HL Deb 12 June 1958 vol 209 cc822-33

4.40 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Meston.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clauses 1 and 2 agreed to.

LORD MESTON moved, after Clause 2 to insert the following new clause:

Divorce for desertion notwithstanding separation agreement

3. For the purposes of paragraph (b) of subsection (1) of section one of the Matrimonial Causes Act, 1950 (which provides that a petition for divorce may be presented to the High Court on the ground that the respondent has deserted the petitioner without cause for a period of a least three years immediately preceding the presentation of the petition), any agreement between the petitioner and the respondent to live separate and apart, whether or not made in writing, shall be disregarded if the agreement was entered into before the first day of January, nineteen hundred and thirty-eight, and either—

  1. (a) at the time when the agreement was made the respondent had deserted the petitioner without cause; or
  2. (b) the court is satisfied that the circumstances in which the agreement was made and the parties proceeded to live separate and apart were such as, but for the agreement, to amount to desertion of the petitioner by the respondent without cause."

The noble Lord said: Where a husband and wife separated before January 1, 1938, in circumstances amounting to desertion on the part of one of them, the fact that before that date they entered into an agreement to live apart should not be allowed to prevent the deserted spouse from obtaining a divorce on the grounds of desertion. Desertion was made a ground of divorce under the Matrimonial Causes Act, 1937, which came into operation on January 1, 1938. Before desertion became a ground for divorce under the Matrimonial Causes Act, 1937, a number of separation agreements were concluded between spouses in circumstances in which one spouse was in fact a deserter and the other spouse merely acquiesced in something which he or she was unable to alter. The result was to deprive the deserted spouse of any subsequent right to seek divorce on the grounds of desertion, since—and this is the important point—desertion cannot exist in law where there has been separation by consent, unless the separation agreement has been repudiated by both parties. I may say, in a few words, that this Amendment is entirely non-controversial. It will affect only a few people. Nevertheless, it may remove certain hardships which exist at the present time.

Amendment moved— After Clause 2 insert the said new clause.—(Lord Meston.)


The noble Lord, Lord Meston, has introduced this new clause with his customary clarity, and I need add little to what he has said. I think that certainly two of the noble Lords opposite me would agree that every solicitor knows the effect of inserting a non-cohabitation clause in an agreement between husband and wife. Such a clause prevents either party from alleging that the other is guilty of desertion while the agreement remains in force. Although this result is just in the case of agreements made on or after January 1, 1938, when desertion first became a ground for divorce, it may operate harshly in the case of an agreement made before that date, when the parties could not possibly have known the consequences of their acts in the light of subsequent legislation. The husband may have been on the point of deserting his wife when the agreement was entered into, or may have already left her, so that the wife's entry into the agreement was merely acquiesced in in a state of affairs she did not desire but had no opportunity of preventing. After two decades there ought not to be many cases in which a spouse is still prevented by such an agreement from obtaining a decree, and I am glad that this gap in the law will be filled. So, as I say, I welcome the Amendment.

On Question, Amendment agreed to.

4.46 p.m.

LORD DENNING moved, after Clause 2 to insert the following new clause:

Power of court to find cruelty notwithstanding insanity

"3. For the purposes of any petition of action for divorce or judicial separation the court may hold that the respondent has treated the petitioner with cruelty or, as the case may be, that the defender has been guilty of cruelty towards the pursuer, notwithstanding that a disease of the mind prevented his acts from amounting to cruelty, if the evidence before the court is such that the court would have so held apart from the disease."

The noble Lord said: This Amendment is designed to put into effect a unanimous recommendation of the Commission presided over by my noble and learned friend Lord Morton of Henryton. He is unable to be here to-day, but he has asked me to say he still remains of the same opinion, that it would be a good thing to have an Amendment of this kind. If it is to be put into any Bill it should be in this Bill dealing with insanity and divorce. It deals with the question of cruelty, and I can best illustrate it by expressing the fact that a mental disease operates insidiously, unrecognized, progressively until there is some catastrophe when it becomes apparent to everyone. In the earlier time, the husband may well have been guilty of cruelty and have wrecked the marriage. Is the wife, because he is afterwards found to be insane, not to have a remedy in divorce?

Let me give an illustration from a typical case. A husband becomes morose and irritable, and then makes unfounded complaints of his wife's association with other men. Later he comes to blows and strikes her. In one particular case he attempted to strangle the wife, and three weeks later he killed the child. He was arrested, taken to the Old Bailey, but was found there to be unfit to plead and of unsound mind. In the earlier time the marriage had been wrecked and the wife was treated with cruelty, but because he is not guilty by the criminal law, and not responsible for his actions, she cannot get a divorce, because in this respect the divorce law applies the same tests as the criminal law. In fact, I suggest that the divorce law ought to be on the same footing as the civil law, not the criminal law.

Take an ordinary civil case, by way, of illustration—there was one such case not long ago. A guest at a large hotel in Brighton complained against the manager, and hit the manager a very injurious blow and then decamped. Two or three days later he was discovered at Southampton, and was afterwards found to be schizophrenic. The manager brought an action for damages in the civil court. The defence was put up that the man was of unsound mind, but the manager got his remedy in damages in the civil court. No one knew that the man was of unsound mind at the time. It is not like the criminal law, under which you want to punish a man for his wrongdoing. This is a case of giving a remedy for an intolerable situation. If a wife cannot live safely with her husband, is she to wait five years while he is incarcerated? He may be curable. Is she to be debarred because the official solicitor feels that he has got to raise the point, because he must take the defences open to him? The Royal Commission considered all this and unanimously recommended that a disease of the mind should not be a defence in the case of cruelty; and that is what this Amendment is designed to effect. I beg to move.

Amendment moved— After Clause 2, insert the said new clause.—(Lord Denning.)

4.50 p.m.


My Lords, I want to apologise for intervening again this afternoon, but this is an important point from the point of view of the court. I think I can best help your Lordships by trying to point out clearly that the authority of the courts up to now supports the view opposite to that which has just been indicated by the noble and learned Lord, Lord Denning. May I say, to start with, that although we have already passed the clause in the Bill in connection with desertion, this raises a different question. In connection with desertion, it is assumed in Clause 2 that the offence of desertion has already been committed, and the sole question is whether it can be continued without interruption for the statutory period in spite of the intervention of insanity. In this case, however, the question is whether the offence of treating with cruelty can occur at all if the acts complained of are committed at a time and in circumstances when what are known as the M'Naghten Rules in criminal law apply.

Let me tell your Lordships shortly what are the Rules—they have already been indicated in passing by the noble and learned Lord, Lord Denning. If a man can prove (if the onus is on him to prove it) that at the time when the act complained of was committed, by a defect of the reason, owing to a disease of the mind, he either did not know what he was doing or did not know that it was wrong, then he comes under the M'Naghten Rules. May I give the simplest sort of illustration which would arise in the courts in matrimonial cases? If a man hitting his wife over the head with a hammer is under the insane delusion that he is driving nails into the wall to hang a picture, he does not know the nature and quality of his act. He does not know what he is doing because he is insane. Again, if he does know that he was hitting his wife on the head with a hammer but thought that he had been commanded to do so by some celestial visitor who had ordained that that particular act should be committed (as has happened in cases which I can remember), he would come under the second limb of the Rules and would not know that what he was doing was wrong.

The Court of Appeal, after some hesitation, recently held in three cases that that rule applies to the question: has the aggressor treated the victim with cruelty? It is perfectly true that in the first of these cases the noble and learned Lord, Lord Denning, delivered a very powerful judgment on the lines of the speech that he has just delivered to your Lordships. His question is whether the dominant principle in connection with matrimonial suits is that what matters is the protection of the victim or the guilt of the aggressor. I am not going to elaborate this point in detail, but although the matter has never come before your Lordships' House it is now plainly established by the Court of Appeal in the three cases to which I have referred that if the aggressor can bring himself within the M'Naghten Rules, that applies as a defence to a charge of cruelty just as it would to a criminal charge.

I do not think it is necessary to give your Lordships the details of all these cases. It has been suggested that this was a new matter and that the old authorities were the other way, but there is nothing new about this. If your Lordships will allow me, I am going to read a short passage from a judgment made on this very topic by Lord Penzance in the early days of the Matrimonial Causes Act. He said: … It was faintly, and with great care not to be too explicit, argued that madness would be no answer, even if pleaded and cases were cited, to which I have since referred. With danger to the wife in view, the Court does not hold its hand to inquire into motives and causes. The sources of the husband's conduct are, for the most part, immaterial. Thus, have no doubt that cruelty does not cease to be a cause of suit if it proceeded from violent and disorderly affections '. I pause there for one moment to say that that particular phrase was used by the great Lord Stowell and was brought by the noble and learned Lord, Lord Denning, into the judgment to which I have referred, in the case in which he was in a minority of one. It was thought to be a reference to insanity. In fact, as it turns out, Lord Stowell was talking of spiteful jealousy and not of insanity at all.

Lord Penzance concluded with other phrases that had been used, such as … want of moral control or eccentricity and from a liability to become excited in controversy. Then he said this: … but madness, dementia, positive disease of the mind, this is quite another matter. An insane man is likely enough to be dangerous to his wife's personal safety, but the remedy lies in the restraint of the husband, not the release of the wife. It may be a harsh doctrine but it is the doctrine which has prevailed—and I say this dogmatically, if your Lordships will allow me to be dogmatic—throughout the whole administration of this law since the Matrimonial Causes Act.

There is one other point, and I hope that it will not be regarded as a cheap debating point. I put it forward because in my opinion it summarises the whole situation. It has been said, and the noble and learned Lord, Lord Denning, has been one of those chiefly responsible for imposing the test, that cruelty must be aimed at the victim. Whether it is a test of universal application is for the moment neither here nor there. Plainly it is the sort of test which would apply very strongly, at any rate to physical violence, even if it does not apply with the same universality to what we call mental cruelty. However that may be, if that is the test of cruelty, as Lord Somervell of Harrow said in one of the cases to which I have referred: How can an insane man 'aim' his acts at his spouse, it being agreed that it is necessary for the acts to be 'aimed'? That, as I understand it, is the position which has prevailed throughout. I do not want to take sides in this matter, and if there were a Division I should not vote. I say that for this reason, amongst others: that not only am I anxious in every way to support the recommendations of the Royal Commission but I discussed this matter yesterday with all the Judges of my Division whom I could see, and there was a remarkable division of opinion about the expediency of this new clause. I do not think it is becoming for me to take sides in the matter, and that is why I have confined my remarks to pointing out to your Lordships how drastic a change this would be. But let me add, as I have said before, that if Parliament ordains the change, Her Majesty's Judges who are trusted with this jurisdiction will carry out that change with all loyalty.

5.1 p.m.


My Lords, there are obviously two schools of thought on this question. The one school of thought takes the view that there must be no divorce unless there is a guilty party, and a party who is by reason of that very fact conscious of his guilt; the other is that where a marriage has broken down it should be made easier—that is the general trend of events—for the parties to have a divorce. That was the issue which confronted the Royal Commission, and they appreciated and considered both points of view. In a great many matters the Royal Commission were unfortunately divided, but on this particular issue they were united. I should like to read to your Lordships the paragraph in which they finally expressed their view—namely, paragraph 256 of the Report of the Royal Commission on Marriage and Divorce. They say: Whichever course is adopted, there will be some hardship. They then set out both conceptions of divorce. They go on to say: On the one hand, where the wife, say, is still fearful of further injury were married life to be resumed, and all affection for her husband had been destroyed by the cruelty suffered, ought the remedy of an immediate divorce to be denied to her? On the other hand, where acts thought cruel have been done by a man who is insane, ought he to be penalised by an immediate divorce without any waiting period to allow for the possibility of his recovering from the mental illness which alone has been responsible for the cruelty complained of? In our view, preference should be given to the interests of the injured spouse. I think that most people would agree that where there is this conflict the preference should be given to the interests of the injured spouse. I would say this to the noble and learned Lord, Lord Merriman—and I also do not want to make a cheap debating point. He gave as an example the case of a man who is driving a nail into his wife's head and does not know what he is doing. But she knows; she is very conscious of what is happening, and has every reason to fear that this might happen again.

There is another point on this question. Insanity is to-day becoming much more difficult to define. Previously the question of insanity depended upon certification, but to-day the issue is much more blurred and a person can be insane without certification—he may be under treatment. But I do not want to make that point. I do, however, want to make this point. The noble and learned Lord, Lord Merriman, says that this would be a breach of the conception of the law as at present: that a person must have committed an offence of which he is conscious. I would remind him that to-day it is a ground for divorce that a person has been insane for five years and is incurable. That person has certainly committed no matrimonial offence. Yet the law is that on the ground of insanity alone a person can petition successfully for divorce. Therefore, this breach has already occurred.


It is, of course, insanity for five years, and incurable. There is, too, this point: that if you add this, it would very often be an excuse for shortening the period of insanity.


Conceivably so. But the basis of the law of insanity now, as I understand it, is not that a person who is insane has committed some offence—he cannot help it; he is insane—but that the marriage has broken down irretrievably. In my view, a marriage where a person has been guilty of cruelty and is insane has equally irretrievably broken down. At any rate, it is at the option of the injured party to petition or not. If it is a wife, she is under no obligation to petition for divorce. But if she really believes the marriage has become hopeless, I should myself not wish to deprive her of that opportunity. I hope, therefore, realising that there is a conflict, though not in the minds of the Royal Commission, that the Government will come down on the side of relieving the person whose mind is very much in a state of distress and who feels that the marriage has broken down. I strongly support the Amendment moved by the noble and learned Lord, Lord Denning.


The noble Lord, Lord Silkin, asked that I should express a view immediately, but I hope that, on reflection, he will think that this is a suitable case where one ought to give the matter more thought, in view of the speeches that have been made to-day, and particularly in view of what my noble and learned friend Lord Merriman said about the division of opinion among the Judges of the Division of the High Court over which he presides. I think that in those circumstances any Government ought to reconsider the matter. I agree with the noble Lord, Lord Silkin, that it does raise a most acute divergence.

To illustrate what is felt, on the one hand, I would remind your Lordships of the words of Lord Justice Hodson in one of the cases to which my noble and learned friend Lord Merriman referred. The learned Lord Justice said: The word 'cruel' carries with it implications of guilt which can no more be imputed to such a person "— that is, a person who is insane— than to a sleepwalker. On the other hand, as everyone has mentioned, we have the unanimous conclusion of the Royal Commission. It was interesting (and the noble Lord, Lord Silkin, with his usual fairness, quoted the point) that the Commission recognised that, whatever course was adopted, there is bound to be hardship. On the one hand, it may be regarded as unfair that someone who is not responsible for his actions should be penalised by the other party getting a decree without the waiting period for insanity which Parliament has very properly provided for in regard to that ground of divorce. On the other hand, if the marriage has broken down because the wife, for example, is apprehensive of further injury if her married life were to be resumed, and her affection for her husband has been destroyed by the cruelty of which she has complained, ought the remedy of immediate divorce to be denied her? That is the question.

There are two points on which I should like to have further reflection. The first is that made by the noble Lord, Lord Silkin, which drew an intervention of great materiality from my noble and learned friend Lord Merriman. That is—if I may put it in a sentence: has not the very existence of the ground of insanity breached the law that there must be a matrimonial offence and really put us into the territory where the test is an intolerable situation? I believe that that is a very difficult point, and as I myself have pointed out (and it has been pointed out before), divorce on the ground of insanity has the safeguards which are in all our minds.

Then, however, there is the other point, which particularly relates to what has been said by my noble and learned friend Lord Denning, because, as has already been mentioned, the noble and learned Lord himself has on a number of occasions, in his judicial capacity, made the point that the cruelty that is complained of must be aimed at the petitioner. But if the harm done to the petitioner is the only test where the respondent is insane, could it not be said that the same test should apply where insanity did not come into the matter at all? I believe that that is more than a debating point. At any rate, it has given me some worry because of the view of my noble and learned friend as to that element in cruelty.

I am very grateful to my noble and learned friend Lord Denning for initiating this discussion and to all noble Lords who have contributed to it. I make no apology for asking for further time in which to consider this matter. The very excellence of the speeches that have been made to-day makes it right that not only I myself but my colleagues in the Government should have the chance of considering a very difficult moral and social problem. Therefore, if the noble Lord, Lord Meston, agrees, I would ask my noble and learned friend Lord Denning to withdraw his Amendment to-day on my undertaking to consider it. That leaves him entirely free, of course, to bring the matter forward on the Report stage.


I thank the noble and learned Viscount for what he says. On his assurance I beg leave to withdraw my Amendment.


May I ask whether we shall have another opportunity of considering this matter before the Report stage? I wonder if the noble and learned Viscount, with his usual courtesy, would give us an opportunity of having a word about that?


I should be only too delighted. I believe that would be very helpful. I shall be glad to consider that and to consider whether some of my noble and learned friends could help us. In any case, I will of course get in touch with the noble Lord, Lord Silkin, before I come to any conclusion.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

In the Title:


I beg to move the Amendment standing in my name. It is consequential on the new clause which your Lordships were good enough to accept.

Amendment moved— In the Title, line 5, at end insert ("and to enable a petition for divorce to be presented or the ground of desertion notwithstanding any separation agreement entered into before desertion became a ground for divorce in English law.")—(Lord Meston.)

On Question, Amendment agreed to.

House resumed.