MARRIAGE (ENABLING) BILL [H.L.]

HL Deb 26 January 1960 vol 220 cc652-95

3.42 p.m.

Order of the Day for the Second Reading read.

LORD MANCROFT

My Lords, it is eleven years ago precisely to the day since I first presented a Marriage (Enabling) Bill for your Lordships' consideration. The purpose of my original Marriage (Enabling) Bill was to enable a man who had divorced his wife to marry her sister. The converse also applied, and my Bill enabled a woman who had divorced her husband to marry his brother. The purpose of the Bill was extended to certain remoter degrees of affinity. Since the text of that original Bill was admittedly almost of Torquemada-like complexity, and the text of my present Bill is not much simpler, I think I can best explain to your Lordships exactly what I am seeking to do by relating briefly the facts of the case which first aroused my interest in this rather esoteric matter.

There was in my regiment in the early days of the war an N.C.O., whom I will call Sergeant Smith, for the excellent reason that it happens to be his name. Sergeant Smith was stationed in Cairo, and he fell in love with, and married, an English girl employed in the censorship department of G.H.Q. A little while after their marriage Rommel threatened the Delta, and most of the English girls in Cairo were evacuated to the Cape. Mrs. Smith went to Cape Town and there gave birth to a child. In due course she found her way home and went to live in Aberdeen with her sister. After a short time she took up with a Polish Air Force officer and eventually abandoned her child and went to live with him. Nothing that we, the friends of Sergeant Smith in the regiment, the welfare office or her friends or relations could do would make her change her mind. Divorce proceedings were then initiated, and Sergeant Smith divorced his wife. Directly the divorce decree was made absolute the wife married the Polish officer, and shortly thereafter—much too shortly—gave birth to his child. In due course Sergeant Smith obtained compassionate leave. He came back to England, went to Aberdeen to see his child and there met the sister-in-law, whom he had never before met in his life, who was mothering his child. Somewhat naturally, he took a kindly view of the young girl who was a mother to his child; and in due course he fell in love with her and wanted to marry her. However, he found that he could not do so.

Was there ever a more ridiculous situation than that this marriage, which could only be a marriage to be desired, could not take place? The husband was a free man and the girl free to marry, and both obviously desiring to give a future home to the child and themselves, but both forbidden by law to marry. I need hardly say that they have been living together for many years, and two more children—illegitimate children—have been added to the population of Aberdeen. But the adulterous Mrs. Smith is happily married to her Pole, and her child, obviously conceived out of wedlock, is legitimate. That is the ridiculous situation which I am asking your Lordships to put right by giving this Bill a Second Reading to-day and ultimately getting it passed.

When this situation was brought to my notice by Sergeant Smith, it was news to me, as I think it was to most people. It may not be news to your Lordships now, because it is becoming a tolerably familiar situation. It is not a quirk, oversight or gap in the law. It is specifically stated in Section 184 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925, that this must not happen. Unfortunately Sergeant Smith knew nothing at all about Section 184 (1). Nor did a great number of other people, and many marriages have taken place, in ignorance of this state of the law, which have subsequently been found to be void. One, in particular, I confess that I have always had on my conscience. There was a lady living in Manchester who had been married for twenty years to a man who was her brother-in-law, and she reported to me that he, upon reading in the Manchester Guardian, about my first Marriage (Enabling) Bill, and realising that his marriage was not as happy as it might be, heaved a sigh of relief, folded up his newspaper and went to live with a barmaid in Bridlington.

While I was investigating these facts other things were happening. There was the Report of the Denning Committee on Procedure in Matrimonial Causes (I hope that the noble and learned Lord, Lord Denning, will be taking part in this debate later) which in February, 1947, stated that it has been suggested that this limitation"— that is, the limitation that we are discussing this afternoon— should no longer apply". They went on to add that they did not feel they could give a decision in the matter, which was outside their terms of reference. The next move was the introduction of a Private Bill—not a Private Member's Bill, like mine, but a Private Bill—called the Stevenson Marriage Bill, which was before the Personal Bills Committee of your Lordships' House, under the chairmanship of the late Lord Drogheda, in May, 1947. That Bill directly raised the issue that we are discussing this afternoon. Your Lordships' House was very sympathetic towards the facts revealed, but decided, not unreasonably, I feel, that this was a matter that ought to be put right by general legislation and not by a Private Bill. Hence my original Bill was my attempt to put this matter right by general legislation.

That Bill was debated in your Lordships' House on March 24, 1949. Your Lordships generally were good enough to support my Bill, and some powerful speeches were made in its favour. The weight of opinion numerically was overwhelmingly in its favour. The Opposition came, first, from His Majesty's Government (as it then was), for reasons which I will explain in a moment, and from the Bishops' Bench. The most Reverend Primate the Lord Archbishop of Canterbury, whom I am glad to see in his place—well I am quite glad to see him—made a very powerful speech indeed, and so did the Bishop of London of the day, Bishop John Wand. I have just been re-reading his speech in Hansard and I must say that I never fail to admire the tenacity with which that powerful Prelate persisted in clinging to the wrong end of the stick.

The Bishops, however, were not unanimous. Dr. Haigh, the then Bishop of Winchester, who was greatly respected in your Lordships' House, expressed grave misgivings about the state of the law at that moment; and the late Dr. Hunkin, then Bishop of Truro, supported me, not in this House but from his pulpit. The attitude of the Government was put to the House by the Lord Chancellor of the day, the late Lord Jowitt. Your Lordships will remember that in 1949 relations between the two Houses were, to put the slightest gloss upon it, delicate. There were Parliament Bills in the air, Steel Bills, nationalisation Bills, and Lord Jowitt, I think not unreasonably, put before the House the view that he could not accept a Private Member's Bill from the House of Lords which involved an undoubted measure of controversy. And controversy there undoubtedly was

There was another reason why I did not press my Bill to a Division. If I had done so I should undoubtedly have won in the Lobbies, though naturally the Bill would have got no further in Parliament. I am sorry to say that, as the result of a scurrilous piece of skulduggery in the Whips' Office, the usual channels that afternoon were frankly polluted. I have no proof whatever of this, but I guess that what happened was that it was realised that an Anti-Fox Hunting Bill was in danger of receiving a Second Reading in another place. A deal was done whereby if my Bill was blocked in this House the Anti-Fox Hunting Bill would be blocked in another place—and it was so. My only"proof", so to speak, of that statement is that the Chief Whips of both Parties took me out afterwards and bought me a drink—a thing that has never happened before and, I need hardly say, has never happened since.

There was then set up the Royal Commission on Marriage and Divorce under the chairmanship of my noble and learned friend Lord Morton of Henryton. I gave evidence before that Royal Commission, and I put before them in great detail all the points which I am putting, I hope briefly, before your Lordships this afternoon. The Opposition point of view was also put. Eventually the Royal Commission reported in favour of my Bill—exactly the Bill I am putting forward this afternoon—by no fewer than 16 votes to 3. It was about the strongest recommendation the Royal Commission made. Thus fortified by the Royal Commission, I am now trying again. My Bill, which is before your Lordships this afternoon, I hope accurately reflects the Royal Commission's recommendation. Perhaps for the sake of accuracy I had better read the recommendation, because my Bill is not easy to understand, owing to the eccentricities of my draftsmanship. Paragraph 169 of the Report says precisely what I am trying to do. It says: We therefore recommend, with the same three dissentients, that in England and in Scotland it should be permissible for a man or woman whose former marriage has been dissolved to marry during the lifetime of his or her former spouse any person whom he or she could lawfully marry at the present time if that former spouse were dead. That is precisely what my Bill sets out to do.

I will not weary your Lordships for the moment with all the legal and ecclesiastical detail and data that went into this Report. It is on record; it is in the original Hansard, for those who are interested, and it is in the Minutes and Evidence of the Royal Commission. I will express, if I may, only two or three salient facts. The first is that we are not pioneers in this matter. On the contrary, we are laggards. This has been the law in New Zealand for thirty years, and New Zealand, I think we shall admit, is a country as like as any to us in our outlook upon social and moral issues of the day. I have made detailed inquiries in New Zealand—I made them before my first Bill, and I have repeated them since—to find out whether any social ill has been occasioned by this provision of the New Zealand law, and I am told there has been none.

It is also the law in Scandinavia. It is the law of most of the States—at least the more forward States—of the United States of America, and it is the law of Switzerland. I did not know that when I introduced my first Bill. I discovered it because people who have a little money in their pockets are going to Switzerland, getting married and coming back to England with a marriage certificate which probably is not valid here but which gives them that sense of social security that, even in this cynical day and age, people still seem to want. Nowadays, because of this gap in the law, many couples are living together having changed their name. They are living together and are facing with equanimity the illegitimacy of their children. Your Lordships may well say that if one can get married in Switzerland with a slightly bogus certificate, if you live here and change your name who worries about legitimacy in these days? I will have none of this. It is a"fiddle", and I want to put it right, because I feel strongly that the reason why the law is so frequently falling into disrepute is because people regard certain branches of it as ridiculous.

What, briefly, is the opposition to this seemingly reasonable proposal? The most reverend Primate the Lord Archbishop of Canterbury will correct me if I am wrong (I suspect that he will correct me if I am right, but never mind) has put his point of view in these words: It is an essential and vital part of the security, stability and happiness of the family and domestic circle that emotional relations of sexual attraction between in-laws should be altogether excluded. So be it. But surely that is the nub of the whole question. They should be excluded, but they cannot be excluded by law. You will not prevent a man from lusting after his sister-in-law solely by saying that he cannot get married afterwards. These were the very arguments which were put forward at the time of the Deceased Wife's Sister Bill. That Bill went through your Lordships' House on no fewer than nineteen occasions. This is the second occasion upon which I have put this Bill forward, and I hope for your sakes that I shall not have to put this point seventeen times more.

The noble and learned Viscount, Lord Simon, apologising for the cynicism of his point of view, suggested that the fact that a man could not be forced to marry his sister-in-law might even encourage him to commit adultery with her. I do not go so far as to say that, but I do suggest that this idea that the ability of a man eventually to marry the sister-in-law with whom he has committed adultery puts into his head lustful thoughts that would never have been there in the first place just will not work. In my first Bill I included a proviso which militated against the guilty party who had committed adultery, and permitted only the innocent party—whatever nowadays the word"innocent" may mean—to remarry. That proviso was put in—I say so admittedly and unashamedly—in an attempt to appease the Archbishop. It did not appease the Archbishop, but made him worse. I have now taken it out, because it met with little support in your Lordships' House and it met with no support from the Royal Commission.

I find it very difficult to define what a"guilty party" really means. I have most of the evidence of these cases available to me. I should think I know of nearly every couple who are involved in this country, and I am happy to say that in a vast collection of cases it is the"Sergeant Smith" type of case that predominates, although I cannot deny that there are cases when the most improper state of affairs has occurred. But it will not be increased or enhanced in any way by the provisions of this Bill. My Bill does not make divorce easier. It is highly unlikely further to endanger a family circle if it is endangered in the first place. On the other hand, that irregular unions and great hardships exist I hope I can convince your Lordships to be the truth. I know now of about 1,000 people who will be involved in this Bill. That is a rough guess, but I think the number is about 1,000. My Bill, if your Lordships are good enough to support it, will, by making legal marriages that were hitherto illegal, enable many broken homes to be remade and children to be settled.

To sum up the points which I am putting before your Lordships, we have to weigh up between fact and conjecture: the fact of numerous cases of injustice and hardship, and the relaxation of harshness which has occurred—the liberalisation of our social laws. I hear in mind the attitude that your Lordships adopted towards legitimacy and the question of stigma on the children a year or so ago. Against that fact must be placed, admittedly, the conjecture that by allowing the man to marry one is putting into his mind lustful thoughts that were not there in the first place. The second point of which I have to remind your Lordships is that it is the experience of other countries who have changed this law many years ago that no great social hardship, in fact no social hardship at all, has resulted. The third point is that this is a strong recommendation of the Royal Commission. If we do not support strong recommendations of Royal Commissions, nobody will ever serve on a Royal Commission. If we do not support this recommendation I certainly shall never serve on a Royal Commission. The last point that I must make to your Lordships, as strongly as I can, is that this is a Marriage (Enabling) Bill and not a Divorce (Enabling) Bill. In conclusion, I may add that I have no brother and my wife has no sister. I beg to move that this Bill be now read a second time.

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

4.0 p.m.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, that was very refreshing; in fact it was pretty nearly a repetition of a speech made by the noble Lord in 1949, and I am sorry to say that what I shall say is pretty nearly a repetition of what I said in 1949, though I hope slightly improved. I must confess that I have not thought about this matter between 1949, the Royal Commission and now, and I am sorry that I have to think about it at all on this occasion.

When the earlier version of this Bill was before the House I was almost the only person to oppose it. A few expressed some understanding of the point of view which I was attempting to present, but only the then Lord Chancellor, Lord Jowitt, both understood it and gave it his support, speaking, of course, not for the Government but simply for himself, and he underlined heavily the fact that there is a great difference between being divorced and alive and being dead. It is well to remember that there is that difference. Since then the Royal Commission on Marriage and Divorce have recommended in favour of the principle of this Bill. It might be thought, therefore, that the case which I advocate has become indefensible, but in fact I have gained support, for if in 1949 I could find only the Lord Chancellor to support me, now I can claim the support of the Chairman of the Royal Commission, Lord Morton of Henryton, and two other of its members, Sir Frederick Burrows and Mr. Flecker, who dissented from their colleagues; so the support is mounting. May I say, incidentally, that I am not in any way responsible for the number of Prelates on the Bishop's Bench; they are here by their choice and not in the least by any pressure from me.

May I make it clear now, as I did in 1949, that the Church as such has no particular ecclesiastical interest in this Bill. The Church's position about divorce is well known. Under the Bill the husband will have divorced or been divorced from his wife, and the fact that the second wife is the sister of the first does not raise any new type of ecclesiastical impediment, not even if the sister has herself been divorced before marrying her brother-in-law. Accordingly, I speak entirely in my own capacity as a citizen of this country interested in the general and particular well-being of its citizens.

The noble Lord has shown that a certain number of people, 1,000, will be enabled to achieve a marriage which at present they are denied. On that ground it is easy to support the Bill. Here are people altogether innocent, or perhaps near being innocent, who are deprived of a marriage which may seem to be in every respect convenient and satisfying and for the good of the children, if children are concerned. But the noble Lord does not rest his case on the existence of hard cases. He ended his speech in 1949 by declaring his belief that the law as it stands is in itself anomalous, cruel, illogical and unnecessary. Both he and I are solely concerned with human relations between persons. I hope to show that the existing law is not ridiculous, as it was just called, or fiddling, but can be defended on reasonable grounds, and it is possible it is wiser to leave the law unchanged.

The case for the Bill is that it rests on a certain number of hard facts, known cases of hardship, and that opposition to it rests merely on speculation as to what might happen if the law were changed. I am not so sure that the facts are necessarily quite so hard as they appear, or the speculation quite so speculative. The cases which the noble Lord has in mind are cases where already the first wife has been divorced, where subsequently, chiefly for the sake of the children, the husband desires to marry the divorced wife's sister and is not allowed to. My Lords, I have a good deal of experience of marriage troubles and marriage cases. I know that no two cases are ever quite alike; they cannot be, for always you are dealing with separate and unique persons. I cannot take the number of cases known to the noble Lord as sufficient guide by itself. Some of them are certainly due to the long separations caused by war conditions and are therefore abnormal and ought not to be taken into account when you change legislation. Some may be due to the wilful behaviour of the wife, some to the wilful behaviour, or worse, of the husband. Some on analysis would deserve our acute sympathy; some would riot. But they all have one factor in common: divorce has occurred, and the desire to marry the divorced wife's sister is there in the husband, though generally I suspect rather less insistently present in the sister.

But to look forward to the possible consequences of a change in the law is not merely speculation. There is to guide us long experience of how men and women behave, and known cases in which the existence of this legal prohibition has served to protect the desires and the rights of individuals and to preserve the stability of the family circle. It is a fact that in most families it would never occur to a husband to think of divorcing his wife in order to marry her sister. The fact that it is out of the question is supported, if support is needed, by the fact that such a marriage would be illegal. But there is evidence that from time to time the process of falling in love, or of the husband being attracted to the sister in law, or indeed trying to seduce her, begins. It is the basic principle of our marriage laws—and I wish to underline this—that marriage imposes a lifelong obligation. That is not a vagary of the Church; it is a basic principle of the law. We all know that that principle is often openly and strenuously attacked. That was part of the reason for the appointment of the recent Royal Commission. And the Royal Commission retained that basic principle unchanged.

The State rightly provides for the possibility of divorce in cases where matrimonial offences are proved. But the matrimonial offence is against the principle, and though not illegal is accepted as not in the general interest of the community, and is sometimes in some of its aspects described as unlawful. The prevalence of divorce may obscure this principle but it does not invalidate it; and, indeed, while some would be willing to invalidate it, I think general opinion increasingly in the community desires to uphold and defend this principle of lifelong obligation, so that the many miseries of divorce cases may be diminished for the general wholesomeness of the community.

This is relevant to this Bill. We may well know in our own experience of cases where, after marriage, the husband becomes attracted to the sister-in-law. There can be no doubt that if it is possible to look forward to a fulfilment of a still hesitant desire to an actual remarriage to the sister-in-law, that desire is more likely to grow unchecked, and even to be subconsciously encouraged, if there is no law to forbid it. Wives and sisters finding such a situation beginning to develop in their own families, do now not infrequently seek advice. If the marriage is to be preserved in a healthy state, the right course is for everybody to combine to put an end to the whole affair between the husband and the sister-in-law; and it helps to say clearly that because of the legal impediment it cannot lead to any real satisfaction. But if this Bill becomes law, it can lead somewhere, and indeed the State, by altering the law, will have declared that it can both lawfully and legally lead to a divorce and a civil marriage.

So I submit that this present legal impediment which the Bill seeks to remove is cruel or illogical only in the way in which many laws seem cruel and illogical to those who are adversely, and sometimes very distressingly, affected by them. But it is not to be assumed that this Bill would always be of benefit to the children concerned who are thus taken into protection by the sister-in-law. There are cases in which the disturbance caused by the disappearance of the real mother and the transformation of the aunt into a second mother will be very real. If the real mother dies, the child can answer all corners that his or her mother is dead. But if the aunt has become the second mother (with, as I know in one case, the real mother living in the next street), the child is involved already, perhaps at a most sensitive age, in the domestic circle itself, in the psychological and moral confusion and traumas which divorces so often produce. And that is not good either for the child or for the community which has to bear the consequences.

Nor is it to be assumed that this Bill will always make things easier for the sister-in-law. She may indeed share the man's desire that she should not only look after his children but also become his wife. But she may not. She may honestly desire to look after her divorced sister's children as their aunt—a relationship which has a special grace and dignity of its own—and not merely as their father's second wife. At present, she can look after the children as the aunt with a perfectly honest intent, protected by the fact that the law protects her from over-persuasions by the man or suspicions by the neighbours. It is a serious thing if every aunt in this position loses such protection as the law now gives her.

Finally, there is a further interest to be preserved, that of the wife before she is divorced. There are cases where the husband and sister-in-law get seriously involved with one another to the mounting distress of the wife. In ordinary cases outside the domestic circle one knows how cruel is the pressure often exercised upon a man or woman whose partner has committed herself or himself to a party outside the domestic circle. The partner and the paramour try to persuade, sometimes almost to compel, the other partner to give a divorce for their sakes. Though they have the right to do it, it may be just what the offending partner wants but what the faithful partner, for good reasons, detests. Here, too, there are all sorts of considerations. Divorce is often the desirable, or even the inevitable, solution. But this kind of pressure, which I have seen, is often utterly cruel and completely inconsiderate. I have seen it often when the erring wife or husband who wants to get the divorce and to remarry is utterly merciless, utterly relentless, ignoring without scruple all the claims, the rights and the natural desires which should fall to the other partner.

My Lords, this Bill—as I say, this is my final and, I think, compelling point—may expose a wife to exactly the same relentless and cruel pressure as is often exercised to get a divorce, but here in order that her husband may marry her sister. That is a grim situation for any woman to find herself in. At present she has a protection from the law. Her husband and her sister may indeed commit adultery together, but there is still room for satiety, revulsion, repentance, and for forgiveness to lead in the end to a re-established marriage and a stable home for the children. But far less room is left if, before satiety, revulsion, or repentance have had their full opportunity, there is a divorce, a broken home, children of the broken home, all in order that the sister-in-law may become a wife. I maintain that all wives deserve to be spared at all costs any conceivable chance of this unjust and cruel pressure, of which I see so much. Is this speculation? I know of one case at this moment in which that pressure is being exercised unceasingly and relentlessly. Knowledge of human nature tells me that it will not be the only one. So I trust that, for the general defence of the principle of marriage on which English law is based, and for the particular defence of the family circle, adults and children, from the insidious evils which may follow the very possibility of divorce and remarriage within the domestic circle, this Bill will not pass.

4.19 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I need trespass for a very short interval on your Lordships' time to give the views of Her Majesty's Government in regard to the problem that faces your Lordships today. In view of the last debate in your Lordships' House, the subsequent careful examination of this problem by the Royal Commission on Marriage and Divorce, and the large majority by which the Royal Commission approved the principle of the Bill, Her Majesty's Government see no reason why this House should not give a Second Reading to this Bill if it so desires. I am afraid that I must tell my noble friend Lord Mancroft that he must not take that as a promise on my part on behalf of Her Majesty's Government to find Government time for the Bill in another place. There are many other factors that must be considered, as the noble Lord, with his long ministerial experience, will be aware.

There are two relatively minor points which I should like to bring to his attention. They are perhaps little more than drafting points, but if I do so at the earliest moment perhaps the noble Lord could consider them. The Long Title, which is perhaps a relic of his former Bill, with the proviso which he mentioned to us a short time ago, would appear to suggest that only a successful petitioner will be able to take advantage of the Bill; but there is, of course, no such limitation in Clause 1; and I assume that, according to general principles, Clause 1 contains the noble Lord's intention.

The second point is that the words"as a civil contract" in Clause 1 appear to be taken from the Deceased Wife's Sister's Marriage Act, 1907, but they do not appear in the Marriage Act, 1949 which repealed that Act of 1907. As I understand the position—and I put this forward to my noble friend for his consideration—the words are unnecessary if the intention is that no clergyman of the Church of England should be under an obligation, to marry somebody to whom the Bill applies, because this is already provided for by Section 13 (2) of the Matrimonial Causes Act, 1950. If there is a further intention—and again I suspect there is—I should be grateful if the noble Lord would tell us what it is, as I should like to give the matter further attention. Perhaps I may be technical for a moment—I do so only in order to help my noble friend Lord Mancroft in his consideration of these points. If he will consult the case of Thompson v. Dibden, [1912] Appeal Cases, page 533, and note the absence of the words in the Act of 1949, he will see the problem that might be created. But, as I say, if his purpose is to make quite clear that no clergyman of the Church of England should be under an obligation to marry someone to whom the Bill applies, then I believe that to be already provided for in the section to which I have referred. I hope the House will forgive me for mentioning these two points but I thought it might be helpful to the noble Lord to have them in front of him at the earliest opportunity.

4.24 p.m.

LORD BEVERIDGE

My Lords, the Bill which has been introduced by the noble Lord, Lord Mancroft, seems to me to raise a very difficult problem which is something to be taken most seriously. I must begin by confessing that I was not at all deeply moved by the evidence given by the most reverend Primate against the Bill in relation to the proposals of the Royal Commission appearing in paragraph 1162 of their Report. The gist of that argument was objection to causing additional incitement to an illicit affair with the wife's sister in the hope that the wife also will commit adultery, so that the man can divorce her with a view to marrying her sister.

If your Lordships should accept that objection of possible incitement to misbehaviour under a change of law, the objection can be raised—it was raised to me by a friend—that there is incitement to even worse misbehaviour under the existing law: that a man may feel that it is worth trying to poison his wife secretly so that she may become deceased and he can then marry her sister. I do not want to dwell at all on arguments on that kind of incitement. I confess that, like my friend's argument, they seem to me to be frivolous; and I hope that the most reverend Primate will not mind my saying that I consider some of his argument frivolous in the sense that both arguments missed the main reality of this problem. To me, the one thing that really matters in dealing with this problem of broken marriages is to save to the maximum possible the innocent victims of that broken marriage—the children, if any. I see no real difference in the needs of children after a marriage has been dissolved, whether by death or by divorce. They must have someone to look after them.

Let us think, before anything, of these children. Every one of us knows how clear"Auntie" is to many families of children. When we in my family had not enough, my sisters adopted an aunt and she was a very dear"Auntie" to us all. If children have not an aunt, they will often invent one. If a man finds himself driven to divorce, his wife having borne him children, he should be free to provide, as completely as possible, a second mother for them—by marriage, if that seems to him desirable; and he should not be prevented from doing so by laws about affinity. By changing the law we shall not necessarily make happiness. Happiness is not made by law, but happiness can be, and very often is, stopped by bad law. That is my answer to what was said by the most reverend Primate about the impossibility of making happiness by law: it is impossible to make it, but you can stop it. I want to avoid stopping happiness through preventing a man from marrying his wife's sister who may be ready to come and look after his children, and able to do that far better than many others. We should not stop a man from doing that.

I should like to deal with just one other argument in the case of the most reverend Primate which seems to me very weak. He suggested that if a man could marry his divorced wife's sister, the wife would be the more likely to commit adultery to oblige him. I really find it impossible to believe that any large number—

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, I do not remember using that argument at all.

LORD BEVERIDGE

My Lords, I thought the most reverend Primate did so. If I have misunderstood him, then of course I would withdraw my remark, but I thought he said that a woman was often under great pressure to set her husband free to marry her sister, and that that means pressure to commit adultery so that he can get rid of her.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, I spoke of pressure to bring a divorce case against the husband.

LORD BEVERIDGE

As the most reverend Primate meant pressure against the man, I entirely accept that, of course. This is a difficult matter in which to avoid occasional misunderstandings, but I suggest that the weakness of the argument which the most reverend Primate made to the Royal Commission of sixteen caused thirteen out of the sixteen to reject the argument. I ought to correct what I believe the noble Lord, Lord Mancroft, said when he thought sixteen had voted for this proposal. I think thirteen did; but three, which is almost a quarter of thirteen, voted for the Lord Archbishop. I believe that it was this feeling about provision for the innocent victims of broken marriages that, above all, caused those thirteen to reject what the most reverend Primate had suggested to them. I make that suggestion not from any knowledge of the number of miserable cases, and not because I think that counting the cases, whether there are a thousand or more or less, really matters, but from a fairly considerable knowledge of the social conditions under which people live in this country and how much they depend on one another.

I want to mention, though, before I finish, just one point which is dealt with in paragraphs 1168–69 of the Royal Commission's Report and which I confess has troubled me. Ought we to allow marriage between a man and his wife's sister not only if he has divorced his wife for adultery but if she has divorced him for adultery? In his former Bill the noble Lord, Lord Mancroft, proposed to include a proviso against this, and I want to say that to me, at first sight, there seems a good deal in favour of making this prohibition, because the children of a marriage broken by adultery will remain, perhaps, on the whole, more often with the innocent person than the guilty person; and that is a reason perhaps for not making the change which the noble Lord, Lord Mancroft, was not prepared to make.

There is another way in which children come into this problem. A man may seduce his wife's sister with intention to marry her later. All these ideas do, I think, add a little strength to the argument of the most reverend Primate on incitement; a little strength to the case for a proviso. But it remains true that the Royal Commission who had this suggested proviso put before them by the noble Lord, Lord Mancroft, rejected it. They did not like it, I do not know on what grounds. I suppose that if this Bill receives a Second Reading, as I hope it will, it will still be possible to reinsert by Amendment something like the proviso. I am not going to say that I would necessarily ask for that reinsertment until I have read more of the evidence, but I assume that that change could be made if necessary. I can only say that for to-day I support the Bill as it stands and if there is any Division I shall go into the Lobby in support of it.

4.33 p.m.

THE LORD BISHOP OF LICHFIELD

My Lords, I see that the most reverend Primate and at any rate some of the Bishops are fast being driven into the position that they have often found themselves in before—namely, that of being regarded as a reactionary lot. This is a position that those who speak in a certain representative character for the Church have experienced on a number of occasions, and I would say that we are not ashamed of it. After all, when we think of progressiveness the question is the manner in which we are progressing and the place at which we are hoping to arrive. The Gadarene swine, I suppose, were the most progressive lot that had been seen for a long time. Therefore, it would appear that we are reactionary and are seeking also to stop certain people's happiness.

I would ask your Lordships to remember, however, that most of us have had a very considerable experience over a long time of dealing with personal problems, and the last thing we want to do is to make matters difficult for people. I would therefore ask your Lordships to remember quite clearly what this Bill would make possible. It would make it possible for a man, having tired of his wife, to become increasingly attracted by her sister; then to commit adultery with that sister, with the good hope that his wife, to whom he owes his duty and allegiance, would in despair sue him for divorce so that he could then get away with it and marry the wife's sister. Personally, I regard that idea as being revolting, and it is for that reason that I find myself strongly opposed to this Bill.

My Lords, in the explanatory memorandum of this Bill the impression is given, I think, that this Bill is a kind of logical corollary to the Deceased Wife's Sister's Marriage Act, and so on. I do not believe that it is any logical corollary at all. With the Deceased Wife's Sister's Marriage Act I have every sympathy, and I think it has brought great happiness. I can remember a case in a parish of which I once was vicar where there were two sons in a family and the elder married a charming girl to whom the parents became devoted. Shortly afterwards, serving in the war, he was killed; and it gave the greatest joy to the parents when subsequently his widow, as she then was, married the younger son, because they felt they had kept in their family a newly-found daughter.

I would suggest, however that this is not the case at all in regard to the present Bill. The Deceased Wife's Sister's Marriage Act has brought happiness and peace to a family. This Bill, I suggest, would bring merely strife and division. Cannot we imagine the family taking the side of one or the other of the sisters? Some would back up one woman and the others would support the other, and what an appalling relationship would exist between the sisters! I suggest that there would be absolute misery, very often, for the divorced wife, who might well be the innocent party. I should be second to none in subscribing to the tribute that could be paid to the social benefits that have been brought to this country by the last speaker, Lord Beveridge, but I must confess that I was greatly surprised to hear coming from his lips a statement that the most reverend Primate's arguments in this matter were frivolous. I hope that no one will think that in trying to defend the innocent party, as very often would be the case in this matter, we are being frivolous.

My Lords, at the present time the papers are full of the rising tide of crime and juvenile delinquency, and it is undoubtedly the case that much of that arises from the psychological disturbance that is inflicted upon the child through the broken home. The speakers in favour of this Bill are asking that the loved aunt should be able to come in and give peace and stability to the home. If the mother were dead, I think she might well be able to do so. But in the circumstances that would exist in a case such as this I believe that would be, very often, the very last thing that that woman would be able to bring. I think that often she might stand, though silently, for what had been undoubtedly evil and wrong. As, surely, what we ought to do now, by every means in our power, is to buttress the institution of the family, I would therefore ask: is this the moment to bring in a Bill which would introduce into the family still further disruption by making these appalling relationships possible?

I would fully grant, of course, that this Bill is not creating any new ground for divorce. The noble Lord who introduced the Bill made that perfectly plain. It is seeking to allow marriage between people who now, by law, cannot marry. But these people are all in the family, and are not outside it; and it is because of this that new temptations may well be introduced. I remember once talking over these matters of the breakdown of family life (with which, as a clergyman, I have so often had to deal) with a beloved physician—an old doctor who himself had a great experience—and I can hear him now saying to me,"You know, so often the trouble is propinquity". A man finds himself thrown up against a girl who is other than his wife, perhaps in his work, or for one cause or another, and it is because they are thrown together in that kind of way that perhaps temptations arise which otherwise would never have been thought of. I should hope that a husband and his sister-in-law would in the normal course of events meet, and meet often, in the happiest surroundings. Surely a husband should like to see as much as he can of his wife's family. But if, owing to this Bill, the thought can be at the back of people's minds that marriage is possible with the sister-in-law if the original marriage begins to break up, I would strongly urge that the most reverend Primate is undoubtedly right when he says that new temptations may well begin to rear their head which otherwise would never have been seen at all.

My Lords, it is because I believe with all my heart that this Bill brings a new danger to the family, and not a new satisfaction to it, that I oppose it. I believe it may well serve to put temptation in people's way. I suggest that, although we have heard of these hard cases mentioned by the noble Lord who introduced this Bill, in actual fact it would bring more misery than it ever would happiness. So I personally hope very much—and I base this hope upon a long experience of trying to help people in the parishes in which I have served—that this Bill will not be passed

4.44 p.m.

LORD CHATFIELD

My Lords, it may seem rather curious to some of you that such an ancient sailor as myself should be speaking on this occasion, but I must defend myself by explaining that I was asked to do so by the noble Lord, Lord Mancroft. When he asked me, I thought at once,"What a very poor lot he must have to support him! I had better go up and do my best". My Lords, I should like first to say how pleased I am sure we all are to see the right reverend Prelate the Lord Bishop of Lichfield speaking for the first time: and we should like him to feel that we have all greatly appreciated the way in which he has spoken, even if we do not entirely agree with his conclusions.

It is a very difficult problem that faces your Lordships to-day, of course, and it has two sides to it—the religious or clerical, and the lay side. On the one hand, there is the Church, for which I have, and always have had, the greatest admiration and trust, obliged to oppose a Bill of this nature because it means putting forward that unfortunate thing, divorce, a further stage. Since the Church is, as I understand, opposed to divorce, it does not want anything passed in Parliament that would make divorce still easier. The layman, on the other hand, has the opposite point of view. He feels that it is his duty to his fellow men and women to do all he can to try to make their lives more bearable and more happy when difficulties arise. I do not imply in that that the Church is always wrong and that the layman is always right; but we all have to consider this question from both points of view.

I believe it is right to say that the Church is opposed to all kinds of remarriage in church, and that may have a very unfortunate result. There are some people who are perfectly innocent when they go into a divorce court. They have nothing of which to be ashamed. But if they marry again, then the Church says,"No, you cannot be re-married in church". I know of the case of a man who was very religious and very much honoured by everybody around. He went abroad, and while he was abroad his wife ran away with another man. He was away for a year. He kept writing to his wife, and when he came back he asked her to return to him. After much persuasion she did, although she had been living with another man for a year. He forgave her entirely, and asked her to spend the rest of her life with him. After six months she ran away with another man, and so the husband thought he must divorce her, which he did. Surely that man was entirely innocent of any sin whatever: he acted most nobly.

Later, he fell in love with another woman, a woman who had been treated in the same way. Her husband had run away with another woman. She prayed him to come back, but he said,"I shall never come back to you". She then met the first man I told you of, and they fell in love with each other and wanted to get married. She said,"I must get a divorce from my husband before I can do that." So she went to the Divorce Court, an entirely innocent woman, and was given a divorce from her husband. Then, when these two people were going to marry, they were told by the local clerical authority that having been in the Divorce Court, they could not be married in church. That seemed to me to be extraordinary, almost cruel, and certainly indefensible, except from broad Christian clerical principles which had been devised. I feel that it is going far from what is kind and fair to the layman to tell him that he cannot be married in church and that he must go to the register office; that he may not attend the Sacrament because he is not worthy of it—because that has been said. Does it not seem to your Lordships that there is something which ought to be improved here? I do not want to put it higher than that. I do not want to speak critically of the distinguished churchmen here this afternoon. But so far as I can see, although this Bill may be passed by Parliament, it cannot result in the husband and his sister-in-law being married in church. They will have to be married in a register office.

To come to the other side of the case the civil side—I very much agree with what the noble Lord, Lord Beveridge, said about the enormous importance of considering the effect of cases like this on the children. To me, that is everything, and I should like to see in the Bill a provision that special consideration should be given to cases where there are children by the first marriage—not those who are born after the new marriage but those in their childhood and early teens who have suddenly lost their mother and guide. I have been fortunately married for fifty years and have not had any experience of divorce—and I hope that I never shall in the few years I have left. But I feel that for children to have as their new mother someone who had been with them for many years perhaps, whom they knew and were fond of, would be best. How much better to have their aunt to look after them than a new stepmother, about whom they would know nothing and who, almost for certain, would have no sympathy with them! Surely that is not a good thing. I think that in this respect the Bill must affect the minds of the clergy who have to take the great responsibility of not voting for this Bill. It seems to me almost incredible that they should either have to do so on principle or that they believe that to vote against the Bill is humane and the right thing to do.

All I wish to say further is that I think that the Church of England, of which I am fortunate enough to be a member, should give a lead in showing some leniency in treatment in these two cases. The absolutely innocent person who has been through the Divorce Court should not be disgraced for life by the Church because his wife has run away from him or because her husband has run away from her. Perfectly innocent men and women should not be treated in the same way as people who are guilty of murder or who have disgraced themselves in their moral conduct. I support the Bill, and I believe that if it were passed it would be of great benefit to the people of this country.

4.58 p.m.

LORD AMULREE

My Lords, I should like to join the noble and gallant Lord who has just spoken in congratulating the right reverend Prelate who has made his maiden speech this afternoon, and I hope that we shall hear him many times more. I am afraid that that does not mean that I agree entirely with what he said, because I propose to support this Bill. I do so for two reasons. The first is that, as the noble Lord, Lord Man-croft, has pointed out, the Bill does not give any increasing causes for divorce and may do a lot to cut down adultery. Secondly, it enables people to marry who cannot do so at present, and I think that essentially that must be a good thing. No increase in divorce, diminution of adultery and encouragement of marriage are things that nobody can deny are good.

It is very difficult to show that this will not encourage divorce. I have looked at the figures—this may sound rather frivolous but it is the only information I could find—of the number of husbands who have murdered their wives since the passing of the Deceased Wife's Sister's Marriage Act, 1907. The number did not rise; on the contrary, it tended to fall constantly until 1949, the last year for which I have the figures. If that is any tangible evidence, I quote it for what it is worth, though I am afraid that it may not be worth a great deal.

Another point of extreme importance raised by several noble Lords is the effect on the children. My noble friend Lord Beveridge emphasised this point very strongly and I should like to support what he said. I think that a marriage where the mother has been what is called"the guilty party", who has been divorced and has gone off and married somebody else, and the father is left with the children, Mould be given much greater consideration than where that is not the case. It seems to me that seeing that the children do not suffer is an overriding factor. It is difficult if the wife's sister comes to look after the children in cramped and inconvenient conditions. It is far more sensible that these people should get married than that they should not. One has to be realistic about things. It is more likely that adultery will be committed if people are living in cramped conditions taking care of children than if they are not. That is the second reason why I give this Bill my full support.

I remember that when this Bill was debated in 1949 my late noble friend Lord Webb-Johnson, who died not so long ago, made a powerful speech along those lines, saying that it was entirely for the sake of the children that he would support a measure of this sort. Of course it may be said that there are some families where it will not work—naturally no one thing can work 100 per cent. for everybody involved—but I am convinced that a measure like this will do good to some children who are not being done good to now, if I may put it in that way. Therefore I have great pleasure in supporting the noble Lord, Lord Man-croft, and provided he does not divide the House too late I shall be happy to follow him into the Division Lobby.

5.2 p.m.

LORD DENNING

My Lords, it was, I think, some fourteen years ago, when I was chairman of a committee on matrimonial causes, that I had to consider this question. It did not come directly within our terms of reference, as we were dealing with procedure, but the number of letters that we received showed us quite clearly that there was a need for something to be done. This was borne out by the experience I had when sitting as a Judge in the Divorce Court, dealing with such cases as those which your Lordships are considering this afternoon, and particularly those which have been mentioned to-day concerning children. The cases can be put into two groups. The first is where the husband, the father, is innocent, where the wife goes off with another man and the sister-in-law takes charge of the child. I call that the case of the guilty wife. There is then the case equally of the guilty husband. But let me take the case of the guilty wife, because this is a case which actually happened. While the father was overseas the wife went off with another man and left her child with her sister and mother. The husband came back and obtained a divorce, and after that he saw the child but was living in lodgings. What happened? The wife remarried and then claimed custody of the child, saying that she had lawfully remarried and had a good home to which the child could go. She was the guilty wife. The father could not provide a home. The sister-in-law was looking after the child. He fell in love with her, but could not marry her and could not set up the home in which to bring up the child—or, if he did set up that home, it would be said to be an adulterous home because he could not marry the sister-in-law. So as between those two, the guilty wife who has remarried and has a home and the innocent father who could not remarry, when considering the question of custody the guilty wife has priority because she has a home and the innocent father cannot set up a home. I suggest that in those cases where the husband is innocent and the wife guilty, and the sister-in-law takes on the charge of the child, there can be no question but that the husband and the sister-in-law ought to be allowed to marry.

The difficult case is the case where the husband is guilty and falls in love with his wife's sister. What is to be done then? Clearly a divorce cannot be prevented. Is remarriage to be prevented? If the wife chooses not to divorce her husband, of course she can do it. If she chooses to divorce him it is often because she herself wants to remarry. I agree that it is a great sin and wrong that within this family circle there should be these wrong inclinations. But I can think of cases which seem to me equally bad—of the governess, or the nurse, or the companion from a country overseas coming to look after the children in the home and the husband going off with her. That seems to me just as heinous a case as the woman in the family circle that we are discussing this afternoon. Yet there you allow remarriage. The truth is that if you allow divorce, as you do, surely you should allow remarriage. How easy it is, once there is a divorce, for people to change their name by deed poll; they go to another district and it makes little difference to them whether they can remarry.

It seems to me that the arguments in favour of this Bill are overwhelming. The only question is whether there ought to be a proviso to forbid remarriage when it is a guilty husband with a guilty sister-in-law. But that simply does not work. Pressure can be brought to bear in another way to ensure that the wife gets a divorce, and so on. The simplest way is to put this matter on a par with other divorce and let there be remarriage afterwards. The arguments I have heard from the Bishop's Bench are not ecclesiastical or theological arguments, but simply social arguments. I suggest that on social policy and social considerations there can be no objection to allowing remarriage in these cases.

5.8 p.m.

THE LORD BISHOP OF EXETER

My Lords, I am not so sure. It is true, as the most reverend Primate has said, that the Church is not deeply concerned in this Bill because it does not create any new ground of divorce, and the attitude of the Church remains what it is—namely, that a man who has divorced his wife may not during her lifetime marry anyone, whether it be her sister or whether it be her housemaid. Certainly the Church is not able to condemn a suggested marriage with a divorced wife's sister as incestuous, because if it is not incestuous—and both the Church and the State have declared that it is not—for a man to marry his deceased wife's sister, then it cannot be incestuous for him to marry his divorced wife's sister. Nevertheless, and for all that, it is possible to question whether the principle of the Bill is wise or unwise, whether it will do good or do harm.

It seems to me that the answer to that question turns entirely on the answer to another one, namely, do these prohibitions of marriage have any effect at all or any appreciable effect in preventing men and women from falling in love with one another, or in making it less likely that they will, or in restraining their actions if they do? It seems to me that the noble Lord, Lord Mancroft, rests almost his entire case upon an emphatic answer to that question that these marital prohibitions are, in fact, ineffective; that they are almost totally irrelevant to our social life. If that is so, I can see no argument against this Bill at all. But if it be not so, then I think the Bill is both unwise and dangerous.

How shall we answer the question? How shall we make up our minds whether in fact these prohibitions of marriage do or do not influence men and women in deciding through what channels they will allow their sexual impulses and affections to seek and to find expression? I have given not inconsiderable thought in the last week or so to this question, because, as I have said, it vitally affects my attitude towards this Bill. I have no bitter prejudice or dislike of the Bill. I wish to be entirely fair to it and, if possible, to approve it. But in thinking over this question I tried to imagine myself in this place listening to a debate on a Bill which proposed to do away with the prohibition against the marriage of brother and sister. I imagined myself listening to these very arguments: that the prohibition of these marriages had little or no effect in restraining people from acts of incest that brothers and sisters do commit acts of incest—we all know that; that the fact that they cannot marry one another really does not make any difference, and it is irrelevant to cling on to what is, after all, only an old-fashioned and religious taboo, and that we must seek to deal with the evil in other ways.

As I imagined this, I could not help wondering whether in fact that argument in that context would command anything like the support that the very same argument in this context has commanded this afternoon. It is the same argument, and it is no answer, I think, to say that a marriage between brother and sister, or mother and son, or father and daughter is wrong and revolting in itself, whereas marriage between a man and his divorced wife's sister is in itself perfectly all right. I have conceded that. I have admitted that these marriages are not incestuous whereas my imaginary ones are. But that is not the point. The point is whether in fact we believe that these marriage prohibitions have an effect in restraining the conduct of men and women or not. I cannot bring myself to believe that if we were now proposing to make lawful the marriages of brothers and sisters, there would not be many speeches made in this House from other Benches than these Benches, pointing out what the consequences would almost certainly be: that there would almost certainly be an increase in the number of cases of incest.

These proposed marriages between a man and his divorced wife's sister, and the other marriages to be allowed under this Bill, are not incestuous. I readily concede that in many cases such marriages will be happy and beneficial to everybody concerned. The question then arises: how many of them are there likely to be? How large is the group of probable beneficiaries under this Bill? Are there other larger groups likely to be affected by this Bill? The noble Lord, Lord Mancroft, if I understood him correctly, estimated that there are about 500 couples or 1,000 people.

LORD MANCROFT

That was the number known to me. I cannot make any better estimate than that.

THE LORD BISHOP OF EXETER

It would seem, therefore, in any case not to be a large number, and I think it is generally agreed that the number of beneficiaries will not be great, having regard to the total of the population. When one remembers also that a great number of these cases probably involve war-time marriages and the abnormalities of the war situation, one may perhaps reasonably infer that the number will diminish. On top of that, and talking about the interest of the children, about which we have heard so much, I do not know whether your Lordships share my own experience with families which have known divorce. My experience in general is that, when there is a divorce, the family of the wife, on the one hand, and the family of the husband, on the other, tend to gang up against each other, so that it is in my experience most unlikely that a man who has divorced his wife would turn to his divorced wife's sister for aid and comfort, and most unlikely, if he did, that he would get it, especially in peace time. Secondly, I do not know whether I am wrong, but it appears to me that there is a strong tendency in the Divorce Courts, where young children in need of a woman's care are involved, to give the custody of them to the mother, whether she is the guilty party or not. That again reduces the number of these unfortunate divorced men, left with the custody of children, who wish to marry their divorced wife's sister in order to provide an aunt for a mother. I think the number of beneficiaries is likely to be small.

But we now turn to two groups of persons, I think much larger, who are likely to be damaged by this Bill. It often happens that a younger sister wishes to make her home with her elder married sister, and in most cases she is a welcome addition to the family. She helps the family budget, out of working hours she gives a hand with the children, she is an occasional sitter-in, and it is a nice, tidy, convenient and happy arrangement. If my assumption that these prohibitions on marriage do have some effect on the sexual attractions of men and women is wrong, an elder sister, conscious of her fading charms, uncertain of the stability of her marriage, will be reluctant to allow her younger sister to come into the inner circle of her home, and that seems to me to be very bad luck on both of them.

I now turn to another group which I think is more important still. I can imagine a great variety of circumstances in which a man might think it obviously right and convenient to send his daughter to live with his wife's sister, her aunt. It may be that she has just got her first job in a town where the aunt lives, and the father would rather she lived there in a home than in digs or in a hostel. It may be that the father himself has had to leave his town and work somewhere else, and does not want to take the child away from her school in her vital last year and sends her to live with her aunt. If this Bill becomes law the aunt may think twice before she admits into her home this young, attractive, bright young thing. I think that that is very bad luck on the niece. It has not escaped your Lordships' notice, I hope, that the noble Lord's Bill will permit marriages between uncles and nieces and aunts and nephews, as well as between sisters-in-law and brothers-in-law.

It seems to me, therefore, on balance—only on balance—that more people in the end will be damaged by this Bill than will be benefited by it. I believe that this Bill, if it becomes law, will have important repercussions on our ordinary English family life. In the ordinary planning of our ordinary family arrangements a new and novel consideration will thereafter have to be taken into account, and it may seriously influence all our decisions. For that reason, that on balance I think the Bill will hurt more people than it will help, I shall vote against it.

5.20 p.m.

LORD TEVIOT

My Lords, as with many of your Lordships, this Bill and the questions arising therefrom have occupied a good deal of my thought in the last week or so. I was immensely impressed with the speech of my noble friend Lord Mancroft, and it so happens that in my family there was a case which was analagous to one that he mentioned. I am not in any position to discuss the legal questions which arise. I am thinking only of whether or not this Bill is to help the decent worthy people who get into this tragic state. We have heard from the noble Lord who introduced the Bill that other countries have adopted the same system as he is suggesting and that it has not done any harm. Then we have the Royal Commission and the result of the voting there, which must have an effect on our minds. I was distressed that the most reverend Primate (I am sorry that he has gone) seemed to be dealing all the time with unpleasant people, bad people; not nice people, not people who have fallen into a difficult family relationship and have suffered very severely therefrom and been punished, terribly punished, due to that incident.

There is one question which noble Lords have not so far mentioned. Take the case of a husband whose wife goes off with another man. He finds himself in a position that he must divorce her. The judge, in giving him a decree, may say that the custody of any children of that marriage which has now been dissolved through divorce shall go to the husband who obtained the divorce. Surely that is an indication that the husband is innocent. The natural thing would be for the husband who has custody of the children to think,"Now what am I to do for their benefit?" It may be that his sister-in-law has been living with them, or at least within the family circle; and so he says to himself,"These children will Abe better looked after and better cared for with my sister-in-law than just living with me in a doubtful sort of surrounding". That seems to me something that is bound to happen—in fact, I know it does happen—in a great many cases. After all, it is not the fault of the wretched children that this has all happened; and in some cases neither the husband, the father of the children, nor the children themselves are responsible for the tragedy at all; they have been leading quite respectable normal lives.

We must do everything we can to remove the terrible stain of the word"bastard". It looks to me as if this Bill tends that way. If it goes through, as I hope it will, bastards will very much cease to exist, for the various reasons I have given. If a husband who has been forced to divorce his wife and wishes to marry his sister-in-law, I believe that it will be the greatest benefit to his life and to his children's lives. Take the case of the woman who has been divorced—say she goes abroad with the man, marries him and has children by him in another country. How in the world can one say the husband is doing anything wrong if he takes the steps I suggest and believes it to be the right thing for him to do?

Although one is not a member of the Church, it seems to me that the teaching of the Bible would support this Bill. I believe that this Bill is trying to help the people who have had tragedy brought into their lives, and in a great many cases through no fault of their own. Therefore I say that I hope that this Bill will go through. These people connected with this tragedy have been punished enough in their family by what has already happened, and I should like to feel that the Church took a strong view about this matter: that they must help and do everything they can to rectify the evil that has been done by these things. It seems to me that there is no real argument against permitting in the Divorced Wife's Sister's Bill what has been made possible by the Deceased Wife's Sister's Act—that is, to bring the atmosphere and the whole tone of the life of these children and the wretched husband into a better perspective altogether. Let us think of it in that way: the welfare of the children, the happiness of the children, and also the re-establishment of self-respect and feeling of some happiness in the life of the husband, who has been forced, through no fault of his own, to divorce his wife. I have great feelings that it is my duty from every point of view to support this Bill.

5.30 p.m.

EARL WINTERTON

My Lords, I should not venture to intervene at this period, when we have had so many speeches, but for the fact that I want to say something about a question of procedure. Before doing so, however, I should like to say this. It is very easy in a debate of this kind to be repetitive, and to use the same arguments that others have used, and I hope not to do that. The arguments in favour of this Bill are overwhelming, not only the arguments used by my noble friend who introduced the Bill, who made, I thought, one of the best speeches that I have ever heard, but also the opinion of legal authorities, and, most of all, the opinion of the Royal Commission. Against that we have the views of certain members of the Episcopal Bench.

I am sorry that, as a communicant and a member of the Church of England, I feel it my duty to make a few wounding remarks about the attitude which it adopts in this and other matters concerning divorce and marriage. The Church seems to have an idée fixe on the subject. The Church Assembly spends a great deal of its time discussing matters connected with divorce and remarriage almost to the exclusion of topics which are of far greater importance from a moral and a Christian point of view—things like slaughter on the roads, refugees, the appalling amount of crime in this country. Again and again when a Bill of this kind is brought forward, either the most reverend Primate or some right reverend member of the Episcopal Bench comes forward and gives against the Bill views which are no doubt those of a considerable portion of the Church.

I am going to make a statement now that may be criticised, but I believe it to be true. Indeed, I know that the statement is true but my interpretation of it may be criticised. The late Bishop Bell, who was a great personal friend of mine, told me that in his opinion not more than 25 per cent. of the people of this country accepted the theology of any of the Churches. He said that the remaining 75 per cent. might have a vague belief in Christianity, follow the teachings of our Lord, but that they did not believe in the theology of the Church; they did not believe in the Immaculate Conception, or the Resurrection. That, of course, is a bad state of affairs.

THE LORD BISHOP OF ROCHESTER

May I intervene?

EARL WINTERTON

Certainly, if you want to.

THE LORD BISHOP OF ROCHESTER

The Church of England does not believe in the Immaculate Conception.

EARL WINTERTON

I was talking of Churches generally. One Church does, as no doubt the right reverend Prelate is aware. What I am going to say is that in a democratic country you have to go by the views of the majority. Anyone who is a member of the Church of England, as I am, must regret the smallness of the number of people who believe in the theology of any of the Churches. But they are a minority; and if the majority of the people of this country want a Bill to become an Act of Parliament they are entitled to ask for it. If anyone asks me,"Do you mean by that that, however immoral and wrong a Bill might be, it should be passed?" my answer is,"No, I do not mean that at all." But where a Bill is supported by the weight of informed public opinion that this Bill is, then I suggest, with respect, that the views of the Church should not be allowed to be a bar to its progress into law. I must say that I thought the speeches both of the most reverend Primate and of the right reverend the Lord Bishop of Exeter were most unconvincing. They gave instances of cases where they thought that more harm than good could be done, but neither of them, despite their great erudition and position, attempted to answer the case made by my noble friend. For instance, there is the case of Sergeant Smith. Flow would they deal with that situation? They did not attempt to deal with it.

The only other thing I am going to say is this. With the deepest respect, I make this appeal to my noble and learned friend the Lord Chancellor. There is a clear need for this Bill. Incidentally, if I may speak in parenthesis, a similar Act is in operation in New Zealand, which is certainly a God-fearing country and one with a high standard of public spirit and morality; it is in operation in other countries in Europe with Constitutions somewhat similar to our own, and it is obviously needed here. I very much hope that the Government will afford time for the Bill, provided that it passes your Lordships' House, as I think it will with an overwhelming vote—and I hope that we shall have a vote, because should like to see what I regard as the small minority views in regard to the Bill brought out into the open. I hope that the Bill does pass through your Lordships' House, with any Amendments which the Government may suggest, and that the Government will give time for it to be passed into law in another place. I repeat what I said at the beginning—namely, that the overwhelming mass of evidence is in favour of this Bill. It is a Bill which, in certain circumstances, will do good. Those of us who support it cannot believe that it will do the harm—though we admit the complete sincerity of the members of the Episcopal Bench who oppose it—that they suppose it will. I greatly hope that your Lordships will give an overwhelming vote in its favour.

5.36 p.m.

LORD CRAIGMYLE

My Lords, I am not able to follow the noble Earl, Lord Winterton, in his arguments, for the very good reason that I am not a member of the Church of England, let alone one of its Bishops. I am a layman and what used to be called a Recusant. The noble Earl will probably not expect me to agree with his arguments either, because I think it is fairly well known that in matters of marriage and divorce the Church of Rome has even stricter views than those of the Church of England.

The right reverend Prelate the Lord Bishop of Lichfield mentioned the Gadarene swine. I think that there is in matters like this Bill, and to some extent in the Legitimacy Bill of last year, an aspect which should be considered—namely, the present historical phase of the attitude of the public to all these types of question. The result of the frame of mind of the public in the last fifty years or so has been to relax the strict laws which Christian morality imposed, to tidy up the bits and pieces, as with this Bill and the Legitimacy Bill last year. I agree with the right reverend Prelate that we are rushing madly downhill. I hope that we shall stop. In the hope that we shall stop, let us not allow the noble Lord, Lord Mancroft, to get away with this as a mere tidying-up operation. Let us make quite sure that he has to do a mopping-up operation. The battle may have been lost, but there are still a few machine guns spluttering in the background.

I should say that two battles have been lost and two rearguard actions have to be fought on this Bill. The first is divorce itself. The most reverend Primate used what I regard as a rather unfortunate phrase in that connection. He said that divorce was occasionally a desirable and sometimes an inevitable solution. I cannot see that it is often, or even ever, desirable, though it may occasionally be inevitable. But I am firmly convinced that it is never a solution. Therefore, although this Bill does not provide any new ground of divorce, I am quite prepared to oppose it on the very slender ground that it adds one more little loophole, one other possibility of increasing the chance of divorce, one other legal way of remarrying which was not legal before. I do not claim that that is a logical point. I say merely that there is another little loophole that I would rather see kept blocked up. It is one further breach into what is left of the statutory defences of the basic Christian concept of marriage.

The second rearguard action which has to be fought is on the question of affinity. If I wrongly interpret the right reverend Prelate the Lord Bishop of Exeter, he will correct me, and I think I am probably speaking alone and am going beyond what the Church of England feels. I gather that the right reverend Prelate said that the Church of England did not now consider that there should reasonably be any bar on the ground of affinity to marriages between people who will be married under this Act. The Church of Rome, I believe, sticks to the older, stricter, table of affinity. Is not that correct?

THE LORD BISHOP OF EXETER

My Lords, such relations are forbidden by Canon Law, but dispensation can be obtained fairly easily.

LORD CRAIGMYLE

My Lords, that is, with every case taken on its merits. But if this is now becoming statutory I feel that I should put in a little burst from the rearguard machine guns on the point of affinity.

When we come to the stronger, more substantial, arguments being used on both sides, I find myself greatly impressed by the argument used by the right reverend Prelate the Lord Bishop of Lichfield—that of propinquity. It is, of course, a very well known fact, almost a music-hall joke, that propinquity has its effect—there is the effect of propinquity of the lodger on the wife, or of the secretary on the business man. We have been reminded of how frequently there is a younger sister living with a married couple. Joke it may be in the music-hall, but in real life it is no joke. Propinquity may have a most undesirable effect and, if there is no legal bar against it, I am afraid the thought may be all the more readily put into the minds of the married couple concerned:"Why not get a divorce and re-marry?" It may be, as the noble Lord, Lord Mancroft, has urged, that there is an element of"forbidden fruits" in this proposition and that the temptation to adultery is greater with the existence of a legal bar to marriage than it would be without. Personally, I do not agree with him. On balance, I believe he is not correct in that assumption.

The most reverend Primate pointed out to your Lordships, I thought most forcibly, the danger of undue, bullying, influence being put upon a wife to use her husband's adultery with her sister and to go and get a divorce. That danger seems to me very real, but that is only one side of the problem. If the most reverend Primate will flip that coin, he will find on the other side that there is also, in this sisters-in-law relationship, a danger which, I am told, lawyers are always afraid can never be completely overcome—the danger of divorce by collusion between the two people of the same sex. Those seem to me the arguments against the Bill. They are not based on the sentimental sigh:"Oh, this is an appallingly difficult case! How wicked it is of the law not to allow these people their little easy happiness!" I do not believe that that is the object of the statutory law. Very often the correct and only solution to any problem, be it in married life or any other part of life, is the difficult solution. For these reasons, although I would not myself divide the House, if the most reverend Primate should do so, I should certainly support him.

5.44 p.m.

LORD MILVERTON

My Lords, before making the few remarks that I wish to make on this Bill, I should like to express what is almost my horror and certainly my surprise at the general, underlying tone of thought of the noble Lord who has just sat down. Unless I misunderstood or misheard him, I gathered that what chiefly shocks him is re-marriage; that he would prefer adultery to re-marriage; that propinquity, apparently, is another appalling thing to be guarded against in this world, and that, granted a certain amount of propinquity, the average man will make the utmost possible use of it to break the normal, conventional, sexual laws. Personally, I should like to dissociate myself entirely from that line of thought. I quite agree, though, that anyone is entitled to an opinion on these things. It is a matter of opinion.

LORD CRAIGMYLE

My Lords, I would say that I do not take such a dim view of the average man as the noble Lord.

A NOBLE LORD

What does the noble Lord mean by that?

LORD MILVERTON

My Lords, in rising to make a brief contribution to this debate, after listening to the cogent and convincing speech of the noble Lord, Lord Mancroft, I feel there is really very little which it is necessary, in the ordinary way, for anybody else to say. But none the less after several years in your Lordships' House I feel that occasionally the still small voice of the Back-Benches, preaching a perhaps rather unusual amount of cold common sense, is at times a permissible interjection into our debate.

I tried to look at this Bill dispassionately and to examine with a scrutiny stripped of any emotion, religious or otherwise, what it proposes to do. I tried, in short, to allow the facts of any injustice that there may be due weight as against what I still would urge is the conjectural increase of temptation to form immoral relationships within the family circle. Parenthetically, I have a feeling that far too much emphasis has been laid in this debate, especially from the Episcopal Benches, on one small side of this question, to the complete exclusion of everything else; and it seems to me, if I may say so with respect, that it has left a very unbalanced opinion. The right reverend Prelate the Lord Bishop of Exeter also shocked me (I have been twice shocked this afternoon) by the analogy he drew about a brother and a sister. Surely, in one sentence, there is a blood relationship between brother and sister and incest is a criminal offence in this country.

THE LORD BISHOP OF EXETER

My Lords, I am afraid I must have spoken very badly. I hoped I had made quite clear that I agreed that one kind of relationship was incestuous and the other was not. I was trying to argue whether there is or is not any effective influence from prohibition of marriage upon persons who might otherwise contemplate such an act. That was the only point that I was trying to make.

LORD MILVERTON

My Lords, I can understand, without supporting, the attitude of those who disapprove in principle of divorce in any shape or form; but divorce is recognised by the law of this land and a personal prejudice against it is surely not an adequate reason per se for excluding certain small categories of persons from—I was going to say the benefits; from the freedom of action which it does confer upon those who have achieved it. I have listened to the speech of the most reverend Primate this afternoon with the respect which his words always command, but I still feel that in so far as the releasing of the marital bond is concerned there is no practical difference between death and divorce. The termination of the contract of marriage is surely complete in every case.

I understand, without supporting, the desire to give legal sanction to the social condemnation of erotic feeling or approach to certain categories of affinity by marriage. But once the legal possibility of marriage after the death of one partner has been acquired, it seems to me illogical, as well as harsh, to prevent the same freedom on termination of the marriage by divorce. In my view the law should not try to differentiate in this way between unlicensed thoughts and desires. It is true, I think, that social condemnation of such relationship between persons within these degrees of affinity by marriage will always be more severe than it would be if the other party were outside the family circle; but that is a social matter, and is it not wise to leave it at that? Is it not a mistake to try to enforce social feeling by legislation? If the inevitable social condemnation is not adequate as a deterrent, I do not believe, and I do not think the ordinary citizen believes, that illogical legal restriction as it exists at present will have any greater influence. It would indeed be possible to argue the reverse, as has been mentioned by the noble Lord who proposed the Second Reading of this Bill. It would be possible to argue that the impossibility of marriage after divorce might in some cases encourage licence.

We have been reminded of the cases of real hardship which can arise, and have arisen, from the present legal position without any implication of misconduct or impropriety. The number of people affected may be few but, surely, my Lords, injustice ought to be remedied if it can be done without undesirable social consequences. The right reverend Prelates on the Episcopal Bench stressed the amount of experience they have had in human relations. But most of the rest of us in this House have had a very considerable experience of human relations; it is not perhaps in the same context as that of the right reverend Prelates, but it is still entitled to equal consideration with theirs, and our con- clusions are surely entitled to the same weight as those which are drawn in perhaps a different direction by the right reverend Prelates. I find it difficult to believe that, in practice, leaving the position as it is will exclude or even help to exclude the possibility of such feelings arising.

As has been pointed out, we are dealing with intangibles, with emotions, and it is not possible to weigh human passion in legal scales. This reform has been made, as has been mentioned, in Norway and Sweden and Switzerland, and has been the law for 30 or 40 years in New Zealand, and if the results were likely to be so appalling as some speakers have suggested this afternoon, why is it that we do not hear from these countries anything of the kind? Apparently that has not been their experience. I say, as the noble Lord, Lord Mancroft, said originally, that the present law is anomalous, cruel, illogical and unnecessary, and so the Bill surely deserves support in justice, common sense and equity. We are told that the way of the transgressor is hard; but the way of the reformer seems to be a good deal harder still. The noble Lord, Lord Mancroft, started this attempt at reform ten years ago and he then set out to have this law changed. I can only say that I hope this time he will be successful.

5.54 p.m.

LORD SALTOUN

My Lords, unlike my noble friend Lord Milverton I very much enjoyed hearing Lord Craigmyle's speech. He seemed to put, very neatly and very exactly, the case which Lord Mancroft has to meet. Indeed, it seemed to me that he put with a great deal more frankness the case made by the most reverend Primate. Your Lordships will have noted how the most reverend Primate, while he appeared to be talking against this Bill, was really talking against divorce in general. Let us take the point that was taken by my noble friend Lord Craigmyle: the case of the pressure put by one spouse on another to enable him or her to marry a brother-in-law or sister-in-law. By the time we have come to my age we have seen, or we have almost been present at, the almost insane pressure which is sometimes put by one spouse on another to marry not a sister-in-law but somebody quite different. So the most reverend Primate seemed to me always to be straying into a diatribe on divorce and trying to bring it back into the confines of the Bill, like trying to get rather wide trousers into a gum boot. That was the impression his speech made upon me.

I was much more impressed by the right reverend Prelate, the Lord Bishop of Exeter, who suggested that removing prohibitions was apt to lead to an increase of the offence. I cannot persuade myself that the incest figures are influenced in any way by the prohibition. I do not think so, though it may be so. But I do know of a case (I have told the right reverend Prelate of it privately) where an incestuous union was blessed by His Holiness the Pope in the sixteenth or seventeenth century, and I never heard that that act of His Holiness led to a great increase of incestuous unions in the Spanish dominions. But I should like to say on this subject that such study as I have been able to make of the New Testament—I do not claim any profound erudition concerning it, but at least I have read it and incidentally have come to the conclusion that the Gospel of St. Luke, speaking humanly, is probably one of the best-written short stories in the English language, which shows that at least I have read that Gospel—has led me to the conclusion that the doctrine of the Church on this matter is entirely discordant with the whole spirit of the New Testament. That is my firm opinion.

I should like to enlarge this discussion a little for one minute and to say this. I think that the Church and the State together are in great danger of imperilling marriage altogether. They put such burdens on people that eventually they will cease to bear them. We already know, for instance, that if the widow of a soldier marries again she loses her pension. What does she do? She does not marry again. We already know of many unions between well-to-do people where the woman has a profession and she wants to continue practising it, but where it is realised that if the couple marry they will have to pay an enormous amount of surtax. To avoid that, they merely live together. I should like to remind your Lordships that that is precisely the kind of situation we found at the end of the Roman Republic, where the social and economic disadvantages of the religious marriage were so great that people abandoned marriage altogether and entered into contractual marriages. It is true that to-day people cannot make a contractual marriage that will be enforced by our courts. None the less, I think we are approaching very much a situation in which people will make contractual marriages that will not be attended by any social stigma, and we shall find that the ordinary system of marriage begins to fade away entirely. It seems to me to be a danger that we may have to consider, and it is certainly worth considering.

In conclusion, I will add this. As for fifty years or more a man has been able to marry his deceased wife's sister, it seems only logical that we should make this small extension in the law, and I shall be happy to support my noble friend Lord Mancroft in any way that I can.

6.0 p.m.

LORD SOMERS

My Lords, I had not intended to intervene in this debate as there are so many others who can speak on the subject a great deal better than I can, but I thought it might be a good thing to emphasise one or two points before we go into the Division Lobbies—if, indeed, the noble Lord intends to ask us to do that. I certainly am not one who thinks that divorce is a desirable thing, or is a thing that should not be avoided so far as it possibly can. But I do believe that, unfortunately, human nature being what it is, it is sometimes a necessary thing. For instance, there is the case of the woman who has married a man who becomes a confirmed drunkard, or perhaps becomes insane and tries to murder her. Are we to bind her to that marriage for life? If we are going to have divorce—and we already have it—it seems to me that the only logical thing is to make it complete, and to give absolute freedom after it. If you cannot have that freedom, then why have divorce? Why not merely have the ordinary separation that one sees only too often to-day? But, as my noble friend Lord Mancroft has said, this Bill will not give greater opportunity for divorce: as he said, it is a Marriage (Enabling) Bill, and not a Divorce (Enabling) Bill.

As to the question of propinquity, I must confess that I thought that the arguments put forward by one or two of the right reverend Prelates were a little illogical and not in the least convincing. For one thing, how often would it be likely that the wife's sister would be living with the family? It may occasionally happen, but I hardly think it is likely to happen often. For another thing, apparently a man can go through the world meeting hundreds of women in his daily work and social occupations, and not be tempted into divorce by them; but the mere sight of his sister-in-law is going to tempt him to at once break up his marriage. I hardly think that is a very logical argument. Personally, I feel that the only object of regulations, so far as marriage is concerned, even if one goes right back to the days of the Mosaic Law, is to prevent a blood relationship; and as there is none here I cannot see any reason why we should not remove this extremely illogical hindrance in our social life.

6.3 p.m.

LORD MANCROFT

My Lords, we have had a long and interesting debate, and as there does not appear to me to be anything more to be said I do not propose to say it. I should like, however, to thank very warmly those of my noble friends who have taken the trouble to come down and support me to-day, as a result of which the support which I have received for my little Bill has been nearly as overwhelming in your Lordships' House as it was before the Royal Commission. The opposition to my Bill has come from the Episcopal Benches and from my noble friend Lord Craigmyle.

The most reverend Primate the Lord Archbishop asked me to apologise to your Lordships for the fact that, owing to an important engagement, he is no longer able to be present in your Lordships' House. This poses an interesting problem. I was very much hoping to have the pleasure of the sight of the most reverend Primate the Lord Archbishop of Canterbury in the Lobbies as a Teller: but I think that that is going to be denied to me, because the Archbishop observed to me—and I do not think I am betraying a confidence in repeating it in public—that it was not his intention, having placed his views so firmly before the House and having made his position perfectly clear, to divide the House, since the weight of opposition was so clearly overwhelming. The noble Lord, Lord Craigmyle, has said that he, too, does not propose to divide the House, so it all rests with the Bishops

I am in the hands of the House. If the three most reverend Prelates wish to divide, then I shall certainly ask your Lordships to support me in the Lobby. If, on the other hand, they are prepared to let me have my Bill on the voice, I should be grateful to save your Lordships the trouble of the exercise before the fog gets too dense. The noble and learned Viscount on the Woolsack has indicated very clearly that, from the Government point of view, he thinks your Lordships will be well advised to give the Bill a Second Reading, and I earnestly hope that you will follow my noble and learned friend's advice.

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