MATRIMONIAL CAUSES AND RECONCILIATION BILL

HL Deb 21 June 1963 vol 250 cc1528-79

2.0 p.m.

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AIREDALE in the Chair.]

LORD SILKIN moved, to insert as a new Clause 1:

Additional grounds for divorce

".—(1) A petition for divorce may be presented to the court either by the husband or by the wife on the ground that the parties to the marriage have separated and thereafter have lived apart for a continuous period of at least seven years immediately preceding the presentation of the petition, and there is no reasonable probability of cohabitation being resumed.

(2) A petition may be presented on the ground aforesaid (in this section referred to as the ground of separation') notwithstanding that the separation was brought about by the action or conduct of one of the parties, whether constituting desertion or not, and notwithstanding that there was in force between them at any material time a decree of judicial separation or an order having effect as such a decree or an agreement to live apart.

(3) A decree of divorce shall not be pronounced on the ground of separation if it appears to the court that by reason of the conduct of the petitioner, whether before or after separation began, or for any other reason it would in the particular circumstances of the case be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree on that ground.

(4) Without prejudice to subsection (3) above, the court may refuse to pronounce a decree on any petition on the ground of separation until the petitioner has made such provision (if any) for the maintenance or benefit of the respondent and any child to which section 26 of the Matrimonial Causes Act 1950 applies as the court thinks proper in the circumstances of the case.

(5) Where petitions for divorce presented by both parties to a marriage are before the court, the court shall not, upon either of those petitions, pronounce a decree on the ground of separation if it can properly pronounce a decree upon the other petition on any other ground; and for the purposes of this subsection an answer praying for divorce shall be treated as if it were a petition for divorce.

(6) Subject to the provisions of this section the court, if satisfied on the evidence that the case for a petition presented on the ground of separation is proved, shall pronounce a decree of divorce, and if not so satisfied shall dismiss the petition; and section 4 of the said Act of 1950 (except so much of subsection (1) as requires the court to inquire into the facts alleged and any counter charge) shall not apply to such a petition."

The noble Lord said: I beg to move the Amendment standing in my name on the Paper. This is a matter of very great importance, and one which, judging by the unusual attendance that we shall presently see in this House, has aroused a good deal of interest. It is a matter on which this House is always at its best—when discussing moral, equitable subjects. We are particularly pleased to see a very full Bench of right reverend Prelates, including the most reverend Primate—an unusually full Bench—although I would imagine that they have come much more to bury me than to praise me. Nevertheless, I welcome their being here, and I will certainly listen with the greatest interest and attention to what they have to say, because I think we shall all agree, whether we are in accord or not, that they have a point of view which ought to be expressed in a debate of this kind.

We are all in agreement about one thing: that we wish to maintain the sanctity of marriage, and that we desire the happiness of our people in married life. I imagine that there are quite a number of people who will not agree with what I am going to put forward, but I would ask them to accept the fact that, in putting forward these views—and this also applies, of course, to those who support me—we are quite as sincere in our view as those who are opposed to us. I hope we can discuss this subject on that level, without impugning the sincerity or the motives of either side. My Lords, with that introduction I am afraid I am going to ask for your indulgence, because I toyed with the idea of making a very short speech—

THE EARL OF LONGFORD

Hear, hear!

LORD SILKIN

I know my noble friend would prefer that—but I came to the conclusion that this is an important matter, it is a long and complicated Amendment, and that I ought to deal with it fairly fully.

This conception of a marriage being voidable at the end of seven years of separation is, of course, not a new one. It was, so far as Parliament is concerned, introduced in a Bill by Mrs. Einene White in 1951, but she subsequently withdrew the Bill on the assurance that a Royal Commission would be set up to look into the whole question. This Commission has in fact sat—it sat for four years—and reported. The Report is available, and I imagine a great number of your Lordships have read it. Then there was a Bill introduced some months ago in another place by Mr. Abse, the Matrimonial Causes Bill, which included a provision similar to the one I have put down. I think he agreed, as the Bill proceeded, that his own language was not entirely satisfactory, and there was incorporated on the Second Reading an Amendment to his provision, which was very similar to the one that was down, and is in identical terms, I think, to the one I have down as an Amendment. On the Report stage of the Bill, Mr. Abse appears to have got cold feet, because he withdrew this clause with a view to getting agreement on the rest of his Bill. The rest of the Bill, with which we are not concerned at this moment, provides, broadly, for reconciliation, and for enabling parties to get together again for a short time without prejudice to their rights. I am not dealing with that at this stage: but, in the hope of saving the rest of his Bill, Mr. Abse withdrew this, I think, important and vital clause.

I come now to the Amendment. It is a long Amendment with a considerable number of subsections; but, broadly speaking, it provides that where a husband and wife have been separated and thereafter have lived apart for a continuous period of seven years or more, and where there is no reasonable probability of their ever coming together again, then either party may petition for a divorce.

LORD BOOTHBY

My Lords, may I interrupt the noble Lord for one moment on a point of clarification? It is clear, is it not, that the court must satisfy itself that there is no reasonable chance of reconciliation?

LORD SILKIN

Yes, of course, that is so; but the Amendment itself contains a considerable number of restrictions on that, and I want to say a word about them. Of course the court has to be satisfied, as the noble Lord, Lord Boothby, has said, that there is no reasonable possibility of their coming together again, just as it has to be satisfied that they have been separated continuously for seven years or more.

LORD HAWKE

My Lords, may I ask the noble Lord to clarify a matter there? The court has to satisfy itself upon some future action of two parties. It presumably can only take their own word for it, There is no other method.

LORD SILKIN

This is no different from any other matter that comes before a court. The court hears evidence and the court makes up its mind on the evidence presented to it. The petitioner will make his case, and if he does not make his case then, of course, the court has the right to reject it. But these are among several safeguards that I have put down. For instance, in subsection (3) the conduct of the petitioner can be questioned. A decree will not be pronounced if it appears to the court that by reason of the conduct of the petitioner, whether before or after separation began, or for any other reason it would … be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree on that ground". So there would be no question of a person acting in an improper way with a view to getting a divorce without the judge having an opportunity of expressing his view.

Then there is subsection (4) of the Amendment, which provides that no decree shall be made until provisions satisfactory to the court for the maintenance of the respondent or child of the marriage have been made. That applies particularly, of course, in the case of a husband petitioner against a wife. Further, where the petitioner has been guilty of adultery he or she (because we have to recognise that it is not only the husband who commits adultery) will have to ask for the discretion of the court after a full disclosure; and it must be obtained. I submit that it will not be easy to surmount all these conditions and that a divorce will not be granted as a matter of course. The judge will have to be satisfied on all these matters before he grants a decree.

In view of what has been said I would suggest that no sane person would embark on marriage in the expectation of getting an easy release at the end of seven years by instituting proceedings. I do not think we need fear that this particular fact will loosen the marriage ties. Indeed, it would be much easier for a person who wanted to get a divorce not to wait seven years but to embark on a process of cruelty, desertion or misconduct and virtually force the other side to take the proceedings.

BARONESS HORSBRUGH

Would the noble Lord allow me to interrupt him?—I did not follow him. If the other person, say, in this case, the wife, disapproves altogether of divorce, is not the whole point of this that the husband might be cruel and he might desert her, but still—and this is the point of difference over this particular Amendment—having said she is not in favour of divorce, she is compelled to be divorced?

LORD SILKIN

That is a very pertinent remark; but I would ask the Committee to let me make my case. Obviously, I have not overlooked this point; it is a pertinent one and in due course I shall reach it. I am at the moment in the course of putting my case to the Committee. Later I will deal with some of the difficulties and objections that may arise.

This clause would give a chance to hundreds of thousands of couples, who are at present living in a state of "unmarriage", to start a new married life, and would thus help to stabilise the marriage institution and reduce the number of unmarried people living this kind of life. It would, particularly, enable husband and wife to remarry where they have separated by mutual agreement. In cases where individuals have been separated for seven years or more, they are, as the Committee knows, barred from taking proceedings for divorce because the separation has been by mutual agreement; and they are barred for all time. Moreover, there is the question of illegitimacy. I know that some noble Lords do riot like this argument, but it is a fact that some 40,000 children are born every year to parents who are cohabiting but are not married. It has been estimated that there are something like 200,000 children to-day under 16 years of age who are the result of these unions. If this Amendment were carried it would enable the parents, where the divorce is granted, to marry and to legitimise their children; and this' I think is a very important object of the Amendment.

Now I should like to come to the aspect with which the noble Baroness wants me to deal. What are the objections to what seems a sensible and sane principle in the public interest if we believe in the institution of marriage? The first is that this Amendment introduces a new and undesirable principle: that a petition may be presented by the guilty party; that divorce may be obtained against the wishes of the innocent party. I think that is the point that the noble Baroness was making: that we are creating a new principle by departing from the idea of the matrimonial offence which, at present, is supposed to be the sole ground for divorce; and that this will have a serious effect on the institution of marriage. All these objections, in my view, come logically and understandably from those who, on religious or other moral grounds, are completely opposed to divorce. But I find it difficult to understand such objections from people who accept the principle of divorce. And it has been the law in this country for three quarters of a century, and is now an accepted factor in our social life.

I would ask the Committee to realise that divorce is not merely a matter of a guilty party and an innocent party. That may be so in law; but in general, where a marriage has broken down, I would ask the Committee to consider whether there is necessarily an innocent and a guilty party. Is it always that one party is black and the other white? It is generally conceded that something like 75 per cent. of the divorces are in fact collusive. I know that should not be so and, in the presence of the noble and learned Lord, Lord Hodson, I should hesitate to say that he has any knowledge of it—of course he has not. But it is the fact; and I can assure him that the majority of divorces are, in fact, collusive, in the sense that both parties agree to it. If there is a defence, the respondent does not put it up, because he or she wants the divorce as much as the other party.

Moreover, since this is going to be partly a question of femininity, I would say that at least half the divorces are instituted by women—by wives against husbands. It is not the other way. Then where the petition is on the grounds of adultery, it is the fact that in a great many cases (I hesitate to say the majority) the petitioner has to go to the court and ask for discretion on the grounds of his or her own misconduct; and that plea is generally granted. They have to make a full disclosure and the court, before granting the divorce, must take into account the fact that the petitioner has himself or herself been guilty of misconduct. I would ask the Committee to say who is the guilty party in such cases, in which both parties have to accept the fact that they themselves have committed misconduct.

There is another ground for divorce. A husband or wife may bring a divorce petition against his or her spouse on the ground of incurable insanity. Is that a matrimonial offence? I hope that no one would argue that becoming insane is an offence. Nevertheless, it is a ground for divorce. Broadly speaking, on all these grounds for divorce it is the view of the community that the marriage has broken down. There can be no real marriage where one party is cruel to the other, or one party becomes insane, or where there is desertion.

Then there is the question of the imposing of divorce on an unwilling spouse after seven years' separation. A spouse may be unwilling for a variety of reasons. He may have a conscientious objection to divorce. That is recognised and accepted in my Amendment. Subsection (3) provides that that is a factor which a judge can take into account. My Amendment also recognises that the conduct of the petitioner may be so bad in all respects that it would not be right to give him a divorce.

THE EARL OF LONGFORD

My Lords, may I ask my noble friend, for clarification, where it is recognised that a religious scruple, for example, should be taken into account?

LORD SILKIN

My Lords, there are no words about religious scruples, but there are these words …. it would in the particular circumstances of the case be harsh and oppresive to the respondent or contrary to the public interest …. As the noble Earl knows, this is a matter which was discussed a great deal in another place and it was generally recognised that this was a factor which should be taken into account. It was a matter of finding the appropriate language, and I understand that the Solicitor General in another place accepted that these words covered religious scruple. If there are no legitimate grounds for a respondent's objection to a divorce, why should not a divorce be granted on these grounds? After all, we recognise that there are spouses who are spiteful, dog-in-the-manger-ish, who want to get their own back, vindictive; and if there are no grounds of conscience for objecting to a divorce—and the hardship point is dealt with in subsection (4) of my Amendment—why should not the other party, however he has acted in the past, unless he has acted very badly in the opinion of the judge, have an opportunity of happiness by marrying again in the future? Is it so much worse to have been separated for seven years than to have committed one act of misconduct upon which a divorce is obtainable?

Even if this is a new principle, I would remind your Lordships that a number of new principles were accepted in the 1932 Act—it is usually called the Alan Herbert Act. Parliament accepted the principle that in future divorce would be available on entirely new grounds—for example, on grounds of desertion and cruelty. The law of divorce has had to be changed with the times, and it will continue to have to be changed. If it is desirable that this particular form of Change should be made, then I would submit to the Committee that the fact that this is a new principle should not deter us from agreeing to it.

There is an Amendment on the Marshalled List in the names of the noble and learned Lord, Lord Hodson, and of my noble friend Lady Summerskill. The purpose of that Amendment is that a divorce should not be granted on these grounds except with the consent of both parties. On the face of it, that would seem to me to be accepting the principle of my proposed clause—that is, that there should be divorce on the ground of permanent separation for a period of seven years—and that if my Amendment were accepted, that would be acceptable. That is how it appears to me in form. I would only say about the Amendment that, if the noble and learned Lord were prepared to add to his Amendment that such consent is not to be unreasonably withheld, then I think we should all be in complete agreement on the matter. But I gather that we are not going to discuss his Amendment to my Amendment to-day; that there will be a straight vote on the question of whether or not this Committee is in favour of the clause as it stands, and that the noble and learned Lord's Amendment will be moved at a later stage if it becomes necessary. I would say that subsection (3) deals with the question of unreasonably withheld consent, because, if all the conditions of the subsection are satisfied, there would be no reasonable ground left for objection.

I am far from saying that there will not be a few cases which will be hard cases and which cannot be dealt with by my Amendment, but they will be very few indeed, and they will be far outnumbered by the persons who will benefit if the Amendment is accepted. I move this Amendment, sincerely believing that it will strengthen and enhance the marriage institution, and that it will give new hope and life to many thousands of men, women and children and will remove the stigma of illegitimacy from a large number of completely innocent people. I beg to move.

Amendment moved— Before Clause 1, insert the said new clause—(Lord Silkin.)

THE DEPUTY CHAIRMAN OF COMMITTEES

I understand that the Amendment to the Amendment is not moved.

LORD SHACKLETON

As Member in charge of the Bill, may I say that it is our hope to-day to complete the debate on the new clause only and that we should not expect to take any further stages of the Bill. After discussions between the noble and learned Lord, Lord Hodson, my noble friend Lady Summerskill and myself, it was agreed that it would be for the convenience of the Committee to have a straight debate on the clause as it stands. This, of course, will not deny the noble and learned Lord the opportunity either of speaking, to any particular argument he may have on his Amendment or, if the clause remains on the Bill after to-day's debate, of moving his Amendment. Of course, if the clause is out, he will not want to proceed further with it.

THE DEPUTY CHAIRMAN OF COMMITTEES

That may be so, but my duty is to call Amendment No. 2 at this stage.

2.30 p.m.

LORD HODSON

After consultation with the noble Baroness, Lady Summer-skill, who is my staunch ally in this battle, and also with other Members of your Lordships' House who are of other opinion, I have decided not to go further with the Amendment to the Amendment, because I think, and we all think, that this would really confuse the issue. The issue is a straight one. We all understand where we are. If we may take it that the Amendment to the Amendment is withdrawn, I will, if I may proceed, with my speech.

THE DEPUTY CHAIRMAN OF COMMITTEES

Then Amendment No. 2 is not moved, and the question before the Committee is that Amendment No. 1 be agreed to.

LORD HODSON

The issue, as I said just now, is a simple one, and sooner or later we shall have to come down to earth. I think that a good many words have been used—with all respect to my noble friend Lord Silkin—which really do not help very much. The real issue in this case is: are we going to accept the finding of the Royal Commission, which sat and laboured for about four years and at the end of it all came to the conclusion that if we are to have divorce the basis upon which divorce should be granted should be the matrimonial offence? That decision was arrived at by a majority of eighteen to one. I should like to take this oportunity to pay tribute to my noble and learned friend Lord Morton of Henryton, who for those long, and perhaps dreary, years presided over the deliberations of that Commission. The members were men and women drawn from all sorts and conditions of life; they heard evidence from all sorts of people, and that was the conclusion they reached.

I should, in order to be honest, say that after they had done that they considered the opposite theory. For, after all, there are only two theories alive on this problem—namely, are we going to act on the matrimonial offence, or are we going to act on the breakdown of marriage theory? That is the fight. On the breakdown of marriage theory, notwithstanding the conclusion which the Royal Commission had reached by eighteen to one in favour of the matrimonial offence, they were divided. That strikes me, on the face of it, as rather inconsistent; but that is the position so far as the Royal Commission left it.

The grounds for divorce which are material are adultery, cruelty and desertion. I have to accept the point made by my noble friend Lord Silkin that that principle has been broken into by this: that since 1937 it has been open to a spouse to get a divorce on the ground of the incurable insanity of the other spouse. But that is really because the other spouse is incurably ill in a particular way, and you can divorce her. That, I think, is contrary to the principle that I have stated, but it is the only inroad upon that principle which has so far been made. I, and those who think like me, are anxious that no further inroad should be made. We say, having, I hope, the same ideals as those who have an opposite opinion, that the institution of marriage should, so far as possible, be maintained. In my opinion, this proposal would involve a further great blow on that institution—and I say "further great blow" because each increase in the grounds of divorce not only increases the number of divorces but, contrary to the expectations of those who advocate more grounds, increases the number of legal separations as well; and the number of illegitimate children has increased, too. One would have thought, if the argument put forward on the other side were correct, that easing the situation in favour of those who wanted divorce would produce a smaller number of legal separations in magistrates' courts and a lesser number of illegitimate children.

Having made those assertions, I should try to justify them by statistics, though I am as well aware as all your Lordships are that with statistics one can cheat, and I do not want to do that. I take them from the speech of the President, who is a man whom I think we all respect. He is an experienced politician as well as being the head of the Division which now has to deal with these cases; he has access to the relevant figures and would be the last man in the world unfairly to select them. One has to keep clear of periods when exceptional factors are at work. A great war will increase the number of divorces; changes in legislation will increase the number; and an addition to the number of Judges will also increase the number. So statistics have to be carefully chosen. But this is what the President said: In every one of the five years 1958 to 1962 there was an increase in the number of divorce petitions filed. They rose from 25,584 in 1958 to 33,818 in 1962. These figures are not quite the same as those given by the Solicitor General in another place, but I am afraid I am unable to explain the differences. This year, the President said, the figures are up again on the comparable period last year. In the years 1955 to 1962 (except for one when a special procedural factor was at work) there was a steady increase in the divorce decrees made absolute. They rose from 22,000-odd in 1958 to 28,000-odd in 1962.

Then I come on to the argument that is sometimes put forward that separations will decrease as divorce increases. The figures show that after 1923, when women first were enabled to get a divorce on the ground of adultery alone, there was a rise, not a fall, in the number of new maintenance and separation orders, both in absolute numbers and expressed as a percentage of married couples. The same is true of the period corresponding to the rapid rise in divorce petitions to which I have already referred.

Then there is the argument from bastardy. No doubt there are some cases where children born of extra-marital unions could be legitimated, but, viewing society as a whole, greater facilities for divorce have been accompanied by more illegitimacy. Here I must quote from the Registrar General's Report of 1960. He said: In recent years there has been a noticeable increase in the number of illegitimate and premaritally conceived legitimate maternities"— I apologise for the long words— and also of the relevant rates…while the legitimate maternity rate for all ages under 45 was 14 per cent. higher in 1960 than in 1952 … the illegitimate maternity rate has risen by 50 per cent. between 1952 and 1960 and the rate for 1960 exhibits a sharp rise above the 1959 rates. The figures were 28,000-odd in 1959 and 43,000-odd in 1960. In 1961 this rise was sharper, there being 49,000-odd illegitimate births in that year. These figures, the President pointed out, are the more startling when one bears in mind the increasing knowledge and practice of contraception. So much for statistics.

LORD SHACKLETON

Before the noble Lord leaves the statistics, can he give us the actual figures of judicial separations?

LORD HODSON

I should have thought that the judicial separations were very few. The separation orders I was speaking about I have in the speech of the President, but I have not copied them out. I have seen them, and the figures showed a rise which is rather surprising. It is surprising that there should be a rise in separation orders—and I do not mean separation orders in the technical sense, but the maintenance orders made in magistrates' courts over the years.

Where does the opposite view lead? Does it not lead first to this: that logically there is absolutely no necessity for any judicial intervention in divorce at all? If you are going to talk about the criterion being the breakdown of marriage, who is better able to decide that than the spouses themselves? Why is a Judge a better man for that than the spouses themselves? Or if it be said that we must have somebody, why select a Judge to determine whether or not the marriage has hopelessly broken down? I know it is said, "Oh, well, we are not going quite so far as that. We are only talking about seven years' separation." But the objective, surely, is to substitute the criterion of the breakdown of the marriage for the matrimonial offence. And this is only the beginning. In conversation with those who hold the opposite view to myself, I think that they are quite prepared to admit this: that all this stuff about matrimonial offences is, if I may borrow a word which was used very effectively in this House by the noble and gallant Field Marshal (who I see in his place), Lord Montgomery of Alamein, all poppycock. We do not need to bother with that; just find out if the marriage is broken down and that is good enough.

The Russians are a logical people, and in the early days after the Revolution I remember a Russian lawyer giving evidence in our courts to the effect that marriage, like birth and death, was just a fact of life, like other facts, and there was no particular formality required for its beginning or its ending. But I believe that they have found since then that that was an unfortunate way of running their country, and that the family require protection by, at any rate, registration, and that some restriction on the de-registration of marriages was found necessary.

I have already, on Second Reading, expressed my objection, to which I think I ought to come at once, to this particular proposal, but it is not necessary to say very much. The point was very sharply and shortly put by the noble Baroness, Lady Horsbrugh, this afternoon, and, indeed, by the noble Baroness, Lady Summerskill, at Second Reading: that this is really a rich man's charter. It is a husband's clause and it is going to be available only to well-to-do husbands. These so-called safeguards are quite illusory. How is the woman who is the wife of a poor man to be compensated financially for the loss which she has to suffer by enabling the husband to go off with another woman and start a new marriage with her?

And why, I ask, apart altogether from financial considerations, which have already been emphasised, and will no doubt be emphasised again, should a woman be dragooned into divorcing her husband? I do not mind whether she has religious objections or other objections, but I am supposing that she married the man when they were both young and that she intended to stick to him. He is ageing—and I speak of anybody over 45 as ageing; he leaves his faded wife and goes off with a younger woman. I am being laughed at; but while that is, of course, a special case, it is not an unusual one; and it is a case which I think was envisaged also by the noble Baroness, Lady Summerskill, in her speech on Second Reading. That is what very often happens. Why should this wretched woman be told that she has to divorce her husband? Or, indeed, why should she be told that she has to go to court and explain why she will not divorce him? People do not like coming to court; and least of all do they like coming to the divorce court—they hate it. Yet these unfortunate women are to be told that they must come and explain why they will not divorce their husbands. Moreover, according to this Amendment which the noble Lords have put forward, they are told that if they can satisfy the court that it was all the other person's fault then they must get a divorce. So the judge is going to be asked to try something which happened seven years ago, which is a little rough on the judge and on the parties who are supposed to dig up in their memories the quarrels they had seven years before the proceedings.

I do not want to delay your Lordships, because I know that there are a great many others who wish to speak; but I feel that I ought to say something about the illegitimate child. I must accept that in this country—though not I think so much in other countries—there is some stigma attached to illegitimacy. The absence of a father is, of course, a handicap; but none but a fool could possibly cast stones at a man because he was born a bastard, any more than because he had red hair, since he could not have had anything to do with the circumstances of his birth. It does not seem to have troubled William the Conqueror much. I know that he put out the eyes of citizens whom he took at Alençon because they hung hides of beasts on the walls of the town, thereby indicating the humble birth of his mother, the daughter of a tanner. But what annoyed him in this action was the reference to the humble birth of his mother and not his own bastardy.

Attention must, I agree, be paid to the argument that some children may get legitimated and may have formal parents allied in matrimony who will not be so allied to-day. I know very little about this from a sociological point of view. I have made such inquiries as I can among adoption societies and organisations of that kind, and perhaps I may quote from a book by Miss Virginia Wimperis, a lady who is a qualified sociologist and knows a great deal about this subject. In her book, The Unmarried Mother and her Child she has written: Divorce could be made easier, so that more of the parents who now set up unofficial families could marry and have legitimate children instead. It is quite possible that this would do more than any other single factor to reduce the illegitimacy rate…. If, however, divorce were made easier or allowed at the instance of one partner, whatever the other wished, the stability of many marriages would be undermined and the happiness of many other children—the existing and future children of marriage—imperilled. Nearly every marriage has at least some moment of stress when for a brief while the partners rely almost solely on their vow and intention of permanence and society's insistence that marriage should endure. Many good marriages would founder in the absence of this support. I ask your Lordships to vote against this Amendment.

2.46 p.m.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, it is known to everyone that the Churches have definite beliefs about marriage and divorce, and it has been suggested (though not here to-day) that there is a wish on the part of churchmen to impose those beliefs upon the law of the country. The truth is this. While the Churches have their beliefs and standards which they urge their members to follow, and teach that they can follow with the help of God's grace, they accept the fact that a great many citizens do not share their beliefs and that this is reflected in the divorce laws of the country. However, the Churches are concerned with what is likely to be good and right for the country as a whole, and it is from that concern that I, for one, express my views about the new clause now before us.

We have the problem before us now, the problem concerning divorce: because there is something very wrong in the country, and this has been growing. Too many marriages break down. There are too many strains in families; too many illicit unions, both before and after marriage. Why is this? It is largely because of the many tensions about sex and marriage to which so many people, especially, perhaps, young people, are liable. I welcome wholeheartedly the greater openness about sex which exists to-day; for sex can be a good and beautiful thing, and the wrong kind of hush-hush attitude about it can do harm. Yet there is in much of the population a preoccupation with sex, a lack of discipline about it and so many temptations to incontinence on all sides, especially as the physical dangers of incontinence seem not to be so great as they once were. Hence, the background from which marriage is approached by many people is a confused one, and too many couples enter marriage with the scales already weighted against their making a lifelong success of it. The status of marriage is undermined in the minds of so many of the people, and because its status is undermined the tendency increases for couples to approach it without enough understanding and dedication to its true meaning. That is the background to our questions about divorce. I would urge that, while we should view this question with great sympathy for those in hardship through broken marriages, we should also view it from the angle of the status of marriage for those who approach it.

So I come to the new clause moved by the noble Lord, Lord Silkin. The plea is made that it will remove hardship from many whose marriages have broken down, and that it will remove hardship from children at present illegitimate. These are important pleas, and I will come back to them, because it is impossible not to have great sympathy with distress of any sort. But I would plead that we consider this other question: what effect will the clause have upon the status of marriage, its essential meaning and definition for those who approach it or are trained for it? And this is a grave question. Divorce after seven years separation, if there is no consent, can involve injustice; and if it is a matter of consent it alters, by reflex implication, the meaning of the marriage covenant. It makes the words "till death us do part" mean in effect "until we ourselves decide that we are tired of one another and agree to end it". At present both the church marriage and the registry marriage are one in stating and implying the intention by the parties to enter a lifelong covenant. It will be very hard to say this is really so if the principle of this new clause is established.

But, my Lords, what is being said on the other side? It is said that at present people whose marriages are broken down are driven to commit a matrimonial offence in order to get a divorce. This is sometimes true, and it is an evil state of affairs. But I think the alternative proposal is a greater evil; that is, that with the necessity of specific offences put on one side there is created an honourable respectable way of ending a marriage—namely by separation or consent. I agree with the nine members of the Royal Commission who said: There can be no more subtle temptation to divorce than the belief that there is a wholely blameless way of ending a marriage". Again, it is said that the passing of this clause will bring to an end the number of illicit unions. It will indeed turn a number of what are now illicit unions into second marriages; and happy ones, too. I appreciate that. But will it reduce the number of illicit unions which come into existence? No, my Lords; that would seem very improbable. The availability of this new ground for divorce will not deter people from entering into illicit unions, for people will be encouraged to do so, secure in the knowledge that after the statutory number of years they will be free to marry. It would also facilitate the designs of a person who had no scruple about breaking up someone else's marriage. If a woman wanted to entice a husband away from his wife she would be in a stronger position to do so under this new clause, as she would know that eventually a divorce could be forced upon the innocent wife. And that is perhaps the most alarming of the new possibilities which the clause would create. I believe that these considerations weigh very heavily against the rightness of this clause.

I refer now to the plea on behalf of illegitimate children who, if the clause were passed, would have a chance of becoming the legitimate children of a married home through their father marrying their mother. It would do that. But it would be at the expense of the father's first partner and the children of the first and married union. The easier it is made for the second woman to get regularly married to a man, the more likely she is to take the risk of living with that man until she can get married to him. It is therefore not at all unlikely that more people would be injured by the operation of this new ground for divorce than would be helped by it. Ts it right to try to legitimise children by divorcing someone else?

I have set out the case against this clause, as I see it, with, I hope, due and real sympathy to the motives and feelings behind it. In a letter to The Times yesterday it was asked whether the case of the churchmen who oppose the clause was based only on dogma or on sociological considerations. I would say that the considerations which I have been putting to your Lordships are indeed sociological considerations concerning the deep wellbeing of society. But as to dogma, this is a word which arouses prejudice so let me use the word "belief". In this matter the Churches are not asking to impose their belief on those who do not accept it, for churchmen have already accepted that there is a divergence between their belief and the State's law on divorce. But other people besides Churches have beliefs, and there is still a common ground between them; and it is a gain for this country that wherever a marriage is conducted it is affirmed to be a lifelong covenant. And we have our terrible problems largely because the status of marriage is weakened and the approach of so many people to it is wrong. Do not, my Lords, weaken this status further. Let me put it thus: do not, out of motives of compassion, which all of us must feel, cut at the ground of compassion itself. Do not try to meet the hardship of some in such a way as to weaken the security of the many.

My Lords, this is not to say that I am content with the present law on divorce and the operation of the divorce courts. When the recent statement by a number of Church leaders in this country ended with the words: We are anxious to examine any measures for reducing the hardships which would not sap the foundations of marriage we meant what we said. It is very difficult to see what can be done, but I am concerned that we should try. Is it not, for instance, worth while asking for further examination of the word "illegitimate"? Is it necessary for all purposes—for instance, for the purpose of bequests—that there should be the present distinction at all?

Again, if it were possible to find a principle at law of breakdown of marriage which was free from any trace of the idea of consent, which conserved the point that offences and not only wishes are the basis of the breakdown, and which was protected by a far more thorough insistence on reconciliation procedure first, then I would wish to consider it. Indeed, I am asking some of my fellow churchmen to see whether it is possible to work at this idea, sociolologically as well as doctrinally, to discover if anything can be produced. In Belgium there is a provision for what the law of that country calls divorce by mutual consent. I have been studying the Belgian law, but the procedure in the Belgian law is so hedged about by stage upon stage of reconciliation procedure that it is far removed from divorce by mutual consent as we understand it in our discussions in this country. Indeed, I wonder whether, for our purpose, the title of the Belgian procedure does not rather mislead. Let us examine every possibility of helping the legitimate and, if we can, of improving our divorce laws. But do not let us undermine what is not only the belief of the Churches, but the meaning of marriage as one of the bases of our society.

3.1 p.m.

LORD MORTON OF HENRYTON

My Lords, I seldom address your Lordships and I shall be brief; but as I was the Chairman of the Royal Commission on Marriage and Divorce I thought that, in fairness to my colleagues, I ought to state their views and arguments shortly by way of summary. The Commission had wide terms of reference, but in fact it considered fully the matters arising on this Amendment, and we heard evidence from many responsible bodies and from people with special knowledge of the circumstances, either from social workers or otherwise. I am not, of course, suggesting that we necessarily arrived at the right conclusions, but we did take a good deal of trouble. The Commission were by no means against changes in the law, because we made many suggestions, and no fewer than 69 of them are, I think, part of the law now, wholly or in part. But the Commission firmly rejected by 14 votes to 4 the proposal which is now before this Committee.

I hope I may be forgiven for quoting just three short paragraphs from the Report—I cannot suppose that your Lordships have all read them—which will put the point, in a few words, much better than I can put it at this stage To vest in a husband or wife the right to divorce a spouse who ex hypothesi had committed no recognised matrimonial offence and who did not want a divorce would result in great injustice. It would, for example, allow a man who had committed adultery or had been cruel to his wife to leave her and subsequently to divorce her against her will. This would violate a principle which has been long-established in the law—namely, that a man shall not be allowed ' to take advantage of his own wrong'. That is exactly what is being suggested under this proposal.

The paragraph continues: The wife would have a divorce forced upon her. She might have religious or conscientious objections to divorce. In any case, whatever her objection might be, whether more or less reputable, she had married on the footing that, provided she did not give her husband ground to divorce her, she would retain the status of wife for life, with all that implies "—

LORD CHORLEY

Might I intervene, to ask the noble and learned Lord whether he would not agree with me that subsection (3) of the proposed Amendment covers the point that he has just made, and was probably put there for that reason?

LORD MORTON OF HENRYTON

I do not agree with that at all, and I propose to turn to that subsection in good time. Paragraph (xviii) says: Nor can we agree that it would be possible to ensure that adequate financial provision was made for the first wife and family. They would usually be bound to suffer if the husband married again, since there are very few men who can afford to support two families, and the man's natural impulse would be to look after the wife and family with whom he was living. It is not easy to make sure that the wife and children are supported when the husband is merely living with another woman and when the wife's claim is at least paramount in law; but their position is much less secure if a divorce has given the husband a second wife and family with a legal right to maintenance. In such cases the court is usually faced with the situation that there is not enough money to go round … Paragraph (xix) says: The strength of this objection was recognised by a metropolitan magistrate of wide experience who was very sympathetic to a ground of this type, in the interests of the children of illicit unions. He said ' when I was thinking this over last night I wrote … these words: "This is probably too idealistic and divorced from reality". In other words, having thought it over for twelve months and bearing in mind, so far as my own court is concerned, that most of the husbands cannot afford to keep one wife and rely on national assistance, this proposal, I think, would only he applicable to people of substance'. I come now to subsection (3). If a wife is going to rely upon this subsection as a safeguard, the burden is on her to prove by evidence either evil conduct on the part of the husband (putting it shortly), or certain circumstances which render it harsh and oppressive to her, or contrary to the public interest, to pronounce a decree. If one looks at it from the practical point of view, the wife is required to go through the ordeal of giving evidence. That may cover private and personal matters extending over a large part of the married life. Further, there is the uncertainty that in each case the matter rests on the discretion of the judge. I am sure that the discretion would always be exercised with great care, but it is quite clear to anybody, I think, that it depends on the way the judge happens to look at the particular circumstances. It is not a matter of law: it is a matter of seeing what the facts are and of deciding upon them. I submit that for the wife to be put through the ordeal and to have to submit to this uncertainty is unfair. She wants the husband only to abide by a lifelong contract which he has made and which he is now trying to break.

3.8 p.m.

LORD GLADWYN

I speak with the greatest diffidence, and it was with the greatest diffidence that I yielded to the request of the noble Lord, Lord Shackleton, to become one of the sponsors of this new clause. I suppose, therefore, that I ought, so to speak, to declare my interest—in other words, to tell you why I dare to intervene at all in this debate. In the first place, I am a complete layman: I am not a lawyer, and I am not particularly versed in divorce or any other law. I am the child of a broken marriage, however, and my personal experience suggests that it would certainly have been in the interests of the family, and, I should have thought, in the general interest too, if the clause which we are putting forward to-day became the law of the land. I am also a humble, but a sincere, member of the Church of England.

Therefore, it is with the greatest reluctance that I say anything to-day which may perhaps be taken as departing in any way from what has just been said by the most reverend Primate as the leader of the Church to which I belong. But though, of course, the Church has the right and the duty to pay the greatest attention to the institution of marriage, on which our whole social system largely rests—that is indisputable—and though monogamy is rightly, as I think, prescribed both by our Church and our State, I doubt whether the rules governing the conduct of monogamy in our modern society should be approached altogether from a religious point of view. I rather think that in that particular assertion I have the support of the most reverend Primate himself—in his remarks about dogma, for instance. I think we ought, therefore, to regard divorce primarily as a social problem on which all who have thought about the matter at all are fully entitled to express a view—some more entitled than others, like the noble Lord who has spoken last—but all entitled to express a view in the light of their own experience.

The Emperor Justin II at the end of the 5th century, we are told by Gibbon: yielded to the prayers of his unhappy subjects and restored the liberty of divorce by mutual consent; the civilians were unanimous; the theologians were divided; and the ambiguous word which contains the precept of Christ is flexible to any interpretation that the wisdom of the legislature can demand. That seems to me to be the point, if I may respectfully say so. Parliament, as the supreme expression of the national will, should from time to time examine our social laws in order to see whether they truly respond to the needs of an ever-changing society.

It seems to me to be no accident at all that, not long after the convulsions of the Napoleonic wars and the industrialisation of this country, the first great Divorce Act was passed in 1857. What may have been well adapted to an agricultural nation of conservative habits was not necessarily well adapted to the age of steamships and trains. Nor, I think, was it an accident that the next important advance on the question of divorce was after the First World War, in 1937, with the passage of the great Herbert Bill. The Second World War has perhaps changed our society, rightly or wrongly, even more than the first, and now is no doubt the moment to bring our law into harmony with what I am persuaded the bulk of our population, if it were clearly explained to them, would regard as simple equity.

Therefore, I should like my congratulations to Mr. Abse to be added to those expressed by the noble Lord, Lord Silkin. It seems to me that Mr. Abse has deserved well of the community in piloting the Bill under discussion to-day through another place, but, as we all know, this was at the cost of having to abandon what I regard as the central feature of his Bill—namely, the clause regarding seven years' separation, the substance of which my colleagues and I urge your Lordships to reinstate in the Bill. In common with them, I believe that this clause, if it ever becomes law, will rectify—or partially rectify—a great social injustice: namely, the labelling as illegitimate of what are estimated to be some 200,000 children, the offspring of what are, in effect, second marriages, though they cannot be so regarded by the law as it now stands.

It is quite true that adoption of this clause will mean a slight departure from the alleged basic principle of the present law, namely, that (apart from madness, non-consummation of the marriage and one or two other special cases) divorce can be obtained only as a result of the commission by one spouse or the other of a so-called "matrimonial offence"—that is, adultery, cruelty, desertion and so on; and then only if the offended party wishes to petition and does not decide to condone the offence. But, as we all know, the great majority of present-day divorces in practice rest on that very mutual consent which the law expressly debars. Thus, the present law, as it seems to me, is a mockery and a sham, and whether in these circumstances it really safeguards the holy state of matrimony is open, I believe, to considerable doubt. I therefore suggest that a small departure—it may be said that it may lead to other departures, but this is not necessarily so—from the principles of the present law is not necessarily a bad thing in itself.

The idea that its adoption will open the floodgates and result in a stream of divorces among people who would otherwise not separate seems to me to be an extraordinary delusion. All the adoption of the present clause would do would be to permit, subject to many safeguards, some of which were put forward by Lord Silkin, the legal divorce of people who for many years, often for as long as forty years, have in fact been divorced. The plain fact is that in modern conditions you cannot force people to live together against their will and that in most cases, rightly or wrongly, no moral stigma nowadays any longer attaches to them if they find, for one reason or another, that they cannot do so.

At the same time the Church and the law both assert, rightly, that monogamy is desirable. It is right that one should take this view if one gets married, and that the institution of monogamy should as far as possible be defended. I would not for one moment dispute that. It must not, therefore, be made easy for either spouse to leave the other merely because of incompatibility—though, admittedly, it is very easy to do exactly that to-day if only the feeling is mutual. But to the layman it seems rather curious to assert that if it is shown to the satisfaction of a court (and we must assume that our courts are presided over by learned and responsible men) that the couple have not lived together for no less than seven years—in other words, when it is clear beyond all reasonable doubt that they will never reunite, whatever may be said or done—legal validity should not, if it is desired by one party, be granted to a new and what may perhaps be called a de facto marriage.

Apart from anything else, if the deserted spouse—usually, I think, the wife—is supported by her husband, as she should be, the mere conclusion of a second marriage of the husband after a separation of at least seven years will not lessen his liability, or indeed his ability, to continue such support. Nor will the court, under our present clause, be entitled to grant a divorce unless it is satisfied that such support will be forthcoming. If it is not satisfied, the man will not get divorce. Thus the economic position of the deserted spouse cannot be worse under the present clause, and might even be better, since the errant spouse, faced with the possibility of obtaining his freedom, might be persuaded by the court to give more than he had so far been giving—if, indeed, he had been giving anything at all. I know that there may be certain technical difficulties in certain rather special circumstances as regards pensions, but I am assured—and I myself am not an expert—that these can be overcome.

Neither would the moral position of a deserted wife be unfavourably affected. That has been asserted, and I cannot see why it should be. For if, as she very well might be, she is deeply religious and believes in the indissolubility of marriage she could continue to believe in it; there would, after all, be no obligation on her to remarry. Her position would be the same. All she would lose would be the right (and this was mentioned by Lord Silkin) to veto the happiness of her erstwhile partner by insisting that the marriage-breaker shall never be able to confer his name, or title, on the lady who has succeeded her in his affections. On the whole, this possible disadvantage would hardly seem to correspond to the social disadvantage of preserving 200,000 technical bastards, with all the incentive to delinquency which this necessarily involves.

The notion that a divorce imposed on a faithful but abandoned wife would reduce her social status by conferring on her that of a "divorced person" seems to me to be irrelevant in our society. I cannot believe that any such "innocent party" would be likely in such circumstances to be struck off the list on any major social occasion. As I said at the beginning, I am not a lawyer, nor, I fear, am I especially devout. I myself believe, however, strongly in monogamy, even though men are frail and there are perhaps only a few of us who have been so fortunate as never to be tempted to err, which, if we may believe our Saviour, is scarcely different from erring. But I am profoundly convinced that it is by example rather than by law that we can best secure the married state, and indeed the family. Nevertheless, the law is necessary, and it is very desirable that it should be fair and known to be fair. It is also desirable that it should if possible, on balance, advance the sum total of human happiness.

By voting for our Amendment this afternoon your Lordships will be securing both of these admirable ends. Nor need you have any apprehension that existing marriages in future will be ruined by the additional proviso which is urged. On the contrary, a number of marriages which are now permanently and irreparably ruined, whatever we may say or do, will be balanced by an almost equal number of marriages which are not now allowed to have any legal existence. One would certainly have thought that, from the general point of view of marriage, this was not a debit but a positive gain.

For all these reasons, I trust that, having consulted your consciences which in this matter should be your sole inspirer, your Lordships will vote for something which, apart from any other consideration, is, I think, calculated to bring self-respect and happiness to many British families while not seriously adding—even if adding a little—to the miseries occasioned by broken marriages which, unfortunately, will always be with us, however much we may improve or try to improve the present law.

3.22 p.m.

BARONESS SUMMERSKILL

I propose to oppose this Amendment. I have listened to my noble friend Lord Silkin and the noble Lord, Lord Gladwyn, who support this Amendment, and I think that those of us who have listened carefully have realised the grave weakness of both of their arguments; and that is, that they have not given sufficient thought to the matter. Both of them have adopted an absolutely superficial approach and have not recognised the fundamental problem which is involved in this matter. In the first place, my noble friend Lord Silkin made a naive assumption when he asked why, if Members did not approach this on a theological basis and at the same time supported marriage, they were opposing this Amendment? He said that he could not understand people who supported divorce opposing this Amendment. I stand here knowing very little of theological dogma, and I am certainly not opposing the Amendment on theological grounds. I oppose it, as I shall explain in a minute, on grounds which I believe are so fundamental that any Parliamentarian here, who is proud of our form of civilisation, who believes in a stable marriage, who believes that the family unit is the very foundation of our State, should certainly oppose this Amendment.

I say this about the noble Lord, Lord Gladwyn—and I say it with all respect. He rose here in a very brave way, I thought, and said something which very few men would have said. I have never heard of a man saying it before in either House. He said, "I come to support this Amendment; first, because I am a layman and, secondly, because I am a child of a broken family." I would just say this to him. The first thing that a Parliamentarian learns is that hard cases make bad laws. One should never try to argue a case from a special problem.

LORD GLADWYN

The noble Baroness must admit, however, that, since I have had that experience, it is perhaps my right, and even my duty, to express my view.

BARONESS SUMMERSKILL

I agree. I realise that he has this point which has prompted him. Probably if he had not had that experience he would not have yielded (that was another of his words) to the noble Lord, Lord Shackleton, in speaking on it. I realise that that is what prompted him. But I also have a right to say, as a Parliamentarian, that the fact that one has had an unfortunate experience in life, which makes it difficult to be objective, is no reason why one should support a measure which may have very far-reaching effects. I would also say this to him: when he talked about the advance in divorce, that was surely a misnomer. In this context should one use the word "advance"?

On the question of illegitimate children, he appealed to noble Lords to help the illegitimate children. I propose to prove to this House that, if this measure is introduced, the number of illegitimate children in this country will probably increase, rather than decrease. I believe that, just as my noble friend Lord Silkin and the noble Lord, Lord Gladwyn, have taken rather a superficial view, many others have taken a limited view. They have believed that by compelling a husband or wife to submit to divorce, they would, as I have already said, relieve the lot of an illegitimate child.

LORD SILKIN

I do not want to interrupt the noble Lady, although I was interrupted a good deal. But I should like to assure her that I have given a great deal of thought to this subject; and I have had long professional experience of this matter. I have given my views, and, however imperfect they may be—and I am sure they are in the eyes of the noble Lady—they are at any rate not superficial.

BARONESS SUMMERSKILL

I should have thought that, in a debate where we are exchanging views, a Member of this House had the right to sit back and form an opinion after a speech had been made. I find that a debate does not serve a useful purpose if one sits back and does not criticise the opponent. Surely my noble friend must realise that we are on different sides. He has put an Amendment on the Order Paper and I am opposing it. Therefore he must not expect me to stand up here and say what a nice man he is. The noble Lord, whenever I criticise his judgment, becomes quite personal about it. But he must not. I am saying—and it is very difficult if one is interrupted just when one is opening one's case—that in my opinion this superficial view is wrong; and I am opposing this Amendment because of the more serious far-reaching effects.

If it is established (this has already been said, but I want to develop this point) that a divorce can be secured after seven years of marriage, come what may, the stability of marriage itself must suffer. In my opinion, if this point of view were accepted it would gradually effect a change in attitude, the attitude of our teenagers and our young people, towards the institution of marriage. The next generation could well argue, "Why seven years? Those old fogies established seven years. Why not five years? Why not three years?".

I would say—and I am hesitant about doing so, because my noble friend at the back may criticise me—that there is an entirely different attitude by a man and a woman towards marriage. I agree with my noble friend Lord Hodson, whom I have the honour to support, that this is a man's Bill. This is a difficult thing for me to say in a House of this kind, because one almost might think I was trying simply to put the woman's point of view. The case I am going to put now is not simply that of a woman who is trying to hold her man for economic reasons. I am not saying this because it pays a woman to oppose this Bill—because, after all, the man is her breadwinner, and to allow a younger woman to seize him and take him away is against her interests.

For that reason I am hesitant in emphasising the woman's point of view, but I must say this—and in this House there are many men who will agree with me—in the institution of marriage there are 50 per cent. men and 50 per cent. of women, and the approach of the two sexes to marriage is entirely different. The word "stability" is very easily bandied about, but may I just say what stability means to a mother in marriage?—and my case here, which I am going to develop, is the case of the mothers of this country. A woman experiences complete biological fulfilment when she becomes a mother, and her maternal instincts dominate her thinking and dominate her actions and her attitude to marriage. Her urge is to protect her offspring; and I do not need to remind noble Lords that the instinct of self-preservation, which is the strongest instinct in us all, when there arises a matter of danger to a woman's children is forgotten by the mother. We saw it in the war: we saw it during the bombing; we see it in any fire in the country where children are involved. A mother's instinct to protect her children is so great that her first instinct, that of self-preservation, disappears, and she is there to protect her off-spring.

Now she does not need to be advised by a psychologist to know that a threat to her marriage and to her home will jeopardise the wellbeing of her children: and that is why she is like a tigress in protecting her home. She will tolerate persistent ill-treatment from her husband rather than risk the break-up of her home. Have noble Lords ever read of any case in the newspapers where a man has tolerated the most appalling ill-treatment by his wife rather than leave his children? Therefore, this seven-year clause, this compulsion clause, as I call it, if it imperils in the smallest degree the institution of marriage, is totally opposed to the interests of mothers. If noble Lords will go with me so far, and if they will say that something which is opposed to the interests of the mothers is opposed to the interests of the State, and if we believe that the security of the family unit forms the very foundation of our civilisation, then I ask the Committee to oppose this Amendment to-day.

The bond of family may be strongly or very lightly felt by a man. I am not judging him by that: this is a biological matter. We are all subject to our ductless glands. It is not his fault: it is his approach to marriage. In exactly the same way, his approach to other things is different from that of a woman because his instincts are different. Therefore, we must recognise that the bond may be less strong in a man. Surely, it is primarily for the benefit of the children that men and women live together. I agree a man may feel he wants a change, but, nevertheless, the woman, whatever she begins to look like, is as strongly intent upon keeping her family together as if she were newly-married.

Now I come to the question of illegitimate children, because time after time we have read in the newspapers that this Bill must be supported for the sake of the illegitimate children of the country. But what of the children born in wedlock? I am not talking, of course, of the children of the family where the man has gone off to live with another woman. But what of the children in wedlock, and their happiness? Have we no responsibility to them? Why have those who keep talking about illegitimate children not talked about children in wedlock? To amend the law in this manner is to make a separation of seven year tantamount to divorce, and it would encourage the irresponsible man, after some years of marriage, to seek another woman. He has improved his financial position, with the help of his first wife, and, therefore, his eligibility to some women has increased. Henry VIII, as he grew older, felt entirely the same. I mention Henry VIII because two or three noble Lords have already gone back in history. He felt entirely the same: a spoilt king; a spoilt play-boy. Why should he be faithful? Anyhow, family meant nothing to him. He was not a practitioner of divorce. Marriages of which he grew tired were brought to an end by annulment, or by the swifter method of execution. He did not have to worry about a Bill of this kind: he knew how to deal with his women. He looked around and said, "I want that one; I like the look of her. Off with the other's head!"

This clause will remove the detriments which might prevent a woman from having a liaison with a married man, because this clause will ensure her respectability and her legal safeguards. It will put the hallmark on her respectability in a number of years. It will enable a married man to propose marriage to another woman with the only reservation that the engagement will be prolonged. I am told that in some cases in America a married man and a married woman, neither of whom have obtained divorces from their respective spouses, get engaged, anticipating a divorce in a short time. Are we going to establish the same standard of behaviour here? This clause proposes to establish not polygamy, but successive monogamy, without there having to be given any reason but a change of mind when taking a fresh partner.

Surely, far from making it easier for a man or woman to flout their obligations, consideration should be given to strengthening the bonds for a number of years after the arrival of children. Children need a mother and father because they are inexperienced and need protection, and now that we are considering extending the school-leaving age the longer will they need protection. Marriage is not an institution which concerns simply the likes or dislikes of two people. Who of us here does not at times quarrel with our partner? Do we then say, "How much nicer if we had somebody to agree with us"? Why should the desires of one partner of a marriage be satisfied at the expense of the other partner and the children? All efforts made to remove a parent from a child mean a deprived child.

The promoters of this Bill, as I have already said, express great concern for children of illicit unions, but I think one should be permitted to show even greater concern for the children of legal marriages. After all, it is regrettable that illegitimate children have to face this obloquy, but the acceptance of this clause will encourage more men to father such children. I hope that the noble Lord, Lord Gladwyn, who spoke with such sincerity, and who has been convinced that this will almost solve the problem of illegitimate children, realises that, far from that, this clause will give much greater opportunities to people to have illegitimate children.

LORD GLADWYN

I did not say, with all respect to the noble Baroness, that it would solve the problem of illegitimacy: I said it would help to rectify a great social wrong.

BARONESS SUMMERSKILL

I appreciate that, but the great social wrong is illegitimacy. My point is that this will increase the rate. The illegitimate children he is thinking about may have their problems solved, but, by introducing this clause, more illegitimate children are going to be born.

Now on this subject of children it is well known that the children of divorced parents are brought to psychiatrists or come before the courts emotionally unstable, a misery to themselves and to the community. Let us remember also, when we are thinking of illegitimate children, the emotional and unstable men and women who can never adapt themselves to their environments during the whole of their lives because their parents have separated and they have felt insecure. The fact is that the divorce rate is increasing. The publicity given to divorces of the middle and upper classes in this country tends to encourage others to live "down to the Joneses". It seems that after a divorce the community, the divorce courts and everybody become concerned about what should happen to the children of the marriage. This is the time to show concern—in Parliament—to ensure that legislation should not be introduced which is liable to undermine marriage. You increase the divorce rate and you increase the number of illegitimate children. And I want to emphasise that.

My final point is on the economics of the problem. I would say to the noble Lord, Lord Gladwyn, that he has been misinformed about this point. Perhaps he is a little out of touch with the economics of the woman who is separated or, indeed, divorced. We are told that the divorced wife, he innocent party, will receive maintenance. How many men can support two families? That is precisely why my noble and learned friend Lord Hodson said that this is a rich man's Bill. If a man cannot support two families, the wife and children of the first marriage will suffer. The noble Lord, Lord Gladwyn, spoke about maintenance. Does he not realise that an irresponsible man can take a second wife, as is suggested in this Amendment, and for the first month or two he will be paying maintenance to the first wife; then he finds that he no longer has the money to pay at that rate? Then he is hauled before the judiciary, and the judge or magistrate must ask himself, "What shall I do? Shall I send this man to prison? If I send him to prison he is not working, he is not making any money. He can neither pay his second wife or her children nor give even a small contribution to the first wife".

LORD GLADWYN

Really, the point is what has been happening for several years. Let us say the man has been unofficially married to another woman. Presumably he has been supporting the first wife all that time. The mere fact that he is legitimising the second union does not alter the position. He must go on supporting his first wife. He has already had to do so; otherwise he does net get the divorce. The situation is not changed.

BARONESS SUMMERSKILL

I speak more in sorrow than in anger. This is the psychology of the thing I would say. When a man lives with a woman, and his first wife may well be in the same neighbourhood, he pays the first wife maintenance because the last thing he wants is trouble; and the woman he is living with does not want trouble either. The situation changes entirely when he is married to the second woman and she is in possession; and the first woman (of whom she has no doubt been jealous and on whom she is anxious to vent her spite) has to beg for her maintenance allowance. Then the serious things happen that I have described. The first wife does not want to make trouble; she does not want to see the affair in a local paper. But, finally, because he has no money, she goes to court; and the magistrate then has to ask himself, "Shall I send the man to prison? Because if I do he is not working and is not making money." That is the economics of the problem.

LORD KENNET

May I ask the noble Baroness whether she has never known such a situation arise during separation with regard to alimony?

BARONESS SUMMERSKILL

I am talking about this as a doctor who has worked among the poor. I was qualified in 1924, and I have seen many women in this position and heard their difficulties, told to me in consulting rooms where, of course, one always observes their confidences. I speak with some authority; and that is my authority.

On the economic problem I do want to remind noble Lords that the innocent woman who is divorced loses her national insurance benefits. She loses her Service pension if there is one; she loses any pension attached to her husband's work; she loses everything; and, of course, during the years she has helped to establish her husband the law has not permitted her to save one penny in her own right when he goes off to the next woman. I am going to introduce a Bill later to change that position. This is the woman who is divorced without her consent. I hope your Lordships will not hastily vote for this Amendment; but seek to help the small minority where the husband or wife do refuse consent to divorce. We may otherwise be causing untold damage. Finally, my I say what I said in the beginning: to those of your Lordships who are here because you know of a hard case I say: do not be moved by that; remember, as I said, that a hard case makes a bad law.

3.46 p.m.

LORD BOOTHBY

I shall not detain your Lordships very long, and far be it from me in this House to appear as a defender of Henry VIII; but I should like the noble Lady who has just spoken to remember that if, in fact, Henry VIII had not got "fed up" with Catherine of Aragon we should not have had the benefit of Queen Elizabeth I. So history certainly takes strange turns. I had prepared what I thought myself was an able and powerful speech, but, unlike the noble Lord, Lord Silkin, I decided after listening to your Lordships, to curtail it right down to the bone. The speeches I have heard have been so good on both sides and so cogent and, if I may say so, in the case of the most reverend Primate, so imbued with sympathy and compassion, that I find it difficult to make up my mind; and I am sure all the arguments have been put now as clearly as they can be on both sides. I was also much impressed by the economic case made out by the noble Baroness who has just sat down.

I come back to the fact that this Bill is, by design, concerned primarily and rightly with the welfare of children. Mr. Abse made that perfectly clear from the beginning. There are, as the noble Lord, Lord Silkin, said, 200,000 illegitimate children under the age of 16 who are being brought up at the present time in the homes of parents who are unmarried—but these are, nevertheless, homes; and that is what "gets me a bit". I cannot think that this is a desirable state of affairs. I believe that the answer is to legitimise as many children as possible and, therefore, to allow many more marriages to take place; and, despite all the statistics that can be brought—and most of them are hypothetical—I still believe the passage of this clause would bring benefit to more people than those who would be penalised. I cannot help feeling that. I think it is desirable that in the case of those many homes—and there are thousands of them in this country—where there are what we call illicit unions but with children, it would be wise to recognise that they are homes, they are families.

The noble Lady spoke a great deal about the family unit and the danger of families no longer being together but separated. But, in fact, in these cases—cases that will be covered by this clause—they are no longer family units. They are no longer together. They are, in fact, separated and have been for seven years—for seven long years. It is a long time; and on top of that the judge must be satisfied—and the noble Lord made that quite clear—that there is no hope of reconciliation.

I think the noble and learned Lord, Lord Hodson, summed up the whole of this argument. What we have to decide about, when it comes to the vote, is whether the breakdown of marriage or matrimonial offences should be the cause of divorce. That is the issue and that is the final decision we have to take. A matrimonial offence involves an innocent and a guilty party. We all know in our hearts that many, many cases of divorce—I should say the majority—have now become a charade. They are absolutely make-believe. I have a friend who was divorced some years ago for a very good reason—I shall not give his name to the noble and learned Lord, Lord Hodson. He obtained his divorce by obtaining the services of a lady, and for the payment of an extra £2 above the normal charge he obtained the services of a lady who played bezique. He told me somewhat mournfully some time afterwards that, despite the fact that they played bezique, it was the longest night. A divorce can be obtained by these methods and it is done every day. In many of the cruelty cases, by agreement, the cruelty can be invented.

BARONESS HORSBRUGH

Suppose the wife of the noble Lord's friend, who played bezique at the cost of an extra £2, did not want to divorce him. At the present moment she can tell him, "You can go on playing bezique if you like, but I won't divorce you."

LORD BOOTHBY

I agree with the noble Lady that that is the fact, but in this case the lady wanted the divorce, so all was well. The game of bezique, though long, had a satisfactory conclusion from both their points of view. But this is a real point of principle. I want to emphasise that what we have to decide is whether divorce can come about as the result of the breakdown of marriage—and can it be said after seven years of separation, with no chance of reconciliation, that a marriage has not broken down?—or must it come about solely by means of a matrimonial offence committed by one side or the other? On balance, after great thought and not entirely superficially, I assure the noble Lady, I have come to the conclusion, reluctantly, that the breakdown of a marriage is an even greater cause, and certainly a more valid one, than a casual offence by one or other party to a marriage.

3.54 p.m.

THE LORD CHANCELLOR

My Lords, I should like, if I may, to say a few words in this important debate. I should like to make clear at the outset, as did my right honourable and learned friend the Solicitor General in another place, that I am not seeking to express any views on behalf of Her Majesty's Government. I would say a few words about some of the issues that have been raised and, in particular, on some of the observations of the noble Lord, Lord Boothby. He has drawn attention to the case of his bezique-playing friend. I simply reject out of hand his allegation that that type of false case comes frequently before Her Majesty's Judges in the Divorce Court. However, as my noble friend Lady Horsbrugh pointed out, that is beside the point in relation to the proposed clause, because there obviously there would be no suit for divorce unless the other party had wanted it.

The real issue raised by the Amendment is whether, without there being any matrimonial offence, after a period of time, stipulated in this clause as seven years, an innocent party, who does not wish to be divorced and who wants to preserve the sanctity of the marriage contract, can be divorced against his or her will and wish. The noble and learned Lord, Lord Hodson, in his powerful speech, said, and I think rightly, that the real issue here lies between the proposal that divorce should be granted only on the establishment of a matrimonial offence and the proposal that it should be granted where a marriage had broken down in fact, without any prospect of a reconciliation. I agree that that is the real issue behind this Amendment. The noble Lord, Lord Boothby, also expressed this view.

While it is true to say that our divorce laws are based on the principle that divorce should be granted only on the establishment of a matrimonial offence (to which there is one exception at the present time, in relation to insanity) it may be—I do not know—that it would be possible to devise another system where divorce would not be dependent upon the establishment of a matrimonial offence but upon the fact of the breakdown of the marriage. But that is not our system. That is not the system which this Amendment proposes. What this Amendment proposes is to graft upon our existing law a proposition based upon the fact of the breakdown of marriage. I must say that I think the result would be very illogical and difficult to defend, for this reason: there might so easily be a case where a man seeks to obtain a divorce on the ground of adultery or cruelty, or something of that sort, and after a long-fought-out case his petition fails. He knows that he has only to wait, and at the end of seven years, under this clause, he will get a divorce. I am speaking personally in expressing this view.

If the real reasoning behind the Amendment is that a divorce should be granted on the basis of the breakdown of marriage, why seven years? If that is the basis on which our law should depend, why should a divorce not be obtainable when it is somehow established that a marriage is permanently broken? I think that there is a great deal of force in the argument, which has been put forward in this debate, that if this Amendment is carried, the seven-year period will not last for very long.

Attention has been drawn to what are called the safeguards in subsection (3). On these I should like just to make these observations. A great deal is left to the discretion of the judge. He has to consider whether, in the particular circumstances of the case, it would be harsh and oppressive to the respondent. The respondent who does not wish to be divorced, and in respect of whom there is no ground for a divorce, would have to come forward and establish that, but there is no guidance given to the court as to the basis on which it should operate in determining whether, in the particular circumstances, it would be harsh and oppressive or contrary to the public interest. There is no indication of the factors which would be taken into account in considering what is the public interest in this particular connection, and of what guidance should be given to the courts when the respondent to a petition under this clause says that she will not consent on religious grounds, which are sincerely held. Ought not guidance to be given by the proposers of this clause about whether the judges who have to deal with this matter will take that kind of objection into account in determining whether or not, in the circumstances of the case, it would be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree?

It has also been put forward that there is the safeguard of the provision made in subsection (4) for the maintenance of the wife who will be divorced under this new clause. We can argue about that a great deal. I think that there is great force in the argument that only people with considerable means would be able to avail themselves of this clause.

LORD SHEPHERD

In the event of a man's obtaining a divorce under the proposed Amendment, and if he marries again, where does his responsibility in law lie? Must he provide for the maintenance of his first wife, even though it is at the expense of the woman he has married after divorce?

THE LORD CHANCELLOR

I am not going to give an answer to that at such short notice, except that I would point out that it does not really relate to this, because, if the noble Lord looks at subsection (4), he will see that the court may refuse to pronounce a decree on any petition on the ground of separation until the petitioner has made such provision (if any) for the maintenance or benefit of the respondent and any child to which section 26 of the Matrimonial Causes Act, 1950 applies as the court thinks proper in the circumstances of the case. I am on that broad point. One does not know, of course, quite how the court would interpret that subsection, but it would appear probable that the court would say that they were concerned to see that the first wife should continue to get adequate maintenance. But the point made by my noble and learned friend Lord Hodson was this: that whereas a rich man might be able to meet the requirements of the court on one or more occasions, a man of little means would not be able to do so.

The point I want to draw attention to is this: that, whatever is done by the court there (and this relates to the economic grounds on which the noble Baroness touched at the end of her speech), I do not see how in any way under that subsection provision could be made for the woman who may survive her husband, and who would, if this petition had not been presented and succeeded, have been entitled on his death to a widow's pension, either under the National Insurance scheme or under a private pensions scheme. That she would lose inevitably on the decree being made under this clause. But that is an economic view. I would say, if I may, to the noble Lord, Lord Gladwyn, that you cannot brush these difficulties aside by just describing them as technical. They are very real problems which we ought to consider if this clause is added to the Bill.

LORD GLADWYN

Is it not a fact that the law in Australia, which is substantially the same as the present Amendment, has been satisfactorily applied there without any difficulty at all?

THE LORD CHANCELLOR

I am not sure how they apply it in relation to pensions and particular pensions of this kind. But the real argument put forward is whether there should be, first, a matrimonial offence, or whether the law of divorce should be based on the breakdown of the marriage. The argument put forward on the latter has been based largely on the sad situation of those whose marriages have broken up, and have been broken for a long time, and who want to regularise their position and, if possible, the position of their progeny. It is an appealing case, and one which must be regarded with great sympathy. At the same time, one cannot ignore, and perhaps at present one cannot accurately assess, the consequential effects of a provision of this kind on existing marriages and the existing tendencies which are now current among our population.

I have thought it right—I hope your Lordships will not think I have spoken for too long—to make a few observations in relation to this clause. We are not confronted here with a clear-cut issue: should we reject divorce based upon matrimonial offence and go over to a system, if one could be devised, of saying there could be a divorce on the fact of the breakdown of marriage without any prospect of reconciliation? But what we are being asked to do is to graft part of the latter system after seven years have elapsed on to the existing inconsistent system of the law of divorce based on matrimonial offence.

LORD CHORLEY

I should like to make one or two observations in reply, particularly, to the speech of the noble and learned Lord the Lord Chancellor. He made two points to which he attached particular importance. First of all, he said that it was illogical to deal with this problem by going over, so to speak, to the breakdown of marriage theory, because the whole of the divorce law otherwise was based upon the penal doctrine. That, no doubt, is illogical up to a point. But law reform proceeds largely by illogical steps of this kind. The introduction into our law of the insanity point, which, after all, is within his recollection as it is within mine, was a step of exactly that kind, and I think everybody has agreed this afternoon that that was a very salutary reform.

The other point he made was that the safeguarding subsection, subsection (3), gives no guidance to the Judges as to how they are to operate it. The noble and learned Lord must know quite well that there are literally dozens of Acts of Parliament which give the Judges general powers of this kind. They proceed in the typical British way by empirical methods, building up a doctrine by means of which they deal with matters of this kind. I could give many instances. Take the case of the suspending of a motorist's driving licence: it is to be suspended unless for good cause the court decides otherwise. What could be more vague than that? Yet the Queen's Bench Division over the years since this provision was introduced has developed clear doctrines which enable it to be administered by the courts. That can be done perfectly well in this case by the able Judges who administer the law.

There are many things that one could say about this matter, and I would say them, even at the risk of being described as superficial by the noble Baroness who sits in front of me, but I appreciate that your Lordships are anxious to get to a Division, and I will add only this. It seems to me that the present system is a thoroughly dishonest one, and it is absurd to suggest that there is not a great deal of collusion going on. The parties know perfectly well that by collusion they can get a divorce. Is not this one of those fundamental dishonesties which is at the bottom of all the trouble with which our society is confronted at the present time? We have a case like the Profumo case, and we say that the morals of the country are crumbling. But if you bring the community up on this sort of basis that is exactly the way in which you get the situation in society in which cases like the Profumo case can happen. I suggest it is up to us this afternoon to sweep this away and to establish an honest doctrine.

LORD MESTON

I should like to say a word or two on this important matter. I am not taking an easy view of marriage at all: in fact, I think that every divorce is a tragedy, especially if there are children. There are two aspects of marriage. One is the religious aspect which is the dominant one and which I trust will always remain dominant. The other is a purely factual aspect. If you have two people who have not been living together for seven years and who never intend to live together again, then, from the common-sense points of view, the marriage has actually broken down and the religious aspect has entirely disappeared. I am sorry to say such a thing and I have no doubt that the most reverend Primate will not agree with me, but I cannot help it. I have said worse things in my life and I am still alive.

What distresses me is that no one seems to consider what actually happens in practice in these cases. You have two people who have been living apart for seven years. In a large number of cases they have formed other unions and have created numerous illegitimate children. In my view, illegitimacy is one of the most terrible misfortunes that can befall anyone. It is much worse even than the tragedy of divorce. And if only these two people were allowed to be divorced by taking advantage of this proposed Amendment, then you would find, after they had married the parties with whom they had been living, that the illegitimate children would be legitimated. I understand that is the position to-day.

THE EARL OF LONGFORD

Would the noble Lord press that argument very much? Would the amended clause say that the guilty party would get a divorce against the wishes of the innocent party only if he proved that he had illegitimate children?

LORD MESTON

I would not restrict this clause at all. I quite appreciate that the noble Earl, Lord Longford, is opposed to me and, quite frankly, I am opposed to him on this matter, although I have great admiration for his work in other fields.

The question which must always arise is: what about the widow's pension. The Lord Chancellor will throw me out if I say that he has been ventilating a canard. But, upon my soul! obviously, one of the very first things a Judge in the High Court would have to do would be to get into touch with the administrative power and see what they could do about the pension. There is not the slightest reason why a wife who is divorced under this clause should not obtain 75 per cent. or 100 per cent. of the widow's pension should the man predecease her. These are very simple matters which can all be considered in due course, and I hope that we shall all take a different view of this matter and put an end to marriages which have broken down and which are, in fact, in many cases, the cause of illegitimate children and a matter of public odium and contempt.

4.13 p.m.

THE EARL OF IDDESLEIGH

I sit on a county children's committee, and among my charges are many children, both illegitimate and legitimate. I have no knowledge that the illegitimate children among my charges are any less happy or do any less well than the legitimate children in county care. But I do know that all children deprived of a normal home life are profoundly to be pitied and I do know that the legitimate children who come into our care arrive there because their parents have disregarded the obligations of matrimony.

I am opposed to this clause not only on the doctrinal grounds which have been so well expressed by the most reverend Primate, and which at this late hour I will not repeat, but also on the practical grounds that, as divorce is made easier, so the people, very often young people, who are to-day getting married will get married without that intention of forming a permanent union which is necessary to a true marriage. Day by day the bride and bridegroom read in our papers of the divorce of this or that famous or glamorous figure in national or international life. It must inevitably affect their view of the permanence of marriage. To-morrow, I suppose, a large number of young people will go to the altar. What will be the effect on the marriage of those young persons if they read the headline, "Lords approve easier divorce"? It is easy enough to see their comment: "What! even these stuffy old Peers! It cannot be wrong." It is because these easy divorce laws are undermining the very foundations of marriage that I am opposing this new proposal. What would happen under this clause? Up to now a man could not be certain of getting a divorce, whatever he did, unless his wife would co-operate and help him. Under the clause, if it were adopted, he could be reasonably certain of getting a divorce after seven years. And do not think that those seven years will be spent in celibacy.

THE LORD BISHOP OF EXETER

I have no argument to advance in opposition to this proposed new clause, but I should like to say a word or two to indicate that the arguments advanced by the most reverend Primate are arguments with which all of us on these Benches are in complete agreement. I should like also to underline three of them. The first is that there is, and must be, an element of injustice in this compulsory divorce. I do not see how it can be denied, and I see no reason to elaborate the argument further. The second is that we believe that although it is the intention and desire of those who promote this clause to cure unhappiness, it is our conviction that the way in which they propose to cure that unhappiness will, in the end, produce much more unhappiness.

We believe that, because we believe that once it is established by law that a marriage can be brought to an end either by mutual consent of both the parties, or even by a single unilateral act of will of one, you strike a grave blow at the stability of marriage and thereby run the risk of creating far more unhappiness than this clause would cure. You will strike at the happiness of ordinary marriages for the reason so skilfully deployed by the noble Baroness, Lady Summerskill. It is an argument which I call the fear of the ageing wife. Women age more quickly than men, and lose their sexual attractiveness sooner; and wives, as they age, are subjected to the fear that they may not be able to retain their husbands. If this clause were approved their fears would be immeasurably increased. That is our main argument.

I was glad that the noble Earl, Lord Iddesleigh, said something about these illegitimate children whose unhappiness has promoted this clause. I thought that I had a blind spot about illegitimacy and that I was the only person in England who never quite understood why it is held to be such a hardship. In spite of these illicit unions with which this clause is concerned, do children under sixteen, in fact, before they have to apply for a birth certificate for some job, know that they are illegitimate? I have no reason to suppose that my own parents were not married, but I never saw their marriage lines. Is the situation really so desperate for these illegitimate children as is made out? Except for that, I reiterate that we on these Benches are wholeheartedly in opposition to this proposed clause though fully recognising the sincerity with which it has been moved.

LORD KENNET

I wish to take two minutes of your Lordships' time to try to adduce doubts about two statistical statements which have been made in the debate. The first was from the noble and learned Lord, Lord Hodson, who said that each easing of the grounds of divorce increases the number of divorces in this country. It is certainly true to say that the grounds have been eased, and that the numbers have been increased. But there is another possible cause, and that is the fact that the financial burden of obtaining a divorce has been successively lowered. It is very hard to decide whether the increase in the total number is more due to the easing of the grounds or the lessening of the financial burden.

Secondly, my noble friend Lady Summerskill made great play with the fact that children of divorced parents go to psychiatrists and come up in court, and generally turn out to be incapable of leading their lives without help. But this, I think, is to bias the matter. If I am right—and there is a great deal of evidence to show that I am—it is the children of separated parents, which includes divorced parents, who are affected in this way. The factor which predisposes to delinquency, or any other sort of personal or social disorder, is the sheer absence of one parent or the other, not the presence or absence of a state of marriage between them.

That brings me to my main point. I am perplexed. I have listened carefully to this debate, and I have tried to make up my mind what it is that this ageing woman, mother of several children, loses if we agree to this Amendment. She does not lose her husband—she lost him seven years before. She does not lose her children: for, obviously, in any such divorce custody of the children would be given to the innocent party over whose objections the divorce is granted. Her property and money? Well, the man in the case is as rich or as poor as he was before. If he was able to support a legitimate wife and mistress he would also be able to support a legitimate second wife and first wife. It is true, as the Lord Chancellor told us, that the first wife would lose his pension rights, and it certainly seems to me that some cure should be found for this situation, in which a woman may be tempted to bastardise her husband's children for the sake of his pension. And I am sure many do it. I should welcome subsidiary legislation following this Bill, if the Amendment were passed, but I do not think that that gap in it is sufficient cause to reject the Amendment.

Then there is the wife's belief. I do not believe that she would lose her belief in such a case. If she believes that marriage is absolutely indissoluble by any human agency, it does not matter to her whether the court decrees the marriage at an end or whether it does not. If the marriage resides solely or principally in her intimate conscience and relationship with God it will continue, and in her eyes the second wife, though acknowledged by the State, will never be more than the husband's mistress.

Lastly, what is it becoming for us to do in this House? We have this Amendment before us, and to a certain extent, the eyes of the country, I suppose one may assume, are on what we dc. What proportion of us are divorced? I have the figures here: Lords of Appeal, none; Barons, 15 per cent.; Viscounts, 21 per cent.; Earls, 22 per cent.; Marquesses, 26 per cent.; Dukes, 30 per cent. They were the lucky ones. Life Peers, Macmillan creation, 3 per cent.

BARONESS SUMMERSKILL

Baronesses?

LORD KENNET

I believe none. No distinction was made by the un-sex-conscious investigator who produced these figures. As I say, they were the lucky ones; they were not held back by a spouse who refused to brim: suits when required, if that was the way round it was. I think that it would not become a House composed in this manner to resist any rational proposal for a slight widening of the grounds of divorce.

THE EARL OF PERTH

I know that your Lordships are most anxious to divide on this clause, and I will keep you only one minute or two. But I feel strongly, after listening to all the arguments, that what we are really discussing to-day, as the noble and learned Lord the Lord Chancellor said, is whether this Amendment would not make a complete mockery of marriage. My reason for saying that is that what would be introduced would be an entirely new principle, which is that you carry on with the marriage for as long as you desire it. It is true that it is disguised at the start by the reference to seven years, but that is really the heart of it.

On theological grounds, clearly this is bad or wholly objectionable. But let us look at it from the social angle. In fact we should not think of it in terms of what happens after seven years, but what happens at the start. For young people who are going to come together, the marriage ceremony could go something like this: "Will you live together for as long as you desire it?" That is what it would come to, in essence, if we passed this Amendment. And the sequel to that would be the end of our social system, great unhappiness, more divorces, more broken marriages, more illegitimate children. If you want to see an example of that you have only to look at what happened in cases like the Scandinavian countries, where illegitimacy, I understand, is up by some 500 per cent. I hope we shall not be thinking in technical terms, but let us look at the heart of it and turn down the Amendment.

THE EARL OF GOSFORD

May I ask the noble Earl to look back to his own marriage? Does he sincerely think young people go into marriage—remembering what was in one's mind at that time—thinking, "I can get out of it after seven years".

THE EARL OF LONGFORD

I am afraid I disagree with the noble Earl. I suppose 30 per cent. of Dukes went into marriage in a fairly light-hearted spirit. But one point is, if marriage was going to be undermined in this way people would go in with a less solemn spirit. It is the long-term effect with which we are concerned; that is the point the noble Earl must grasp. We are gravely concerned how people will go into marriage if, in future, they know they can get out of it whether they are the guilty party or not.

Reference has been made to the theological point of view. Certainly with many religious leaders present I am not qualified to discuss that. But I should like to say this: that many of us of various denominations believe that when we marry we are entering into a contract sanctified by God and indissoluble. That view is very widely held. There are others who do not hold that point of view. The long-term, practical consequences of what you might call divorce by consent have been stressed by many speakers. But I cannot understand anybody with a heart to feel—and that applies to all my colleagues and I imagine all noble Lords, certainly someone like the noble Lord, Lord Kennet, and other speakers—can seriously justify, on reflection, one aspect of this clause, the aspect that will enable a guilty man to dispose of an innocent wife. That is what is going to be permitted. It would be opposed to any sort of ethical code, whatever you like to call it, utilitarian, humanist or Christian. This is something to me positively disgusting, to confer this power on a guilty man who will come forward and claim, because he has got illegitimate children, or might have some at some time or other, that he must be allowed to put away this woman. I cannot tell the noble Lord how revolted I am by this aspect, if we pass the clause: we pass it with that aspect very prominently in our minds. I must not say more but I really cannot say less.

LORD MESTON

Can the noble Earl, Lord Longford, tell us, instead of being revolted, what is the factual position of two people who have not lived together for seven years and never intend to live together again?

THE EARL OF LONGFORD

The answer to that is fairly obvious; they are living in a state of separation.

LORD SHACKLETON

I think the time has come when we should divide, would only say, very quickly, that I personally, as the Member in charge of this Bill, am very grateful to the Committee for the moderation it has shown. I should like only to correct two points. First of all, I would dispute Lord Hodson's statistics on divorce. I have figures which could tell a different story, but I do not think either set of figures is significant to the argument.

The second point I must make clear—because there seems to be an impression that in rejecting the idea of grounds for

divorce other than for matrimonial offence the Royal Commission were against this proposal—is that it was, in fact, the proposal of half the members of the Royal Commission, nine, who suggested what the Lord Chancellor was objecting to, which was that in addition to the matrimonial offence the fact that the marriage had broken up should also be grounds for divorce. Admittedly, they added certain conditions, such as the consent of one of the parties; and I would suggest to the Committee that they should, if they in fact are inclined to this view, pass this Amendment to-day. We can then consider the noble Lord's Amendment to it on Report stage, to give the right of consent, which was what aroused the anger particularly of my noble friend Lord Longford. We shall then achieve what those of us, I am sure we are all agreed, sincerely believe to be an important means of easing great unhappiness and sorrow—we shall be able to advance towards that. But I will not advance any further argument. I think the time has come to vote, and I hope that we shall at least keep this matter open by passing this Amendment to-day.

4.36 p.m.

On Question, Whether the proposed new clause shall be there inserted?

Their Lordships divided: Contents, 31; Not-Contents, 52.

CONTENTS
Archibald, L.	Grantchester, L.	Lucan, E.
Boothby, L.	Harmsworth, L.	Margesson, V.
Burton of Coventry, B.	Harvey of Tasburgh, L.	Meston, L.
Chorley, L.	Huntingdon, E. [Teller.]	Monson, L.
Cranbrook, E.	Jellicoe, E.	Moyne, L.
Effingham, E.	Jessel, L.	Sainsbury, L.
Francis-Williams, L.	Kennet, L.	Shackleton, L.
Fraser of North Cape, L.	Latham, L.	Silkin, L.
Gladwyn, L.	Layton, L.	Strang, L.
Gosford, E. [Teller.]	Listowel, E.	Stuart of Findhorn, V.
		Williams, L.
NOT-CONTENTS
Albemarle, E.	Dilhorne, L. (L. Chancellor.)	Lichfield, L. Bp.
Ampthill, L.	Douglas of Barloch, L.	Longford, E.
Auckland, L.	Ebbisham, L.	Lucas of Chilworth, L.
Brain, L.	Exeter, L. Bp.	MacAndrew, L.
Canterbury, L. Abp.	Forstor of Harraby, L.	McNair, L.
Carnock, L.	Furness, V.	Milverton, L.
Chichester, L. Bp.	Hailsham, V. (L. President)	Monsell, V.
Clwyd, L.	Hawke, L.	Montgomery of Alamein, V.
Cohen, L.	Henderson, L.	Morton of Henryton, L.
Cowley, E.	Hodson, L.	Ogmore, L.
Craigmyle, L.	Horsbrugh, B.	Perth, E.
Craven, E.	Howard of Glossop, L.	Rathcreedan, L.
Cromartie, E.	Iddesleigh, E. [Teller.]	Robertson of Oakridge, L.
Denham, L.	Ilford, L.	St. Aldwyn, E.
St. Edmundsbury and Ipswich, L. Bp.	Sandford, L.	Soulbury, V.
	Shepherd, L.	Summerskill, B. [Teller.]
St. Just, L.	Shuttleworth, L.	Winchester, L. Bp.
Samuel, V.	Somers, L.

Resolved in the negative, and clause disagreed to accordingly.

LORD SHACKLETON

My Lords, I beg to move that the House do now resume.

Moved, That the House do now resume.—(Lord Shackleton.)

On Question, Motion agreed to, and House resumed accordingly.