the will of either or both of them. The decree of divorce issued by the State court, so far from being the action of a higher authority, would be merely an act of notarial registration, registering the decision which had already been arrived at by one or both of the parties concerned.
The Church., therefore, would be exceedingly embarrassed, because we should not know whether any two Christian people marrying in the Realm of England were indeed intending to contract a Christian marriage as this land and Realm of England has always understood it, an exclusive and a lifelong union, or whether they were contracting a marriage terminable at will by either or both of them, a contract which, so far from being that of, Christian marriage, would be more accurately described as a contract of concubinage. You see, my Lords, how deeply embarrassed the Church would be if legislation were to take that direction. I am therefore, as I think the whole Church are. profoundly grateful to the Commission for having reported as they have.
I should like briefly to refer to three other matters which are I think more important because they are positive. The first is the work of conciliation or reconciliation done by the Marriage Guidance Council. I should like to add to that—and I am sure the Commission would agree with me—the work that is done by the Church of England Moral Welfare Council over the whole field of sex education. I need only remind your Lordships of the rather controversial document which that Council produced a year or two back on homosexuality. But this is a Council which is alive and thinking hard and acting vigorously, and I hope 1038 very much that if there is any public money going for the assistance of voluntary societies at work in this field, that Council will not be wholly ignored.
It is very important that more money should be made available to the Marriage Guidance Council, because they cannot work effectively unless they enjoy the confidence of other workers in the social field. clergy and doctors and so forth; unless they enjoy the confidence of parents and of friends; and unless they enjoy the confidence, of course, of the persons themselves. They will not enjoy that confidence unless it is known that they are themselves not only good and devoted people but skilled and informed people. Therefore the training of these counsellors by way of conferences and reading and other methods is of great importance. But it is unbalanced and undesirable that counsellors should be drawn only from one stratum of society. It is important that they should come from all strata, and it should be made possible for them to be adequately trained.
Secondly, the clergy are very well aware of the inadequacy of the existing law as it concerns the preliminaries to marriage. It is too easy to get married in this country. The clergy try to prepare every couple whom they marry. But what is three weeks? It is very often three weeks from the day that the banns put in to the day of the marriage, and what can a poor clergyman do in three weeks? Lord Mancroft has said how hard pressed Her Majesty's Government are for legislative time, and I understand that. But surely they are not so pressed for time that they will not immediately set up the committee for which the Commission ask, to go into the whole question of the law as it touches the preliminaries to marriage.
Most of the speeches in your Lordships' House to-day have been about education for marriage. I am very concerned with the actual legal requirements for marriage. I do not believe, for example, that the existing system of the calling of the banns, which was perfectly applicable. and worked out, in the Middle Ages. is the slightest use in. England in the twentieth century. It does not give the amount of publicity that it was designed to give. Still less does the posting of a 1039 notice on a dark stairway leading up to the civil registrar's office. Publicity, the length of delay between the first notice of intended marriage and the celebration of the marriage, are the kind of things which I believe a committee ought to investigate immediately, with a view to reducing the possibility, as the Commission say, of hasty and ill-considered marriages.
Lastly, I would refer to the proposal that no decree shall be made absolute until the court is satisfied that adequate provision has been made for the children. I was deeply disappointed to hear the noble Lord, Lord Mancroft, say that the Government had no intention immediately of introducing legislation on this point. I am so naive as to have supposed that this would have involved only a very simple amendment to the existing Marriage Act. I am so naive as to have supposed that it is an amendment which is almost wholly uncontroversial. And I am so politically inexperienced as amply to have hoped that discreet arrangements could be made, both here and in another place, to enable this very simple act of legislation to go through very quickly. Her Majesty's Government are, of course, deeply concerned and preoccupied with grave and weighty matters: but a great number of children and their happiness are concerned in this little amendment, and that, in my judgment, is also a grave and weighty matter. But I can assure the noble Lord that there will be continuous pressure from some of us in this House to see how soon the Government can make this legislative step.
§ 6.27 p.m.
§ THE EARL OF HUNTINGDON
My Lords, I wish briefly to support my noble friend, the noble Lord, Lord Silkin, who initiated this very welcome and interesting debate. I have always found it expedient to accept definitions, otherwise there can be no discussion, but to question axioms and general propositions. It is not necessarily that one finds them wrong, but one does, I think, get to the basis of the problem; and I therefore question this general proposition that marriage is not only desirable but completely necessary for any civilised community or any community whatsoever. What is the basis of this proposition, and why is it true, if true? It is, after all, a proposition which is accepted by nearly every race, every 1040 religion, indeed, by people all over the world.
I will put my argument in this form. There are perhaps three main reasons why it is absolutely essential. The first, which I think is the most obviously important, and has just been ably dealt with by the right reverend Prelate who has spoken, is the begetting of children and the rearing of children. So far as one knows, there is no alternative that has ever been devised so efficient, so worth while, for rearing, educating and bringing up young children as the home which gives them the attention and love of their parents.
I think the second reason, which is important, too, is the aspect of economic partnership. Various nations have different patterns, but the general pattern in this country and in most of the Western world is that the man is the person who earns the means of sustenance and what is required, and the woman, completing the other side of the bargain, looks after the house. produces, rears and looks after the children and is kept and supported by her husband. That is so, in spite of the fact that women are now much more going into industry and the professions. It still remains the basic pattern. It obviously would be manifestly unkind. unjust and unwise, if those women, after many years of performing this service, looking after the children and enduring so many hardships, could be turned out by the husband when they were perhaps no longer sexually desirable, no longer capable of bearing children, and left without any means of support and no profession or trade by which they could earn their living. There is that basis which is a very important reason why marriage should be made a lasting contract.
I think the third reason. which is equally important, is that it is a way of satisfying our natural desires and instincts. I do not mean only the sexual instinct, which is a strong and dominant one, but the instinct of making a home. of living together and producing that relationship which I think Lord Pethick Lawrence described. so well—the basis of the companionable life of love which a really successful marriage alone can produce. It seems to me that we should keep in mind that those are the three reasons for which marriage must be maintained and provided for.
1041 What this Report largely deals with and what most other speakers have discussed this afternoon are not the millions of marriages which are either very happy, or successful, or not so successful, but. in this particular question of divorce, the absolute failures—that relatively small minority of unhappy marriages which have gone completely wrong, sometimes from one cause, sometimes from another. Really we are trying to find out if there is anything we can do to mitigate terrible suffering and unhappiness. I should like to support the noble Lord, Lord Methyr, in regard to the Marriage Guidance Council, whose work should, I think, be further promoted and subsidised by Her Majesty's Government than it has been hitherto. That is the real answer—prevention rather than cure. But, in spite of anything that one can do, we shall get this residue of cases which are absolutely beyond repair for the people concerned.
Here I think that I should like respectfully to differ with many of your Lordships, in that I think the law takes a completely wrong attitude. The attitude of the law is that there must be a wrongdoer, there must be someone, one partner, who is the guilty partner, and there must be punishment for the guilty. I agree with those noble Lords who take the view that this is a wrong attitude. So often in marriage it is not a question of a guilty partner, it is a question of circumstances, of different clashes of temperament, of an infinite variety of causes. In some cases there are temperamental or physical difficulties, like a husband being an incurable drunkard. Occasionally you can allocate more blame to one party, but so often it is a combination of blame to either side and to circumstances. I should have thought that the attitude of the law should be to find the fairest and wisest way to deal with this problem, rather than always to look for the criminal, the guilty party, and punish him or her.
have been told—if I am wrong I shall he grateful for correction—that in Scandinavia, and particularly in Sweden (I have not verified this but I was just told it), the custom is that where a marriage has broken down completely, particularly when there are no children, the couple can apply to the courts, if they are in agreement, and they then give the reasons why the marriage has 1042 broken down and ask that they shall have a divorce. I am told that the judge argues with them and asks them the reasons, satisfies himself that this is a genuine case, and then tells the couple to think it over and to come back in a year's time. If they come back the divorce is automatically granted. That may sound rather revolutionary to some of your Lordships, but it seems to me a more sane way of dealing with the matter. Here you have a marriage which has completely broken down but where there is not the problem which is the worst of all, that of children, and where presumably financial arrangements are satisfactorily agreed It seems to me that in those cases it is right that the law ought to let the divorce go through easily, without asking for pretended adultery or other means which are resorted to by the people concerned.
Here I am a little at sea after what the noble and learned Lord, Lord Merriman, has said, but it seems to me that collusion is a difficult doctrine to understand, and I should have thought in many cases it did much more harm than good. Surely what we must have in mind ace circumstances such as occurred in the story of the noble Lord, Lord Pethick-Lawrence. If the marriage has failed, if it is impossible, then let us get it over with and give the couple a chance to start a better life which may he fruitful, happy and virtuous. That, of course, is the case where there are no children involved.
Then l think we get to the real difficulty on this problem—namely, where there are children, and the question of what to do with them. I should like to reinforce the remarks of the most reverend Primate, and I believe of some other noble Lords, who have pressed for the requirement that the court should be satisfied that provision for the child is adequate. I think that is most important. But what I always think is a great mistake—committed, perhaps more abroad than here—is to give the child in joint custody, saying that one party can see it for so long and the other for another time. I think that produces in the child a terrible conflict. In most cases, it is better that the child should go to one parent or the other, and not have this divided loyalty. When that happens nearly always it is a case where the divorce has been fought bitterly and 1043 it is almost beyond human nature for the parents not to try to instil into the child hatred, or at any rate dislike, for the other parent, or else try to outbid the other parent in bribery, by spoiling the child in every way.
One must remember that the whole of this problem is much harder for the poor people than it is for those of the middle class or upper class who can afford to live separate lives, whereas the people who are poor have to live in one room together; which in a marriage that has gone wrong is difficult and disastrous. Then the question has been raised of the seven-year period. I agree with Lord Pethick-Lawrence on this matter. I do not see the point of the seven years at all. What do the people do during those seven years? A difficult point is where one party has deserted the other and has gone to live separately for many years, for whatever reason, and the allegedly guiltless party, the one that has been deserted or been abandoned, refuses, out of spite, to give a divorce. I am wondering whether some means could not be evolved whereby after a certain period of time the guilty party could ask for a divorce to he granted. I know that that sounds rather controversial, but if one thinks of the happiness of the three parties—when say "three parties" I mean both parents and the children—it seems better than this long-drawn-out situation in which there has been a breakdown of the marriage and one partner has gone off and perhaps is living adulterously with someone else or even is living alone. It seems to me that no good at all comes out of a situation whereby a divorce cannot go through perhaps because of maliciousness on the part of one party.
I do not wish to talk on the religious aspect—I do not feel qualified to do so. I know that some sects look down on divorce of any kind as absolutely wrong. I fully respect their opinion. Other Churchmen look upon it as wrong only in certain circumstances. But I would ask them this question: however wrong they may think divorce may be, could they not be a little tolerant towards those who do not believe that it is necessarily wrong? To take a parallel, many people believe that it is wicked and sinful to play cricket on Sunday afternoon, and even more wicked to go to the cinema on a 1044 Sunday evening. On the other side, there are many people who think that a man who has worked hard for six days a week should be able to have one afternoon of relaxation to play cricket or to amuse himself by taking his wife to the cinema. There are two different points of view. One cannot, by legislation, force those who believe it is wrong to do it; and there is no reason why those who think it wrong should go and watch or play cricket. But we ask a certain tolerance for those who do not believe it wicked, for what they conceive to be innocent amusement. Although different religious sects may think this is absolutely wrong I feel that as this is the law of the land, some discretion should be allowed and there should be some little "let-up by making it easier for these unhappy people.
§ THE EARL OF HUNTINGDON
My Lords, I am glad to answer the most reverend Primate. My speech has been purposely vague. I do not want to produce a blueprint, first because I am not qualified to do so and, secondly, because the hour is too late. But the burden of my speech is that the tendency of our law is to make it difficult for those who are most deserving of divorce to get it. especially when there is agreement of the parties and where there are no difficulties such as the presence of children. This surely is one class of case in which we should make divorce much easier. So often at present, in complicated issues where there are children and one party has committed adultery, it is much easier for one party to get a divorce than when they arc both agreed. That is the burden of my discourse. I do not wish to keep your Lordships any longer but I hope that Her Majesty's Government will reconsider a little their time schedule and perhaps give a little more thought at least to helping any Private. Member's Bill which may expedite or clarify what is admittedly a very confused law.
§ 6.44 p.m.
My Lords, we have it on the authority of Holy Scripture that "the last shall be first." I confess that I find that it requires a certain degree of fortitude to accept that principle when 1045 one is the last of a long line of speakers and all one's predecessors are of great ability and have covered practically the whole ground. I will therefore be as short as possible and keep myself within my "statutory" limit of ten minutes. In my view. the whole subject of divorce is incapable of any easy solution. We all know of the great philosopher who said of the institution of matrimony that those outside the institution wanted to get in, and those inside wanted to get out. That is a cynical view and ore which is not fortified by events.
Dealing now with the matter before us to-day, we should first thank the noble Lord, Lord Silkin, for having raised the subject. I was beginning to wonder whether anybody was going to mention this matter at all. But wonders never cease! This matter has been mentioned, and something even more explosive has been mentioned--namely, the question of modifying the Rent Restrictions Act. At all events, this debate gives us an opportunity of expressing our appreciation of the work done by the Royal Commission and of voicing our appreciation of the sagacity of the noble and learned Lord who was Chairman of that Commission. I would remind your Lordships that there are 149 recommendations of the Commission and it would he interesting to know whether Her Majesty's Government intend to take any steps to implement any of those. Of those 149 recommendations, sixteen are directly related to the question of children. There are many others which deal with children but sixteen recommendations have an immediate bearing upon that subject. It would be very interesting to know whether Her Majesty's Government intend to implement any of those sixteen recommendations.
§ LORD MANCROFT
My Lords, if I may interrupt the. noble Lord, am I right in suspecting that he was not in the House when I made my speech?
I must apologise to the noble Lord if I have been discourteous by being absent when he spoke. I always make a point of coming into the House when the noble Lord, Lord Mancroft, speaks, because I consider the best speaker on the Government Front Bench, but I must apologise on this occasion.
§ LORD MANCROFT
My Lords, I was not asking for that very kind compliment but trying to save the noble Lord trouble, as I have already given a great deal of the information he is now seeking.
My Lords, I have no doubt your Lordships have read the Report of the Commission from cover to cover. Your Lordships will observe that in Appendix IV there is a draft code dealing with matrimonial jurisdiction and recognition of the jurisdiction of other countries. I can only say that that is a masterly document and I hope that it will soon receive legislative recognition.. Generally speaking, the Report can be considered under two main aspects. First of all there is the subject of dissolution of marriage, and then we have the various. matters which are consequential upon dissolution, such as maintenance and custody of children.I will make only a few comments on these matters.
Everyone is agreed on one point—namely, that wilful refusal to consummate a marriage should be a ground for divorce and not annulment. I suggest that there is a good deal to be said for allowing as a ground of divorce the fact that a husband and wife have lived separate and apart for seven years, at the wish of either party. That means that the consent of the other spouse is not required. In all such cases, proper orders should be made—as, indeed, they are made in all cases—to safeguard the position of the wife, and children, if any. That may seem rather outrageous to sonic, but would point out that if this were made a ground of divorce it might reduce what I regard as one of the very worst misfortunes of mankind, the stigma of illegitimacy. Human nature being what it is, when spouses have been away from each other for a long time it frequently happens that one forms an illicit union with some member of the opposite sex with—I win not say the inevitable consequences, but with consequences which frequently follow.
That leads me to say that the Inheritance (Family Provision) Act, 1938, should be amended so as to give a wife whose marriage has been dissolved, either on her own or on her husband's petition. the, same status as a dependant for the purpose of claiming maintenance out of the former husband's estate. Take the case of a woman married to a man 1047 for twenty years. At the end of twenty years the marriage is dissolved, either on her own petition or that of her husband. If, years later, when her husband dies, the spouse is in a very poor financial position it seems only human that she and any other dependant should be entitled to go to court and ask for assistance out of the former husband's estate. Then I would earnestly urge that all children born out of wedlock should become legitimate by the subsequent marriage of the parents. At present it is only where both parents were free to marry at the time their child was born that the child can become legitimate.
Finally. I will make a few observations on the subject of desertion. There is an excellent suggestion in the Report that, in effect, the period of three years should not be deemed to he broken if the parties once conic together for a period not exceeding one month. In my view, that is not a device to get more divorces but rather an attempt to encourage spouses to make one good attempt at reconciliation. May I be permitted, in a House which abounds in juristic giants, to make two technical observations? One is that delay should be no bar in desertion cases. In cases which are founded on adultery and cruelty there is a discretionary power to refuse a decree because of delay, but It appears to me that, so far as desertion is concerned, delay should not come into the subject at all.
The other point deals with constructive desertion, which means that one spouse has had to leave the matrimonial home on account of the conduct of the other. I speak under correction, as I say, in a House which abounds in juristic giants of every description. I believe that I am correct in saying that there are cases to the effect that conduct of a grave and weighty nature, not amounting to legal cruelty, does not justify one spouse in leaving the other. That strikes me as being an absolute confusion of ideas and as treating human beings as mere pawns in a legal game. I suggest that the test should be that, if one party behaves, and continues to behave, in a way inconsistent with reasonable married life, that is tantamount to putting an end to the married life and is desertion.
My Lords, I had not intended to say any more. I am very glad to see Lord Merthyr here, because he made a state- 1048 ment which I should like to question. I think he rather indicated that an officer of the Marriage Guidance Council might I be in contempt if he or she refused to answer any questions as to attempts at reconciliation made between the parties. I speak under correction, but I very much doubt whether that is the practice of the courts of this country. If it is not the practice, I think the statement ought to be corrected, because it would be unfortunate if it went out to the world that qualified people who are genuinely trying to effect a reconciliation can be sent to prison for contempt if they do not disclose to the court conversations which they may have had with some of the parties.
§ 6.53 p.m.
My Lords, we have had a debate of exceptional interest, and I consider it very indulgent of my noble acting leader, Lord Silkin. to allow me to speak last from this side of the House. He knows that my views, at some points at least, though not at all, do not accord with his and he realises that I belong to one of what the noble Earl, Lord Huntingdon, has called the "sects". I am not quite sure what sects are, and whether the Church of England is also a sect. I gather that the Catholic Church throughout the world is a sect. No doubt there are some other considerable sects. I do, of course, belong to one of these sects, as do so many people in this divided Christendom who call themselves Christian. I cannot pretend to represent the views of others present. I do not think anyone, except perhaps Government spokesmen and leaders of the Church, would claim to speak in a representative capacity. My views, such as they are, have the merit, or demerit, of being my own.
I should like to say how deeply moved I was by one speech—though I could not agree with it at all points. I refer to the speech of my noble friend Lord Pethick-Lawrence. I thought that there spoke a great Nestor. Though I could not agree with some of his ultimate conclusions, there was much in his speech which all of us will treasure for a long time. I think I am right in saying that there was once a Mr. Lawrence and a Miss Pethick and they became Mr. and Mrs. Pethick-Lawrence. Whatever views we hold, no one can imagine a more 1049 happy marriage in practice than that of Lord and Lady Pethick-Lawrence, a perfect Hegelian synthesis—thesis, Mr. Lawrence; anti-thesis, Miss Pethick; synthesis, Mr. and Mrs. PethickLawrence. What God joined, no action of man—not even imprisonment for justly-held beliefs—could put asunder. I am sure we shall all join in paying warm tribute to the noble Lord for his contribution to this debate.
I hope that the noble Earl, Lord Huntingdon, whose speech was also most interesting, has no idea that anyone is, so to speak, trying to look down on him. Certainly those who frown on divorce and detest divorce as an institution, as I do, would not like to be thought to be claiming to be holier than anyone else. There is no "holier than thou" attitude on our part. I think we must all recall those words from The Imitation of Saint Thomas a Kempis:All we be frail, but thou shalt hold no man trailer than thyself.I hope that with those words I shall assuage the anxiety and irritation of the noble Earl, Lord Huntingdon—indeed., I come here in a white sheet from every point of view. I suppose it is true to say that I have been responsible for many more divorces than any man in. your Lordships' House—even more than the noble Lord, Lord Merriman. I remember very well being election agent for Sir Alan Herbert—indeed, I persuaded him to stand. It is a matter of historical fact that, without my persuasion, Mr. A. P. Herbert (as he was then) would never have stood for Parliament. If he had not stood, he would never have been elected, and the Act of 1937 would never have been passed. I anticipate that I shall have a very long and arduous spell in purgatory. I only hope that I shall have the delightful companionship of A. P. Herbert to alleviate some of the worst pains.
I come now to some of the grave points before us. There is one paragraph which I must recall to the House, and that is paragraph 36, of the Report of this very important and valuable Royal Commission. I am afraid that I must read it rapidly through to the House. It runs:By the law of England and of Scotland marriage is the voluntary union for life of one man and one woman to the exclusion of all others. This means that on entering marriage husband and wife must intend that their 1050 marriage shall be for Life. The State has, however, recognised that in certain circumstances it would be contrary to public policy and would inflict hardship on individuals if the marriage could not he dissolved. It has accordingly made provision whereby in circumstances defined by the law the marriage may be dissolved by the courts and the parties set free to marry again.It is not for me to argue now whether the terms of reference of the Commission were wisely drawn. I think that Lord Chorley, whose speech was most interesting though, from my point of view, very trying, felt that the terms of reference were not very wise. I will not argue whether, in view of the terms of reference, the Royal Commission could have adopted any other line than they did. They have, in fact, adopted the idea that divorce is regrettable but permissible in certain circumstances. They have started from that basis.
I would only say here that the views which they have taken as their basis are not the only ones which can be held by a Western Christian democracy. There is no legal provision for divorce in Ireland. Article 41 of the Constitution of Ireland includes this passage:No law shall be enacted providing for the rant of a dissolution of marriage.So it is possible to have a different basis front the one accepted as inevitable, as part of their duty, by the Royal Commission. Whatever your Lordships may feel about the relative civilisations of this country and the Irish Republic, whether or not you regard civilisation here as materially more successful than the civilisation of the Irish Republic, whether you choose to regard the civilisation here as more advanced, more open-minded, more in accordance with the spirit of the twentieth century, I think you would find it hard to claim that there is more reason for concern about the future of the family in Ireland than there is in this country. You can hardly suggest that the family is less healthy in Ireland than in this country. I submit that there is no more reason to be concerned about the future of the family in Ireland, under their law, than about the future of the family here. notwithstanding the difference as regards the matter of divorce laws. I am not saying that the difference in this matter concerning the divorce laws is the main influence at work—there are deeper factors and more subtle influences. But, at any rate, I think we ought to seek 1051 for a different divorce law which could go with what many people would feel was a less vulnerable family life.
Your Lordships know that Roman Catholics and a good many others believe divorce to be utterly wrong, but I do not think you will be very much impressed by being told that they think this is wrong because that is part of the official teaching of the Church; and perhaps you will not be impressed by the fact that other Christians think it wrong, for a similar reason—that it is against the Divine revelation as their Church interprets it. I think that recent experience, as studied by the psychologists, to whom the noble Lord, Lord Chorley, would wish us to pay so much attention, lends more support to what I call the Catholic view and to the view held by so many other Christians than it does to the opposite view. I am sorry that the noble Lord is not here, because I thought his speech was one of the most interesting one could listen to on a subject of this kind: I disagreed with it so much and at so many points.
The noble Lord knows very well, because he is an expert criminologist, that it is very difficult to bring forward any material on any human question which demonstrates a point conclusively as it could be demonstrated in mathematics or in the natural sciences. Recently, as I have had occasion to mention more than once in your Lordships' House, I had to undertake an inquiry into the causes of crime, in which it was my duty to conduct such researches as the noble Lord thought might have been conducted under the auspices of the Royal Commission. I will not stop to argue the point whether the noble Lord, Lord Merthyr, had an adequate reply to Lord Chorley's criticism: but whether these researches were conducted for two years. or five or ten, I think that in the last resort we should still have to make up our minds as to the connection between the growth of divorce and any alleged decay in morals. Hardly anybody concerned with criminology and human problems would dispute—and the noble Lord, Lord Merthyr, who speaks with such great authority, laid it down in his most interesting observations—that there is a connection between the broken home and crime, both juvenile and adult; and when we are trying to seek the cause 1052 of the broken home, I think we are driven to ponder again certain passages in the Report of the Royal Commission.
It is too late to read them now, but for reference, the passages are between paragraphs 39 and 49, entitled "Background of inquiry". There we are given a considered view, not based on statistics—it would have been rather difficult to base it on statistics—but unanimously arrived at by all these representative ladies and gentlemen of much experience. That view contains, among other passages. the statement thatThe large number of marriages which each year are ending in the divorce court is a matter of grave concern … The disquieting feature is that the divorce rate is still so high.The Report then points out, in paragraph 46, that.… there have been rapid and far-reaching social changes "—but they go on to pick out what they call "the root problem": that… a further factor in the problem of marriage breakdown … is a tendency to take the duties and the responsibilities of marriage less seriously than formerly.And in paragraph 48, they offer the opinion that:The change in the community's attitude to divorce has some share in responsibility for this situation.The noble Lord, Lord Chorley, is perfectly entitled to come here and say. "What are their proofs? and if we had more time I should desire to give a lengthier reply, but for the moment I would accept their interpretation of the facts as carrying a great deal of weight. I will not say more, as it is something that can be argued about indefinitely, but if we do accept the Commission's interpretation of the facts, almost all of us can go a long way together, though not quite the whole way.
We can surely agree that not in the first generation only, but also in subsequent generations, the harm done by marriage breakdown is incalculably great. I think that the Royal Commission had that in mind when they described it, in effect, as a tragedy whenever it occurred. If we accept the findings of the Royal Commission on this point. we can agree that people do tend to take the duties and responsibilities of marriage less seriously than formerly, and that this lies at the root of the problem. We can accept also that the change in the community's 1053 attitude to divorce has some share of responsibility for this situation. There the Royal Commission stop; but I, and others with me, go forward.
I go further and submit, not on a priori grounds but on grounds of experience, that the facilitation of divorce in the last fifty years, and the virtual creation of divorce in the last hundred years, cannot possibly be exempted from some of the responsibility for the change for the worse in the community's attitude to divorce. I submit, therefore, with heartfelt conviction, that the coming of divorce to our country has not been a blessing but a curse to England. None who think as I do could have any hand or part in making divorce easier or a more permanent part of our life, or fail to hope and pray for its ultimate elimination from our midst. Almost all of us, whether we accept divorce as a regrettable necessity or would wish to eliminate it, must deplore it when it comes to our friends or relations. None of us are pleased when we hear that friends are to be divorced. We all then regard it, as my noble friend Lord Pethick-Lawrence regarded it, as a symptom of failure. We all unite in trying to prevent the breakdown that leads to the failure; and when we find people, particularly young people, struggling with hideous problems of this kind, we are reminded of the further words of The Imitation—Be not hard to him that is tempted but give him comfort as thou wouldst should be done to thee.I have only a few sentences more. I strongly endorse what was said by the noble Earl, Lord Perth, and by other noble Lords, in favour of assistance for marriage guidance. I hope that the noble Lord, Lord Mancroft, who always speaks so well and whom I always seem to have to criticise, has not said the last word of the Government on this point. I hope that the noble and learned Viscount the Lord Chancellor will be able to say something more encouraging to-night; and if he cannot say much more to-night, I hope he will be able to say that it will be possible on a later occasion. On this side of the House we have encountered the noble and learned Viscount, in recent important debates, as a frank, formidable and much-respected adversary. We respect his character and appreciate it highly. We look to him to-night to give a 1054 lead on a question which rises far beyond any question of Party, and, ultimately, beyond religious differences. I hope that the noble and learned Viscount will say something constructive, or hold out the possibility of saying something constructive, and show for the first time in living memory that the family is going to be given its proper priority in the councils of Government.
§ 7.8 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I do not think that anyone has ever had a more compelling appeal made to him than that made to me by the noble Lord, Lord Pakenham. I think that the very making of that appeal is a proof of the fascinating character and importance of this debate, Having enjoyed hearing the speeches so much, I should like to convey my real thanks to the noble Lord, Lord Silkin, for initiating the debate in the way he did. I agree with him that it is high time that Parliament should have had an opportunity for considering the Report of the Royal Commission, and I think all of your Lordships agree with me in considering that document one of the highest importance. I should like to take this opportunity of again expressing the gratitude of the Government to my noble and learned friend Lord Morton of Henryton and to all his colleagues on the Commission for the way in which they have performed a most difficult task, The noble Lord, Lord Chorley, was good enough to write to me to say that he had to leave early in order to fulfil another engagement. Lord Chorley was the only noble Lord who criticised the composition of the Commission. As he is not here, I think it is sufficient to say that it is an interesting fact that the only noble Lord who criticised the composition of the Commission was a member of the Government who appointed it in 1949. I think I can leave that criticism at that point.
It has been stressed, and I think rightly, that the terms of reference of the Commission, including as they did the law of Scotland as well as the law of England, and the matrimonial jurisdiction of the magistrates' courts and the sheriffs' courts in Scotland, and the divorce jurisdiction of the High Court and the Court of Session, imposed a large task indeed, and a much bigger task than that which faced the Gorell Commission in 1909; and I think everyone has agreed that my noble 1055 and learned friend Lord Morton of Henryton and his colleagues have discharged that task with a thoroughness, and I say—and I maintain this strongly —a human sympathy for which we should all be profoundly grateful.
One comes to consider the size of the problem with which we are dealing. Again, I think everyone except the noble Lord, Lord Chorley, viewed the actual number of divorce cases that have been brought into the courts as a matter of grave concern. If my noble and learned friend Lord Merriman will forgive me, I should like to round off the figures which he was good enough to give to your Lordships in an earlier part of the debate. The only difference between our figures is that those supplied to me are the figures of decrees, and I think my noble and learned friend's figures were those of petitions. These are striking figures. In the year 1912, when the Gorell Commission reported, there were no more than 690 decrees; in 1937, when Sir Alan Herbert's Act was passed, the figure had risen to over 5,000; and in 1939 it reached 8,248. The war led to a catastrophic increase in the divorce rate, although the great flood of cases did not reach the courts until the conclusion of hostilities. The peak figure was recorded in 1947, when no fewer than 52,248 decrees were granted.
Since then, I am thankful to say, the tide has receded, but the number of decrees granted last year was over 26.000, and all the indications point to the divorce rate being steadied at somewhere about this figure for as far ahead as we can see at present. I have been giving the figures for England and Wales. In Scotland the divorce rate is much lower, and in the average the number of decrees granted every year is now something over 2,000. I think all your Lordships have felt that there is a great social significance in these figures. The noble Lord, Lord Chorley, said that it was impossible to equate these figures with the number of broken homes that would exist if the parties did not go to the Divorce Court. I tried to appreciate that argument, but to me it seems that the only possible view is that that does reflect broken homes.
Like the noble Lord, Lord Pakenham. I have had to consider the cases of 1056 crime: in fact, when I became Home Secretary, rather in the height of a crime wave, I had to consider every aspect of it; and, having considered detection. the numbers of police and all the penal arrangements that were made, I came to the conclusion—I am afraid I have said this more than once—that the most important causes of crime were broken homes and the lower moral standards that I found. Therefore. as I have said, I consider that there is an immense social problem here. Where I would differ from the noble Lord, Lord Pakenham. is that my reading of history has shown me that at every stage, even when divorce a vinculo matrimonii has not been recognised by the Church, it happened in the cases where it was politically necessary. I hope the noble Lord will not misunderstand me. I mean that any human urgency has its frailty. and that happened. At the time before 1857 about which the right reverend Prelate the Bishop of Exeter spoke, you had your Private Bill procedure, and those who could afford the Private Bill procedure got divorce a vinculo matrimonii, although, as he said, it was different in the ecclesiastical courts.
If your Lordships will forgive me. I should like to quote one of the oldest and best known but most sensible addresses to a prisoner that has ever been made by a Judge. Shortly before 1857 Mr. Justice Maule had to sentence a tinker for bigamy, and he said:You had a drunken and unfaithful wife, the curse of your existence and her own. Your remedy was perfectly plain. You could have brought an action for criminal conversation against her adultery. You could then have got a decree of divorce a mensa et toro in the ecclesiastical courts, and then you could have promoted a Private Bill and got it through both Houses of Parliament. You may tell me that that would have cost you £1,000 and you have never had 1.000 pence. But I am here sitting as a Judge of the High Court of England to tell you that in this country, at least, there is not one law for the rich and another for the poor. The sentence of the Court on you is one day's imprisonment; and as you have been here since the beginning of the assizes, that means you can go.I am sorry to inflict this well-tried and well-worn chestnut on your Lordships, but I quote it again to put to the noble Lord, Lord Pakenham, the other side of it: that is, that while we all desire—and I agree with him that everything we can do as a State and as individuals we must 1057 do—the preservation of the family, it is impossible to face cases of that sort and to deny men and women any freedom from it.
I do not want to spend the time during which I ought to be dealing with the Royal Commission's recommendations, on these most fascinating side streams, but I think that what the right reverend Prelate the Bishop of Exeter said is well worthy of consideration. He put more clearly than I have heard before the matter which we must always have in mind: that if at the back of people's minds there is even the idea that marriage has a voluntary break clause, then we may well have changed its character in a way which would do immense harm. It is a difficult balance, and that is the balance which I think should be held. I believe that the Royal Commission have maintained that balance in their Report. It is against the background which I have sought to paint that your Lordships have to consider the Report and the suggestions that have been put forward.
The Report of the Royal Commission has been criticised because it contains no striking proposal for an alteration in the grounds for divorce except the one upon which I shall say a word in a moment, about divorce after a separation of seven years. I think it is important to remember, when that criticism is put forward, that the terms of reference of the Commission were to consider, not only the way in which marriages may be brought to an end, but also… the need to promote and maintain healthy and happy married life and to safeguard the interests and wellbeing of children. ….That is a most important part of our social life, as it is of the terms of reference. Some people may think that this purpose would not be furthered if the law were altered in such a way as to permit husband and wife to obtain a divorce solely because in his or her view the marriage had broken down.
If I may contrast two sets of speeches. I will refer again to the speech of the right reverend Prelate and, on the other hand, to the speeches of the noble Lord, Lord Pethick-Lawrence, and the noble Earl, Lord Huntingdon. These speeches make it perfectly clear that this is a matter on which people can, with deep sincerity, hold diametrically opposed views. In these circumstances, it is not 1058 surprising or, indeed, a ground of criticism that the Royal Commission broke even in its numbers on this point. But what is perfectly clear is that, after everything that has been said in this debate and the Report of the Royal Commission taking the form and showing the divisions which I have mentioned, no-one could possibly expect a Government to announce legislation on this subject, as my noble friend Lord Mancroft pointed out in his speech. Of course we shall give the fullest consideration to everything that has been said. and I shall read again the speeches that I have enjoyed so much hearing to-day. But I repeat that I do not think anyone could criticise the Government for refusing to announce legislation on that point.
Now I come to the question that has tilled a great deal of the debate, and that is the question of marriage guidance. The noble Lord, Lord Silkin, began by saying —if I have his words aright—that the only hope was advice at the beginning. The most reverend Primate followed, and my noble friend Lord Perth made an eloquent and sincere speech in the same direction. We also had the advantage of hearing my noble friend Lord Merthyr, who is Chairman of the Marriage Guidance Council. They all said, rightly, that the Commission did its work and paid a great deal of attention to this point. I have the greatest sympathy with all that has been said on this point: first, the need to ensure that persons entering on marriage should do so with a full appreciation of their duties and responsibilities, and that every assistance should be given to persons already married in the difficulties they may encounter, so as to avoid the breakdown of the marriage if at all possible—that is obviously right—secondly, that everything possible should be done to ensure the welfare of the children who are the innocent victims of a broken marriage.
I am glad that under the first of these heads the Commission have paid a well-deserved tribute to the work done by the various marriage guidance organisations, for whom my noble friend Lord Merthyr spoke. I believe their work is of immense importance and I endorse what the Royal Commission has said about it. I hope that as soon as circumstances become more propitious it will be possible for greater contributions to be made by the State towards this work. We 1059 recognise the importance of the work, and the importance of its being helped. If my noble friend Lord Merthyr would convey to his friends in the organisation a message from me, I would say that I read the booklet which they prepared on the Report of the Royal Commission and their views with the greatest interest and sympathy, and I should like to pay my tribute to a well written and interesting booklet.
My noble friend Lord Merthyr raised the further point about the question of the legal advice provisions of the Legal Aid and Advice Act. I want to say again that we, as a Government, have promised that that section of the Act will be put into operation during this Parliament, and I should like to give him my assurance that I have not forgotten the importance of that aspect of the Act. Again, as soon as the financial position allows that will be done. I have his point very much in mind, and I accept his major premise that it is cheaper to get good advice than to go into doubtful litigation.
I come to the welfare of children. On that aspect of the matter, your Lordships will agree with me that one of the most important recommendations in the Report is that in paragraph 372, to the effect that, where children are concerned, it should not be possible for a decree of divorce to be made absolute until the court is satisfied that full consideration has been given to the question of the children's welfare and that satisfactory arrangements have been made to this end.
The right reverend Prelate the Lord Bishop of Exeter made some remarks on the question of legislation. Having heard the right reverend Prelate speak several times, I should be the last person to accuse him of naï veté, which he seemed to fear. I can only tell him, after an experience of being a Minister that now goes back some fifteen years, that in every Government in which I have served every Department has produced the most admirable Bill, all of which were non-controversial and all of which could go through both Houses of Parliament in the minimum of time, and it is among these new lambs that the slaughter of innocent legislation takes place. I want to tell the right reverend Prelate that getting a Bill into the Parliamentary cursus is not an easy task, and those of 1060 us who fail are not lacking in energy. I think that all noble Lords who have been Ministers will agree with me as to the difficulty of that point. Therefore, I hope the right reverend Prelate will not be too hard on me.
On the other hand, I want to make this fact quite clear. I propose very shortly to invite the Supreme Court Rule Committee to consider an amendment of the Rules of Court whereby any party to divorce proceedings who seeks to obtain an order for custody of any children will be required to supply the court with full particulars of the arrangements which he or she proposes in regard to the children's future maintenance and upbringing. I hope that this will go some way towards filling the gap which undoubtedly exists at present.
I am at the same time arranging for an extension of the exceedingly useful work done by the probation officers who have for the past six years been seconded to the Divorce Division in London and who have been of considerable assistance in providing the Court with accurate information about the home background in cases where there has been a contest between the father and the mother for custody of the children or about the terms on which access to them should be granted to either parent. Advice of this kind will in future be available to the judges trying divorce cases outside London, and I hope that full use of it will be made. Those are immediate matters. One is a matter of subsidiary legislation, the other is a matter of administration, and I think they go some way to improving the position pending the legislation.
On this point of subsidiary legislation, and particularly the Rules of Court, I want to say that there is a difficulty. which I mentioned, on legislation; but so far as these recommendations can be dealt with by Rules of Court, it is my intention to bring them all—I repeat "them all"; that is, all the recommendations of the Commission—before the Supreme Court Rule Committee in a very short time. In that way, I hope that we shall be able to deal not only with the question of requiring a party who seeks the custody to disclose his or her own intentions about the children's future, but also with such matters as the stage in the proceedings at which applications for 1061 maintenance and so on are to be made; the fact that a wife ought nowadays to be treated on the same basis as her husband in regard to security for her costs, and the power of the court to grant an injunction whenever there appears to be any risk of a child being taken out of the jurisdiction before the case can be heard. These are relatively small matters, but they will, I think, when they are dealt with, effect a real improvement in the courts' procedure, and I have no doubt that similar action will be taken so far as Scotland is concerned. t want to say again that, of the many recommendations by the Commission which can be dealt with by subsidiary legislation, action has been and is being taken with regard to them all. And that, I think, is quite an appreciable part of the total.
I have mentioned the position with regard to legislation. Of course, there remain a number of recommendations which cannot be dealt with without legislation, although I confess that some of these seem to me of comparatively minor importance when considered against the background of the major problems to which I have referred. For example, the suggestion that wilful refusal to consummate a marriage should in future be a ground for divorce, rather than nullity, is no doubt a perfectly logical proposal, and one which might relieve the conscience in some cases; but it is not, as I apprehend, one which would make any practical difference to the law. From the practical point of view, I think that many of the most important recommendations are those dealing with the law relating to a wife's maintenance, and in particular the suggestion that, when a wife re-marries, any maintenance order made in her favour should automatically cease, on the ground that a wife who marries a second time should accept that she thereby ceases to have any claim against her former husband. On the general point, as I have said, I am glad that there is a large field with which I can deal without legislation.
The noble Lord, Lord Merthyr, put to me, with great force and eloquence, the point of the attachment of wages. He said to me, I am sure realising that that argument would appeal to a Scot: "If you can get attachment of wages in Scotland, why does it not apply in England? If it is a bad thing, why do you allow it 1062 to continue in Scotland?" in fairness to the Commission, I think that, if the noble Lord, Lord Merthyr, looks at paragraph 1103 he will find that argument dealt with. Perhaps I may quote a sentence or two from this paragraph:The power of arrestment of wages in Scotland is, however, part of the common law, so that it may be said to be traditional to the county and therefore accepted as a matter of course. Under the English common law there was no procedure for the attachment of debts; this was first introduced in 1854. In 1870 the power of attachment was very substantially limited by the Wages Attachment Abolition Act, to which we have referred in paragraph 1097.They set out further objections in paragraph 1107. Lord Merthyr, if he will mentally move from his post as Chairman of the Marriage Guidance Council to that of Chairman of the Magistrates' Association, will, I think, realise that it is important, as no one knows better than he. that there should be general public support for penal measures in the law. I think the explanation is that there is at any rate that acceptance and familiarity with it in Scotland, whereas, in England, wages, both in the minds of the ordinary people and in the minds of the trade union movement, have always had a tremendous sanctity. One can see the same sort of thing in the Truck Acts, with which the noble Lord is familiar. I feel myself that there is greater strength in the arguments put forward by the Royal Commission than the noble Lord allowed in his address.
My noble and learned friend Lord Merriman mentioned the suggestion in the Report that divorce work should be dealt with by High Court Judges, and the Commission's recommendation that the divorce jurisdiction, because it is of great social importance, should be retained in the High Court and be exercised by High Court Judges and not by Commissioners. I should like to say a word about that point, because there are important aspects, and particularly my own. As your Lordships may remember. the expedient of employing Commissioners of the High Court to try divorce cases was adopted by my predecessor, Lord Jowitt.. immediately after the war. in order to deal with the really grave emergency presented by the large number of cases awaiting trial. I have already mentioned to your 'Lordships that no fewer than 52,000 decrees were made in 1063 1947, and it was obvious that this presented a problem which could not be dealt with by the Judges of the Divorce Division alone. It was for this reason that the county court judges, as well as practising barristers, were called in to help. So well was this task discharged that the very large lists were dealt with. Without the help that we received a most serious crisis might have arisen. Of course, it was not foreseen at that time that the divorce figures would continue to be so large, or that the Commissioners would be employed for so long a period but it is clear that if we are to continue to be faced with as many as 26,000 decrees a year, many more High Court Judges would be required if they alone were to deal with them.
I have noted that the Royal Commission themselves say that this is not a matter which they expect to be changed overnight. With regard to that, I should say that I accept their estimate of the great importance of the work, and I have very much in mind my own duty under the Judicature Acts to see that the appointments of Judges to the High Court are made having regard to the work in, and the requirements of, the various Divisions. Therefore, I can assure your Lordships that this problem is in my mind. I agree with the Royal Commission that it is one which should be solved gradually I want everyone to know that I am taking that approach, and I hope to be able to show results as the months pass. I think that is not avoiding the problem but approaching it in the way the Royal Commission recommended.
There are various points of great importance that have been raised in these speeches, and I should not like any noble Lord to think that because I have not dealt with them, they are being ignored. We shall go through them most carefully and we shall examine exactly what can be done about them. We are all very much indebted to the noble Lord. Lord Silkin, for introducing debates of this sort on important topics, apart from all the work he does at the Committee and Report stages of Bills, which is appreciated greatly by noble Lords in every part of the House. I hope that Lord Silkin will not think at the end of the day that we are neglecting this Report. He knows the difficulty of legislation, but he also, as a lawyer. knows how much can 1064 be done to improve the practice and to put recommendations into force by rules of court and by administrative action. Lord Mancroft and I have tried to show him that it is our intention to use that course as fully as we can to cover all the recommendations that can be dealt with in that way. If he is disappointed on the question of the seven years, again I put it to him, as an ex-Minister of experience, that after publication of the Report and after what has been said to-day, he could not really expect legislation on the part of any Government, whatever its political colour. I feel, however, that we have, as a House, to-day successfully kept the balance in one of the great problems. It is always difficult, when our views of what is for the good of the community have to be reconciled with the failure of the human faculty, and much more difficult when that failure is the failure of the human spirit. Nevertheless, I think we have done it as a House to-day, and the difference between our views has, in totality, made a contribution to the consideration of one of the most difficult problems of mankind.
§ 7.48 p.m.
§ LORD SILKIN
My Lords, I feel that this debate has been fully justified because it has enabled us to ventilate the Report of the Royal Commission and discuss, in what I think has been one of the best debates I have listened to since I have been in the House, the very difficult problems, with which the Royal Commission were concerned. Of course, I do not propose to continue the discussion, but I want to mention just two matters upon which I think there has been some misunderstanding. I think the noble and learned Lord, Lord Morton of Henryton, was rather angry with me, and so was the noble and learned Lord, Lord Merriman, for having suggested that what I call the "retentionists" were really opposed to any form of divorce. I did not intend to say that. I will look tomorrow morning with great interest at what I said, but if I conveyed that impression to either of the two noble Lords. I am sorry, for it was not my intention.
What I really meant, if I may put it in one sentence, was that all the arguments that were put forward for retention might equally well have been put forward by those who were opposed to divorce of any kind. Of course, there are such people and several of them have spoken in this 1065 debate. They accept divorce most reluctantly, and if they had had their way there would have been no divorce at all. Therefore, there are people like that, and I felt that the arguments that such persons would put forward against the views of those who want to change the law would have been exactly or very much the same as the views that were put forward by the retentionists. That was one point. The misconception that should like to correct is in regard to the point upon which the noble and learned Lord, Lord Merriman, spoke with such authority—namely, the question of collusion. There, again, I did not mean to suggest that large numbers of divorces were collusive.
§ LORD MERRIMAN
May I intervene? I expressly said that the noble Lord did not say that. The noble and learned Lord said that a great many were by consent, but I think I expressly said that he did not suggest that they were collusive. At any rate, that is my impression; that is what I meant to say.
§ LORD SILKIN
I think that the noble and learned Lord actually said what have suggested. However, I do not think I need pursue that point.
I come to the reception which this Report has received from Her Majesty's Government. May I thank the noble and learned Viscount the Lord Chancellor for the kind remarks that he made about me. and, in all friendliness—I hope he will not take offence at it—say that if I had to have had news conveyed to me by any person in this world I would choose as the emissary the noble and learned Viscount. He manages to convey his bad news in such a way as almost to give you the impression that he is conferring a great boon upon you.
1066 I gathered from the speeches of the noble Lord, Lord Mancroft, and the noble and learned Viscount, that the Government are grateful to this Commission, but they have either no time to legislate or no money to legislate with. or both, and that therefore what they propose to do is to go as far as it is possible to go without the expenditure of either time or money. That involves making a few regulations which I gather from the noble and learned Lord, Lord Merriman, already have been made and will have been made regardless of this Commission at all. Well, that is rather cold comfort—indeed. I would say icy comfort—but at any rate we now know the views of the Government. We can only hope that in the near future they may have either the time or the money in which to carry this Report of the Commission a stage further. One must appreciate, however, that the average period for the implementation of a Royal Commission's Report is something of the order of ten years so there is still plenty of time. My Lords, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.