§ 7.18 p.m.
§ Order of the Day for the Second Reading read.
§ LORD SHACKLETON
My Lords, I rise to move the Second Reading of the Matrimonial Causes and Reconciliation Bill. As your Lordships know, this is a Private Member's Bill which has passed through all its stages in another place. Like all Private Members' Bills in another place it is fortunate to have got as far as this House, and I hope that we shall be able to help it on its way. Although in another place they are scrupulous in not referring to our activities here, I think that I must pay my tribute to the instigator and inspirer of this Bill, Mr. Abse, who has shown extraordinary knowledge, ability and patience in dealing with a difficult and, at times, contentious measure. I would mention also that it has received considerable help from the Government and from the Law Officers—particularly in a technical way—but I am not suggesting that this necessarily commits the Government in any way to any or all of the provisions of the Bill as it stands. But it would be right to mention that it has beep helped on its way and, I believe, improved by their efforts.
The Bill as it now stands is mainly concerned with conciliation and with tidying-up. I appreciate that in moving it I have none of the experience that certain noble Lords have—or, indeed, Mr. Abse—in what is very much a legal 390 measure. Therefore I shall be at a disadvantage when the noble and learned Lords, Lord Denning and Lord Hodson, come to speak either in support or criticism. I am fortified by the fact that my noble friend, Lord Silkin, and the noble and learned Lord who sits on the Woolsack are here to explain some of the technical points. I should mention that it is a great pleasure to me that the noble Lord, Lord Hodson (though I am sometimes in disagreement with him), is to make his maiden speech, because I have served as a member of a board of governors of which he is chairman and I know the enormous quality and calibre he brings to considering a difficult issue.
The purpose of the Bill is to remove any inhibition which exists within the domestic law that might obstruct reconciliation between estranged parties. The other clauses are concerned with amending the law of collusion, which has caused great difficulties among solicitors, and sometimes causes special difficulties at the early stage of divorce proceedings in discussing problems concerning the future of children of the marriage, maintenance and arrangements for the matrimonial home. Though, fortunately, I have not been through divorce proceedings—I have just celebrated my silver wedding—like all of us who have had occasion to deal with people involved in divorces, I am aware of how painful, difficult and embarrassing it is to solicitors when reasonable arrangements cannot be even discussed without running the risk of collusion. This risk also inhibits the possibility of solicitors themselves contributing rather more to assisting reconciliation by bringing home to the parties concerned in precise terms what the effect of this may mean.
Finally, the Bill is concerned with giving power to the court to deal with stratagems adopted to defeat proper claims for maintenance and gives additional strength to the court in allowing lump-sum payments to be ordered in lieu of, or in addition to, maintenance or alimony, and thereby allowing maintenance proceedings to be dealt with by the court in a better manner than at present.
I do not propose to discuss the Bill in great detail to-day. I hope that it will receive a Second Reading, although, of 391 course, this will not imply that there will not be points on which noble Lords will disagree. But undoubtedly there is a great measure of support for the Bill as it stands at the moment. The first clause implements the unanimous recommendation of the Royal Commission, which drew attention to the fact that condonation by one spouse of a matrimonial offence committed by the other spouse acts as an absolute bar to a divorce being claimed in respect of that offence. An offence is condoned where the injured spouse, with knowledge of the material facts, forgives the other spouse and confirms that forgiveness by reinstatement in the matrimonial home. The husband who has sexual intercourse with an adulterous wife, with knowledge of her adultery, or with a wife who has treated him with cruelty, is deemed conclusively to condone the offence unless it can be shown that intercourse was induced by the wife by fraudulent mistatement of fact. The Morton Commission went on to suggest a period of trial co-habitation but, they said, whether or not there should be a trial period, they were agreed unanimously that it was anomalous that a husband and wife should not be on the same footing with regard to the presumption of condonation which is raised by acts of sexual intercourse between them.
Clause 2, which is sometimes known as the "kiss and make up" clause is intended to enable an injured husband (this does not apply to an injured wife) to cohabit with his wife without fear that by so doing, he condones the matrimonial offence and thereby reduces his chance of divorce. This recommendation was made by a majority of the members of the Morton Commission, fourteen of them, and has been strongly supported as likely to lead to more reconciliation and therefore to less divorce, which must be in the interests of society and certainly would be approved by your Lordships' House. These are the two main clauses.
Clause 3 is concerned with maintenance and alimony and gives the court power to make orders so that payments of alimony can be by lump sum, and Clause 4 is concerned with other aspects of maintenance and alimony. Clause 5 is concerned with giving power to the court to prevent any attempt to evade or defeat claims for financial relief where, for instance, 392 a person against whom proceedings are being brought, is about to make a disposition with the intention of defeating any claim for financial relief. I should emphasise that Clause 3 does not exactly follow the Royal Commission, but was strongly supported by the Solicitor General, and Clauses 4 and 5, I understand, have been drafted by the Law Officers as a consequence of suggestions which had been made by Divorce Judges.
I said, that it was not my intention to-day to argue at great length the case for the Bill, since I hope your Lordships will give it an unopposed Second Reading. For that reason, I do not propose to refer to the controversial issue of the seven-years divorce clause, the exclusion of which from the Bill I regret. It is possible that an Amendment may be moved to enable this House to discuss that matter, and it seems to me that the right time to deal with that will be when such an Amendment appears on the Order Paper. Therefore I hope that the harmony of to-day's proceeding will not be disturbed in any way by that particular issue. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Shackleton.)
§ 7.23 p.m.
THE LORD BISHOP OF LEICESTER
My Lords, I feel that before I come to the Bill it is necessary to explain to your Lordships that my presence here at this unusually late hour and that of my fellow Bishop is in no way the result of the strictures addressed to our empty Benches last night by the noble Lord, Lord Morrison of Lambeth. I am glad, if he had to rebuke us at all, that he rebuked us for our absence. That is much better than being rebuked for our presence. I am glad that he did it with tolerance and with expressions of kindly feelings to all Churches; for I have heard my predecessor in the See of Leicester, the late Bishop Guy Vernon Smith, speak with warm appreciation of his relations with the noble Lord when they were respectively Rector and Mayor of Hackney.
I must take one moment to remind your Lordships of something of which I am sure noble Lords are fully aware. It is extremely difficult, under modern conditions, for Bishops to play the part 393 they might like to in the legislative business of the House, as contrasted with the consultative business of the House, if I may make that distinction: because, whereas the consultative business can to some extent be foreseen and our engagements co-ordinated so far as possible, the legislative business is bound to wander over all times and seasons, and if we are committed to public duties in the country on which other people are dependent, it is obviously very difficult for us at short notice to adjust them. That is all I wish to say on that subject. If I were to get drawn any further I should have to consult my shop steward.
On this Bill we thought it wise that perhaps one of us on these Benches might say a word or two in welcome of it and in appreciation of the motives that have inspired its principal promoter. In the form in which it comes before us now it is obviously a Bill that all those who have the interests of happy family life and stable matrimonial relations at heart will welcome. I should be quite unable to go in detail into the exact legal force of these early clauses of the Bill, but it is clear to us all that: the result of these clauses becoming law will be to increase the likelihood of reconciliation between estranged parties, particularly by removing the fear of losing status in possible divorce proceedings by following a course of action which would appear to be humane, kindly in nature and often of having the express purpose of preventing the final break-up or of restoring some chance of reconciliation. That is obviously something which should be welcomed, and I have no doubt that the noble Lord, Lord Shackleton, is right in saying that it will receive a universal welcome in this House.
Other clauses put a stop to possible financial measures that can be taken by parties to divorce proceedings the result of which would seem to be against natural justice. I was not at all surprised to hear the noble Lord, Lord Shackleton, indicate that a debate might arise at some later date on the clause that was omitted in the final stages of the Bill in another place. I agree with him that the time for a full and considered debate on those issues will arise most naturally on the Committee stage, which might easily become a kind of Second Reading debate on that particular clause. There are, 394 however, one or two things that I should like to say, not about the merits or demerits of the clause, but in relation to the attitude of the Churches and others interested so far as the Bill has already proceeded.
After the withdrawal of the controversial clause by Mr. Abse, there was a good deal of suggestion in the Press and elsewhere that the Churches were wrongly attempting to dictate to the community as a whole how it should react to these possibilities, and that the day was past when the Christian sanctions could be assumed to apply to the country as a whole. I think it is necessary, therefore, that somebody should just remind this House, and through this House wider circles, that all that happened in that particular direction was that the leaders of the principal churches in this country issued a statement giving their own reasons for disliking, and hence opposing, that particular clause. Whatever we may think about the clause—and obviously there is room for a great deal of discussion about it—I think it has to be said that we have not yet reached the point where it is a crime for the leaders of these large religious communities to express in a public statement their own views on this or any other matter.
§ THE EARL OF LONGFORD
My Lords, perhaps I may interrupt the right reverend Prelate to say respectfully how very much I agree with him. But does he not think that in fact the strength of Christian witness is now growing the whole time? We are not declining, but growing in strength.
THE LORD BISHOP OF LEICESTER
It pleases me very much to hear the noble Earl express that opinion. I think there is much evidence that can be adduced to support it, although I always try to avoid committing myself on these broad generalisations. I am often asked at meetings whether I think there is a religious revival or a religious decline, and I think it is the kind of question that is so easy to answer without full consideration. However, that statement was made, and we are not to know whether or not it motivated the action taken in another place which I understand led the promoter of the Bill to withdraw that particular controversial clause.
395 The other thing I want to say about it is this. As legislators, whatever may be our personal views and convictions about religious or ethical matters in relation to divorce, we shall all agree that we must be guided by what is best for the whole community at this particular time in history. I know that I speak for fellow churchmen when I say that we do not hope, and we do not even desire, to impose on unwilling fellow citizens either the full rigour or the full blessing of the Christian marriage standard. That is something which, if they are to accept, they must accept from the dictates of their own conscience and judgment. Many exceptions to the full Christian standard as commonly understood have already been accepted, or at least tolerated, in the mixed society in which at present we live. But having said that, as legislators we have to do our best to preserve the institution of marriage so that it exists as a live option before every couple entering upon holy matrimony, and it has to be accepted by them as the normal outcome of what they are embarking upon.
If we come to debate this clause, or something like it, in weeks to come, and if the main point of the debate is likely to lie in this particular area, on the one side we shall have to scrutinise carefully the extent and nature of any further encroachments on the laws which aft present ensure stability and permanence for marriage unions. We shall also have to consider, from the other side, the extent and nature of any measures that may be conceived to mitigate hardships, prevent collusion, deception and subterfuge and to protect illegitimate children and their interests. Because some have thought it right to oppose the clause that has now been omitted, it must not be assumed that we look with self-satisfied and hypocritical favour upon these unfortunate results of the present law, which we recognise as much as anybody else.
Wisdom, so I believe, will emerge from an honest conversation between these two sides of the argument. It will not be helped by either side accusing the other of low and unworthy motives. I should like to put on record my sense of the sympathy, the humanity and courtesy which has motivated the promoter of this Bill in another place. But 396 I hope that those who have expressed themselves as doubtful about the wisdom of the clause now dropped may be spared immediately being classified as either bigots, fanatics or hypocrites.
§ 7.41 p.m.
§ BARONESS SUMMERSKILL
My Lords, we have a Bill before us to-day which, in this form, is entirely innocuous, and I have no doubt that the whole House will support it. Except for one aspect of it which I shall comment upon, I fully approve of it. I think my noble friend Lord Shackleton said that he hoped nobody would mention the clause which has been omitted—which, by the way, he said he regretted—in order to maintain harmony. I think in a matter of this kind that is entirely the wrong approach.
§ LORD SHACKLETON
My Lords, will the noble Lady allow me to interrupt? She realises that she is misquoting me. I never used the word "mention".
§ BARONESS SUMMERSKILL
I am sorry. I do not know in what context I said, "mention". I said that my noble friend regretted that a clause had been omitted. Surely I was right in that.
§ BARONESS SUMMERSKILL
It seems to me that the word "mention" is entirely irrelevant to that point. The noble Lord should not interrupt me on such an absolutely irrelevant matter. He said that he had no intention of mentioning—very well; he regretted that this clause was omitted. He having said that and then hoped in the name of harmony that we should not pursue this matter, I feel that those who do not see eye to eye with him and are very pleased that that clause has not been included in the Bill must say something about it; and I am glad that the right reverend Prelate realised that this matter is of such great importance that he made some most important comments on it.
I would say this also. I hope the House will realise that in the course of 397 the passage of this Bill through the Commons, it was not until the Committee stage that the other place and the country realised the implications of what I shall call the compulsion clause. It was a very curious thing. It took some time before the Married Women's Association, for instance—which is an association of intelligent women, who examine Bills of this kind very carefully, because they have a number of women lawyers on their executive—realised its true implications. The reason why I am going to discuss it is because I think that on the Committee stage—and I have it on good authority—an Amendment will be moved in order that this clause shall be debated, and I feel it is time that the House should realise the true import of the clause which has been omitted from this Bill.
I regarded the original Bill with the compulsion clause as a husband's Bill, drafted by a man who doubtless means well but who has failed to recognise that marriage has different values for a man and a woman, values which are determined by the fundamental difference in sex. The same different considerations influence their attitude to a break-up of marriage. I am not concerned with the theological approach or the doctrinal pronouncements of the Church; I am concerned with protecting the little earthly paradise, tie home, the source of most women's greatest happiness, which she has created for her children. This, I believe, can be more easily destroyed if this Bill with the compulsion clause becomes an Act of Parliament.
I was shocked to read that the Member in another place who introduced this Bill criticised Sir Jocelyn Simon, the President of the Divorce Court, for making some observations on the principle contained in this measure. I read the report of Sir Jocelyn's address on divorce, which he gave to a branch of the Magistrates' Association, and I think he should be congratulated for his wise counsel in a matter which is of paramount importance to the ordinary men and women of this country. We were told during the debate on this Bill that the primary objective of the Bill was to help illegitimate children. I heard this reiterated time after time. I take the view that in the long run the Bill with the compulsion clause in it would harm more children than it would benefit. The most effective way, 398 and the only ultimate way, to help illegitimate children is to deem all children legitimate, and mark only the union as illegitimate.
Before I speak further on the controversial clause which I expect will be moved in the Committee stage, I should like to comment on Clause 2 and say this about the reconciliation clause. This is the only qualification I have to make. This reconcilation clause is designed to help heal the marriage by allowing the parties to cohabit for three months after they have separated. Surely this is fraught with some danger for the woman—and, of course, this has been mentioned before. If she becomes pregnant during the trial period, presumably the husband can still assert that the trial was not successful and that he wishes to proceed with the divorce. Although this is a matter with which many of us are concerned, nevertheless I shall vote for this little Bill.
Now I come to what will be the controversial clause when it is moved in Committee. From my experience, the preservation of the home, especially with children, is more important to the wife than to the husband. The mother will strive to prevent the break-up, even if it involves persistent ill-treatment from her husband, for she believes that a home for her children should include the father. Finally, if he is guilty of a matrimonial offence generally repeated, she may admit defeat. It should be recalled that the Royal Commission on Marriage and Divorce in 1956 recommended that divorce should continue to be on the grounds of the commission of a matrimonial offence; and they were against making the breakdown of a marriage grounds for divorce. They also voted against divorce by consent, and by the compulsion of one of the parties after a number of years of separation.
Are we to ignore the advice of the Commission? After all, a great deal of thought is given to these Commissions before they are set up. The men and women who serve on them are carefully selected. Is it for us, within a few short days, to dismiss decisions to which they have come after, perhaps, months and sometimes years of careful consideration? Those who support this Bill with the compulsion clause claim that increased 399 divorce facilities make the family a sounder and more stable institution. They think that divorce should be made easier, so that more parents who have families outside marriage could marry and have legitimate children. But what of the children of the married pair and their happiness? Are they to be totally disregarded?
The voices of adults are always raised on these questions but the voices of the children of divorced parents are never heard. These children too often appear later on, after a divorve, as emotionally unstable individuals, and they come before the doctors, psychiatrists and magistrates as individuals unable to adjust themselves to their environment. It is sometimes argued that a home broken by divorce is better for children than one in which the parents indulge in frequent quarrels. I do not agree. I believe children can endure quarrelling parents because quarrelling is not alien to them. They hear it among their friends, in their friends' homes, between their friends' parents; they hear it in the school and in the street. But a divorce makes an end to the security which is important to the maintenance of a child's emotional stability.
If divorce is to be made too easy, then marriage is itself imperilled and the stability of the family threatened. Why should the happiness of one partner of the marriage be bought at the expense of the other partner and the children? Marriage is now undertaken so lightly that the 1960 figures suggest that where the wife is aged under 20 at marriage there is a one-in-four risk of divorce, and this Bill with the compulsion clause will encourage young people to undertake it more lightly; there is a certain release in seven years, whatever happens. In fact, with the compulsion clause, this Bill will make marriage for seven years, not for life. And the young person who is called a beatnik will enter into marriage quite lightly. If he makes a mistake at 19, whatever happens, he is out of it at 26, however badly he behaves. The innocent wife—or the reverse, the innocent husband—cannot object. They must consent to a divorce.
My Lords, how can one, on careful consideration of this subject, accept such a clause? It is sometimes argued that 400 we already have divorce by consent and that divorces are arranged between husband and wife. I have discussed this with lawyers and I find little corroboration. I, as a doctor, have been told the secrets of her married life by hundreds of women, but I have never had it confirmed that there are women who cared to sit all night in an hotel bedroom and read a book with a husband in order to facilitate divorce.
Those in favour of the compulsion clause which has been deleted claim that justice can be done to the separated and divorced wife and children of the marriage by making an appropriate maintenance order. This, I feel, is insult added to injury. How many men can support two families adequately? If they cannot, then the children of the first marriage must suffer. It is inevitable. The second wife is there, in charge, and it would not be her children who would suffer.
The financial aspect of the matter has been glossed over too lightly. The fact is that on divorce the first wife is no longer eligible for the National Insurance benefits, including the widow's pension. This goes to her successor. The first wife may be much older than the second wife. Let us examine the economic argument, which certainly cannot be ignored, a little further. A wife spends her youth and middle age rearing children and caring for the home and, consequently, freeing her husband to pursue his business. During these years, despite the great service the wife gives to the partnership, she is not legally entitled to one penny of the housekeeping allowance which she handles, and any savings are the property of the husband. Most deserted wives therefore have not a penny in their own right.
It cannot be ignored that the frequent pattern in the break-up of a marriage is for this woman, when the worst years of struggles are passed, to be replaced by a younger woman. This is factual. The newspapers tell us this every day. While, with the passage of years, the wife has lost her looks, the husband has had an opportunity of improving his financial position and consequently becoming more attractive to a certain kind of younger woman. My Lords, I have never yet heard of a young, good-looking woman being attracted to an 401 elderly man without money; and if any noble Lord knows of one case I shall be very pleased to hear it.
This Bill with the compulsion clause will remove the deterrent which might prevent some woman from having a liaison with a married man. The deterrent, namely, the risk that the association may remain indefinitely illegal. If divorce without the consent of the innocent party is introduced, then we shall establish a new form of marriage proposal. The older married man can ask the young woman to marry him in a few years' time. She will change her name by deed poll; seven years will soon pass; and she can plan for the wedding. There will be no anxiety on either her or her parents' part. In a few years' time she will marry a well-to-do man. No doubt this Islamic element in our institution of marriage will in time become quite respectable and the second selected wife recognised as part of our society like the young wives in polygamous marriages. If this Bill in its final state permits compulsion to be brought to hear on an innocent wife or husband, I say that it will serve to des-credit the whole institution of marriage in this country.
§ 7.56 p.m.
§ LORD HODSON
My Lords, it is with great trepidation that I venture to address your Lordships to-Night, in that I am very vulnerable, having been a Judge for a great many years. In fact, I think I am at the present time the senior man holding judicial office in this country; and Judges, if not notoriously, are somtimes accused of being averse to legal reform. It was a Judge, I think in this House, who was foremost in opposing the abolition of the death penalty for stealing. And I am in a worse position perhaps than an ordinary Judge, because for many years I sat in the Probate, Divorce and Admiralty Division, and, worse still, before that, at the Bar, I appeared for people who were in matrimonial trouble on both sides in connection with their own affairs, monetary affairs and their children. Before I make any suggestions of my own, I should like to say that in all my experience as a Judge, which extended in the Divorce Division from 1937 to 1951, I had the opportunity of listening to people of both sexes, people in great trouble, who bore their troubles bravely and with patience and showed 402 that they had done so over many years; and in listening to what might be thought to be dreary stuff I never lost my respect or affection for my fellow countrymen and countrywomen.
Having said that, I am going on to say something which may seem to be harsh, at any rate to the ears of those who desire to make divorce easier. May I begin by saying how heartily I support what the noble Baroness, Lady Summerskill, said about forcing a divorce on a woman—because that particular provision, which is not in the Bill as it stands, is almost certain to be brought up at the Committee stage, and I think it right shortly to state my views now. I do not propose to discuss the matter at length. It would not, I think, be a suitable time to do so, especially as the noble Baroness has set out the case against that provision.
I would emphasise that the economic factor seems to have been entirely overlooked by those well-meaning people who advocate this measure of relief to the long-suffering husband. The man who is a working man, the wage earner with £8, £9, £10, or £11 a week, cannot possibly afford to support two wives; and this provision in the Bill which is supposed to provide for a man making provision for his wife's maintenance before he gets this compulsory divorce after seven years provides, in my submission, a quite illusory safeguard. The man will not be able to do it. The woman with whom he is allowed to contract matrimony will get the money, and in some cases will get all the money, on Friday night, and the deserted wife will get nothing.
I had an experience in the village where I live of an unfortunate woman who had been left by her husband some years before—he had gone off with another woman. She was taking no steps to divorce him, and I said, "Have you thought about divorcing him?" She said, "No, I am not going to divorce him. I shall not get my money if I do ". Why should this woman be told by her friends or the husband's friends that she is being vindictive? I think a woman in that position is quite entitled to take the stand that her financial position, and indeed that of her children, will not be protected.
I also endorse what the noble Baroness said about children. I have had a good 403 deal of experience of listening to cases where children are involved. What she says about health—and, of course, from her own profession she is in a position to know something about children's health—is borne out by my own experience. I remember that one day Counsel in a case was addressing me about a child, and he said, "Your Lordship will no doubt be surprised to learn, perhaps for the first time in all your experience, that the dispute in this case is about a perfectly healthy child". That is the sort of situation which we are accustomed to see in the courts where there are disputes about children after divorce. I will not detain your Lordships further over this matter, because I do not propose to do other than declare my position as it will be if an attempt is made to reintroduce the clause which has been dropped.
I should like to say a word about Clause 1 and, again following what the noble Baroness said, emphasise the fact that there is a fundamental difference between the sexes. It seems to me quite monstrous to say that if a man, having found out that his wife has been unfaithful to him, sleeps with her and has sexual intercourse with her, he is not to be held as having forgiven her. That seems to me quite dreadful. Quite apart from the fact that she may become pregnant, the whole idea to me is revolting. The same consideration does not apply in the reverse situation, as all your Lordships will at once, I am certain, appreciate. A woman does not always find it easy to leave home when she has found her husband out, and she may be put in a difficult position even in resisting his attentions. But so far as the man is concerned, if in these circumstances he does have marital intercourse with his wife it seems to me quite deplorable, although the Royal Commission have reported in the other sense, that he should not be taken to have overlooked her infidelity.
The other matter I should like an opportunity of raising at Committee stage—and I hope I may be forgiven for mentioning it now—is perhaps of less importance; that is, this provision about collusion. It is a little difficult, looking at the draft Bill, to see what the draftsman has done; because, in order to understand it it is necessary to look at 404 the original Act. What he has done is to take the section about collusion into the clause which deals with absolute bars to divorce and include it in the provision which deals with discretionary bars. I should have thought that was unsatisfactory. If somebody goes to his wife and says, "I want a divorce", and she says, "I will give you a divorce if you give me £50,000. We will not raise any defence. Nothing will be said. We will keep everything quiet, provided that I am paid enough ", I cannot see why that should not be an absolute bar.
The argument on the other side is that nobody knows what collusion is; that everybody does it, anyhow; so let us get it out of the way, and make it easy to get a divorce after they have made an arrangement which is contrary to law. So long as divorce is based on the position that there is a complaint by one spouse against the other—because that is, broadly speaking, still the basis of divorce law in this country to-day—I find it very difficult to conceive a position in which collusion could properly be treated as only a discretionary bar to divorce as opposed to an absolute bar. I know that there is room for difference of opinion about that, and I know my noble and learned friend Lord Denning takes a different view, and so I think does the President of the Probate, Divorce and Admiralty Division. I do not propose to detain your Lordships any further about that.
May I revert for a moment to the serious part of this Bill, around which all the rest has been wrapped—namely, the seven-year clause, with its compulsory element? I said this in my evidence before the Royal Commission, and none of the writers on this subject that I have read has taken me to task for what I said then. I drew the attention of the Royal Commission to the extraordinary feature of our country that there is one law for the rich and one for the poor. As the noble Baroness pointed out, this seven-year business is going to help only the rich: the poor will not be able to make use of it at all. The odd feature of our law is that, husband and wife being taxed together as one, well-to-do people can have half a dozen wives all living at the same time, deduct all allowances for surtax purposes and go on as happily as before—or, I 405 will not say happily, but as well off financially. Before people begin to increase the grounds on which divorce can be obtained I think it would be a very good thing to have a look at the financial repercussions, not only as regards poor people but as regards rich people as well.
For these reasons, although not desiring to prevent this House from giving a Second Reading to this Bill, I indicate the line which I myself, as at present advised, should like to take at the Committee stage. May I, finally, thank the noble Lord, Lord Shackleton, my colleague, for whose judgment in other matters I have the most profound respect but not apparently in this, for the kind words he said about me in his speech?
§ 8.10 p.m.
§ LORD DENNING
My Lords, I am sure your Lordships realise how great a welcome we should give to my noble and learned friend, Lord Hodson, who has enriched our debate by a unique contribution. Versed as he is in many branches of the law, his unrivalled experience in this particular field is of the greatest value. Both at the Bar and on the Bench, I think I may say that he is outstanding, and his contribution to-day ranks as great among your Lordships' annals. While thanking him, I must say for myself, without his great experience, I most warmly welcome every clause of this Bill.
Divorce is always a failure. We spend on legal aid millions of pounds in helping people get divorces; but reconciliation, which should be the prime object of society for the sake of the children and the stability of family life, we do little for; and it is something to see that in this Bill we are remedying in this way some of the hindrances to reconciliation.
Let me take this first clause. My noble and learned friend deplores it; but in 1944 this House, sitting judicially, held that if a husband knowing of his wife's infidelity, attempting in a reconciliation to come together, has one act of sexual intercourse with her, he conclusively condoned her offence and could not thereafter seek a divorce. I have seen wives who know that law and have sought to entrap husbands by it. I can well recollect at least three cases where a husband, knowing of his wife's 406 infidelity, at her invitation, in one case in their own flat and in another case in an hotel, met his wife. They did not achieve a reconciliation and the husband afterwards sought a divorce on the ground of his wife's adultery. In those three cases the wife put up what I held to be a false case, charging that the husband on his visit to her with a view to reconciliation had had sexual intercourse with her. I was quite satisfied that the wife knew of the law and had sought to entrap the husband by this charge that he had condoned, and I did not hold it good. But, in truth, a law which so hinders reconciliation, which prevents husband and wife attempting in this way to come together again, is, I suggest, a bad law, and indeed the whole of the Royal Commission recommended unanimously that husbands and wives should be on the same footing in this regard.
Then as to the next clause I should like to say how much I would support it. A committee over which I had the honour to preside as long ago as 1947, recommended, again unanimously, that a party should not be held to have condoned an offence simply by coming together for a time and attempting reconciliation. You otherwise prevent people from attempting reconciliation, which they ought to do, or coming together again, and they lose any chance of divorce if they do not succeed. We recommended then, and a Royal Commission by an overwhelming majority have now recommended, that the fact that husband and wife try to make it up again, to forgive and start again, should not be conclusive condonation, and indeed that it should not be held against them. Three months is allowed. I should have thought that was just about right.
Then, in regard to the third clause, I am afraid I must find myself at difference with my noble and learned friend on the question of collusion. In Scots law collusion means an agreement to present a false case to the court. In English law any bargain between the parties about maintenance or about children may be challenged as collusion if it wears the colour of a bribe. If, for instance, the husband says to the wife, "I will see that you get special extra maintenance if you divorce me", or "I will let you have the children ", or whatever it may be," if 407 you divorce me ", or if there is the element of bribery into a bargain, it is held to be collusion.
Because of that, a feeling has grown up among solicitors that it is most dangerous to let husband and wife, or even the solicitors themselves, pending a divorce, discuss such questions as, "What is to be done about the children if we are to be divorced?" or "What is to be done about maintenance?" The wife wants to know before divorce what she is going to live on if there is a divorce, or what is going to happen to the children and about their schooling. At the moment, solicitors fear that if they discuss these matters or come to an agreement on them it will be said afterwards to be collusion, and therefore they do not attempt it. But only recently a case came before us in which solicitors had come to an arrangement and had advised the parties, and the divorce went through. We had to hold that it was collusion under the present law. But it only stopped that action; they could start another on the next day.
What this new provision says is that collusion is not to be an absolute bar to a divorce; that it is in the discretion of the Court. So all the parties have to do, as they should do now, is to inform the Judge what discussions have been held about the children, what discussions have been held about maintenance and, even though it appears that there was an element in it which was unsatisfactory or could be said to be collusion, the Judge is not bound to refuse a divorce; he has a discretion in the matter. That is all that this third clause in the Bill does: to make collusion a discretionary bar. On this clause also I would say that this Bill is greatly to be welcomed. I would say nothing on the controversial nature of a clause which does not yet appear in the Bill. I will wait to say anything I have to say at a later stage. I warmly welcome this Bill.
§ 8.18 p.m.
§ LORD SILKIN
My Lords, every speaker so far has more or less welcomed this Bill, and I imagine that it will receive an unopposed Second Reading. Therefore it is not necessary for me to comment on it at any great length. I should like to say just a word or two, first of all, about 408 the Royal Commission which sat for four years and reported at great length. So far as I know, their Report has never hitherto been discussed as a Report, either in this House or in another place. I think it is time that they were thanked for their efforts, particularly the Chairman of the Royal Commission, the noble and learned Lord, Lord Morton of Henryton, and the members, for the great work that they put into it. It is now nearly eight years since they reported, and it is to be regretted that the Government themselves have taken no action on it. That is a great pity, and I feel that it is not altogether desirable that a matter of this great importance should be dealt with by a private Member in a Private Member's Bill. Although I recognise that the members of the Commission were not unanimous on a great many points, I feel that the Government ought to have taken responsibility for doing something about implementing the Report.
I should like to thank my noble friend Lord Shackleton, for taking the responsibility of introducing this Bill in this House, which he did in a competent and able manner and without raising any controversial issues. He almost did, and the noble Baroness tried very hard to find some point of disagreement with him; but I really think that my noble friend did not intend to raise any controversial issue at this stage. I should like to say to the right reverend Prelates who are now sitting on the Bench that there is no complaint about their attendance this evening. They represent a very large proportion of the attendance of this House, far beyond their actual numbers, and we welcome them. I also very much welcome the way in which the right reverend Prelate the Lord Bishop of Leicester dealt with this Bill.
Finally, while I am on the preliminaries, I should like to congratulate the noble and learned Lord, Lord Hodson, on a very remarkable and, if I may say so, unusual maiden speech. I imagine that he must have made many speeches in this Chamber before his maiden speech—though not to this House—and I suppose that most of his speeches were controversial. Certainly this one was. I remember that when I made my own maiden speech I made the mistake, I think, of making it controversial. The 409 result was that I was constantly interrupted, and had to deal with these interruptions, with the result that towards the end the atmosphere became a little unfriendly. That was not the fate of the noble and learned Lord this afternoon, although certainly what he said was very controversial, and I thought it was very effectively dealt with by the noble and learned Lord, Lord Denning. However, we welcomed Lord Hodson's speech, and we are well aware that he comes to this House with an immense knowledge and experience of this subject which is not lightly to be disregarded. A noble and learned Lord who has had fourteen years of dealing with divorce cases must have a point of view which is entitled to respect, and I can assure him that when we come to the later stages of this Bill we shall certainly listen with the greatest attention to any comments he is able to make.
I do not think that it is necessary to say very much about the contents of this Bill, which, after all, is a very modest and harmless sort of measure, particularly after the explanations given by my noble friend who introduced it, and by the noble and learned Lord, Lord Denning. A good deal of this debate has centred on a clause which is not in the Bill at all and which, if my noble friend Lady Summerskill will forgive me, was not a clause that is likely to be presented to this House. I think that she rather misinterpreted the actual provisions of the clause that was finally omitted; and so also, I think, if I may respectfully and with some trepidation say so, did the noble and learned Lord.
In the particular clause that was omitted from the Bill there were so many safeguards that it would be quite wrong to construe it as compulsory divorce. If the noble and learned Lord will take the trouble of looking at that clause and refreshing his memory, I think he will find that there are very considerable safeguards and that there is no automatic divorce where the parties have been separated for seven years. However, we shall have an opportunitly—and I think I can say that with a certain amount of confidence—of considering this particular major proposal; because it is right that this House should consider it objectively. 410 The last thing I want to do now is to discuss its merits, but I am sure that we all have the same approach to marriage: we all hope that marriage means that people enter into matrimony regarding it as something permanent, and we deplore the fact that some marriages break down. Nevertheless, they do break down, and the question is what is best, first, to safeguard the institution of marriage, and also, and no less important, to safeguard the happiness of the individuals concerned. While I fully recognise that very often the wife is in an inferior position as against the husband, and needs protection, that is not always the case. We have to look at this question objectively, and see how we can help to ensure that when a marriage has finally broken down, and there can be no doubt about it, there should be some way of giving the parties an opportunity of seeking happiness elsewhere.
I do not want to embark on the merits of the Amendment which I have no doubt will be moved—in fact I hope to move it myself. But this House is being asked to-day to give a Second Reading to the Bill as it stands. It will have complete freedom to do what it likes about any Amendments that are proposed; and, if I may say so, this House is particularly qualified to take an objective view of this whole subject. I think it is a better tribunal for taking an objective view, by virtue of its composition, then the other place; and I hope that we shall have ample opportunity of considering all aspects of this question when I shall have an opportunity of once more disagreeing, I hope in a most friendly way, with my noble friend, with the noble and learned Lord, Lord Hodson, and with anybody else who takes a different view. I am sure that this House will, in the end, take the right course. I have great pleasure in supporting this Second Reading.
§ 8.28 p.m.
§ THE LORD CHANCELLOR (LORD DILHORNE)
My Lords, this has been a most interesting debate, and I wish that we had begun it at an earlier hour; but it has been a remarkable debate for the speeches that have been made in the course of it. There was a very authoritative speech from the noble and learned Lord, Lord Hodson. I am sorry the noble Lord, Lord Silkin, thought it was 411 in some respects controversial. That is an adjective which one is always apt to apply to a speech with the content of which one disagrees, but it does not mean that in fact it was a controversial speech. I thought myself that Lord Hodson was expressing, as he is fully entitled to do, a point of view based on long experience, without raising any single note of controversy at all.
§ LORD SILKIN
My Lords, I hope the noble and learned Lord on the Woolsack will feel that he can acquit me either of discourtesy to the noble and learned Lord, Lord Hodson, or of seeking to criticise him. I said it was an unusual maiden speech, and I even went on to say that I made the same kind of maiden speech myself.
§ THE LORD CHANCELLOR
I have no doubt Lord Silkin's speech was controversial, as he in fact admits it was, and that he was interrupted. It was only the use of that particular adjective on which I was seeking to comment.
The noble Lord, Lord Silkin, was in error, I am sorry to say, in certain respects. He began his speech by taking the Government to task and by suggesting that the Royal Commission's Report had never been fully discussed. My Lords, it was, in fact, fully debated in this House on October 24, 1956, and since then four Bills giving effect to the Commission's recommendations on a number of points have been passed, and were passed in 1958. I think I am right in saying that in each case the preparation of those Bills took place with Government assistance, as indeed in this case—and it is only right that it should happen in a matter of this kind—the proposals put forward in the other place had the assistance of Government Parliamentary draftsmen to get them in the proper form. When the noble Lord, Lord Silkin, says that the members of the Royal Commission should be thanked for their efforts, I well remember having done so myself in the course of the passage of one of those Bills through the other place. I mention that only to put the record straight.
It is, of course, to be expected that a good deal of this discussion this evening should have taken place in relation to the clause which is not in the Bill. If 412 I may say so, I thought that the noble Baroness, Lady Summerskill, made a very remarkable and thought-provoking speech, to which serious consideration will have to be given. I have heard her speak on many occasions, and I thought, if I might say so with the greatest respect, that this was really the best speech I have ever heard her make, from its content and from its delivery. There are real issues which this House will have to determine in relation, I believe, to every single one of these clauses. The idea of giving further opportunities for reconciliation as is proposed in Clause 2 of the Bill, and in subsection (2), is one which I have no doubt commands universal support. All of us dislike divorce. I do not think anyone really wants to make divorce easy, or indeed automatic, but the idea of giving an opportunity for reconciliation is, as I say, I think, one which commands support from all quarters.
I think, too, that there is great force in what the noble Lady said as to what the position will be when a man has resumed cohabitation, which can last under the Bill for three months, and his wife in consequence becomes pregnant. Is it really right—this is one of the subjects I think we shall have to consider in Committee—that, in those circumstances, after that has happened and the reconciliation not having been effected, the husband can turn round and say, "Now I am going to divorce you because the reconciliation has failed. Although you have now become pregnant, I am going to divorce you because of your matrimonial offence committed before this attempt at reconciliation "? I find it very difficult; and I hope that we shall have—and I am sure we shall have—a very valuable and interesting debate upon that particular subject. Indeed, really the same question seems to me to arise partly in relation to Clause 1 of the Bill. There the same consequences may occur. The conduct may be held not to be condonation, but it might result in a pregnancy. There are all these matters for consideration.
As to collusion, I listened with interest both to my noble and learned friend Lord Hodson and to my noble and learned friend Lord Denning. I must say that I myself come down on balance in favour 413 of collusion being made a discretionary bar. I fully accept the view put forward by my noble and learned friend Lord Hodson, in the case that he mentioned, that the bar should be applied. There are other cases and borderline cases where, because of one judicial decision, the freedom of the parties may be prevented. They may be held together when, in fact, the marriage has completely broken down. I myself feel that one can safely leave it to Her Majesty's Judges to apply that bar when it should be applied, and so one should make it a discretionary remedy.
I said that perhaps we should not tonight discuss the clause which has been omitted, and I do not propose to say more about it than this. I really cannot share the view expressed by the noble Lord, Lord Silkin, that the clause I have seen tabled for consideration was not a clause for compulsory divorce. The noble Lord said it would be wrong to describe it as compulsory divorce because of the safeguards it contains. I know it has safeguards, but the clause as I read it provides for a divorce being obtained against the innocent party, and without the innocent party's having any power of preventing it. Therefore, I would say that it is a provision for compulsory divorce.
I do not propose to say much more about this Bill at this stage. I think that Clauses 4 and 5 are very desirable, and will improve the law as it stands now. We shall obviously have a great deal to discuss on the Committee stage, and the views of people who approach this matter very seriously and carefully differ, quite obviously, with regard to Clauses 1, 2 and 3. No doubt there will be full discussion and a free vote on these issues. I hope this Bill will be given an unopposed Second Reading, because I think it is right and proper that these matters should be subject to the most careful consideration that can be given to them in your Lordships' House.
§ 8.36 p.m.
§ LORD SHACKLETON
My Lords, I am grateful for the support that has been given to this Bill and for the fact that it is clear that it will receive its Second Reading. I was pleased to hear the noble and learned Lord, Lord Hodson, make such an eloquent and powerful speech, and even more pleased to hear 414 it so powerfully controverted by the noble and learned Lord, Lord Denning.
I should just like to deal very briefly again with this point of Clause 1 and Clause 2, and the rather Victorian view expressed by the noble Lord, Lord Hodson, and that eminent Victorian, the noble Baroness, Lady Summerskill. It really does seem to me to be quite extraordinary to use such words as "deplorable" if any man makes an honest attempt to achieve the reconciliation of a marriage when confronted with the shock, as it may be, and the horror or the anger, as it may be, according to his temperament, of discovering that his wife has been unfaithful to him; and to argue that it would be wrong and for that to count as condonation for fear that there should be a pregnancy seems to me to be destructive of those very purposes which we seek to achieve. Indeed, if a wife, in those circumstances, did become pregnant, I think it is exceedingly likely, even more likely, that the reconciliation would succeed. It may be that the noble and learned Lord, with his long experience of the divorce courts, has a poor opinion of human nature, although I do not think that is so: he indicated a deep sympathy in his speech. It seems to me that, in those circumstances, for anybody who is not—and the great majority of people are not—as unutterably had as we might gather from reading the more extreme cases in the newspapers, this particular argument about pregnancy is one that ought not to be allowed to stand in the way of an honest reconciliation.
My Lords, I appreciated, too, the arguments of the right reverend Prelate, and the way he expressed his views; and I hope that we shall all approach this in a spirit in which there is not acrimony. Clearly, there will be points of strong disagreement. I am sorry that the noble Baroness, Lady Summerskill, attacked the honourable Member who moved this Bill for criticising the President of the Divorce Court. He will, of course, not be able to reply to her in another place, because their Rules of Order in this matter of criticism are much stricter.
§ LORD SHACKLETON
The President of the Divorce Court is perfectly able to 415 make a public statement; but this is a custom between the two Houses of Parliament and the noble Lady was long enough in another place to have learned the rules of behaviour in that House. But let me hope that the calming words of the right reverend Prelate will influence both the noble Lady and me in this matter.
I should just like to turn briefly to the missing clause on which the noble Lady did, in fact, misquote what I said. I do not agree—and I confess I am not a lawyer—that this can be described as a compulsory divorce. It seems to me that the terms which are drawn up are of the very kind to provide the sort of protection or, at least, some proper protection, both in terms of financial and personal circumstances, that would commend the interest and the support of the noble Lady and those who are critical. This is a matter which is going to arouse strong feelings; it is a matter over which 416 many of us are greatly concerned, and we and others who are opposed to the clause would find it very difficult to bring a moral judgment against the person who obtains a divorce in those circumstances. There are too many cases among the rich and the poor; cases which date back to the days before the desertion grounds were available; and it is clear we ought to have this out in this House and give it a proper discussion. But I do not intend to discuss it to-day. The noble Lord, Lord Silkin, has indicated his intention of moving the Amendment and there will then be an opportunity to do so. I am grateful to noble Lords for the encouragement—somewhat qualified, but enthusiastic on some sides—that we have had for the Bill as it stands.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ House adjourned at seventeen minutes before nine o'clock.