THE DIVORCE LAWS

HL Deb 23 November 1966 vol 278 cc239-62

3.0 p.m.

THE LORD BISHOP OF EXETER rose to call attention to the Divorce Laws with special reference to the recent Report entitled Putting Asunder and to the Report of the Law Commission on Reform of the Grounds of Divorce (Cmnd. 3123); and to move for Papers. The right reverend Prelate said: My Lords, the length of the list of those of your Lordships who have indicated your intention to intervene in this debate at once encourages and appals me, but it at least assures me that I shall be in no danger of being accused of wasting the time of your Lordships' House by tabling this Motion.

There is now abroad, I think, a certain sense of urgency about the need to reform the divorce laws. Indeed, the noble and learned Lord who sits upon the Woolsack has himself shown evidence of that sense of urgency, in that he immediately referred the Report of the so-called Archbishop's Group, Putting Asunder, to the Law Commission. The Law Commission then reported on it in a matter of some three or four months, showing a remarkable sense of urgency and promptitude. It is extremely convenient that this afternoon we should have both Reports in front of us, for the second Report—that of the Law Commission—is, in a sense, a commentary upon and a criticism of the earlier Report, Putting Asunder.

I think that the problem about divorce which confronts the country at the moment can be put in this way. Where there is a community which, on the one hand, sets a very high value upon the stability of marriage, because it considers that the inner family—that of parents and children—is the basic unit of its own society, and because it considers that the break-up of a marriage has the most deleterious effects upon the children of the marriage and that therefore the community itself may be endangered in the next generation if there are too many broken homes, but, on the other hand, insists that divorce shall be made available for those who find the continuance of their marriage unbearable, it is of the first importance that the divorce laws should do the least possible damage to the stability of marriage, whilst providing the relief demanded in a humane and decent manner. The question is: have we in this country at present that system of law? The two Reports, to which I am drawing your Lordships' attention this afternoon, are agreed in this: that both consider that our present laws satisfy neither of the two requirements.

The present law is based on the principle of the matrimonial offence. It dates from the time when divorce was rare and granted as a relief only in extreme cases, and it did not include the right to re-marry. To petition for divorce was the last despairing act of one whose marriage had become utterly unbearable by reason of the outrageous conduct of the other party. It was natural, therefore, that the court should demand clear proof of the serious matrimonial offence or offences complained of; that it should expect that the petitioner should be genuinely aggrieved: that there was no question of collusion or of condo nation; and that the petitioner was not also guilty of an equally serious matrimonial offence.

As this no longer agrees with our social climate, we do not approach the problem of divorce in the same way. Divorce does not now carry with it the same serious social consequences that it did, and the whole approach of the matrimonial offence—the serious aggrievement, the clean hands, the absence of any kind of collusion—seems now to a great many people to be altogether out of place. It seems that it results, all too often, in the artificial creation of an atmosphere of bitterness and hostility where none such need exist. This is most evident, of course, in defended cases, but it happens, also, in undefended cases.

It often happens that the two parties agree that there must be a divorce, and the so-called guilty party agrees not to contest the case, without realising that the inevitable consequence of this must be that he or she is branded in open court as guilty of this or that matrimonial offence and is therefore responsible for the breakdown of the marriage. It often happens that someone who has agreed not to defend a case has foolishly attended the hearing of a case and has been appalled by the terms in which counsel have represented the matrimonial offence; counsel having to make it clear to the judge that there is, indeed, an offence, and that it is complained of, and that it justifies the dissolution of the marriage. He or she is even more appalled when the other party to the marriage is called into the witness-box and agrees that, indeed, the conduct was so, and that he or she is now so aggrieved that the divorce is abundantly justified. It is then, very often, that bitterness is created between the two parties.

The present law is also held to be unsatisfactory, because to the ground of the matrimonial offences has been added another ground which is not an offence at all—insanity. In addition, the offence of cruelty has been interpreted to include behaviour which was not intended to be cruel but which has created an intolerable situation. That, too, is not an offence in the ordinary sense of the word, because there is no mens rea in it; there was no intention to be cruel. Further, the almost invariable use of the judge's discretion, and the issue of double decrees in favour of both parties, have whittled away almost to nothing the requirement that the petitioner should have clean hands and should be genuinely aggrieved. In fact, the courts are more and more acting not on the ground of the matrimonial offence at all, but on the ground that the marriage has irretrievably broken down.

It is not uncommon for a judge in the divorce courts to say to the two parties: "Both of you have committed matrimonial offences. Neither of you deserves a divorce. But it is in the public interest that this marriage of yours, which is irretrievably dead, should be legally ended." The courts are more and more acting on the principle that a divorce should be granted where a marriage has broken down. Lastly, the present law does nothing to solve the problem created by a broken marriage, where one of the parties enters into another stable, but illicit, union and the other refuses to sue for divorce. The two in the illicit union cannot marry, and their children must remain illegitimate.

However, I need not detain your Lordships any longer with criticism of the existing divorce procedure. It will, I hope, be enough to quote the conclusions of these two Reports. The Report Putting Asunder concludes as follows: That the law as it stands is unsatisfactory all the judges and lawyers who gave us evidence agreed, however much they differed concerning the remedies to be applied. We are far from being convinced that the present provisions of the law witness to the sanctity of marriage, or uphold its public repute, in any observable way, or that they are irreplaceable as buttresses of morality, either in the narrower field of matrimonial and sexual relationships, or in the wider field which includes considerations of truth, the sacredness of oaths, and the integrity of professional practice. As a piece of social mechanism the present system has not only cut loose from its moral and judicial foundations; it is, quite simply, inept. The Report of the Law Commission concludes: It seems clear that the present law does not adequately achieve the objectives of a good divorce law.…It does not do all it might to aid the stability of marriage, but tends rather to discourage attempts at reconciliation. It does not enable all dead marriages to be buried, and those that it buries are not always interred with the minimum of distress and humiliation. It does not achieve the maximum possible fairness to all concerned, for a spouse may be branded as guilty in law though not the more blameworthy in fact. The insistence on guilt and innocence tends to embitter relationships, with particularly damaging results to the children, rather than to promote future harmony. Its principles are widely regarded as hypocritical. My Lords, if, then, it be generally agreed that this is the case, what are the remedies at present proposed? If one concentrates on my first criticism—the unnecessary bitterness and the general unreality caused by basing the divorce law on the matrimonial offence—the obvious remedy to suggest is the substitution for the matrimonial offence of divorce by mutual consent of the two parties as the sole ground. After all, what better evidence can there be that a marriage has no future than that the two parties both agree that it cannot go on and want to end it? Who can better judge the condition of a marriage than the parties themselves? The answer to that, of course, my Lords, as any marriage guidance counsellor will tell you, is: almost anybody else.

But divorce by consent is open to the grave, indeed overwhelming, objection that it reduces marriage to a purely private contract and ignores the interest of the community. Many of the supporters of divorce by consent seem to recognise the force of this objection, at least where children are involved, and would limit it to marriages where there are no children or where the children are grown up. A further and equally serious objection is that the substitution of divorce by consent as the sole ground, or even its introduction as an additional ground, would cast the gravest doubt on the intention of those contracting marriage to intend a lifelong union. After all, if divorce by consent were introduced, what would the marriage vow really amount to—"Till death us do part, or we both decide to call it a day"?

To protect the lifelong character of the marriage vows from being utterly destroyed by the feasibility of divorce, it is essential that the final decision be that of the community and not of the parties themselves. One of the worst features of our present system based on the matrimonial offence is that, in fact, very often it is the parties who decide and the community is helpless to intervene. The point is well made in evidence, submitted yesterday by an ecclesiastical organisation to the Joint Parliamentary Committee on Divorce of the Parliament of Canada, in the course of an argument against the matrimonial offence in general and the addition of a further ground, that of separation, in particular. This organisation argued as follows (I quote from page 30): Under the 'matrimonial offence' system of divorce, the so-called 'innocent spouse' is the sole judge who decides whether the so-called 'guilty party' can ever remarry. Conversely, apart from the lucky 'innocent spouse' who obtains proof of the adultery of his or her 'guilty spouse' without the co-operation of that 'guilty spouse', the guilty spouse ' is the judge who decides whether the ' innocent spouse' can ever remarry. The 'guilty spouse' does this by concealing his or her misconduct and refusing to volunteer evidence of such misconduct. While the 'ground for separation' form of 'marriage breakdown' put before this Committee by the Canadian Bar Association is a distinct improvement over the 'matrimonial offence' concept, nevertheless it is the least attractive form of 'marriage breakdown.' If the period of separation of the parties is the sole criterion for determining the irrretrievable breakdown of the marriage, the party chiefly responsible for the breakdown would know with certainty that he or she would eventually gain the right to remarry. It is true that that right would not be gained for some years, but it shares the defect of the 'matrimonial offence' in that the parties, not society, make the ultimate decision. If the matrimonial offence or the period of separation is proven, the Court has no choice but to grant the decree.…Society has a vital interest in the stability of family life, and society should assert that interest by giving to its representative, the Court, and not to the parties only, the final decision". My Lords, I will say no more about divorce by consent except to quote the pejorative concluding comment of the Law Commission upon it: Divorce by consent—This would be practicable only as an additional, and not a sole comprehensive, ground. It would not be more than a palliative and would probably be unacceptable except in the case of marriages in which there are no dependent children. Even in the case of childless marriages, if consent were the sole criterion, it might lead to the dissolution of marriages that had not broken down irretrievably. Surely that is to damn with the faintest of praise!

If one concentrates on the problem created by the dead marriage and the co-existing stable but illicit union, the obvious remedy is to suggest the addition of a new ground—that of separation. That is Mr. Abse's Bill and the Law Commission's separation ground. I have already dealt with the main objection to this by my quotation from the Canadian evidence. Further objections appear on almost every page of the Report Putting Asunder. The essential point surely is that this leaves the matrimonial offence as the main ground of divorce and so does nothing to remove most of the unsatisfactory features of the present system. It is a tinkering reform and not a radical reform; and, as the Law Commission said, so long as a relatively quick divorce can be obtained on the ground of the matrimonial offence people will take that way out rather than to wait a longer period to get divorce on the ground of separation. Such evidence as there is from Australia goes to confirm that.

What the Law Commission actually said is this: The fact is that if someone can get a divorce by a speedy method, he will generally not wait until he can obtain it by a much more dilatory one, even if that method may avoid some of the bitterness and recrimination likely to arise in proceedings based on proof of a matrimonial offence. The Law Commission are hopeful in one of their own proposals that a separation of two years would be sufficiently short to dissuade people from unnecessarily having to resort to the matrimonial offence. I myself can see little reason for sharing that optimism.

My Lords, I come now to the third remedy proposed, that of the substitution for the matrimonial offence of the breakdown of marriage as the sole ground of divorce. There is no need for me to repeat the arguments in favour of this proposal. They have been set out at great length in the Report, Putting, Asunder; they are admirably and most fairly summarised in the Report of the Law Commission; and they have been widely canvassed in the Press. It will be enough for me to quote a sentence or two from Putting Asunder. …a divorce law founded on the doctrine of breakdown would not only accord better with social realities than the present law does, but it would have the merit of showing up divorce for what in essence it is—not a reward for marital virtue on the one side and a penalty for marital delinquency on the other; not a victory for one spouse and a reverse for the other; but a defeat for both, a failure of the marital 'two-in-one ship' in which both its members, however unequal their responsibility, are inevitably involved together.

If this principle of breakdown were adopted as the sole ground for divorce, the divorce courts would of course have to satisfy themselves that the marriage had in fact broken down irretrievably. Sufficient evidence of this would in most cases be contained in the pleadings which would include, inter alia, a statement of what, if any, attempts at reconciliation had been made. Sometimes, but by no means always or even often, the court might feel it necessary to make further inquiries. In such cases, Putting Asunder says: provision should be made for the intervention, when needed, of counsel representing the public interest or the interests of children of the family. Further, a body of workers would no doubt have to be recruited who would be available to help the court in a number of ways. They would not be needed in every case, but they should be available for use when and if the court required them.

The Law Commission, having carefully considered this proposal, view it with great favour, it seems to me, and reject it only on purely practical grouds. This is what they say: …we are forced to the conclusion that Breakdown with Inquest as proposed by the Archbishop's Group cannot, despite its undoubted attractions and our sympathy with the principles underlying the Group's approach, be made to work because of purely practical difficulties. The difficulties are, first, that cases would take longer; second, that more judges and more courts would be needed; third, that the suggested welfare officers to assist the courts would be unobtainable in sufficient numbers. Even if all this were true—and it is by no means certain that it is true—it would be poor reason indeed for rejecting a proposal which on other grounds is considered to be the best that has yet been put forward.

The fact that under the present system the average undefended case goes through a divorce court in about seven and a half minutes is nothing to be proud of; it is not a feature which should be preserved in any alternative system. The fact that urgent or desirable reform will involve the establishment of new tribunals and the recruiting of more civil servants, estate agents, valuers and what-have-you, has not prevented Governments—and least of all this Government—from pressing on with the reform of the Rent Act, Land Acts and tax laws, or matters which the Government hold to be desirable, essential or urgent. It is my contention that a reform of the divorce laws in the best possible way is, if not essential, at least desirable and urgent.

However, the Law Commission have, for purely practical reasons, turned down the proposal as put forward in Putting Asunder, but have suggested another form of it which, they claim, would meet the practical objections. The Commission call it "Breakdown without Inquest". My own opinion is that this proposal calls for a very careful and sympathetic consideration. If it came before Parliament in the shape of a Bill I think I should support it, except for one thing. The Law Commission argue that the period of separation required as proof of breakdown, if "Breakdown without Inquest" were the sole ground of the divorce, could not be longer than six months and that this would be unacceptable. Indeed, it would! But the Law Commission offer no very cogent reason for making the period so short. They say: If the period chosen were a relatively long one, say, three years, innocent parties who can now obtain a divorce with reasonable dispatch on the ground of outrageous conduct by the other spouse would have to wait three years in all cases. It would appear to many to be an intolerable hurry and, moreover, would inevitably add to the already large number of illicit unions and illegitimate children. On this, one might comment that the availability of a quick divorce followed by a quick re-marriage is one of the least satisfactory features of our present system. A longer delay between the date of the separation and the possibility of a second re-marriage is highly desirable in itself. In my experience of dealing with marriages after divorce—and I have to deal with a good many—those that prove most stable are almost invariably those which were contracted some time after the divorce and had nothing whatever to do with the obtaining of the divorce. A proposal which would involve a longer delay than is now necessary between the date of separation and the entry into a second marriage would be a merit and not an objection in any proposal.

My Lords, I can find no reference in the Law Commission Report to a suggestion made in Putting Asunder that the existing judicial separation order machinery should be kept in being for use in cases where immediate relief and protection are required. Putting Asunder is quite clear about this: Whatever may happen to the law of divorce, it will always be necessary to provide protection and relief for the spouse who is being treated in a manner utterly inconsistent with matrimonial obligations. In other words, the immediate remedy of a legal separation of some kind must continue to be available. Consequently we wish to make it clear that our criticisms of the part played by the matrimonial offence in divorce suits do not apply in its role in proceedings for separation. To this might well be added the suggestion found in a different form in the Canadian evidence, that, to save duplication of procedure, after the granting of a separation order at the end of the stated period of separation necessary for divorce, either party without further hearing should automatically be granted a decree of divorce subject to the arrangements about maintenance, provision for children and so on.

To sum up this part, of the remedies proposed I find that the substitution of divorce by consent, or the addition of divorce by consent to the existing grounds, or the addition of a ground of separation in whatever form, are all totally unacceptable. I am convinced that the substitution of the breakdown of marriage is the right solution and that a feasible scheme could be worked out which would meet all the objections in whole or in part; and I believe that this would receive general popular approval.

I pass now to a brief mention of some of the other matters on which the two reports are in agreement.First—and it is most important—is that the Divorce Court should have power to adjourn a case if it sees any hope of a reconciliation. This would be an extremely important and beneficial reform. The second is that all questions of maintenance, provision for children, custody, access and the rest should be dealt with and settled so far as possible before the case comes on for hearing. The third is that no decree should be issued unless the court is satisfied that the arrangements agreed are the most equitable in all the circumstances. The fourth is that greater emphasis be placed on the possibility of reconciliation. This means, of course, that considerably larger sums of money should be spent than are at present, first on the training of far larger numbers of voluntary expert marriage guidance counsellors through the agency of the Tavistock Institute and the Central Marriage Guidance Council, or possibly by some other organisation. Secondly, the services of professional psychologists and psychiatrists should be made available for the help of the unpaid marriage counsellors when such help is needed. Thirdly, elementary training courses in marriage counselling should be provided in all localities for those classes of people who are frequently and naturally turned to for help by married couples in distress, such as the clergy, doctors, lawyers, district nurses, probation officers and so on. Simple courses should be available in every locality for those people to attend if they so wish.

I do not think that the Law Commission Report anywhere explicitly endorses any of these detailed suggestions, but I think it is a fair inference from what is contained in their Report that the Commission give sympathetic support in general to the suggestions put forward in Putting Asunder. It is possible, though not of course certain, that the extra money thus spent, or a great part of it, would be recovered in savings on legal aid. It is possible, because we know already of many strained marriages which, by means of a little outside help, have been preserved, and not only preserved but converted into positive sources of happiness both for the parties themselves and for their children. There is no reason to suppose that, with more and more expert outside help available, a great many more such marriages under strain would not be similarly preserved and converted and therefore would never come into the divorce courts at all. At any rate, in the interests of human happiness the risk is worth the expenditure.

In the great majority of cases divorce means for the wife serious economic loss. Probably this cannot wholly be avoided, but it can, and should, be drastically mitigated; and all the more so if the law is going to provide that the wife of a delinquent husband may be divorced by him against her will. One of my greatest objections to the Bill of Mr. Abse is that it contains nothing to soften the wife's economic loss. It seeks to remedy one class of injustice by creating another. It is good to know that this problem is under active consideration by the Law Commission and that its urgency is recognised. Their Report states: But far more radical reforms are needed in the law relating to the family property (in which we include pension rights) and in the rules governing financial relief and the machinery for its enforcement if, as a result of the divorce, she is not to suffer materially, either at once, or later through loss of a pension as her ex-husband's widow. These problems are among those dealt with in two separate studies on which we are engaged at the present time: one on family property and the other on financial relief.

It is, of course, true that the noble Baroness, Lady Summer skill, has been a pioneer in this respect and that her Matrimonial Homes Bill does something to protect the divorced wife and to mitigate her economic loss. I am confident that the noble Lady will agree with me that much more still needs to be done to protect these women. It would, I think, be culpably irresponsible and unjust to introduce the breakdown of marriage principle into our law in any form before these economic reforms were also ready for enactment alongside.

Finally, my Lords—and it really is finally—the two Reports are agreed that if the breakdown of marriage is to be introduced in any form there must be a bar, either discretionary or absolute, against the issuing of a degree where it would be contrary to the public interest, that is to say, where it would give general offence and seem to be flagrantly unjust. The great difficulty of defining such a bar with adequate precision led the Law Commission to put it forward with the greatest diffidence. It is indeed extremely difficult so to define this bar as to give to the courts adequate guidance and at the same time not to bind their hands too strictly. Nevertheless, I believe hat the Law Commission agree in principle with Putting Asunder, that such a bar is not merely desirable but essential. I am aware that I have omitted a great deal which any really comprehensive review of the divorce problem ought necessarily to include; I am also well aware that I have wearied your Lordships long enough.

What it comes to, my Lords, is this. I believe that public opinion on the whole now agrees that our divorce laws should be made more realistic, more decent and more humane. I believe that public opinion does not want easier divorce, but it does want more sensible divorce, and I believe that it wishes, in particular, that marriage ties which have for years existed only in the merest, emptiest and most legal sense should be ended, but ended with the minimum of injustice and unhappiness to all parties—in short, that a time has come not for a tinkering reform but for a radical reform; that a time has come to move away from our present marrage system, with all the bitterness which it unnecessarily engenders, in the direction of something more civilised and more enlightened. I beg to move for Papers.

3.41 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I have the feeling—I may be quite wrong—that I am taking part to-day in what is, and will in future be recognised to be, an historic occasion. I should like, if I may, to say five things. The first is to express my indebtedness, and I am sure the indebtedness of all your Lordships, to the right reverend Prelate the Lord Bishop of Exeter for introducing the debate this afternoon. The most reverend Primate was good enough to send me an advance copy of Putting Asunder, and as soon as I read it I thought that this was a document of immense social significance. When it was published in July, I wrote to the right reverend Prelate, reminding him that this House is now the place for all social reform to be first discussed and suggesting that he might think fit in November to open a debate here. He was good enough to reply that he had expected that the most reverend Primate might want a debate in the Church Assembly. It had not occurred to him to try for a debate in your Lordships' House, but if I thought it desirable he would be very glad to do so. In thanking him, this is not the ordinary courtesy expression—I am most grateful to him for having responded in that way to my suggestion.

The second thing I should like to say is that I am the Minister who is responsible for this branch of our law and that the Government's attitude to this debate is one of neutrality. The third thing I want to put to your Lordships is about the Law Commission. I thought that the Report of the right reverend Prelate's Committee was a document of great social significance, first, because of its outright condemnation of the whole of our present divorce law, and, secondly, because it suggested the sweeping away of divorce for adultery, divorce for cruelty, divorce for desertion and divorce for wilful refusal to consummate the marriage, and substituting as the sole ground for divorce this one new test of the breakdown of the marriage.

My next point is not always understood. I referred to it briefly last week at the end of our debate, when naturally there were only a few Members in the House. We discussed this day last week the first Annual Report of the Law Commission and, if I may, I should like to put right something that I omitted to say then. All noble Lords who took part in that debate were unanimous in their praise of the first year's work of the Law Commission and members of the Opposition were most generous in agreeing that the fears which had been expressed at the time of the debate in this House on the Bill had proved to be erroneous. May I add to that my own thanks to the Commission staff? I know the sort of hours they had to work in this, their first year, and I had meant to express my gratitude to them.

Under Section 3(1)(b) of the Act, the Law Commission have from time to time to prepare a draft programme of law reform, not for a year or for any specified length of time, and the Government have then to approve or disapprove of it. Once it has been approved, that is more or less the end of the Commission's contact with the Government. When they make any proposal for reform under that subsection, it has to be laid before the Parliament, whether the Government Department concerned likes it or not; and neither I nor the Government as a whole, after the programme is once approved, have any power to say to the Law Commission, "You are to do this", or "You are not to do that".

But there is one further point. Under Section 3(1)(e), any Minister is entitled to ask the Law Commission for advice or information about any point. Now the original programme approved by the Government included matrimonial law, and when I read Putting Asunder I thought that it might be useful to me to have a summary from the Law Commission of this and other proposals in this field. I knew about Mr. Abse's Bill and that a Member of your Lordships' House also intended to introduce a Bill. I asked the Commission to point out what was said for and against, what had happened in other countries which had tried any of these suggestions and what suggestions they thought would be practicable or not. I had in mind that if it were the sort of document I hoped it would be, it might be usefully published for the information of legislators in both Houses. I did not expect a document of anything like this length. How they did it in three months I am not sure, but of course the Chairman has been for many years a Judge in the Divorce Division.

Your Lordships will have noticed that after a reference to the fact that …our First Programme requires us to furnish you with an examination of the Matrimonial Law…". the Commission say: Our Report may be regarded as the first step towards carrying out that examination and its scope will be wide enough to include the study not only of Putting Asunder but also of the other proposals for reform of the existing grounds of divorce which have received most support. It is not, of course, for us but for Parliament to settle such controversial social issues as the advisability of extending the present grounds of divorce. Our function in advising you must be to assist the Legislature and the general public in considering these questions by pointing out the implications of various possible courses of action. Perhaps the most useful service that we can perform at this stage is to mark out the boundaries of the field of choice. I hope that noble Lords who have read the Report will agree that it is not only immensely interesting, but a most useful handbook of reform in this field.

I must add that an unfortunate thing happened. Three days before the Report was to be published, a Sunday newspaper published an article under headlines stating that the Commission was recommending divorce by consent. This, of course, is a travesty of anything contained in the Report. I must do the writer the justice of assuming that he had not read the Report. Two other Sunday newspapers thereupon borrowed the story from an early edition of the first paper. I am not criticising the Press at all. It is, I understand, not unusual for a newspaper to borrow from the early editions of other newspapers. It is the business of the Press to find out what is going on and, if it is interesting, to publish it.

Of course, at that time the Report had been seen, or ought to have been seen, only by the Law Commission, my Depart- ment and the Government printers, so any knowledge must necessarily involve a breach of confidence. I mention all this only because it was rather hard on the Law Commission that the suggestion was made to the public that the Law Commission was arrogating to itself the right to say what our divorce laws ought to be, which, as I have explained, it was not doing at all.

The third point is this. The Government have decided, and already announced, that they are going to introduce legislation to transfer undefended divorce cases to the county courts. As this decision is criticised in this Report, I think I must, with your Lordships' permission, reply to it. What the Report says is this: We cannot approve bringing uncontested cases into the jurisdiction of the county courts. We find ourselves in agreement, as did the Morton Commission and the Denning Committee, with the words of the Gorell Commission of 1912."— which it quotes. The Gorell Commission said: The gravity of divorce and other matrimonial cases, affecting as they do the family life, the status of the parties and the interests of their children, and the interests of the State in the moral and social well-being of its citizens, makes it desirable to provide, if possible, that even for the poorest persons these cases should be determined by the superior courts of the country, assisted by the attendance of the Bar, which we regard as of high importance in divorce and matrimonial cases, both in the interests of the parties and in the public interest. The Report continues: We also fear that transfer of divorce jurisdiction to the county courts would have the effect of impeding more radical reforms that eventually might be seen to be desirable. I cannot help thinking that there is a misunderstanding on this point. After the war, when there was this sharp rise in divorce cases, it became clear that the existing High Court Judges could not possibly try all the cases, and therefore a Committee was appointed, of which the noble and learned Lord, Lord Denning, was the Chairman, to find out what ought to be done. I was then Chairman of the Society of Labour Lawyers, or it may have been the Haldane Society, and I remember going to give evidence on behalf of the Society. We thought that undefended divorce cases ought to be transferred to the county court. So I have, at least, been consistent. This was opposed by representatives of the Church of England for the very reason which I have already read. It was thought that this would tend to lower the whole status of matrimony and that people would go round committing adultery because a marriage was dissolved in the county court.

What the Committee recommended, and what was done, was the usual brilliant English compromise—namely, that in future undefended divorce cases should be tried by the county court judges dressed up as High Court Judges for the day. I do not use that phrase in any offensive way. They are made commissioners, and a commissioner has authority to try High Court cases; and they are called "my Lord", instead of "Your Honour". From discussions that I have had with my clerical friends I am quite sure there is a very real misunderstanding about this. What they think is that if a case is tried in the High Court, then it is tried in a superior-looking kind of court, and the proceedings are conducted with every formality, whereas if, on the other hand, the case is tried in the county court, it will be tried in some grubby place in between half a dozen judgment summonses and actions about hire-purchase, and with the usual informal procedure of the county court. This is nothing remotely like what happens.

Outside London the cases are taken only at 45 towns which have a divorce jurisdiction and where there is a High Court registrar familiar with the divorce law. The registrar is most important in divorce cases, because he hears all the interlocutory applications, including the important ones on maintenance. Often it is not at all easy to find out what a husband is earning. So cases are heard only at these 45towns, in whatever court may be available. If the assizes and quarter sessions are not sitting, then the judge can sit in the assize court; or he sits in his own county court, or whatever is available. The procedure is exactly the same, because the same High Court procedural law applies as in the High Court.

In London the Judge sits in the Law Courts. There are two or three county court judges all the time in the Law Courts conducting undefended divorce cases. Their accommodation is, I am afraid, deplorable. Naturally, the High Court Judges have the better courts, and the county court judges—and occasionally a High Court Judge—sit in the most wretched accommodation. I spent August and September converting some additional rooms into courts, including two white-tiled jury rooms, with lavatories attached, because we are so short of courts. We still have two army huts which were put up as temporary courts after the 1914–18 war and have been used ever since; and I have had to hire a hallon the other side of Fleet Street as an additional court. One of the courts used for this purpose is a room which is between six and seven yards each way. It has a desk for the judge; it has a couple of tables, and some chairs. This is infinitely worse accommodation than in the average county court.

Under what is proposed the following changes would be made. First, the undefended cases would be taken only at the divorce towns. All the district registrars in the divorce towns are also county court registrars. So that all the interlocutory summonses would be heard by the same man who hears them now, and the cases would be tried by the same men who try them now—because in the last seventeen years I have never heard any complaint from the Church of England about how the cases have been tried—and they will be tried in the judge's own court.

In London, the petitioner would have a choice. Either he could go to the Law Courts, and the Judge would try the case there exactly as he does now, or it is proposed that there should be (though this is a matter for Parliament) half a dozen peripheral courts around London at the sort of distance that Croydon is from London: because if the parties, the witnesses, the solicitors and everybody else are in Croydon, there does not seem to be much point in moving them to London. These courts would have registrars there trained in the divorce registry. The County Court Judge of Croydon, for example, can sit in the new £1¼million court building which is now being built, and which will include two county courts infinitely superior, from the point of view of accommodation, to the sort of accommodation used at present.

There would be one other change: the county court judges would do less divorce than they do now. The reason for this is that for some years now—and this still applies—the county court judges have been taking outside London not only nearly all the undefended divorce cases, but also about half the short defended cases. The Government's view is that if there is a dispute between husband and wife which has to be decided by a court, and may lead to a change in marital status, this is something that ought to be decided by a High Court Judge. The Government therefore propose to stop the county court judges from doing the short defended cases, all of which would be tried by the High Court Judges.

It is for the reasons I have given that the Government think this is the right course to take. What happens at the moment is very largely a pretence. One consequence has been that over all these years, for what to any lawyer in an undefended case is a case lasting ten minutes, they have all been drawing High Court fees. A change to the county courts, making a reality of what happens at present, would save substantially in relation to legal aid.

The last thing I want to say is this. There is, unfortunately, some dispute between the Committee of the right reverend Prelate and the Law Commission as to the practicability of the Committee's proposal. I wondered very much whether I should say anything about this to-day, but I have come to the conclusion that I ought to—for this reason. I cannot ignore the fact that I am the person who knows better than anyone else in the country which is right about this, because I spend my life on questions of Judge power and availability of courts. I had thought of summarising what the Committee say, but I do not think I should do so, because it is so difficult to be certain that one gets a summary exactly right. May we therefore see exactly what is proposed?

The Committee say: We are assured that, having considered the history of a marriage, the reasons alleged for its failure (together with, in contested cases, the arguments put forward on the other side), and the attempts which have been made—or not made—to achieve reconciliation, a court should find it possible to determine the probability of the joint life being revived". I entirely agree with that statement, and read it only to emphasise that this inquisition is to include both the history of the marriage and the reasons alleged for its failure, as well as the question whether it has permanently broken down. Then they say this: Under a law based on breakdown the trial of a divorce case would become in some respects analogous to a coroner's inquest, in that its object would be judicial inquiry into the alleged facts and causes of the 'death' of a marriage relationship. It would have to be made possible for the court, therefore, to inquire effectively into what attempts at reconciliation had been made, into the feasibility of further attempts, into the acts, events, and circumstances, alleged to have destroyed the marriage, into the truth of statements made (especially in uncontested cases), and into all matters bearing upon the determination of public interest.… …the court should have discretionary power to require the attendance of both parties on occasion…any respondent wishing to take any part whatever in the proceedings, whether to deny breakdown or not, should be required on receiving a copy of the petition to return a statement informing the court of his or her attitude to matters pleaded by the petitioner…all matters outstanding between husband and wife should be disposed of in a single trial. They make it plain—and I am not criticising them—that this should include questions of custody and maintenance.

The Committee go on: In principle it is obviously fitting that husband and wife should both be present at proceedings about the legal ending of their marriage, and it would help the court if they were both there to be examined…attendance of both parties should be encouraged.… In addition therefore to stressing the importance of the presumption in favour of marriage, and of the assistance of the Bar, we recommend that provision should be made for the intervention, when needed, of counsel representing the public interest or the interests of children of the family. We believe, further, that steps should be taken, as part of immediate procedural reform, to create a body of officers (the name of 'forensic social workers' has been suggested) to help the court in a number of ways. These officers could, when required to do so, verify attempts at reconciliation, test the reliability of assertions made to the court, and investigate any other matters on which the court wished to be informed, and could report on the circumstances of children of the family.… …we recommend: (a) that, whenever the custody of children is in dispute and, in uncontested cases, whenever the children are not in the petitioner's care, a report should be submitted to the court in advance of the hearing…". Then they say: We believe that the court should be at liberty to order maintenance with regard partly to need, partly to means, and partly to the behaviour of the spouses during the marriage. They go on to recommend:

• "(c) that the accusatorial procedure should be replaced by procedure appropriate to inquiry into the condition of marriage relationships;
• (d) that means should be devised to ensure that all relevant information and considerations would be brought to the court's notice;
• (e) that steps should be taken without delay to enlist the officers the court would need….

Later they say: …that the Official Solicitor should be empowered to make inquiries….It has been suggested that both needs might be met by enlarging the powers and resources of the Official Solicitor of the Supreme Court (who already fulfils some of the functions we have in mind) so that on the one hand he could instruct counsel, when the nature of the case made it appropriate, to represent the public interest or the children of the family, or to argue points of law; and on the other hand could, when required, investigate and report on such matters as the candour of statements made to the court, the welfare of children, and the adequacy of arrangements proposed for them or for a dependent spouse. Of course, when a Judge is taken ill at, say, Winchester Assizes the Lord Chief Justice naturally wants to know what I am going to do. The alternative I have is either to leave the cases for trial at some later period or to appoint a commissioner, usually a member of the Bar, or sometimes a county court judge. Nobody likes commissioners. The public like their cases to be tried by judges, and not by barristers dressed up as judges for the day. The barrister does not like it, because the Treasury rates for the payment of commissioners are such that he loses money by it. It is rather unfair on the clients with whom he was about to spend the next fortnight because he has to return his briefs at the very last moment.

On the other hand, one must get the cases tried. Exactly the same thing happens with the county court judges, although there are more of them, and I have to decide whether to supply a deputy judge or move somebody else, or what I am to do. So I am necessarily more in contact with the question of the Judge power than anyone, and we have a shortage of judges. All my life we have been short of judges, rather than had too many. This is one of the reasons why too many cases tend to be put in the list, because the most awful thing that can happen is for all the cases to be settled and the judge to have an afternoon off. Everything has to be directed to avoid this happening.

The reason I am saying this is that, so far as I can see, to conduct an inquisitorial inquiry into the history of a marriage, to see whether it has finally broken down and if so who has caused it; to deal with custody; to deal with children, must take on an average, I should have thought, a day. If I were to be extremely pessimistic I would say half a day—or optimistic, whichever way you look atit—but it cannot conceivably take less than that. There are 35,000 undefended divorce cases, so that means: can I find courts and judges for 17,500 additional court days?

It is not surprising that the Law Courts are what they are. They were opened in 1882, when the total number of High Court Judges was 22; and it is now 62. I am sorry to say that the Central Criminal Court, London's assize court, at the Old Bailey, is getting into arrears. The reason is that they have added to the six proper courts another court in part of the hall; they have turned the library into a court and a committee room into a court. There are no more rooms to be turned into courts, so there is nothing more I can do.

In many of the London stipendiary magistrates' courts it takes nine weeks to get an ordinary careless driving summons taken. This is because, with the additional criminal work, there are not enough stipendiary magistrates. I can appoint additional stipendiary magistrates, but that is no good, for there is nowhere for them to sit. You cannot use any hall for a criminal court, because you must have cells, and you must have police accommodation. The 80 county court judges have to sit in 400 places, but I have only 90 purpose-built county courts. I have to find accommodation for the rest of them somewhere. If the local assize court is free, which is very rare, that is fine; but usually they sit in the magistrates' courts on the days when the magistrates are not sitting. But with the additional magistrates' work it is becoming more difficult to find days when they do not sit. So the county court judges sit in the shire hall, or a committee room in the town hall, or anywhere I can scrape in for them.

We have a desperate shortage of courts in this country. I have myself written to every Law Minister in Western Europe and the old Dominions, and the judicial authorities in the United States, to ask them two questions: "How many whole-time professional judges have you per million of the population?"; and secondly, "What proportion of your annual Budget is spent on justice other than prisons or police?"—for which I am not responsible. The answers, as I expected, showed that we have a far smaller number of whole-time professional judges per million of the population than any other country, and that with one doubtful exception we spend a smaller proportion of our Budget on justice than does any other Western democracy.

I have checked my estimate of what the Committee's proposals mean in this way: there is an appendix to the Committee's Report, made by a member of the Bar, and I discussed this with him in order to make quite sure that I was not misunderstanding. I am not against any of this, I may say. He proposes that there should be family courts which would hear all these cases. one court for every two or three counties—that is to say, between 20 and 25 courts—and that each court should be staffed by a President and a bench of perhaps three to six Judges. He makes it clear, naturally, that in accordance with the Committee's views they must all be High Court Judges. So, with the President, there will be four to seven High Court Judges for each of the 20 courts, which means about 110 additional High Court Judges for this kind of court. All the Queen's Bench work and all the work of the civil and criminal cases at Assizes, of the existing Divorce Court Judges, of the Chancery Division, the Admiralty and Probate cases and the Commercial Court, takes in all 62. Of course, anything is possible; if I had enough time and money obviously the thing could be done. But from what I know about the Judge power and the existing situation with regard to our courts I am bound to say that I regard these proposals as being quite impracticable in practice within any measurable distance of time.

Finally, may I say this? I have not expressed any personal opinion because, rightly or wrongly, I feel that if a Minister who represents the Government in a debate expresses a personal opinion there is a risk of some confusion as to whether at a particular point he is speaking for the Government or for himself. But I should like to say one other thing. I joined the Divorce Law Reform Association before I was married, over forty years ago, and I should not like it to be thought from anything that I have said, or anything that I have not said, that I am in any way unsympathetic to this Committee's Report. The one thing that everybody seems to be agreed about is the universal condemnation of our existing law, and it is my hope that today's debate may prove to be a basis for some rational reform of our law upon which Parliament can agree.