DIVORCE (INSANITY AND DESERTION) BILL (Hansard, 26 June 1958)

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, Lord Silkin has stated with complete correctness the position on this Amendment. I promised that I would consider it and that I would have certain consultations in regard to it; and as the noble Lord has indicated, the difficulty which arose when the Amendment was discussed and which was recognised by the Commission over which my noble and learned friend Lord Morton of Henryton presided, is the conflict of hardship that arises. On the one hand, if the Amendment were accepted, it would mean that a husband was branded with cruelty when at the time he committed the alleged acts of cruelty he did not know what he was doing or did not know that what he was doing was wrong. On the other hand, there is the hardship that the wife will be unable to get a divorce on the ground of cruelty—which otherwise, of course, she can get without delay—but will have to wait for a period of years until it is determined that the insanity of the husband is of a permanent kind.
306 That is a very difficult conflict of hardships, and your Lordships may remember that my noble and learned friend Lord Merriman, President of the Probate, Divorce and Admiralty Division, informed your Lordships that he had consulted his colleagues and had found a serious difference of opinion. Consultation was necessary, not only on his part but also on my part, because this is a Bill that so far has dealt only with desertion. The question of cruelty was not raised in another place, nor does this Bill raise it; and no Amendment similar to this was moved or discussed there.
I have made the consultations and I find that this is a matter of acute controversy and that among those I have consulted very strong views either way are held. I put the two points, and many people felt that to take the course advocated by this Amendment would not only be an injustice to the person who is of unsound mind but would have other effects on which I need not enlarge. Equally, others felt strongly, as the noble Lord, Lord Silkin, has said, on the other side. In these circumstances I would ask the noble Lord, Lord Silkin, not to press this Amendment, and I am sure my noble and learned friend Lord Denning will assent to that course if he thinks it good.
In its present form the Bill does most useful work in relation to desertion outside the field of controversy, and it would be most unfortunate if we were to jeopardise that advantage by going into the controversial field. I hope the noble Lord, Lord Silkin, understands that this is not one of those cases to which he has objected in past years, where I am putting the argument simply on the absence of time. I am putting it on the controversy which my consultations have assured me will arise.
There are two matters on which I should advise the Committee, in consolation to the noble Lord, Lord Silkin, and my noble and learned friend Lord Denning. The first is that, as I have told the House before, I am periodically taking stock of all the recommendations of the Royal Commission presided over by my noble and learned friend Lord Morton of Henryton and have already put a number of them into operation by administrative action with the assistance of my noble and learned friend Lord Merriman. Through the co-operation of honourable Members 307 in another place and especially of the noble Lord, Lord Meston, here, we have also advanced in the field which requires legislation. I assure the noble Lord, Lord Silkin, that that will go on. All outstanding matters will be considered, among them the point brought up by this Amendment.
The other consolation I offer the noble Lord, Lord Silkin—and I apologise for inflicting it upon the House as a whole, because it is rather more a lawyer's point—is one on which I hope my noble and learned friend Lord Merriman would agree with me. It lies in the two cases which clarify and focus the doctrine with which this Amendment deals—both Court of Appeal cases. The first is the case of Swan in 1953. In that case the Court of Appeal, faced with this problem and having stated the law in the way in which it is now sought to change it, then said that there could not be condonation to a person of unsound mind because one could not exercise forgiveness to such a person. That revived the anterior cruelty and upon that they founded the decree; so that the petitioner, although losing this point, gained another point through the existence of the doctrine.
In the second case, that of Palmer, the Court of Appeal applied in its severity the doctrine of the M'Naghten Rules, and in so applying that doctrine found that although there was unsound mind there was clear evidence that the husband knew that what he was doing was wrong and contrary to law. The Court applied the doctrine strictly to the letter, as we are familiar with it, and in that case also the wife got a decree. I thought that that might be some reassurance to the noble Lord, Lord Silkin, as showing that although the doctrine exists it had this compensatory factor in those cases.
I am sorry that I have to ask your Lordships to avoid a decision on this point. I put it on the firm foundation that the noble Lord, Lord Meston, has produced a most valuable improvement in the law and I should not like that to be jeopardised by controversy which I have found to exist in the circles I examined and which my noble and learned friend Lord Merriman found to exist among his colleagues. I therefore ask the noble Lord not to press his Amendment to-day.

§ LORD DOUGLAS OF BARLOCH
My Lords, I certainly should not like anything to be done by this House which would imperil the passage of this Bill, but I must confess that I am a little surprised to hear that this matter is of such acute controversy when the only point of objection which the noble and learned Viscount on the Woolsack has mentioned is that it would be an injustice to the spouse of unsound mind to be branded with the offence of cruelty. Surely the basis upon which cruelty is made a ground for obtaining a divorce is the injustice which is done to the party that is injured, and that injustice remains, whether the party inflicting the injury is of sound mind or not; and, indeed, so far as the injured party is concerned, the injustice may be said to be all the greater because he or she suffers not merely the cruelty but also the pain and suffering which arise out of the mere fact of having a spouse who is of unsound mind. I should have thought, therefore, that the case for this reform was really overwhelming, and I hope that the research upon which the noble and learned Viscount is engaged will result in the introduction of some amending legislation at an early date.

§ LORD SILKIN
The noble and learned Viscount will not be surprised to hear that I am profoundly disappointed with his reply, as I am sure that the noble and learned Lord, Lord Denning, on whose behalf I am speaking, will be. But I am bound to accept what the noble and learned Viscount says. I do not propose to force this matter to a Division. The reply is disappointing because it means that those who take what I regard as the less enlightened line, as against the enlightened line taken by the unanimous membership of the Royal Commission, are able to exercise a veto on something which, I should say, most people would regard as desirable. However, I am impressed with the thought that if this Amendment were pressed to a Division and if it were successful it might mean endangering the whole Bill, and in those circumstances and in the hope and belief that this matter can be brought forward on a later occasion when the noble and learned Viscount has 309 carried out his further activities on the law of divorce, I beg leave to withdraw the Amendment.