HL Deb 20 May 1958 vol 209 cc455-70

3.20 p.m.

Order of the Day for the Second Reading read.


My Lords, I beg to move that the Bill known as the Divorce (Insanity and Desertion) Bill be now read a second time. Allow me to say at the outset that this Bill does not create any new grounds for divorce nor does it extend any of the existing grounds for divorce. The primary object of the Bill is to give effect to the recommendations of the Royal Commission on Marriage and Divorce presided over by the noble Lord, Lord Morton of Henryton, first, by extending the types of treatment which enable a husband or wife to obtain a divorce on the ground of the other's insanity; and secondly, by preventing the supervening insanity of a deserting spouse from interrupting a period of desertion.

As your Lordships know, Section 1 (1) (d) of the Matrimonial Causes Act provides that a husband or wife can obtain a decree of divorce on the ground that the other party to the marriage is of incurably unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition. Section 1 (2) of the Act goes on to provide that a person shall be deemed to be under care and treatment only under four conditions. The first of these conditions starts by providing that a person shall be taken to be under care and control only while he is detained in pursuance of any order or inquisition under the Lunacy and Mental Treatment Acts, 1890 to 1930. There is no point in going through the four conditions in detail, but the principal feature of each condition is that it lays emphasis on the certification of the respondent as a person of unsound mind.

The Royal Commission, in paragraphs 177 and 178 of their Report, pointed out that, while it is desirable to avoid certification as far as possible, this may result in considerable hardship for the patient's spouse. The patient may have spent some years in a mental hospital before he is certified. By that time it may be clear that his insanity is incurable, yet the spouse has to wait until the full period of five years' care and treatment as a certified patient has elapsed before taking divorce proceedings. And relief will be completely denied in a case where the patient, although incurably insane, continues to keep his voluntary status, because the need for certification never arises. The Royal Commission therefore thought that treatment as a voluntary patient should be recognised as constituting care and treatment whether under the Mental Treatment Acts or in an institution outside those Acts. In a word, certification is no longer to be the criterion.

Accordingly, Clause 1 (1) (a) of the Bill provides that care and treatment in any hospital or other institution in England, Scotland, Northern Ireland, the Isle of Man or the Channel Islands shall be deemed to be care and treatment for the purpose of divorce proceedings on the grounds of insanity. I wish to emphasise the fact that this provision alludes only to treatment for mental illness. Where, for example, a man is admitted to hospital for treatment for a physical ailment, then later develops mental trouble, he should be deemed to be under care and treatment for the purpose of divorce proceedings only from the date when he began to receive treatment in the hospital for mental illness. Furthermore, the above provision covers treatment only in hospitals and institutions in any sense recognised by public authorities. It does not cover treatment as a single patient in the charge of a doctor, matron or other person.

Hardship may well arise in the case of a person whose spouse had to receive care and treatment overseas. Again following the recommendations of the Royal Commission, it is provided by Clause 1 (1) (b) of the Bill that care and treatment of a person in a hospital or institution in any other country in which his treatment is comparable with the treatment in this country shall be sufficient. That is to say, it is sufficient for the petitioning spouse to show that the treatment which the respondent spouse has actually been receiving in the foreign hospital or institution is comparable with the treatment provided in any recognised hospital or institution in the United Kingdom, the Isle of Man or the Channel Islands. Again following the recommendations of the Royal Commission, Clause 1 (3) of the Bill provides that a break of twenty-eight days or less shall not be regarded as interrupting a continuous period of care and treatment.

There is another matter which requires rather special consideration. Under the existing law, the spouse of a person serving in Her Majesty's Forces is at a disadvantage compared with the spouse of a civilian. Detention in pursuance of any order or warrant under, for example, the Army Act qualifies as care or treatment for the purpose of divorce proceedings on the grounds of the soldier's insanity, but in point of fact, by Section 16 (1) of the Army Act, 1955, an order is issued under that Act only when the object is to enable the soldier to be received in a civilian mental hos- pital on his discharge from the Army. The wife of a soldier who has become of unsound mind, therefore, cannot in practice rely for the purpose of divorce proceedings on any period during which he has been undergoing treatment in a military hospital, even though his condition is such that if he had been a civilian he would almost certainly have been the subject of an order under the Lunacy Acts.

To remedy this state of affairs, Clause 1 (2) of the Bill provides that a certificate by the appropriate Service authority that a person was receiving treatment for mental illness during any period as a resident in a Service hospital shall be conclusive evidence of the facts certified. Therefore, the wife of a soldier who has become of unsound mind will, by producing a certificate of the Army Council, be able to prove for the purpose of divorce proceedings that her husband was under care and treatment while in a Service hospital. I should like to make the comment that the respondent spouse at all times must be shown to be of incurably unsound mind. This Bill does not make the slightest difference one way or the other to that essential feature in our law.

I should now like to refer to a different matter altogether. Under the present law a husband or wife may petition for divorce on the ground that the other party to the marriage has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition. A similar provision is made in the case of judicial separation. To establish desertion the petitioner must prove not only that the respondent has deserted for at least three years before the presentation of the petition, but also that he has during the whole of that time retained an intention to desert her. The fact that a spouse who is alleged to be in desertion has been certified as insane subsequent to the initial act of desertion raises a doubt whether he has been capable of a continuing intention to desert. Accordingly, following the recommendation of the Royal Commission, Clause 2 of the Bill provides in terms that desertion shall be deemed not to have been interrupted by the insanity of the deserting spouse if it appears to the court that the desertion would probably have continued if he had not become insane.

Clause 3 (1) gives the short title of the Bill. As your Lordships know, this Bill extends to Scotland as well as England. In Scotland, not only have they their own law but they speak Scots. The words "matrimonial causes" appear to be unknown in Scotland, and therefore the Bill is called Divorce (Insanity and Desertion) Bill. Clause 3 (2) provides that the Bill shall not apply to Northern Ireland. Clause 3 (3) repeals certain words in both English and Scottish Statutes which make voluntary treatment eligible for divorce proceedings only where it follows detention under an order. The effect of the repeals will be that the spouse of a voluntary patient will be able for the purpose of divorce to rely on the provisions of the Act if the patient is in private care or if he is receiving treatment in a recognised hospital or other institution.

That, my Lords, is the Bill. I am not suggesting for a moment that it will cover a large number of cases—in fact, I am glad that it will not. But I think it will have the effect of avoiding hardship in a large number of cases. With that modest exposition of the Bill, I have no hesitation whatsoever in recommending it to your Lordships for a Second Reading.

Moved, That the Bill be now read 2a.— (Lord Meston.)

3.30 p.m.


My Lords, this is another Bill which we owe to the willingness of Private Members in another place to use their luck in the ballot—in this case it was the honourable Member for Ashford, Mr. Deedes—to help to implement those recommendations of the Royal Commission, presided over by my noble and learned friend Lord Morton of Henryton, which require legislation. The noble Lord, Lord Meston, has explained the terms of this Bill in great detail. He has made it clear that the Bill deals with two distinct points. They are distinct, but in a sense they are related. The first relates to the conditions for obtaining divorce on the ground of insanity, and the other to the interruption of desertion by the intervention of a period of insanity. In the absence of the Lord Chancellor, it may be of some help if I tell your Lordships how this Bill will affect and be treated by the courts.

As regards Clause 1, it is necessary to remember, as the noble Lord has already pointed out, that there are two ingredients in the petition for divorce on the ground of insanity. The first is that the insanity shall be incurable—that is a matter, of course, of medical evidence—and the other is purely factual, and is that the patient has been under care and treatment for a period of five years. The Royal Commission of the noble Lord, Lord Morton of Henryton, definitely recommended the upholding of the period, but they recommended a marked change in the definition of "care and treatment." As your Lordships have already heard from the noble Lord, Lord Meston, in the Herbert Act of 1937, which was, of course, consolidated in the Act of 1950, the test of the period is detention under one form of order or another—in a word, certification. For that there is now to be substituted residence for treatment in hospital or any other prescribed institution.

The Bill recognises—and this is the important point—the modern opinion that certification, so far from being the first, should be the last resort in a case of mental illness, and deals in the main, though not exclusively, with the case of the voluntary patient. It also eliminates a certain number of arbitrary and harsh results which had arisen from the closeness of that definition. When, at the end of the period of care and treatment, the two tests coincide (that is to say, the period of five years has elapsed and medical opinion is that the insanity is incurable), surely it is just that the whole of the time from the start of treatment in the early stages—when there was still hope, it may be, that a cure would be effected, even though that hope turned out not to be fulfilled—should be counted in the period, instead of having the period begin with certification, which should be the last resort and, indeed, which may never be resorted to at all. I do not think it is necessary to say any more on that part of the Bill, because I feel certain that it will commend itself to your Lordships.

I now turn to Clause 2 and here I merely premise that the key to the whole question raised by Clause 2 is that the desertion must last for a period of three years immediately preceding the presentation of the petition and, shortly, that desertion involves both the fact of separation for that period ending with the petition, and also the intention to bring the cohabitation to an end. As the noble Lord, Lord Meston, has already pointed out, the question is: what is to be the effect of insanity intervening during that period? To illustrate how that arises, may I refer briefly to the facts of three typical cases which have actually arisen? The first of them—not strictly the first in chronological order, but the first for my purposes—is the case of Bennett, which was decided soon after the Herbert Act had been passed. There the desertion had lasted for no less than thirty-five years before, exactly half way through the last period of three years immediately preceding the presentation of the petition, the respondent was certified—thirty-five years of desert ion and eighteen months of certification. That, reluctantly, as is quite apparent from the Report, was held by the judge not to satisfy the requirements of the Act because of the intervention of this period during which it was held that the patient had no mind with which to decide whether or not to return to cohabitation.

The other case, which eventually went to the Court of Appeal, was not dissimilar in principle, except for one point. Seven years before the petition, the desertion had begun, and about four years after the desertion had begun the wife had obtained a magistrates' order against the husband on the ground of desertion. That older was not appealed from, and up to that point one would suppose that it was about as clearly established as it could be that the desertion was permanent, and likely to remain so. But shortly after that the husband was certified, and in this case (this is the difference between that and the other case) the whole of the period of the three years immediately preceding the petition was occupied by the detention of the husband on that order for certification.

I should like, if I may, to refer to one passage in one of the judgments where one of the Lords Justices quite plainly did not like the decision to which they came, that the certification was irrebuttable evidence of the fact that the man was insane and could not have a mind with which to intend to desert. He referred back to the first case I mentioned, and he said this: In that case from the wife's obstinate desertion for thirty-five years it would not be diffi- cult to infer that she would not have repented in the last few months. And then he made this significant addition: So also if the respondent had been insane for a short period at the beginning of the three years and after recovery had persisted in desertion for the rest of the three years. Oddly enough, although the Court held, as had been previously held, that the certification was final and conclusive, and there was no more to be said about it, the very point raised by that Lord Justice, Lord Justice Mackinnon, cropped up again in your Lordships' House about seven years ago—and this is the last case to which I intend to refer.

In that case a period of three years of desertion, three years before the presentation of the petition, was complete, but at the beginning of the third year the man was certified for two months, whereupon he was discharged as fit. He had deserted; it was understood and proved that he had deserted before the period began to run. It had been running for two years while he was perfectly sane; then it was interrupted by this two months at the beginning of the third year, and then there was the nine months during which exactly that which had been foreseen by Lord Justice Mackinnon many years before occurred: the man was released; he was at large in the world and did absolutely nothing toward bringing the state of desertion to an end. Your Lordships' House, when the appeal came before it—because both the trial judge and the Court of Appeal had followed the earlier cases and held that the certification raised an irrebuttable presumption of interruption of the desertion —held that there was no such irrebuttable presumption, and that it was open to the petitioner to prove, if she could, that, notwithstanding the certification, the husband had a mind with which she could intend to desert.

My Lords, I pause to observe that having regard to the changes which we have already been discussing under Clause 1, which makes the situation regarding care and treatment so much more flexible than it was under the old days of certification, the right established by your Lordships' House, and not interfered with, of course, by this Bill—the right to prove that, notwithstanding care and treatment, the intention to desert can still persist—applies a fortiori. I regret to have to tell your Lordships, however, that though your Lordships' House ordered a new trial in order that this fact might be established, if it could be, we shall never know what the answer would have been because, unfortunately, the man died and therefore the whole proceedings fell to the ground.

It may seem odd that, when it is postulated of a man, as it is postulated in the second clause which we are now discussing, that the party was incapable of continuing the necessary intention, it should yet be possible for the court to find that all the while the intention was continuous. But I think it is not really quite so odd as it may appear, because after all there is the parallel presumption which governs the conception of desertion as it is treated in the courts—namely, that when once it is proved that desertion has started, unless it has been interrupted by some attempt to resume co-habitation, it is presumed to continue. I would only add this, my Lords. At the end of it all, what better evidence could there be for a court to draw the inference that the desertion still continued, notwithstanding the period of care and treatment, whether it is long or short, than the sort of case which was involved in two of the cases I have mentioned, desertion for a long period before the care and treatment, a short period of care and treatment and then a resumption, after the end of the care and treatment, of the separation, with no indication whatever of an intention to return? I recommend Clause 2 to your Lordships for your approval.

3.47 p.m.


My Lords, as this Bill seeks to give effect to certain recommendations of the Royal Commission on Marriage and Divorce, of which I was the Chairman, it is perhaps appropriate that I should say something about it from the standpoint of that Royal Commission. The nature of the Bill, its details and the reasons for it have been so fully and clearly expounded by the noble and learned Lords who have preceded me that there is little that I can usefully add, but I thought perhaps I might make merely a few observations as to the general nature of the Bill.

When we were hearing evidence before the Royal Commission suggestions were made that this ground for divorce should be abolished altogether. One witness, in particular, pressed this on the Commission emphasising the wording of the Marriage Service, In sickness and in health, as lone as you both shall live, and pointing out that the person of unsound mind had committed no matrimonial offence and could not help it. The Commission respected the views of that witness but did not agree with them. They thought that this ground for divorce should be retained, with the two essential safeguards which appear in the existing legislation; that is to say, that there must be sound evidence that the man in question (or, of course, the woman in question), is incurably of unsound mind; and secondly, in order that his state of mind should be investigated under skilled hands for a long period, that there should be a period of at least five years continuous mental treatment immediately preceding the presentation of the petition.

The object of this Bill, stating it very briefly—your Lordships have had it expounded to you—is to remove certain hardships which arise under the second of these requirements. The institutions under which and the manner in which the mental treatment has to be carried on is very limited under the present legislation, and we thought that certain modifications would commend themselves, would be right and fair and would remove hardship. Then again, as the noble and learned Lord the President of the Probate, Divorce and Admiralty Division has so fully expounded, there is the position where a man or woman, undoubtedly in desertion, becomes of unsound mind, and the question is: does that put an end entirely to the proof of desertion? Clause 2, which has already been dealt with, deals with that unfortunate position of any petitioner.

My Lords, I would add only two observations. I have heard it said that when a really troublesome question arises the best way of dealing with it is to bury it in a Royal Commission. I am glad to say that the matters with which we had to deal have not been pigeon-holed, and I know that all those who served with me on the Royal Commission for four years are glad that so much has been done, by legislation, by rules and by orders of court, to carry our recommendations into effect. We are grateful for that. I would only say that the summary of our recommendations as to England occupied 149 paragraphs of the Report. It would no doubt take a considerable time to implement all of them. But, speaking quite judicially, and impartially of course, I think that they are all good recommendations, with the possible exception of two or three which were recommended by the majority and where I was a member of the minority.

3.52 p.m.


My Lords, I, too, would welcome this Bill as a small but significant step in the right direction. I say "in the right direction" because there have been two principles in our law of divorce striving for mastery. One principle is to regard divorce as a punishment for wrongdoing: there has to be an offence—adultery, cruelty or desertion for three years—and then you have to prove it. Like a criminal offence, it has to be proved beyond reasonable doubt. Then, if you prove it beyond reasonable doubt, you get your divorce. The other principle, on the other hand, is not to treat it as a piece of criminal wrongdoing, but to treat it as a relief from an intolerable situation. The law up to now has treated the one question we are considering to-day, where there is desertion for three years, as if it were a criminal offence; because if within the last sir months of the three years the man was in an asylum as insane, then the wife could not prove her desertion. It was said that he had no deserting mind, he was incapable of forming a deserting intent, and therefore he was not guilty of the offence. Surely, the right principle is the contrary one: she ought to be relieved from the intolerable situation. He had deserted her. The fact that he was insane in the last six months is only a stronger reason for giving her a divorce. That, I submit, is the principle which underlies Clause 2.

But what I wish is that this Bill would go one stage further. We have been dealing with desertion and saying that insanity should not be a defence to desertion. But what about cruelty? Ought insanity to be a defence to cruelty? The Commission which sat under my noble and learned friend Lord Morton of Henryton said it ought not to be. Let me give your Lordships some illustrations. I was concerned in a case where a man—he was a vicious sort of man, but no one thought he was insane at the time—assaulted his wife from time to time. He attempted to strangle her. Three weeks later he actually strangled and killed the baby. She brought her proceedings for divorce on the ground of cruelty. He was convicted at the Old Bailey, evidence of insanity was given, and he was found guilty but insane; and according to the law as now stated, because he was not guilty of a criminal offence she could not get her divorce.

Then, a little later there was a case tried by Mr. Justice Pearce. This was a case where a wife had left her child with the husband, who was apparently well, while she went out for the evening. When she came back the husband had strangled the baby, their only child, and had put his head in the gas oven. He, too, was tried at the Old Bailey. He was found guilty but insane, on the ground that though he knew what he was doing he did not know it was wrong. It was said that he thought he had creeping paralysis, that it might be a hereditary illness, and therfore he decided to dispose of the little girl. He was found guilty but insane. According to the law as now stated, the wife could not get a divorce on the ground of cruelty because insanity was a defence. Just as insanity is a defence in the criminal courts, so insanity is a defence in the divorce court.

My noble and learned friend's Commission recommended that insanity should not be a defence in the case of cruelty. Surely that is right. The injury to the wife is just the same. She needs protection from a court. Is it right to go on the old principle of proving wrong? Surely the right principle should be that she should have relief from a situation which had become quite intolerable, irrespective of actual criminal wrong on the part of the husband. These two principles run all through our divorce law.

Theoretically, in effect you have to prove a criminal offence. But what in practice happens? Everybody in the divorce court knows that you cannot tell who is in the right and who is in the wrong. The man who goes off with a woman wants to get a divorce. How does he do it? If his wife will not divorce him he brings a petition, charging her with nagging, or something like that, saying that she complained of his jealousy or some such thing, and so gets the case before the court. The wife may not resist it but say, "Well, if he wants a divorce, let him have it", or she may be provoked to a counter charge. At all events, he gets his divorce although he is really the guilty party. Nowadays you cannot tell in a divorce case who is the guilty party. Relief is given because there is an intolerable situation. I suggest to your Lordships that it would be a good thing if there were yet another clause added to the Bill, similar to Clause 2 yet not dealing only with desertion as Clause 2 does, but dealing with cruelty, and asserting that insanity should not be a defence to cruelty any more than it is to desertion. That is what the Commission under my noble and learned friend Lord Morton of Henryton recommended. I think it would be a good thing if that provision were included in this Bill.

3.59 p.m.


My Lords, the House will be grateful to the noble Lord, Lord Meston, not only for having introduced this measure but for having given us the opportunity of hearing three noble Law Lords each expressing his own point of view from a different angle. I think this is the first time since I have been in this House that I have heard three noble Law Lords speaking on the same subject on the same day, and if anyone had any doubt about what course they should take on this Bill I am sure that, with the Law Lords unanimous, there cannot really be any doubt at all. Indeed, there is so little doubt that one wonders why it has taken twenty-one years to put right this defect in the law. And it would not have been put right now but for the fortuitous fact, as the noble and learned Lord the President of the Probate, Divorce and Admiralty Division explained to us—that somebody was successful in a ballot and chose to introduce this Bill. If the noble and learned Lord, Lord Denning, wants to put right this other matter, he must see to it that someone else who is successful in the ballot in another place in future is willing to introduce an amending Divorce Bill; or perhaps alternatively he would himself introduce one here.

But surely these various amending Bills ought not to depend upon Private Members. Her Majesty's Government know what is wrong. They have had the Report of the Commission of the noble Lord, Lord Morton of Henryton, and surely it is the business of Her Majesty's Government, and not of a Private Member, to amend the law on such an important matter as divorce. I hope that Her Majesty's Government, if they have time—for the sands may be running out—will give some attention to the Report of the Commission and see whether it is not possible to correct those defects in the law which have been clearly established. This Bill is a step, and a very good step, in the right direction; and therefore I hope it will get the support of the House. But it is only a step and I feel that it is a very belated one, coming twenty-one years after the 1937 Act. I hope that it will be possible to get a comprehensive reform of the divorce laws before very long.

4.1 p.m.


My Lords, may I interpose just one word? It is now a very long time since Sir Alan Herbert, who was for many years a colleague of mine in another place, introduced his Bill. He was an Independent Private Member and as the noble Lord, Lord Silkin, has said, it is, I imagine, quite possible, without the hazards of the ballot, for a noble Lord—the noble and learned Lord, Lord Denning, for example—to introduce a measure in this House with at any rate a reasonable chance of its proceeding from this House to another place. In this connection, perhaps I might remind your Lordships that Sir Alan Herbert has recently written a book which, while it is accompanied with his customary wit, also includes his very serious and long-considered belief that in some respects, in addition to those which have been referred to to-day, his earlier Bill has proved to be insufficient. Perhaps if the noble Lord introduces a Bill in this House he will consider whether some of the suggestions in Sir Alan Herbert's book are worthy of inclusion in it.

4.3 p.m.


My Lords, perhaps the noble Lord, Lord Silkin, will not expect me to have much to say in answer to what he has said to-day. I can only tell him that I believe Her Majesty's Government are aware of these facts, and take issue with him on the subject of sands running out. I must point out to him that sands will run in any direction in which they are given proper impetus.


Hear, hear!


My Lords, after the very satisfactory and detailed support given to this Bill by the three noble and learned Lords, I feel that it is really superfluous for me to say more than a word or two. It is the view of Her Majesty's Government that this Bill will make some useful and timely reforms in the divorce law dealing with cases where one of the parties to a marriage has had the great misfortune to become mentally ill. There has been a tendency, which has been fully described, to regard certification as the last step to be taken in the course of treatment of the mentally ill; and except where it is necessary in the patient's own interest that he should be certified, every effort is made to encourage him to become a voluntary patient. It is clearly desirable, therefore, that our divorce laws should take into account this new outlook on mental illness and I would commend to your Lordships those provisions of the Bill which have this object in view.

Not the least of the recommendations of the Commission that sat under the noble and learned Lord, Lord Morton of Henryton, which have the support of Her Majesty's Government, are those related to divorce where one of the parties has become of unsound mind. In such cases our sympathy with the insane person is naturally attended by concern for the other party who, through no fault of himself or herself, suddenly finds married life is impossible. I believe the noble Lord who introduced this Bill will deserve and receive the gratitude of the many people who find themselves in that unfortunate position. Finally, on behalf of Her Majesty's Government I welcome the Bill. I hope that it will commend itself to your Lordships and will have a speedy passage into law.

4.7 p.m.


My Lords, I am grateful to the noble Lord, Lord Chesham, for having given the blessing of Her Majesty's Government to this Bill. I believe that we should be grateful to Her Majesty's Government for their attitude in this matter. I should also like, if it is in order to do so at this late stage, to pay tribute to the honourable Member, Mr. Deedes, who introduced the Bill in another place. I only hope that he will not sue me for infringement of copyright in making use of many of the observations that he made, but I understand that there is no copyright in Hansard, so perhaps that is a good defence, even in a Bill which deals with insanity. I should also like to thank those noble Lords who have spoken on behalf of this Bill. It is very seldom that one is supported by all the stars in the front rank.

Perhaps I may say a few words in reply to the noble and learned Lord, Lord Denning, who raised the question of whether insanity is a defence to cruelty. The "secret service" told me beforehand that he was to raise this matter, and therefore I have not come on the scene entirely unprepared. This is a very important question, but unfortunately it is controversial. It has been considered by Her Majesty's Government (I must not try to deceive the noble and learned Lord: it would be useless to try to do so, for he would soon find me out), but I cannot at the moment give any assurance as to whether or not his suggestions will find any place in the Bill at a later stage. Nothing now remains, therefore, but for me to thank your Lordships very much for the great assistance you have given me in explaining the purpose of the Bill.

On Question, Bill read 2a, and committed to a Committee of the Whole House.