HL Deb 18 February 1964 vol 255 cc811-25

5.25 p.m.

Order of the Day for the Second Reading read.


My Lords, this Bill deals with some rather fine points of divorce law and, I am afraid, is a very different matter from the subject that has just been before your Lordships. As is probably known to the House, the law of divorce in Scotland has always proceeded upon rather different lines from that in England and has been dealt with by separate legislation. For the same reason, the Report of the Royal Commission on Marriage and Divorce, which is contained in the White Paper Cmd. 9678, presented in March, 1956, contains separate recommendations for Scotland from those which it made for England.

The Bill to which I am asking your Lordships to give a Second Reading this afternoon puts into effect some of the most important recommendations which the Royal Commission made for the reform of the law in Scotland—that is to say, the most important that have not already found their way into law by one means or another. The Bill contains a number of instances where the law in Scotland is being brought into line with that already existing South of the Border. There are two or three reforms which are peculiar to Scots law, dealing with matters which do not arise under English law but which, nevertheless, will bring Scots law very much into line with that of England; and there is one innovation which was recommended by the Royal Commission both for Scotland and for England but has not yet arrived in this country. I think, however, that it is merely an extension of a principle which is already accepted on both sides of the Border, and I hope, therefore, that it will not be objectionable from that point of view. As this Bill is being introduced into your Lordships' House and the matter is technical and complicated, I think I should be doing wrong if I did not explain as quickly as I can, but nevertheless, I hope, with a sufficient amount of detail, the provisions of this Bill.

My Lords, Clause 1 is the equivalent of Section 1 of the Matrimonial Causes Act of last year which your Lordships passed; and, in fact, as the drafting of the clause shows, in Scotland it is really more a matter for the removal of doubt than a substantive change in the law. The law at the moment is that if a spouse commits a matrimonial offence and the other party to the marriage, knowing of the offence, later has sexual intercourse with the offending spouse, then there is a presumption raised in law that the innocent spouse has condoned the offence; and condonation is a bar to divorce. But as the law stands at present, the strength of the presumption is thought to be different according to whether it is the husband or the wife who is concerned. If it is the husband who resumes intercourse in this way with an offending wife, the presumption that he has condoned the offence is at the moment irrebuttable. If, however, it is the wife who is condoning or might be condoning the husband, she can rebut this presumption by saying that the act did not in all the circumstances amount to the full forgiveness and reinstatement which condonation involves. I think that this is an unjust and out-of-date distinction. It has been removed in England, and Clause 1 allows to the husband the same privilege as the wife at present has, to rebut the presumption of condonation, if he can, by evidence before a court.

Clause 2 is the equivalent of Section 2 of the same Matrimonial Causes Act of last year. Fourteen members of the Royal Commission, and your Lordships' House and Parliament in the English Act last year, thought that there should be a trial period of the two parties to a marriage living together after an innocent spouse has discovered that her partner has committed a matrimonial offence, and that this trial period might have the effect of saving the marriage. The difficulty of such a trial period at the moment is that if it takes place it might very well make subsequent divorce impossible, because of the same doctrine of condonation about which I have already spoken; that is, in the case of cruelty or adultery. In a case where desertion might be pleaded later a trial resumption of marriage would, of course, start the three-year period of desertion running all over again.

This clause gets out of these difficulties by allowing one genuine period of three months—not one month as the Royal Commission recommended, but three months, as occurs in the English Act—during which the spouses may try to salvage their marriage, and this trial period will be without prejudice to any subsequent divorce for adultery, cruelty or desertion if the experiment fails. There is one addition that I think ought to be made to this clause of the Bill, because if your Lordships approve the new ground of divorce which occurs in Clause 4(1)(b)—that is to say, intolerable conduct—then I think that a trial period in these cases ought also to be allowed. It is my intention, if this Bill is given a Second Reading, to move the necessary Amendment at the next stage to allow for that.

My Lords, Clause 3 raises a purely Scottish point, but if the clause is passed into law it will bring the Scottish law into line with that in England. In Scotland, in order to get a divorce for desertion, a pursuer (that is the petitioner, in English terms) has to show that he or she has been willing to have the defender (the respondent) back throughout the whole period of the three years upon which he or she is relying as constituting the period of desertion. This is an historical legacy, but I think that not only is it now unfair but it leads in many cases to what might technically be perjury—and I shall give your Lordships an example of each of those instances.

It is unfair in the sort of case, which I believe is one on record, where a wife deserted her husband and within the three years of the desertion period went to America, where she got a divorce and remarried. The husband, who for some reason sued in desertion, was asked whether he was prepared to have his wife back throughout that three-year period, and he said, honestly, that he was not; that when she remarried that was the end of his intention to have her back. In that case the court had no alternative but to refuse his decree. The case where something very near perjury arises is the sort of case where the wife is asked by her counsel for what period she was prepared to have her husband back, and she replies, "Until my lawyer told me that the three years was up". My Lords, neither of those can be good public policy, and I think that it is right that the opportunity for that sort of situation should be removed from the law. But your Lordships will note that the clause does provide that a pursuer will not succeed in getting a divorce, even now, if a genuine and reasonable offer by the defender to return has been refused.

Clause 4 deals with two new grounds for divorce. The first is wilful refusal to consummate the marriage, and the second is a doctrine which is almost equivalent to the English doctrine of constructive desertion. The first introduces for the first time in Scotland wilful refusal to consummate the marriage as a ground for divorce, and I think very little need be said about this. It is a ground for nullity in England, but I think it is more logical that it should be a ground for divorce, if we are tidying up the law, because, of course, it does depend upon an active course of conduct by the defender in such cases.

My Lords, the second part of this clause—subsection (1)(b) and subsections (2) and (3)—introduces intolerable conduct as a new ground for divorce. As I said, I think the effect will be very much the same as the present Ground in England of constructive desertion, but the machinery is a little different. I am not quite certain that the wording here is quite right, and it may be that here too some Amendments will have to be put down at the Committee stage. But the elements of this new ground for divorce, as your Lordships will see, are in the clause itself. First of all, the intolerable conduct—this is subsection (3)—is … conduct of a grave and weighty nature on the part of one spouse, which is such that the other spouse cannot in the face of it reasonably be expected to continue to adhere"— which is the Scottish term for "live together". There is a ground for divorce if there has been such intolerable conduct on the part of the defender in consequence of which the pursuer has refused to adhere to the defender, and has persisted in that refusal for a period of not less than three years.

It is intended to read this clause with Clause 7(2), which provides that mental disorder or lack of malicious intent on the part of the spouse guilty of the intolerable conduct shall not be a defence. I shall come on to that clause later, because it is a very important one. Your Lordships will see that there is a further provision in subsection (2) which is a safeguard in cases where a genuine offer to amend the offending conduct has been made, because, if this has been unreasonably refused, it can be a defence to an action raised under this particular subsection.

There are two criticisms that I think might be made of this provision. The first is that it is not right to exclude as a defence the whole of the mental disorder or unusual temperament on the part of the defender in quite the general way that it has been in Clause 7(2), and that this might be rather more narrowly defined in the Bill, for reasons which I think I can explain to your Lordships later. The second criticism possible is that the definition in subsection (3), where the word "reasonably" occurs, does not altogether make it clear that where the intolerable conduct upon which the pursuer relies has been provoked by the pursuer himself, then he should not be able to rely on his own provocation to found a divorce. It is intended that the drafting should cover this by the use of the word "reasonably" in subsection (3), but it may be that it ought to be made more explicit.

Equally, my Lords, there is the corollary that in subsection (2) there does not appear to be very clear mention that, in the case of the pursuer who is in receipt of an offer by the defender to amend his ways, there is the need that he, too, should be under a requirement to amend any provocation of which he himself has been guilty. It is covered, I think, by the word "unreasonably" in subsection (2), but if this is not altogether clear I intend to put it right at the Committee stage. It is rather a difficult point, and if your Lordships can assist in getting this drafting correct I should be extremely grateful.

Subsection (4) of Clause 4 brings in the ordinary property and aliment provisions which occur in all the other grounds for divorce under the Divorce (Scotland) Act, 1938. Clause 5 is the innovation of which I told your Lordships, and it provides another new ground for divorce—that is to say, where the defender is a person suffering from mental deficiency of such a nature that he has violent or dangerous propensities, and … there is no reasonable likelihood of his recovery from those propensities". The rest of the clause contains safeguards for the defender, to see that he is not unjustly put upon in these circumstances, and also a substantial machinery provision.

I think, my Lords, that the exceptional hardship that this type of violent and permanent mental deficiency brings is so analogous to that arising from incurable insanity that the relief granted already in the latter case ought to be extended also as the Royal Commission recommended to cases of mental deficiency. I believe that very small numbers would be involved, in any event, although that is not necessarily a criterion. But I further think, my Lords, that this is very largely necessary only because of the greater accuracy in diagnosis of mental illness which exists nowadays, and it might well be that not long ago some of these people would have been considered insane rather than mentally deficient. My Lords, if there are questions on this clause I shall be very glad to answer them, but I think it is all quite clearly set out how the change is to work, and I hope that your Lordships will agree that it is a good innovation.

Clause 6 is also an attempt to bring Scottish law into line with the law South of the Border. The existing law in Scotland is that in a cruelty case the pursuer has to satisfy the court that at the time when the action is raised he or she needs protection from the defender. This view is inherent in the present law, because it was an essential element in the decree of separation á mensa et thoro which in turn, under Section 1(1)(c) of the Divorce (Scotland) Act, 1938, was made the foundation for divorce on the ground of cruelty; and therefore this doctrine has sifted through into the law of cruelty to-day. I think that in England, since the judgment of my noble and learned friend Lord Hodson in the case of Swan v. Swan in 1953, which is reported in the Law Reports, Probate Division, at page 258, the protection element in English law has now been so disapproved of that it will not be raised again.

It is true that that case has, I believe, been recently overruled on its substantive decision, but I do not think anybody doubts that in England the protective element at the time the action is raised is no longer a matter that is going to be taken into account. But, in Scotland this is not so; and as I understand it, the requirement for protection at the time that the action is raised is still something to which the law has regard. The reason for the change is, I think, one of policy. Where the defender has injured the pursuer's mental or physical health or has adopted conduct that has caused real apprehension of such injury, the pursuer should be able to rely on the past occurrence and not also show the need for present protection; particularly in cases where there is no need for present protection—in cases where the defender is under some form of restraint. In those cases, as the law at present stands, it is impossible to give a divorce on the grounds of cruelty because there is no need to do so for the present protection of the pursuer.

I think the protection doctrine may very properly remain as a cause for judicial separation in Scotland, as now; but the idea of bringing it in in cases of cruelty seems to me to be an instance of mixed thinking. I think cruelty grounds of divorce in Scotland should be shorn of this complication, as they have been South of the Border. I am not sure that this is not the most important of the aspects of the Bill, when one comes to look at Clause 7(2), because here, too, there is a further complication in the law of cruelty for divorce; and your Lordships will hear about that in a moment. If I have oversimplified this matter in some way it may be again that there is room for improvement; and your Lordships may be able to suggest a way in which I should define this simple idea in clearer and simpler terms. If so, I shall be glad to listen to them.

Clause 7(1) deals with another purely Scottish point. In Scotland, hitherto, desertion has been treated as a refusal by the deserting spouse to adhere to the innocent spouse. Your Lordships will remember that Clause 3 dealt with the innocent spouse's duty equally to adhere to the defending one, but this is the other way round. If, however, as the law at present stands, the innocent spouse commits adultery during the period of desertion (three years) that ends the deserting spouse's duty of adherence to the innocent one. Thereafter, there is no possibility for the innocent one to get a decree on the grounds of further desertion. This bar operates, whether or not the deserting spouse knew of the innocent one's adultery, and, indeed, whether or not it affected his decision either to desert in the first place or to continue his desertion.

Subsection (1) of Clause 7 proposes to abolish this technical and, I think, obsolete rule; and it will make adultery a defence in future only where the defender can show that it was a cause of his original desertion or a cause of his continuance in desertion. I hope, therefore, that that will bring the matter up to date. I think the only other word I should say on that is that, when considering this matter, it should be borne in mind that in Scotland there is no such thing as a discretion statement. Consequently, the deserting spouse would not be likely to rely on the innocent one's adultery, about which he would, of course, not know unless he had been influenced by it; and I think it would be a satisfactory outcome if this subsection is passed into the Bill.

I have already said several things about Clause 7(2). This is also an implementation of the Royal Commission's Report and recommendation. Perhaps I ought to start with its application to cruelty. Your Lordships will see that it abolishes, in the case of cruelty and intolerable conduct, for the new grounds I have introduced, the defence of mental disorder or lack of malicious intent towards the pursuer. I think there are two grounds why this should be done. One of them is the ground of policy and the other is because the same thing has now happened, so I understand it, in English law. On the grounds of policy, to start with, if it is not so much the future protection of the innocent spouse that should be the criterion, but rather the actual or apprehended injury in the past, then I think it must be the right approach to rule out as a defence, really as a subordinate and not so important fact, the consideration that the defender was at the time under some mental aberration; because the fact that he was so does not in any way destroy the pure fact of the injury or apprehended injury to the pursuer that took place in the past.

The same applies in the case of intolerable conduct. In that regard there was never any question of future protection to muddle the issue at all. I very much agree with the policy that the Royal Commission preferred in paragraph 256 of their Report, when they said: On the one hand, where the wife (say) is still fearful of further injury were married life to be resumed, and all affection for her husband has been destroyed by the cruelty suffered, ought the remedy of an immediate divorce to be denied to her? On the other hand, where acts, though cruel, have been done by a man who was insane, ought he to be penalised by an immediate divorce without any waiting period to allow for the possibility of his recovering from the mental illness which alone has been responsible for the cruelty complained of? In our view, preference should be given to the interests of the injured spouse. We recommend, therefore, that insanity"— as a defence should be done away with.

There is also the English law; and two very recent decisions which have been made by your Lordships' House in the case of Gollins v. Gollins and Williams v. Williams which were decided last year. I see that my noble and learned friends Lord Reid and Lord Morris of Borth-y-Gest are in their places. They both took part in those decisions. As I understand it, what has now happened is that the English law has been clarified, overruling past cases on two points. First, it has been laid down—and on this my noble and learned friend Lord Morris of Borth-y-Gest dissented—that in future in a case of cruelty insanity shall not be a defence; and the other case, the one of Gollins, it has been decided that it is no particular matter that the offending spouse had no malicious intent, and was not aiming his cruel conduct at the other, but that cruelty could none the less still be held to have taken place. I think there has been adopted a much more objective test with special regard to the circumstances of the case in both these matters.

There are other grounds which might be put forward as relevant: unusual temperament on the part of the offending spouse; some mental disorder not reach- ing a degree of insanity, but nevertheless having an effect on the subject. These matters, as I see it, are not a defence in England, or in Scotland, and it is the intention of this subsection of Clause 7 to assimilate the whole of this field with those existing subjects. In other words, it shall be open to the court to decide—upon the circumstances of the case, including insanity or including lack or presence of malicious intent—whether or not cruelty has taken place. I hope, therefore, I have sufficiently clearly drafted this subsection to bring the Scottish law into line with the English in the two decisions I have mentioned; and I hope also that the policy behind it will have your Lordships' approval. Clause 8 deals with a technical consideration. It empowers the court to award interim aliment—alimony—in cases of desertion or intolerable conduct, in circumstances where there is a technical complication due to the court's insistence on adherence. This insistence is now being removed, and consequently the court will have a power which it is thought it might very well not have had before. Clause 9 defines some of the matters which occur in the Bill.

I hope that your Lordships will forgive me for having taken up so much time in explaining this Bill; but as your Lordships will have seen, it is not a straightforward matter. If I can clear up any questions that noble Lords may have upon it, I will willingly try to do so, but I hope that on the principle, at any rate, I have satisfied your Lordships that this is a desirable Bill which should be given a Second Reading. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a. —(Viscount Colville of Culross.)

5.51 p.m.


My Lords, I think that we should congratulate my noble friend on his enterprise in tackling this rather thorny subject, and I am sure that we are all very much indebted to him for the clear way in which he has expounded the provisions of the Bill. It introduces a number of changes, and some of them are much more important than others. For my own part, I would accept them all in principle. Some I am not very enthusiastic about. Some, I think, certainly ought to be introduced. But I would not oppose any of them, subject to certain drafting alterations, to which I shall refer in a moment.

Clauses 1, 2 and 3, and the first part of Clause 4, seem to me to be unexceptionable, subject to the Amendment to Clause 2, to which my noble friend referred; but the second part of Clause 4 is a much more important matter. I must say that I had some doubt about it, when I read the clause first, because, in my view, the drafting is much too rigid. I do not think that one would oppose the principle—which is the introducing into Scotland of the English idea of constructive desertion.

After all, what happens when two spouses fall out? One of them is generally guilty of intolerable conduct. It may be that the guilty spouse leaves and deserts the other; but perhaps more often the guilty spouse stays and, in effect, drives the other out of the house. On the face of it, the innocent spouse is the deserted spouse; but, of course, that is not the reality of the situation. The reality is that the fact that the spouse guilty of intolerable conduct has broken off the marriage and has, on the face of it, deserted the other is a mere accident. The availability of a remedy ought not to depend on that accident. But what the clause does not sufficiently allow for, I think, is the fact that very often the blame is distributed. You cannot say that one of the spouses is solely to blame. Indeed, the one who is apparently mostly to blame in the later stages may have a very good excuse. Provocation is by no means unknown. And it would be quite wrong that a spouse who has provoked the other, so that the other has behaved in an intolerable way, should then be able to turn round and say, "You have behaved badly. I want a remedy against you". That would be refused in England, but I do not think it would be refused under the drafting of the clause as it stands at present.

Then there are the very difficult cases where you find that the spouse who has been behaving badly has temperamental or other excuses, or perhaps may be ill for a period, and you have to make some allowances. It is always a difficult question how much allowance you are going to make for the spouse who has some excuse for his or her conduct. Here, again, I do not think that the Bill is sufficiently flexible to deal with that point. But my noble friend has indicated that he is very willing to consider Amendments, and if it would assist him in any way, I should be very willing to collaborate with him, and I hope, looking at the way in which he has presented his case, that it would not be difficult to find an Amendment for the Committee stage which would be acceptable to everybody. On that basis, I think that Clause 4 is a good amendment to the law of Scotland.

Clause 5 I do not object to. It looks, and it is, very complicated; and I think that some day we shall probably have to look again at all the provisions with regard to divorce for insanity. They are very complicated, and I think that they need tidying up. But I would not suggest that this is the right Bill in which to try to do that, and I think that my noble friend is well advised in retaining the present rather unsatisfactory arrangement for divorce for insanity and merely adding on mental deficiency as an alternative.

Clause 6, I am bound to say, puzzled me very much, when I first read it; but having listened to my noble friend, I think that his object in putting it down is a good one, though I am sure that the clause as it stands is liable to misconception. It is much too elaborate for the object which he has in mind, and I think that a much simpler clause would meet the whole point and would not be subject to the misconceptions which I feel sure would arise if the clause were passed in its present form.

What my noble friend is not seeking to do—and rightly—is to alter the nature of the acts which are required to constitute desertion; nor is he seeking to remove the present very necessary limitation that you cannot get a divorce for desertion unless you can show that your health either has been injured or is in danger of being injured. I think that experience shows that what may seem a rather illogical limitation is, in fact, a very necessary one; and what this clause seeks to do is to take away, if it exists at present (I am not sure), the necessity that the pursuer shall have to show that he, or generally she, requires protection when the matter comes before the court.


My noble and learned friend did say desertion. I am sure it was a slip, and that he meant "cruelty".


Of course, my Lords, this clause is dealing with cruelty. I am much obliged to my noble friend. The point is that the pursuer may have to show that he or she requires protection when it comes before the court. Logically, again, that is sensible. Because why give a person a divorce for cruelty, if it is clear that that cruelty is not going to be repeated? After all, divorces are to protect the pursuer. But there is this to be said. Some defenders are not merely cruel; they are also rather plausible rogues, and if you give them a chance of saying, when the case comes to the court, that they are now reformed characters, that may be believed. I think that if they have been guilty of cruelty, it is well to weigh the scales the other way; and what my noble friend is doing in this clause, although again it might appear a little bit odd, is, in fact, removing what can be a substantial source of injustice. Therefore, I would agree that this should be passed, if we can find a better and simpler form for the clause.

I do not think Clause 7 is necessary, but I see no objection to its inclusion; and there may be one or two other small, points, but only small points, which require examination. I hope my noble friend does not think that in criticising the drafting of the Bill I am criticising him in any way, because I have some suspicion that perhaps the drafting may not be his own personal work. I think he will probably be able to pass on the suggestions which I have made to someone who can assist us both when it comes to settling the new form of these clauses. Subject to satisfactory Amendments being devised, as I feel sure they can be, I would warmly recommend this Bill to the House.


My Lords, I think your Lordships would wish me to intervene quite briefly at this stage. It is now a well-established tradition in Parliament that divorce legislation is a field in which private enterprise flourishes. Your Lordships will remember that the first major change in modern times resulted from the efforts of a very Private Member in another place, Sir Alan Herbert. A year later, in the Divorce (Scotland) Act, 1938, there was similarly a private effort. So I would like most warmly to welcome this new upholder of this sensible tradition, and to add my congratulations to my noble friend, both on his enterprise and for the way in which he has spoken to-day.

The Government would be duty bound to intervene, if that were necessary. But, as with previous Bills, this one is concerned with adjustments within the established framework, and in such matters a Private Member's Bill provides a convenient opportunity to test the view of your Lordships' House.

The Government also have a responsibility for ensuring that what Parliament wishes to enact is in workable form. The Bill seems to us to be in such a form. The noble and learned Lord, Lord Reid, has made some proposals, and no doubt my noble friend will give them careful consideration. I am sure that he is grateful to the noble and learned Lord for his offer of assistance. I can offer, in the spirit in which he mentioned the matter, that we, too, will be very glad indeed to give any assistance we can in framing Amendments.


My Lords, I am grateful for the support the House has given to this Bill. I am well aware that there are probably defects in the drafting, but with the assistance both of my noble and learned friend Lord Reid and of my noble friend Lord Craigton I feel there should be no difficulty in getting them straightened out. Since all the variety of matters in the Bill seem to be acceptable in principle, I think I need say no more at this stage, except to thank the House for its reception of the Bill.

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