HL Deb 27 February 1964 vol 255 cc1236-48

3.43 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.—(Viscount Colville of Culross.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1 agreed to.

Clause 2 [Temporary cohabitation with a view to reconciliation not condonation]:


This Amendment implements the promise that I gave to your Lordships during my speech on Second Reading, that I would provide, in the case of the new ground for divorce of intolerable conduct, the same period of three months during which a reconciliation between the two parties might be tried without such action prejudicing a subsequent action for divorce which might unfortunately thereafter occur. The Amendment to deal with this problem is in the same form as that which is used for the provision as to reconciliation in the case of desertion, and I therefore think that it is a logical improvement in the Bill and one which ought to fall in with your Lordships' appreciation on Second Reading of the general principle of Clause 2. I beg to move.

Amendment moved—

Page 1, line 23, at end insert— ("(3) In calculating for the purposes of section 4(1)(b) of this Act the period for which the pursuer has lived in separation from the defender no account shall be taken of any period (not exceeding three months) during which the parties resumed co-habitation with a view to a reconciliation.")—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Divorce for non-consummation or intolerable conduct]:

VISCOUNT COLVILLE OF CULROSS moved to leave out subsection (1) (b) and to insert: (b) that the defender has been guilty of intolerable conduct, being conduct of so grave and weighty a nature that it has caused the separation of the pursuer from the defender and the continuance of that separation for a period of not less than three years. (2) In determining whether a defender has been guilty of intolerable conduct the court shall have regard to all the circumstances of the case, and except in any case where it is satisfied that the conduct complained of arose from the insanity of the defender shall not grant decree of divorce unless it appears to the court that the conduct complained of was inexcusable.

The noble Viscount said: I must, to start with, apologise to your Lordships for the fact that this Amendment is now in a different form, particularly subsection (2) of it, from that which was first circulated by the Printed Paper Office. I will first of all explain what I have done in this clause, and then I will try to explain why I have done it. I think this is probably the most substantial Amendment of those which are on the Order Paper for to-day.

In the definition of "intolerable conduct", I have amalgamated that which originally occurred in subsection (1)(b) of Clause 4 and the definition in subsection (3). I do not think that I have changed the definition as such, but I have put it together into a more compatible form, I hope. But I have added a further requirement to which the court has to have regard when dealing with this particular ground, and that occurs in the new subsection (2) of this clause. Now what I am very anxious to do is to meet the points raised by my noble and learned friend Lord Reid on Second Reading, and in all respects to bring this particular ground into line with the approach that has been made to this matter and to cruelty as a ground for divorce in the English courts, as I think this provides the correct flexibility of approach which is necessary in these matters where the facts vary so greatly from case to case and where one is in each instance dealing with people of quite different characteristics.

It seemed to me that it was essential that, in regarding whether or not intolerable conduct had taken place, the court should have regard to all the circumstances of the case. It should have regard to any question of the insanity of the defender—any unusual temperament, or any other matter of that nature, which affects the conduct of which he has been guilty, or may have been guilty—and also to any provocation by the pursuer which may have sparked off the conduct which the pursuer now complains about. Both these things will, I hope, be covered by the requirement in the new subsection (2), that the court should have a complete look at all the circumstances. I have sought also to assimilate this particular subsection with the new provision in Clause 7(2) of the Bill, which removes the defence of insanity in cases of cruelty and intolerable conduct. Of course, there was never any question of there being a defence of insanity to intolerable conduct before, because this is a new ground found only in this Bill, but I think it was at one stage, at any rate, a defence in cruelty cases.

I do not think it would be possible in logic to have a requirement that the conduct complained of should be inexcusable and, at the same time, to say that insanity is no defence, because it might very well be said that, although insanity is no defence in one case, you are nevertheless saying that it is a defence because Clause (4)(2) makes the conduct inexcusable. Therefore, I have not applied the further test of inexcusability in cases of insanity, because I do not think that the two could possibly fit together into one Bill. But, all the same, I think that the court, in taking account of all the circumstances of the case in the other types of problem which arise—unusual temperament, or the mental abnormality of one sort or another—ought to be able to see whether or not, in those peculiar circumstances, there exists some excuse for the intolerable conduct of which the pursuer is complaining; and particularly, perhaps, if the parties when marrying knew very well that the defender had an unusual temperament or abnormality, that the pursuer is not later complaining that he or she has made a bad choice.

The word "inexcusable" is new, so far as I know, in legislation; but it seems to be the best way to explain in compendious form in legislation the concept I am trying to put over in this particular subsection. I hope that it will provide the flexibility for which my noble and learned friend Lord Reid appealed on Second Reading. If it does not, I suppose that it will be possible to go back again and seek to improve it. But I am satisfied—and I hope that I have been able to satisfy your Lordships—that this is the proper way to deal with this, and that it meets the objections that have been raised. I beg to move.

Amendment moved— Page 2, leave out lines 11 to 14 and insert the said new words.—(Viscount Colville of Culross.)


The drafting of any provision dealing with a new subject matter for divorce is, of course, extremely difficult; and the drafting of this subsection is at least as difficult as any other that has preceded it. I ventured in the course of the Second Reading debate to make some criticisms of the rigidity of the original draft. I am glad to say that the new draft carries out everything I had in mind, and I venture to think that it is thoroughly workable. My noble friend raised the point about the word "inexcusable". It is true that that has no statutory authority, but in certain recent cases on which those of us who sit in your Lordships' House in a Judicial capacity have been engaged, the word "inexcusable" has been chosen as one suitable to express the idea that the noble Lord is here incorporating in this draft. Therefore, I think he is perfectly right to adopt it in this case. May I say that I am glad that he has been able, here and in one subsequent Amendment, to meet the points I made? I think the new Amendments—this and the following Amendments—meet all the points I have in mind and also, so far as I know, the points that were raised by any others who criticised the Bill.


The fact that the noble and learned Lord, Lord Reid, finds the wording satisfactory will be of great consolation to the noble Viscount, Lord Colville of Culross, and his satisfaction will in no way be diminished by the fact that he has not satisfied me; because in any division on these matters a "Reid vote" is much more weighty than a "Hughes vote". But I must say, looking at it from a point of view other than that of the two noble Lords who have spoken, and who are both legal people—that is to say, looking at it particularly as a layman—it seems to me that in the very great work which the noble Viscount, Lord Colville of Culross, has put in to get a satisfactory definition of this, he has gone from bad to worse.

The difficulty has arisen from the need to find a satisfactory definition of "intolerable". Two adjectives were added: for a divorce to be granted, there had to be "intolerable conduct", which was "of a grave and weighty nature". I looked up "grave" and "weighty" and the variety of meanings attributable to both these words is extraordinary—and not all of them are derogatory in any way. Conduct might be "grave and weighty" simply because it was extremely serious and extremely important. This raises the possibility of grounds for divorce getting through on this definition similar to some of the rather flimsy grounds which we are accustomed to read of in, say, the United States of America. Conduct which might appear completely intolerable to, say, a wife of a lighthearted disposition—so much so that she did, in fact, leave her husband—might give an entirely different impression to a learned judge. Now, in an effort to find a definition that will help Her Majesty's Judges in this matter, there is introduced the word which the noble and learned Lord, Lord Reid, finds acceptable, the word "inexcusable". It seems to me to be quite inexcusable to go to all these lengths to define the word "intolerable" and then to finish up by saying that "intolerable" conduct is to be a ground for divorce only if it is also "inexcusable", without in any way defining the word "inexcusable".

It seems to me that if Her Majesty's Judges need so much guidance on the meaning of the word "intolerable" we are not entitled to assume that they will be better off when it comes to the word "inexcusable". The meanings of both of these words are perfectly apparent to the lay mind. If it needs all this interpretation of "intolerable", and at the end of the day the matter is left entirely in the hands of the court, all that will happen will be a build-up of Case Law over a period of many years. What one Judge will consider "intolerable" may not at a particular time be considered "intolerable" or "inexcusable" by another. Although I did not have the benefit of being here during the debate on the Second Reading I gathered that that was the very thing the noble and learned Lord, Lord Reid, was anxious to avoid.

I want to make it perfectly plain that I support the inclusion of this new ground in the Bill. The last thing I seek to do, by any act of mine, to-day or on another occasion, would be to cause this clause to be removed from the Bill. But in view of what the noble and learned Lord, Lord Reid, said about the very great difficulty of finding a definition, and in view of the fact that the noble Viscount, Lord Colville of Culross, said that this was an attempt to bring the grounds into line with the almost similar conditions in England, I suggest (and I greatly regret adding still further to the labours which the noble Viscount, Lord Colville of Culross, has undertaken on this Bill) that another look should be given to the wording before the next stage of the Bill. It seems to me that we are in grave danger of making ourselves ridiculous if we go to all these lengths to define "intolerable" and end by adding a word of which we give no definition whatever. And it is on that word that the Judges are going to take their decisions; for they must be satisfied that the "intolerable" condition was "inexcusable".

Before coming into the Chamber today I had a word with the noble Viscount, Lord Colville of Culross, and I asked him in what circumstances conduct which has led to one spouse leaving the other for three years is "intolerable"; and in what circumstances that "intolerable" conduct becomes "inexcusable". The answer he made was that they were the circumstances he quoted: that the pursuer in the action knew before the marriage that the other spouse—husband or wife—had this peculiar disposition or temperament. But "intolerable" conduct does not really arise from any peculiar disposition or temperament. A woman or a man might know that the spouse-to-be was peculiar in particular ways without necessarily being able to anticipate his or her subsequent conduct. I think that by these words, having, perhaps, removed from the Judge the necessity to define what is "intolerable" conduct, we are requiring him to probe carefully into whether the degree of toleration or intoleration could or could not be excused by a reasonable person. In this matter of marriage, what is a "reasonable" person? What one person finds intolerable or excusable, or reasonable or unreasonable, will not necessarily be so found by another. And at the end of the day, it is going to be determined by what the Judge thinks is intolerable and what he thinks is unreasonable.

I am not opposing the Amendment. I want the ground to be in the Bill. As the noble Viscount has tried so hard, and if this is the best he can do, particularly when he has the assistance of one of Her Majesty's most eminent Judges, I doubt very much whether it would be any use my suggesting that I should try to put something down at the next stage of the Bill, because of the great danger that I should only make the matter still worse, although in view of what he has said it would be wrong to say that we should be going from the sublime to the ridiculous, because I think this rather verges on the ridiculous. I hope that the two noble Lords who have taken so close an interest in this matter may yet have another look at it, so as not to leave the House in the position we are in at this time: that, after they have taken all this trouble to define intolerable conduct, they leave completely undefined the inexcusability of that conduct.


Perhaps I could be allowed to add a word, because, as the noble Lord, Lord Hughes, has rightly said, I was to some extent responsible for instigating this change. The words "grave and weighty" have a very long history. They are almost words of style. I am not sure whether they started in Lord Stowell's time, 150 years ago, but they certainly started as early as that, and I think that lawyers have a pretty good idea of what: they mean in this context.

The words "intolerable" and "inexcusable" are used for two different purposes. When you look at a man's conduct and say that it is intolerable, in the sense that no ordinary person can be expected to put up with it, then you ask why it is intolerable. It may be intolerable because it was provoked. It goes back a long way in the history of matrimonial relations that a spouse who provokes the other is not to complain if that other behaves in what would otherwise be an intolerable way. He has brought the trouble on himself and he cannot then turn round and say, "You are behaving in an intolerable way and you cannot consider whether it was my fault or not." That is the reason why the word "inexcusable" is put in. You first look at the conduct and say, if you are going to stop there, that this conduct is quite intolerable; but then you ask, "Is it inexcusable?" Often it is brought about by provocation or, it may be, the well-known temperament of the other party, or by some of what the late Lord Asquith of Bishop-stone called the "wear and tear" of married life. And the purpose of putting in these two words is to see that the court is entitled to look at all the circumstances.

I think it would be undesirable to define "inexcusable". I think that a judge is well able to say whether in the whole circumstances conduct is or is not inexcusable. I think that my noble friend has given adequate definition of the word "intolerable", but, of course, in view of what the noble Lord, Lord Hughes, says, I will have another look at it, and possibly if my noble friend Lord Colville of Culross thinks fit, we could have a word about it. But I certainly think that, as it stands, it is not too difficult for the courts to interpret.


I am grateful to be fortified by the support of my noble and learned friend Lord Reid on this point and I am also very glad that the noble Lord, Lord Hughes, does not disapprove of the principle. I am as anxious as he is to get the matter right. I do not think I need add to what my noble and learned friend has said, because he has explained the different functions of these two words in the subsection, but there are one or two points I should just like to make to the noble Lord opposite.

First of all, when he is talking about the interpretation that a reasonable man would put upon this action or that, I would say that this may be a correct consideration when dealing with the "intolerable conduct" part of this clause as one of the grounds of divorce. What I do not wish, however, is that the pure standard of a reasonable man should be brought in when it comes to the second part of the job of the courts, to interpret whether or not the action was in the circumstances inexcusable, because that is where the trouble has arisen to a great extent in England. It has only just been resolved and, thanks to your Lordships' House, the law South of the Border has just been put into the position where the court can look at the individual characteristics of this husband or this wife in the particular circumstances of the case before them. It is precisely that individual appreciation that I wish to give the court in subsection (2) of this clause, and I think it would be the gravest error to go back now to some very strict objective or subjective test when dealing with this matter.

I would recommend to the noble Lord, Lord Hughes, that he reads the opinions on this subject in the two cases of Collins and Williams, decided in the middle of last year, which set out this extremely technical and long-standing problem with great clarity. I hope he will then begin to see how I have attempted in this subsection to deal with these problems, so as not to introduce them in this new ground into Scotland.

The other point I should like to make to the noble Lord is this. If it is a question of case law having to be built up, then it is, of course, a great safeguard that the cases from the Court of Session come to be heard on appeal, if necessary, in your Lordships' House in England, where if there is any conflict between the law in England and the law in Scotland it can be remedied by noble and learned Lords, such as my noble and learned friend Lord Reid. I think this is a very great safeguard for the principle that the Amendment puts forward.

I think the noble Lord should take account of the fact that the terms he has referred to are terms of art which are fully understood by lawyers, even though to the layman they may seem rather vague. I do not think that they are. But, having said all that, of course I should like to try to meet any point that troubles the noble Lord, and if he will get in touch with me I will see whether, with the help of my noble and learned friend, which he has so kindly offered, something can be done to improve the Bill further. Meanwhile, I beg your Lordships to accept this Amendment, which is the best I have been able to do, so far at any rate, and, if necessary, return to this matter on the Report stage of the Bill.


Would the noble Viscount be good enough to give me a note of where I can find the cases to which he referred, and let me know where I can find the equivalent English wording that deals with this situation? The last thing on earth I wish to suggest is that English lawyers can do anything better than Scottish lawyers. In saying that I would look at this matter, I hope it will not force me into looking at it from the point of view of a lawyer, because that is a fate from which I hope to be preserved.


I will willingly give the noble Lord the references to the two cases to which I referred. So far as the equivalent English wording is concerned, I think I am right in saying that it is not a statutory wording at all. It is based on the doctrine of constructive desertion, which has been developed by the courts out of the ordinary ground of divorce by desertion. It is the other way round from the facts as they might appear to the outside eye. I do not think the noble Lord will find any exact equivalent wording in any English Statute. Rather it is a matter of judge-made law which has been built up over the years. But I will gladly give the noble Lord any help I can in these references.

On Question, Amendment agreed to.


This is a consequential Amendment. I beg to move.

Amendment moved— Page 2, line 22, leave out subsection (3).—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6 [No requirement of protection in divorce for cruelty]:


I explained on the Second Reading of the Bill that there was only one object in Clause 6, and it was to remove from the ground of cruelty for divorce the requirement that the court should have regard to the present and future protection of the pursuer when they are considering whether or not to grant a decree. There was some question raised by your Lordships that I was going further than this and changing the actual offence of cruelty on which the whole ground of divorce is founded. This is far from my intention, and I hope that the new Clause 6 makes it clear that the object of the clause is the wholly restrictive one that I have mentioned. I hope that this will be satisfactory to your Lordships. I beg to move.

Amendment moved—

Leave out Clause 6, and insert the following new clause: (". In an action of divorce for cruelty under section 1 of the Divorce (Scotland) Act 1938 the court shall not be required to have regard to the need for present or future protection of the pursuer."—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Restriction of certain defences]:


I think the wording that I propose here to leave out is perhaps slightly strange and might, although it was not intended to, suggest rather a higher burden of proof upon the person seeking to satisfy the court than I intended. What I meant was that it should appear to the court, and that is what I now move to put in the Bill. I beg to move.

Amendment moved— Page 3, line 43, leave out ("the court is satisfied on the evidence") and insert ("it appears to the court").—(Viscount Colville of Culross.)

On Question, Amendment agreed to.


I have already mentioned that subsection (2)(a) of Clause 7 provides that it shall no longer be a defence in the case of cruelty, and now intolerable conduct, that the defendant is insane. I do not think that mental disorder, as such, ever was a defence either in Scotland or in England, and it was only insanity that raised this defence on the part of the defender. Therefore, there is no need to take account of anything other than pure insanity. That is what this Amendment provides for. I beg to move.

Amendment moved— Page 4, line 8, leave out ("mental disorder") and insert ("insanity").—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Extension of powers to court to award aliment]:


This, as I explained to your Lordships before, is a procedural clause. It seemed to me that the phraseology had become a little complicated. It is intended to deal with only one thing, and that is to give interim aliment to a pursuer where there is no question of that pursuer's being required to adhere to the defender. There was some doubt whether the court could give interim aliment where the pursuer was not prepared so to adhere. I have attempted in the previous drafting of this clause to express that with some particularity. However, I think the insertion of the words "with just cause" in the place where the Amendment inserts them will provide all that is necessary to explain the new jurisdiction that the court is getting. In consequence, Amendment No. 8 can also be passed, with your Lordships' approval, and leave out the last phrase in this clause. I beg to move.

Amendment moved— Page 4, line 14, after ("is") insert ("with just cause").—(Viscount Colville of Culross.)

On Question, Amendment agreed to.


This Amendment is consequential. I beg to move.

Amendment moved— Page 4, line 15, leave out from ("defender") to end of line 17,—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Interpretation]:


Since I have, for better or worse, now defined "intolerable conduct" in Clause 4(1)(b), there is no need for any reference to it in the Interpretation Clause, Clause 9. It should therefore be left out. I beg to move.

Amendment moved— Page 4, line 24, leave out lines 24 and 25.—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Remaining clause agreed to.

House resumed: Bill reported with Amendments.