HL Deb 23 November 1966 vol 278 cc264-348

4.18 p.m.

Debate resumed.


My Lords, may we now continue with marriage and divorce; and before I give your Lordships my views on that subject I should like to ask the noble and learned Lord the Lord Chancellor some questions which I hope he will answer when he comes to reply. I am not quite clear, from what he said, whether or not I already have the answers. He said that at this moment the Government are neutral. I am afraid that does not carry me, at any rate, quite far enough. May I remind your Lordships that ever since 1857, when the Divorce Division of the High Court was set up and matrimonial control was taken out of the hands of the Ecclesiastical Courts and, to some extent, out of your Lordships' hands by Private Member's Bill, since that time, when a Government Bill was brought in by Lord Palmerston's Government, virtually all legislation dealing with divorce (and certainly in recent years) has been by Private Members' Bills. One thinks particularly of 1937 and Sir Alan Herbert's Bill, which was the first time for 240 years that the grounds for divorce had been widened. Since 1697, when the Macclesfield case produced divorce in your Lordships' House, the grounds had not been widened until Sir Alan Herbert's Bill.

One fully understands why Governments have apparently been somewhat nervous of introducing Government legislation on these great social questions, at the back of which is a good deal of individual conscience. It is not the sort of legislation in regard to which one can normally put on the Party Whips. On the other hand, if you produce a Government Bill without Party Whips and the Government are defeated, it is somewhat embarrassing for the Government of the day. Indeed, I suppose in certain circumstances it might even lead to the resignation of the Lord Chancellor. Whether Governments have been right or wrong to take the view that this is a field for Private Members' Bills, I do not know.

But something new has happened now. The noble and learned Lord, the Lord Chancellor, has submitted the ecclesiastical Report to the Law Commission. The Law Commission, quite clearly, in spite of what they said, are there—it was laid down in the Act—not to advise the Legislature or the public; they are there to advise the Lord Chancellor and Government Departments, in this case, the Lord Chancellor. So any action that is taken is entirely a responsibility of the Lord Chancellor. One would like to know, if the noble and learned Lord can answer it, whether it is the intention of the Government at some future date to introduce legislation amending the divorce laws, or whether they intend to encourage future Governments perhaps, but at any rate intend not to leave it to Private Members' Bills. If they intend in the future to have Government legislation, I think we ought to know. If they do not, I do not quite know why this was referred to the Law Commission.

However, may I say this about the views of the Law Commission? From Parliament's point of view—not from the Lord Chancellor's point of view, whom they are advising, but from Parliament's point of view—the Law Commission carry no more weight than that of the Archbishop's Committee. We do not know whom they consulted, what evidence they heard or what opportunity they gave to interested bodies and the public to give evidence or express their views. May I suggest that it might be a suitable move to have a Royal Commission again on this subject? Opinions change so rapidly these days. We have not had a Royal Commission on this subject since 1956. If we had a Royal Commission reporting to Parliament, and the Government of the day then introduced legislation based on the Report of the Royal Commission and took the Whips off, I think there would be little danger of the Government's being defeated. That is only a suggestion, but we have here two most important bodies who disagree, and it is very difficult without some such body as a Royal Commission to say which was right. So much for that.

Now I propose to talk about marriage and divorce. We are all grateful to the right reverend Prelate for introducing this Motion, but I find myself in a somewhat difficult position. I am preceded by an ecclesiastical expert and by the highest legal expert. I am to be followed by the most reverend Primate; and I am to be followed by other noble and learned Lords. I am virtually the only layman, in the proper sense of the word, speaking on this subject, because even one or two other laymen are experts on social reform. The only thing to do on these occasions is to "stick one's neck out", and I intend to do so. I am going to stick it out by suggesting that I know what the ordinary man in the street thinks about marriage and divorce. I will not be so rash as to suggest that I know what the ordinary woman in the street thinks about it, but if I refer to the ordinary man during my remarks, may it be taken that I am also referring to the ordinary woman, unless later in the debate the noble Baroness, Lady Summerskill, tells us that something I have said does not refer to the ordinary woman, and I shall doubtless accept her opinion.

The first thing to remember about this debate is that it is about the ordinary man. It is the ordinary man who gets married and in some cases gets divorced, and whatever laws Parliament passes in this field must be acceptable to the ordinary man, or they will not work. I think we should do well to remember that. May I just define what I think the ordinary man is? I would define him, in fact, by saying what he is not. He is not a lawyer. Lawyers, of necessity, view these matters from a slightly different angle from that of the ordinary man. So I think we may say he is not a lawyer. He is not a man whose religious beliefs indicate to him that divorce is at all times wrong. Nowadays I think he would not be an ordinary man who held those beliefs. He is not a man who has made a special study of marriage and divorce. Your Lordships may say, in other words, that he is ruled by his heart rather than by his head; that marriage and divorce are essentially basically matters of the heart. I would suggest that that definition covers 80 per cent. of the population of this country, and I include myself among them.

What are the opinions of us ordinary men about these subjects? I think first of all we feel that, both in the public interest and in our own interest, marriage is a long-term contract. We should probably put it in these words: that one ought not to get married unless one thinks one can make a good "go" of it. Secondly, if you say to us, "What about divorce?", I think we shall answer, "That depends; it depends on whether there are children; it depends on whether the children are grown-up or young. It all depends whether one really approves of divorce, or not, but it depends particularly on the children". Then you can say to us, "Supposing the marriage is completely impossible and has broken down, and either there are no children or the children have grown up, or at any rate the situation in the home is such that it is bad for the young children, what do you feel about divorce then?". I think our answer would be, "Then divorce should be as easy as possible, as speedy as possible or as is advisable, if it can be carried out with the maximum of human dignity and with the minimum of bitterness". I think those would be our views.

May I say one word about this question of divorce by consent, which, as the noble and learned Lord said, was not recommended by the Law Commission, nor was it recommended by the Church commission, but it has been talked about and there are some people who hold that divorce by consent should be allowed. Apart from the fact that it is, in my belief, generally against the public interest, in any marriage there is one moment, or more than one moment but at any rate one moment, when things are more difficult between the two married people than is normal. It is at that moment, or those moments, that the married couple want all the support they can get; and difficult or not too easy divorce is in fact one of the supports they do get. If there is divorce by consent, one can visualise a hell of a family row going on, both partners to the marriage at a given moment saying, "We will divorce each other"; then pride comes into play and neither gives way; a perfectly good marriage that might be happy for another thirty or forty years would break up, and that is that. Anything approaching divorce by consent must be wrong, both in the public interest and, indeed, in the interest of each married couple.

From the recommendations of the ecclesiastical committee, the Archbishop's Group, if I may so term it, I understand that they want divorce when a marriage has really broken down but after a good deal of exploration to see that it has properly broken down and for good. I do not think we ordinary men would altogether like that. I think it is going to be difficult, on those terms, to obtain a divorce with reasonable human dignity, and there is going to be a lot of dirty linen washed in public. On that basis there might be the maximum of unpleasantness and bitterness. I feel that strongly, and I shall have something further to say on this question of maximum bitterness.

What I think we ordinary men would like to see is, first of all, the three-year rule maintained: that is, no divorce in the first three years of marriage. One must give a marriage a chance to get properly off the ground. I am told that the honeymoon or the earlier years of marriage are the most difficult times. I personally have not found them so. Obviously, one must give the marriage a chance, particularly when one thinks that it should be a long-term contract. So I think we should keep that rule.

I believe, too, that we feel that the matrimonial offence provision ought to be kept, on the basis that marriage is a contract and that if one of the partners breaks the contract the other partner should have some redress. I know all the difficulties about collusion, which nowadays does not seem to matter much, and that there are bad or difficult cases; but, by and large, it has the advantage that the majority of cases are undefended, and the great advantage that solicitors can advise their clients with reasonable certainty and not leave them up in the air, so to speak. When the case is undefended there is, I think, the minimum of bitterness caused and no particular loss of human dignity. I agree that defended cases are different.

But suppose we accept that. Strange as it may seem, I think the matrimonial offence part of the law is acceptable at present to the ordinary man. I do not say that he thinks it perfect, but I think it is reasonably acceptable. I agree that it might be wise, in addition, to have a fairly simple divorce on the ground that the marriage has irretrievably broken down. I think these two would work together better than the right reverend Prelate indicated. If you have a matrimonial offence divorce which might go through quite quickly, and you have a reasonable time for the divorce because the marriage has broken down, then the two might go well together and there might be far less collusion.

I have not had it explained to me, and the noble and learned Lord did not explain it, although the right reverend Prelate raised the question, why this six months' period should be brought in by the Law Commission. I may have misunderstood their recommendation. The kind of arrangement that I think we envisage is a true separation, and the only fact that would have to be proved would be that the partners had separated for two years; but the court would have power to defer a divorce for another two years, if the short period of two years was grossly to the detriment of either partner or of any children. So, the normal time for separation would be two years; but if somebody was really misbehaving and the other partner was suffering the court could delay the divorce for up to another two years. The details would obviously have to be worked out. I should have thought that that might work, together with the provision regarding the matrimonial offence.

As I have said, I am going to be followed by a number to ecclesiastical, legal and social experts. Doubtless, they are going to pick to pieces what I have said. I do not mind. At any rate, to-day, among all the experts, the ordinary man has had his say; and I again ask your Lordships to remember that basically this debate is about the ordinary man.

4.35 p.m.


My Lords, let me say at once how grateful I feel for the speech just made by the noble Lord, Lord Derwent. Those of us who have the misfortune to be either ecclesiastics or lawyers welcome nothing so much as the views of those who, in every sense of the term, are laymen. It was because of the high value that I set upon the lay mind, and my awareness of the limitation both of the ecclesiastical mind and of the legal mind, that in picking those who were good enough to serve on my Group on this subject I drew upon the services of a number who can fairly be called laymen and laywomen. As myself the originator of one of the two documents on which the debate has been centred, I should like to say a word or two about the origin and background of that document.

It was three years ago, when there was before Parliament a Bill to introduce separation as a ground for divorce, that I declared myself strongly opposed to making separation in itself a ground for divorce; and I am as opposed to-day as I was then. I was, and still am, equally opposed to the making of consent as such a ground for divorce. But, while doing my utmost with others to resist the promotion of these two grounds, I was terribly aware of the weaknesses and evils connected with the present law based upon the matrimonial offence, and I therefore embarked upon this adventure of inviting a number of people whose broad, religious and sociological standpoint was akin to my own to try to discover whether it would be possible to frame a law of marriage not based upon the matrimonial offence but based upon a law of breakdown, yet free from the evils both of the present system and of the proposals which I thought it right to reject.

There was comment upon the very suggestion of abandoning matrimonial offence as a basis. Let me say a word about that. I start from the position that while, on the one hand, the Churches, including my own Church, have definite beliefs about marriage as a lifelong union, on the other hand, we have for some time recognised the existence of State divorce laws which diverge from that which fundamentally we believe about the nature of a marriage. As for the matrimonial offence, there is, I believe, nothing sacrosanct about the principle of the matrimonial offence as a basis for the law of divorce. It is true that it is a principle which has an ecclesiastical origin, but a quite imprecise ecclesiastical origin. In the Church law in the West for many centuries the matrimonial offence was a ground not for divorce but for separation, and thus the connection between the ecclesiastical law of matrimonial offence and the basing of the law of modern States on the matrimonial offence is not a direct one. The matrimonial offence came to be the principle for the divorce laws in modern States for historical reasons, but not, I believe, for any reasons of Divine necessity.

Then the question has been asked: supposing the matrimonial offence ceased to be the basis of the divorce law and, instead, breakdown of marriage was substituted, how would the relation between Church marriages and civil marriages be affected? My belief is that they would not be affected at all. Church marriages would continue to be what they have been hitherto. Civil marriages would still be the making of a lifelong covenant, the legal nexus of which could be broken, not by the will of the individuals, but by the will of the court on behalf of the community. I believe that such a change in the State's divorce laws would leave the relation between the Church's law and the State's law the same essential relation that it is now. However, I believe that it would be quite otherwise if civil marriage were to be based on a principle of consent. That would raise very big questions indeed about the relation between Church marriage and civil marriage—but I will come back to that presently. That is the origin of the document, Putting Asunder, which is now before your Lordships' House for debate and also before the country for study. Personally, I find the conclusions of the document very convincing.

But, side by side with these proposals, we have the other document, that produced by the Law Commission. I should like to express great gratitude for the Report of the Law Commission, and for the sympathetic and kind way in which it treats the proposals of my Group. But in comparing the two documents I do not think it is right to suppose that because one document is the work exclusively of lawyers it is necessarily a more scientific work than the other. In fact, I believe that in some places the opposite is the case. For instance, the Archbishop's Group drew not only upon lawyers and ecclesiastics, but also upon a variety of lay persons for the forming of that judgment. I believe that that is a composition which leads to a more scientific result in the truest sense of the term "scientific".

Furthermore, I notice one oddly unscientific thing in the Law Commission's Report. Having given a number of reasons why divorce proceedings on the basis of the law of breakdown would be very difficult to enterprise, it goes on to declare that if the law of breakdown were adopted divorces would he more frequent. For that assertion no kind of scientific evidence is adduced.

What of the alternatives which the Law Commission's Report puts before us? It puts three: separation, consent, and what it calls the law of "breakdown without inquest". Let me say a word or two about each of these options which the Law Commission puts before us. First, on the matter of separation, it is entirely possible to understand the reasons behind the pleas for making separation a ground for divorce, the many distressing circumstances which drive persons unhappily married to matrimonial offences in order to secure a divorce which they cannot secure in other ways. But I am convinced that if separation in itself is made a ground for divorce, first, there will be occasions when a marriage might have been saved although a divorce has to be given, and, secondly, there will be also occasions of great injustice.

I think that all of us who take part in these discussions have a pretty big postbag about the subject. Inevitably my postbag contains letters from persons whose marriages are very unhappy, pleading that for the sake of their happiness certain greater facilities for divorce should be afforded. But I have been very struck lately by another sort of letter in my postbag, and I should like to describe a sample of this kind. A married woman writes to say that she wants to go on being loyal to her husband, a husband who has been infatuated by an adventuress who has caught him: the wife wants to go on being faithful to him.

This sort of case of a husband being caught by an adventuress has happened before, and the wife believes that if she sticks to him faithfully and patiently there is no need to give up. She writes to say: For goodness' sake save us from a divorce law in which my husband and the adventuress can take the initiative in divorcing me against my will when the only thing that I have done wrong is to be faithful. It is sometimes said that such a woman is being vindictive, and it is asked why she should want to be vindictive against others. But I do not believe that this is vindictiveness at all. It is love and patience and faithfulness, the salt of the character of our country. I do not want to see a woman in that position exposed to the kind of justice to which she would be exposed if separation in itself were made a ground for divorce.

Then there is the proposal to make consent a ground for divorce. Obviously, one understands the ground for the plea, especially when over 90 per cent. of divorce cases are undefended and the element of consent is present in divorces already, and inevitably will be present in divorces. Yet I am convinced that if consent of itself were made a ground for a divorce, there would be very grave objections. And here I would first quote the words of Putting Asunder: Since it gives the court as representing the country no effective part in a divorce, it virtually repudiates the community's interest in the stability of marriage. I believe that is a fair comment. Secondly, I believe that divorce by consent is contrary to the nature of the meaning of the marriage contract as a life-long union. As the right reverend Prelate said, it really substitutes, "Until we find we want to make an end of it" for the solemn contract "Until death us do part". I believe that if divorce by consent were to get on to the Statute Book the Churches, including my own, would no longer be able to say that marriage in Church and civil marriage were identical in the nature of the contract made.

But there is a third suggestion put out by the Law Commission; the suggestion of law of breakdown without inquest. I very much wonder whether the difference between that and what is proposed in Putting Asunder is an absolute, unbridgeable difference. I would suppose, speaking in this context as a layman, that if breakdown were the ground of divorce, there might be cases where the evidence alas was all so clear, and alas all so pointing one way, that it would take the court very little time indeed to give an answer, and perhaps other cases where it would take the court a great deal of time.

However, I should like to see whether the authors of Putting Asunder and the Law Commission might together try to bridge the gap between what is called, on the one hand, breakdown with inquest, and, on the other hand, breakdown without inquest. But, if such an attempt is made, I should like to attach a provision which seems to me quite vital. Breakdown must not merely be made identical with separation as such, and breakdown must not be made identical with consent as such. Those may be partial evidences of breakdown, but neither consent alone nor separation alone give the court the total answer which it ought to be given in the interests of the community.

Where do we go from here? I was very grateful to the noble and learned Lord the Lord Chancellor for explaining some of the misunderstandings under which we churchmen have apparently been about the transfer of divorce jurisdiction to the county courts. I was very grateful for his very ample explanation of that, and I think we were all grateful for his statistical calculation of what would be involved, in terms of court space and in terms of court manpower, if the proposals in Putting Asunder were carried into effect. But if a course really is the best course for the stability of marriage and the home in this country, we ought not to lie down under existing difficulties of court space and manpower, and say that those difficulties must answer the matter for ever. I intend to sit through the debate in the great hope that perhaps other noble and learned Lords may in the course of it tell us that they do not see that those difficulties are really insuperable, because if a certain kind of divorce procedure is the one on other grounds thought to be right, we ought not as a country to be bogged down by these practical difficulties.

Where do we go from here? Quite apart from the grounds of divorce, there is a fair amount of beneficial legislation suggested in Putting Asunder, and spoken of sympathetically in the Law Commission's Report, which could well be carried into effect irrespective of change in the grounds of divorce. Indeed, as has been said, changes in the grounds of divorce may not prove to be as helpful as we might hope, unless these other legislative changes are made as well. That is why I was very disappointed when the noble and learned Lord the Lord Chancellor, hinting at future legislation, was only able to mention legislation concerning the relation of the divorce courts to the county courts.

The Law Commission, so to speak, throw at Parliament three options and say, "It is for Parliament to choose between these three". But how does Parliament choose without more lead, help and guidance than it is getting just now? Any Member of Parliament can introduce a Private Men-fiber's Bill. One has been introduced already in another place, and it is perfectly possible for some of us who very much dislike that Bill to introduce another Private Member's Bill promoting another kind of principle for legislation. But I do not think that Parliament is going to find the answer by procedures of this kind.

I agree with the noble Lord, Lord Derwent, that if we now had a Royal Commission it could do a very valuable piece of work—not, I think, taking so very long over it—because I believe that both the state of evidence and the state of thought and feeling have altered a good deal since the last RoyalCommission on this subject produced its Report. Failing a Royal Commission, is it really impossible to have discussion and a getting together to thresh out some worthwhile legislative proposals? I have already suggested one matter on which I think that the authors of these two documents might very profitably compare notes with a view to producing something on which both of them agree.

My Lords, let me sum up by saying that I think the present law based on the matrimonial offence gives us the worst of one world. I believe that the fashionable proposals of introducing divorce by consent, or divorce on the ground of separation, would really give us the worst of both worlds in a matter so tragic as that of divorce and the breaking of marriages and homes. I shrink from using the adjective "best", but I still believe that, if they could be carried out, the proposals in Putting Asunder would give us a law free from the worst evils of the present law, and also one which tended to help rather than to undermine the stability of marriage and the home.

4.58 p.m.


My Lords, in rising to speak on this occasion I do so with great trepidation, first because this is the first time I have had the temerity to address your Lordships' House, and secondly for the same reason that the noble Lord, Lord Derwent, mentioned, that this subject might be held to be the province of churchmen and those of your Lordships learned in the law, and I have no such qualifications. But I have particular reasons for choosing this time to want to speak. In the first place, as the noble and learned Lord the Lord Chancellor has already told your Lordships, there is a Bill before this House awaiting a Second Reading. That Bill is in my name. Secondly, I want to be absolutely frank with your Lordships and begin by telling you that if, as a result of our deliberations to-day, some divorce law reform were to take place and that divorce law reform were to be applicable to my own country of domicile—Scotland—it might have an effect on me in my own domestic situation. However, I think I may assume that any legislation following what we are discussing to-day would apply only to England and Wales. I feel, therefore, that I can claim I am not in any way speaking for myself but that I have both personal interest and personal knowledge of some of the difficulties and hardships under the law as it stands to-day.

First of all, I should like to say that there is one omission from Putting Asunder and the Law Commission's Report that I very much regret. Both Reports very properly give a good deal of space and attention to both the moral and the material welfare of children, but neither of them mentions one category of children that I should like to bring to your Lordships'attention—namely, the legitimate child who is forced to live in an unmarried home. This can come about in several ways. If a woman is widowed and left with young children, or if a married man loses his wife and is left with young children, or if either of them is left with young children as the result of a divorce, then, if they form an attachment with somebody of the opposite sex who is married and set up a home with that person but that person's husband or wife refuses to institute divorce proceedings, those children, though themselves legitimate, are going to live with their mother or father in a home in which that parent is not married to the other party.

I think that this constitutes very great difficulty for these children. Either the couple must pretend they are married—in which case, unless the children are very young, they will know it to be untrue and will be forced to participate in a lie, which will further expose them to the malice of some nasty-minded person who may choose a very embarrassing moment to disclose his knowledge that the child's father and the lady of the house or the child's mother and the man of the house are not truly married or, if the couple make no such pretence, then on such children is placed the deeply embarrassing necessity of explaining to every person they ask to their home that their mother and the man of the house, or vice versa, are not married, and why they are not married. My Lords, I feel that in any divorce case where the position of the children may be a major issue the lot of such children as I have described should be taken into account.

I should now like to turn to Putting Asunder. I have read this with immense interest and with tremendous admiration for the thought that has gone into it and, perhaps above all, for the courage of the Group in recommending these very sweeping reforms. They would not only abolish all our present divorce laws but would also sweep away all past thinking and all established conceptions, including the so-called "innocent" and so-called "guilty" parties. I find this line of thought very attractive indeed, but I must admit that, quite apart from the practical difficulties which are referred to in the Law Commission's Report and which have been further exemplified by the Lord Chancellor this afternoon, I have other doubts.

May I refer for a moment to paragraph 84 of Putting Asunder, where it is suggested that the divorce courts would become like coroners' courts, sitting to examine the death of a marriage as a coroner's court examines the death of a person? With great respect to the most reverend Primate and his Group, I cannot see that there is any parallel here. A coroner's court sits to examine how the death of a person came about once that death has been established; under the principle of breakdown, a divorce court, however constituted or reconstituted, would have to discover whether in fact the marriage was dead. This is a very different matter, and one which I think must, at least to some extent, remain one of opinion.

I feel that, in practice, the law would have to lay down certain conditions which, if they were found to exist, would justify the court in assuming that the marriage had broken down beyond any reasonable chance of reconciliation. A fixed period of separation is obviously the easiest condition to suggest. In my Bill I suggest five years, but even then with many safeguards; but I do not want to talk about that now. Even the Group suggest that a number of years of separation might be an important factor. I still think, however, that this would have to be made much more definite, although I am very interested in the idea of the Commission that a shorter period might be accepted where both parties of the marriage are agreed that the chance of reconciliation is negligible.

Suppose the Putting Asunder outline became the law of the land, that there is a defended case and that, under the old law, the petitioner in the case would have been called "the guilty party". Suppose, further, that he comes before the court and maintains that the marriage has irretrievably broken down and that he has already established a home with another woman I have said "he", and therefore I must say "with another woman", but it might be the woman who brought the petition, in which case it would be "with another man; but it does not affect my argument. Then suppose that the respondent, on the other hand, maintains, rather as in the most reverend Primate's story, that there have been previous infidelities, that this is just a fascination, that it will not last and that he or she is still confident there is a chance of salving the marriage. Let us also assume that the "forensic social workers" have been recruited and have been properly trained, but that, on looking into this case, they are divided in their opinion. In such circumstances how is the court to adjudicate? I suggest that in practice there would be only one possibility. The court would have to adjourn the case for a fixed period, perhaps another two years, and tell the petitioner that he could then ask to be heard again; and then, if the circumstances were the same, presumably they would grant him a divorce. I ask your Lordships to contrast this procedure with that where a fixed period, and a reasonably long period (let us assume about five years), was adopted. There would be two hearings as against one; both the petitioner and the respondent would have far more expenditure—probably far more than twice the expenditure—because of all the time they would have to spend in getting legal advice on the position.

But I think there are other objections much more serious than these material ones. In the first place, experience teaches us (I think this is referred to in the Law Commission Report, although I am not certain) that once recourse is had to the courts reconciliation hardly ever takes place. Let us take my instance. The petitioner brings the case quite early after separation from his wife; he goes to the courts and he is told that he must wait another two years. Pride alone may make reconciliation quite impossible. But if he had had to wait a full five years before bringing the case at all there is a good chance that he might have changed his mind.

Also I must admit that I have some doubts about the functions of these "forensic social workers". So long as they confined themselves to verifying statements and investigating the position of the children, their reports might be useful. But if it were assumed that they had to assist the courts in assessing the chances of reconciliation (which might necessitate what could be called inquisitorial procedure into the breakdown of the marriage) then I think they might be on very dangerous ground. Obviously they would have to interview other people, friends of both the husband and the wife. But I am afraid that in doing so they might, albeit inadvertently, throw light on the skeletons in the cupboards of certain other marriages which would be much better kept behind those cupboard doors. At best they could cause grave embarrassment; at worst, they might even cause the break-up of other marriages quite apart from the one being investigated.

There is a great tendency for all great thinkers on reform to wish to sweep away the existing structure and to build anew. Great thinking has clearly gone into this Report and we should be grateful to the Group. As a result of their deliberations I am sure that eventually we shall get better divorce laws and sounder thinking. But in practice reforms can seldom come as the reformers would like: they usually come through pulling down a little here and rebuilding a little there, and patching and mending in other places. I do not believe that the divorce laws can be any exception to this generality.

Further, I would point out that it was vital for the Archbishop's Group to be logical and consistent in their Report, for had they made recommendations which seemed contradictory the whole Report could have been brought into disrepute. Thus they could not recommend divorce for breakdown of marriage at the instance of the apparently guilty party as an addition to the present divorce laws where the conception of divorce only as a means of relief for the so-called innocent party is the predominant motive. While the Group have to be logical and consistent, it is far more important that the law should be recognised as humane than that it should be based solely on the principle of consistency.

Before leaving Putting Asunder I should like to add one comment. While we have heard of the practical difficulties of adopting this plan—and I have put forward other difficulties of the inquisitorial system—I still believe that if we could accept the compromise of the first step by adding to the existing law divorce for breakdown (in certain conditions) the time might well come when the position which the Archbishop's Group want would almost be attained. While it might be impossible legally ever to abandon the matrimonial offence, I believe that good taste and public opinion would lead to these being so rarely used that they would become almost a thing of the past.

My Lords, may I now turn briefly to the Law Commission Report? It may seem presumtuous for a layman like myself to congratulate lawyers on a lawyers' Report. Nevertheless, I feel that I must put it on record that I have seldom read any document, let alone a document prepared by lawyers, so admirable in its simplicity and clarity. I had intended to refer to the Commission's recommendations on desertion and to read a few excerpts from their summary, but both the noble and learned Lord the Lord Chancellor and the right reverend Prelate have already done so. The fact remains that so far this afternoon not one speaker, I think, has advocated divorce by consent. So for the moment I think we can dismiss that possibility.

May I turn then to divorce for separation? Here I feel that the border between what is called "separation" and what is called "breakdown" may be a narrow one. The lawyers themselves say that divorce for separation is an application of the principle of breakdown. First of all, I would come to the case where they suggest it would be a practical possibility to grant divorce after two years' separation after the parties agreed that the marriage had irretrievably broken down. I should welcome that reform. The Law Commission Report states: Under the present law, where both parties want a divorce, in most cases they get one sooner or later. Sometimes they get one by questionable means. It may be said that this is somewhere near divorce by consent, but certainly it is no nearer divorce by consent than the idea of the Archbishop's Group. It would have the added safeguard that there would have to be at least two years' separation before the case could be brought to court.

But in this discussion, it is important that we should face one fact. However desirable a reform may be which is based on some kind of agreement between husband and wife, it is not fundamental: it cannot do more than touch the fringes of our real problem. It can do virtually nothing to legalisethose unions—and their number is becoming greater—that are stable but where marriage is impossible because the previous spouse of one or both of the partners refuses to take proceedings.

My Lords, those who oppose reform usually do so out of fear that the additional grounds for divorce will bring the institution of marriage into disrepute, but the existence in ever-increasing numbers of these stable but unmarried homes is, to my mind, an even greater danger to the repute of marriage. In conclusion, may I just reverse the usual procedure? May I throw the spotlight, as I think other speakers have done this afternoon, on the very large area where there seems to be a very considerable measure of agreement?

Over the past few years many Bills on divorce law reform have been intro- duced in another place almost all of them suggested break-down as one of the causes for divorce. Owing to the pressure of Government business, discussion on all but a few of these Bills has been severely curtailed. The right reverend Primate's Group, in Putting Asunder, wants break-down as a cause for divorce.


My Lords, the cause, not a cause.


My Lords, I am sorry: I accept that—the cause for divorce. The Law Commission put it forward as a very practical reform, and though, as has been pointed out already, they cannot make any recommendation, one can hardly read their Report without thinking that, of all the reforms they put forward, they consider this to be one of the most practical and desirable.

Finally, my Lords, and perhaps least important, there is the Bill in my name awaiting a Second Reading, which is virtually identical with one of the possibilities put forward by the Law Commission and which provides safeguards for the financial position of the other spouse and for the children, very much as mentioned by the right reverend Prelate. I was disappointed in the speech of the noble and learned Lord the Lord Chancellor, and I shall look forward to his answer at the end of the debate, because if I could get any positive assurance that there would be Government-sponsored legislation on this matter at an early date, I might feel disposed to ask permission to withdraw my Bill.

But my first reaction on listening to the speeches so far this afternoon is that, having discussed the very sweeping reforms suggested by Putting Asunder, and the very wide field of choice put forward by the Law Commission, it would certainly not do any harm, and might do a lot of good, if for a time your Lordships' attention were devoted to one small but, to my mind, vitally important arc of that great circle. I do hope that we shall not have another Royal Commission. I once had the honour of chairing a Royal Commission, and I believe that its Report was one of the quickest that has ever been brought out; but that took three years. I think we should make up our own minds. I do not want this matter delayed.

The most reverend Primate referred to our postbags. I have had many letters since the introduction of my Bill, and I should like to tell your Lordships about just one of them. It came from a lady whom I will call "Miss Smith". Early in World War I she formed a boy-and-girl attachment with a man whom I will call "Mr. Brown". Then the circumstances of that war separated them. I do not know why—probably "Mr. Brown" went into one of the Armed Forces. While away he met another lady and contracted one of those very hasty war-time marriages that were so common among young people at that time.

His marriage was unhappy almost from the word "go". After a very short time he separated from his wife, but she refused to divorce him. The separation had nothing to do with Miss Smith", and it was not until some years after "Mr. Brown" had left his wife that he and "Miss Smith" met again. Then their early affection deepened into something really great. "Mr. Brown" again went back to his wife, but there was no hope for him of getting his freedom. In 1924 this couple set up a home together, and they are still living to-day in love and constancy together. My Lords, if these two ever stand before the Great Judgment Seat; if the Almighty God is the merciful and loving Father that the Christian Church teaches us, I cannot hold that they will stand condemned. Canit then be right for the laws of this land that they have been denied any legal recognition of their union for over forty years?

5.27 p.m.


My Lords, it is my privilege to-night to congratulate the noble Earl, Lord Balfour, who has just spoken, on his maiden speech, and to welcome the remarks he has made. I have no doubt that your Lordships were particularly interested in the fact that he is contemplating introducing a measure which is relevant to the topic we are discussing to-night, and I wish him well in that, although I shall have something to say on that subject in the course of the very short speech I intend to make. The noble Lord, Lord Derwent, held himself out as an "ordinary man", the contrast being supposed to be between himself and those "horrible lawyers", who are extraordinary, or not ordinary, men. I may not be a very good lawyer, but I hope I am a better ordinary man than I am a lawyer, and it is as ordinary men—and women, too, I should say approaching a serious social problem that we are discussing this matter to-night.

I suppose that the only "laymen "on this topic are the people who have never been married. The married men are people who know something about marriage. I claim from my own experience in the law to have had a rather specialised opportunity of observing marriage, because I practised in the Divorce Court, and was for a long time a Judge in that court. We are all agreed—I am sure that none of your Lordships will show any dissent about this—thatour prime object, the prime object of any legislation on this matter, is to keep in view the importance of preserving the institution of marriage. We lawyers do not talk about the contract of marriage; we talk about marriage as an institution, something different from a contract, which confers a status on those who enter into it. I have been struck by my observation, naturally a detached observation, as counsel and as a Judge, of the way in which people who have suffered and endured during years of unhappiness have perhaps, in some curious way, been the better for it, and I want to make this point, because I think it is a point, that since marriage is the foundation of our social structure it gives the ordinary man an opportunity to learn something about service to his fellow countrymen by learning in the home how to serve his spouse. No doubt there are marriages which are reasonably happy where one is completely selfish and the other a "doormat", but those are exceptions. In most marriages there is great service rendered by one to the other.

I read with interest the Report of the Archbishop's Group which is called Putting Asunder, and the Report of the Law Commission and its comments on that Report. I regret that I shall be unable to be present at the end of this debate, and I apologise to the noble and learned Lord the Lord Chancellor and to the House for that. But in the course of a few observations I have to make I should like to refer to one or two aspects of this problem. Lately, it has become a fashion to talk about marriages "breaking down". When a friend's wife is found to have run off with another man, one is told that the marriage has "broken down". It is the sort of euphemism, which covers anything from that situation to the parties becoming rather bored with one another and separating. I confess that I am very cynical about this "breakdown" business.

The custom has grown up to point the finger of scorn at the matrimonial offence, and I hope that I shall not fall into the trap of using either the word "innocent" or the word "guilty"—words which are so unpopular to-day. But, after all, the legal system is set up in order to try cases. If one is trying a running-down case arising from a collision between motor cars, or a claim for money lent, one is trying to find out what has been proved, which involves in practically every case what is guilt—or liability, if you like—for a wrong done by one party to the other. That is the way the courts work. I confess that I find it distasteful to consider the situation of somebody who has been a judge or would like to be a judge sitting as an inquisitor while husband and wife are throwing mud at one another in an atmosphere said to be—I do not know why something different from hostile litigation.

There is a passage in the Law Commission's Report which brings this out. If I may say so, they have not missed very much and they have dealt with this problem. They point out that there is already a departure from the matrimonial offence principle in existence in this country, a point which I think is made in Putting Asunder. If one's spouse is mentally deranged, one may put her away. But, as the Law Commission point out, that in itself is no justification for departing from a system, which may be unsatisfactory, in favour of this vague euphemism "breakdown of marriage", which I find would be distressing, distasteful and embarrassing to all concerned.

Suppose the parties whose life is being inquired into took the other line, which. I imagine would be more admirable, and said, "Mea culpa"and refused to throw mud at each other. Information would not be forthcoming to enable the inquisitor to decide the proper provision which ought to be made for the maintenance of the other spouse. It would seem almost impossible that a just result could be achieved without some inquiry into the rights and wrongs of the matter.

The Law Commission's remedy brings me back to a suggestion I made in your Lordships' House three years ago—and to those who heard it before I apologise for mentioning it again. The Law Commission are careful to say that they are not putting forward proposals of their own. Incidentally, if I may say so with due respect to the most reverend Primate, the Commission have said some pretty harsh things about Putting Asunder's suggestions for breakdown inquiries. I am not going to quote what they say, but noble Lords who have read it will see that the solution of the Church committee is open to very serious criticism.

I want to make only two points on the solution which is suggested—I am not sure that I am using the right words—of breakdown without inquiry after a period of separation. This brings up a matter very near to my heart—compulsory divorce. When this matter was mentioned three years ago, the noble Baroness, Lady Summerskill, and the noble Baroness, Lady Horsbrugh, spoke on this subject. Some noble Lords on the other side who were in favour of the Separation Bill said that there was no compulsion about it at all. I do not know what they meant, because of course there is. I see no earthly reason why a woman and I say a woman because that is usually the case—should be compelled to divorce her husband, or to be divorced by him, after a period of separation, if she does not want to do it, or why she should be compelled to explain why she does not want a divorce. I have had a number of letters from women on this topic, as no doubt the noble Lady has, and they all sing the same tune: "Why should I be turned away by my husband? I married him and I intended it to be permanent." And, quite apart from any religious objection, while I know that these women have stones thrown at them in their private lives, I do not feel in a position to throw stones at women who take that line, or to call them vindictive. We do not know the motives that inspire them. And they are entitled to say that they do not want to be divorced.

The noble Lord, Lord Kennet, made some attempt to meet part of this problem, when he replied to the debate. One of the points he made was that this is not fair on poor people. The noble Baroness, Lady Summerskill, made the same point. I am used to legislation of "soak the rich" variety, and there is a great deal to be said for it—it is good "Robin Hood" stuff; but I am not in favour of soaking the poor. Perhaps it is not literally true to say that this is soaking the poor, but, at any rate, it gives a remedy to rich people who can afford to pay maintenance for the ex-wife, or ex-wives, however many they have, if they are rich enough. But the poor man just cannot do it. And this point has not been met. The noble Lord, Lord Kennet, who seems to have given the matter careful consideration said that he did not think that there was much in it as a poor man will still be a poor man and will not have any more money when he has got his divorce. But that does not meet the point. Once a woman has been cast off from the legal tie, the monetary position for her will be worse. If her ex-husband gets a new wife, the new wife will have a legal claim on the husband. And it is no good talking about safe-guards. There will not he any safeguards. The ex-husband can be sent to prison if he does not pay, but that will not produce any money. And he cannot keep two women. It just is "not on".

I feel that this position has never been dealt with successfully by those who advocate separation as a ground for divorce. The Law Commission is comprised of wise and clever people. They recognise this difficulty, as do the Archbishop's Group, also, and they use the word "equitable" as being a sort of soft and gentle word to be applied to the provision which will be made for the woman of whom I am now speaking, the word "equitable", I suppose, carrying in its train the suggestion, "We will be fair to both. There is not enough money. The husband cannot pay, and he will not have to pay". But that is not my idea of equity.

I apologise to those to whom I have addressed remarks of this kind before; and now that the right reverend Prelate is here, I should like to thank him for the Report, to apologise to him for the fact that I was not present when he opened this debate—I was occupied in another part of your Lordships' House—and also to apologise to him for the fact that I shall not be able to stay to the end of the debate to hear him demolish what I have just said.

Often on these occasions something is said about the matrimonial offence in a derogatory sense. But I think that this has been overdone. The two principal matrimonial offences, adultery and desertion, are generally capable of proof; and it is said that they are also subject to a great deal of cheating. Well, of course, people do cheat the law. People cheat the Customs, they cheat the Revenue and they cheat the courts. But that does not seem to me of itself a good reason for altering the law about matrimonial offences.

I do not feel the same way about cruelty. For myself, I think it is a great pity that cruelty was ever introduced as a ground for divorce. Nobody ever seems to understand quite what cruelty amounts to. I understand it as it was in the old days, that it was cruelty if you could prove violence. But now it has become so subtle that one can almost be cruel by accident.

My memory goes back to my childhood and the days when I read P. G. Wodehouse, who described an American State where a lady got a divorce on the grounds of the most savage and malicious cruelty inflicted upon her by her husband, he having insisted on her dog having the leg of a chicken and not the wing. I know the learned Chairman of the Law Commission will bear me out, because he has been a Judge in the divorce courts. Judges are amazed at the astonishing propositions put forward in court as seeking to establish a case of cruelty.

I have detained your Lordships for too long, but I must confess that I feel strongly about this matter. I think, as the noble Earl said, it is really too much to expect that we can deal with something of this kind by some sweeping reform—scrap the lot and start again. I know it is cold comfort to people to be told that we cannot do very much, but my feeling is that reform in this field must be undertaken with great care and, if need be, step by step.

5.44 p.m.


My Lords, this is not the first occasion on which the noble and learned Lord, Lord Hodson, and I have spoken in a debate on subjects similar to law reform. I should like to say how much I welcome his remarks on the economic position of women. When I stand up here and focus attention on the need to improve the economic position of the housewife, I always feel that noble Lords are saying, "Here she goes again!" So, to hear the noble and learned Lord, with all his wisdom and experience of the courts, tell the House that this is vital to the matter which we are discussing pleases me enormously.

Last week, when we debated the First Report of the Law Commission, and it was mentioned that this debate on divorce would be held to-day, I said that we were putting the cart before the horse. Before we can settle these problems which are concerned with the two sexes, man and woman, we must settle the problem which my noble and learned friend Lord Hodson has raised: that is, in the first place, to ensure that the poor wife and I say "poor" from a financial point of view—can face sweeping changes in the divorce law with her head held high and say, "Well, if this comes, I can face the world. At least, I shall not feel poverty stricken. I can struggle on feeling that the problem is settled".

I should like first, therefore, to comment on the part of the Law Commission's Report dealing with that. I cannot accept what they have said about separation without tremendous qualifications. First of all, I want to see legislation passed through both Houses of Parliament which will improve the economic position of the married woman. Then, I want to echo what the noble Lord, Lord Derwent, said in his excellent contribution from an ordinary man, that what we have to remember in this debate is that we in this country approach marriage through love, not just through the head. I think this is most important to remember. In a debate such as this I am very much aware that I personally am a happily married woman. We are all making confessions here to-day. I have done a lot in my life. I have won elections; I have come to your Lordships' House; I have helped to pass legislation; and I have had children. But the outstanding thing in my life, for which I am profoundly grateful, is that I married a really wonderful man.

We have to approach marriage in that way, and realise that marriage really is essential to every man and woman in order to have fulfilment. You want companionship; you want to love, and to be loved. When we approach marriage we should say, as the noble Lord, Lord Derwent, quite rightly said, "This is for keeps". Let us approach the whole question of the divorce law in that way, and dismiss the modern approach, which some people may say is the ideal one (and which I shall deal with a little later), that marriage may be a trial marriage, and if it does not work you can get rid of your partner.

I say that I find this debate not very attractive because it must involve considerations of the vulnerability of the marriage contract, deemed by most of us to be of such lasting value. There are two things to consider. First, there are the children. The children of a broken marriage present all kinds of imponderables. Secondly and I hope noble Lords, who are most understanding on these matters, will agree with me—a woman's approach to marriage is fundamentally different from that of a man. Consequently, it is unrealistic to believe that some divorce formula can meet all the needs of men and women, of different temperaments, attributes and background. We must just do our best in the light of circumstances.

Then, human behaviour and human emotions are unpredictable, and the wisest have learned that it is a mistake to rely on logic to meet the problems of a broken home. It is only recently that our wise Judges (and how delighted I am to see so many of them here to-day, including the Master of the Rolls, who I am happy to know will speak later) have decided that the mother, who may be the guilty party in a divorce, is still the best person to look after the children. This is a complete departure from the old punitive position, and, as I have already said, it is a realisation by our Judges that a woman's approach and a man's approach to marriage are so entirely different.

There is little equality of the sexes in home-making because I believe it is the maternal instinct which provides the driving force. And with all due respect to noble Lords, I would say that, if she is a wise woman, a woman's maternal instinct embraces not only her children but her husband as well. I would say that in these days of full employment if a woman is ill-treated by her husband she could leave the home overnight, knowing that he is legally responsible for the care of the children. But we all know that this rarely happens. She will tolerate anything. She will tolerate poverty, cruelty, drunkenness or unfaithfulness rather than leave the home, although she knows that she could get a job the next day.

Therefore it would seem that a further weakening of the marriage tie by easier divorce must bear more hardly on the mother and the children than on the father. I would point out to the House that in the United States of America the marriage tie has been weakened so effectively that there is now one divorce for every three marriages; and I do not think there is any evidence that it has necessarily improved the quality of family life in the United States.

The so-called divorce reformer could equally be called a marriage-breaker, for that is the effect of hastily conceived changes in family law. I hope I shall still be alive when one day, in our wisdom, we decide to supersede the Western form of marriage by some other form appropriate to the times which will ensure children more adequate protection. But for the time being we must use the institution which we have modified in the course of the last century, always having borne in mind that the stability of the family must be our invaluable guide.

I speak more in sorrow than in anger. The Archbishop's Group have produced a curious and disappointing document called Putting Asunder, in which they have failed to recognise that the stability of the family should have governed all their thinking. For this reason their proposals will baffle the churchgoer, and the recommendations are calculated to astonish a scientific humanist, for this reason. These proposals can be interpreted only as a rejection of a lifelong marriage contract and the substitution of trial marriage. I will explain why. It is recommended that the doctrine of the breakdown of marriage should be substituted for the matrimonial offence as the basis for divorce. Undoubtedly this approach will make it much easier to obtain a divorce. The procedure suggested—and my noble and learned friend the Lord Chancellor read it out in detail—is that every husband or wife, or both (the Archbishop preferred both) seeking a divorce should appear before a court which would conduct an inquest into the family life of the petitioner and the respondent. This suggests to me that the Church must be completely out of touch with the ordinary man and woman.

One reason why the proportion of undefended divorce cases is so high is that a married couple hold a mutually enjoyed, close, spiritual and physical communion, and they cannot tolerate the thought of opening their wounds by relating their traumatic experiences before complete strangers in a court. How can you expect a woman who has kept her love letters all her life, as women do, later on, despite there having been some trouble, to go to the kind of court that we have heard described to-day and tell the court all about the history of her marriage, what happened and when, and who did what? She shrinks from such a thing, and that is why so many divorce cases are undefended. It has not surprised me when I have been told that 97 per cent. of the cases are undefended. Men and women so very often cannot tolerate going to a court.

The right reverend Prelate this afternoon described what happened in a court when a barrister told everybody what had happened and the respondent did not come and deny it. We are told that in the kind of court proposed they jolly well must come and describe these things. My Lords, the Church are out of date. The Church are now offering to us a public confessional for these hurt people or, as the Law Commission describes it, an "inquisitorial investigation", worthy, I suggest, of a mediaeval society.

Divorce on the ground of breakdown alone, which could be for incompatibility, is little different from divorce by consent. No one can tell of the pressures which might be brought to bear on one of the spouses before going before the court of inquisition. Incompatibility, supported by evidence of friends and a declaration from the couple that they are not prepared to live together again, must justify a divorce if breakdown alone is established as the grounds of ending a marriage. In one of these courts that are contemplated two people will explain in public how incompatible they are and why they cannot get on together, so that at the end of the day the marriage can be ended. My Lords, the whole thing is unrealistic. Think of the pressure which could be brought to bear on one of them to go to the court and explain how things are difficult, or to refuse to go, when, according to what we have heard to-day, the court would certainly be prejudiced because the husband or the wife had refused to go.

All this would lead to couples regarding marriage as a temporary arrangement which could be jettisoned as soon as it presented some difficulty. In fact, as I have already said in my opening remarks, married life could be regarded as being on trial until the time when the court might be asked to end it. The Archbishop's Group have not asked themselves several pertinent questions. What are the criteria of a breakdown? As we all know, Judges are human beings, subject to ordinary emotions, and I say therefore that the decisions must be subjective, varying from court to court. The result would be that solicitors could never give a client reliable advice because the result of the case would be unpredictable and, if I may dare to say so, depending perhaps on the Judges' moods or prejudices that day.

Even if the terms for a divorce were acceptable, is the procedure practical? The noble and learned Lord who sits on the Woolsack has told us to-day of the shortage of Judges and of court staff. I learned to-day that a number of special welfare officers were to he appointed. The shortage of welfare officers in this country is so great that some local authorities are absolutely desperate for them. Some of our delinquency is caused because we have not enough of these excellent welfare officers to look after our young people, and we have been told today that in connection with these inquisitorial courts a small army of helpers will have to be recruited, including welfare officers.

It seems to me that the Archbishop's Group, in seeking to modify the divorce law, have forgotten that the stability of the family must be their guiding star: because, if I may say so, I gathered from Putting Asunder that they were preoccupied with the fate of those tempted to forget their marriage vows. On page 13 the Report says: where marriage is concerned life-long monogamy is what human nature really needs for its fulfilment; The fact is that human nature is polygamous, and I am sure that if we were to ask the President of Pakistan, who is in the country now, he would give an address which would completely controvert what Putting Asunder has said. I believe that divorce must primarily concern itself not with the needs of human nature but with the needs of the family—


What is the difference?


The noble Lord asks: "What is the difference?" There is a great difference. The needs of the family, if they are put before human nature, mean that the husband and wife must be very unselfish in the interests of their children and must not think of their primitive nature. I am rather surprised that the noble Lord should ask me such a simple question.


If the noble Lady is referring to me, I did not say that.


No; I was referring to the right reverend Prelate. I know what a wonderful contribution the noble Lord, Lord Wells-Pestell, has made in the past to the social services.


My question was put because I should have thought that "human nature" included the natural maternal instinct for the welfare of the children, and the paternal instinct for the welfare of the children and the wife. I was not quite sure what distinction the noble Lady was drawing.


Of course our civilisation is itself evolving, because we are being successful, I hope, in controlling human nature; and marriage itself, in the first place, was established in order to control human nature.

I am sure it will be agreed that the matrimonial offence is not always the basic cause of the failure of marriage. It may well be a desperate attempt to escape from an uncongenial relationship. It may be simply a symptom of unhappiness in the home. The case then resolves itself into a wrangle as to what matrimonial offence should be advanced in order to secure a divorce. I agree that this may well present a squalid situation. Nevertheless, although there are wrangles in the home, the very difficulties encountered provide a deterrent to divorce. Futhermore, the greater the deterrent to divorce the less likelihood there is of people entering marriage in an irresponsible manner.

We have heard a suggestion that another Royal Commission should be set up. I hope the House will not accept that suggestion. The last Royal Commission reported ten years ago, and human beings have not changed a great deal in the last ten years. Questions concerning a change in the divorce law prompted the Government in 1951 to set up the Royal Commission on Marriage and Divorce, known as the Morton Commission. The Commission consisted of sixteen members, six of whom were women. In parenthesis, may I say to the right reverend Prelate that I was sorry to see the Archbishop's Group of twelve included only two women—Miss Rubinstein, a solicitor, and Lady Oppenheimer, a writer on Christian ethics.


And a wife and mother.


I do not deny that; I am only saying that I am very sorry the Group was not perhaps a little more representative of women.

The Royal Commission sat for four years; they held 102 meetings, in London and Edinburgh; they heard evidence from 67 organisations and 48 individual witnesses. The members of the Commission, with one exception, were all agreed that the present law based on the matrimonial offence should be retained. They discussed the matter for four years, and that was their decision. Nine members were opposed to the principle of accepting breakdown of marriage as a ground for divorce: Because in whatever form that principle might be introduced it would entail the recognition of divorce against the will of a spouse who had committed no recognised matrimonial offence. My Lords, the argument which is frequently employed is that the law must be changed in order to help the illegitimate children of the extra-marital alliance. Let us think of the ordinary people in this country. How many men can keep two families in an equal standard of comfort? The first family, after a few months, will come second to the family in possession of the wage-earner. I remember the noble Lord, Lord Hodson, saying that on Friday night there is one woman who will get the money, and that is the woman who is in possession of the wage-earner.

The Law Commission have applied themselves to this aspect of the matter. They said: A court would have to take into account among all the other circumstances of the case the pension position and the likelihood that a subsequent marriage might make it impossible for a petitioner to continue to pay maintenance to a former wife at a rate which was fair. Then they said: While to refuse a divorce on this ground might be said to be discriminating against the poor it may be argued that on marriage the petitioner has undertaken an obligation to support his wife—at least while she is innocent of any matrimonial offence—and should not be allowed to acquire other obligations which disable him from fulfilling his prior one. I would deduce from this that the Law Commission recognised that the average man cannot adequately support two families. Of course this presents no problem to the wealthy man who can afford to support the children of two families without discrimination against the first. The Archbishop's Committee suggest that a divorce might be withheld if a man could not undertake these financial obligations. But a law which cannot be of universal application is inequitable and undemocratic in conception and must raise public opposition. All Parliamentarians know that a law which is not enforceable, for any reason, is bad law.

The Royal Commission, during the four years they sat, had ample opportunity of discussing with those concerned the welfare of children from broken homes, and they expressed this view: The best home for children is of course a happy home, but in our opinion (and most of our expert witnesses confirmed this) children can put up with a good deal of friction between their parents so long as the home remains intact. The relations between the parents must usually be very bad indeed before a divorce is in the interests of the children. They added: If the principle that a marriage should be ended if it has irretrievably broken down is followed to its logical conclusion then it must be accepted that a spouse who had committed no recognised matrimonial offence could be divorced against his will. In our opinion this would be so plainly unjust as to be in itself conclusive against the introduction of any ground of divorce which had this result. Finally, may I say this? We have seen in our newspapers, and on television, during the last few weeks a great deal of publicity directed to this matter. Young men who write in some of our weekly papers are inclined to equate easier divorce, abortion reform and reform in the homosexual field as a sign of progress. It was therefore a welcome relief to find, when I read my Observer on Sunday, that Katharine Whitehorn, a highly intelligent young mother who I am sure everybody would say is "with it" in the modern world, had written this: It is odd that divorce should be talked of in enlightened circles as if it were a benefit that should he available to all, rather than a tragedy it is worth almost anything to avoid. My Lords, we must recognise human frailty, and must balance one consideration with another in deciding whether it is wise further to weaken the institution of marriage. The time may come when our society is so constituted that we have a suitable substitute for marriage, but that time has not yet arrived, and therefore we must try to shore it up rather than seek to undermine it.

6.10 p.m.


My Lords, I am grateful to my noble and learned friend Lord Reid for allowing me to intervene at this stage as unfortunately I have an engagement which I must keep which would prevent me from taking part in this debate later and which I fear will prevent me from hearing the Lord Chancellor, if he speaks again with leave, and the reply of the right reverend Prelate.

I am very glad indeed to have this opportunity of following the noble Baroness, Lady Summerskill. It is not often my pleasure, and it is not of course the first occasion on which she and Lord Hodson have found themselves expressing similar points of view on certain subjects. But on this occasion I find myself able to come to the defence of the right reverend Prelate for what to me is the most unwarranted and most unjustified attack upon the excellent Report that he produced. Indeed, as the noble Baroness went on I began to wonder whether she had ever read Putting Asunder. I wonder in fact what happens if she takes her car when it has broken down to a garage to be repaired. Does she take up the time of the garage proprietor in telling him the whole history of the car since it came from the factory? It really is ridiculous to suggest that in endeavouring to prove or establish the fact that the marriage has broken down at the time the petition is lodged the wife will have to go right through the whole history of the married life and produce her love letters to show that at the particular time that marriage has come to an end.


I did not say that.


I took a note of it. The noble Baroness said she would have to tell all about the history of the marriage.




You might just as well have to tell about the history of the motor car when a punctured tyre is repaired. I must say I find it very astonishing. Also I find it very astonishing that she should pour such scorn on the suggestion that if possible more welfare officers should be employed in this field. I thought she would have welcomed that proposal. We spend far too much money on facilitating divorce; I am sure she would agree with that. I think it would be much better if we spent a bit more money on trying to prevent marriages from breaking up, and that would be the task, as I see it, of these welfare officers, not as officers investigating on behalf of the court.

I should like, if I might, to congratulate the right reverend Prelate on the Report of his Group, and the most reverend Primate on his initiative in appointing that Group and in getting so many distinguished people to serve upon it. I might point out to the noble Baroness, who criticised that membership because it had only two ladies upon it, that it is of course an unfortunate fact that the Law Commission do not have one feminine member.

I perhaps have few qualifications to speak in this debate, but I had the experience in years gone by of appearing before my noble and learned friend Lord Hodson when he was sitting in the Probate Divorce and Admiralty Division on divorce cases, and as he knows, for some time I did some work in that Division. I cannot claim to be a member of the Divorce Law Reform Society; I never have been; but my position on this question is certainly not neutral. I do hope that the position of the Government and of the noble and learned Lord the Lord Chancellor will not continue to be neutral.

I am not speaking in favour of making divorce easier. I should like to see our system operate in such a way that where there has to be a divorce the bitterness and friction is removed to the greatest possible degree, because in my experience that bitterness is often terrible and often reflected on the children of the marriage. One great appeal this new proposal has to me is that I think that in the vast majority of cases proof of the fact that the marriage has come to an end will not involve proof of which member of the relationship is responsible for that sorry state of affairs. It is just the fact that the marriage has come to an end which would have to be proved. I must say that, although as my noble and learned friend Lord Hodson did, it is possible to poke a little fun at the use of the word "breakdown", I think the concept is one which is quite clear. The recommendation, if I understand it rightly, is that divorce should be granted on its being proved that really the marriage has ended, and without proof in most cases of who is responsible for that sorry state of affairs. I think that if a marriage has come to an end, then we ought to secure as best we can that the situation which results from that should be tidied up and dealt with in as friendly a fashion as possible.

I am not going to take up time by criticising the present system. It has its defenders; my noble and learned friend Lord Hodson is one, and I think the noble Baroness, Lady Summerskill, is really another. I share the views expressed on our present system by the Archbishop's Group and the Law Commission. I think it is thoroughly unsatisfactory; I think it is thoroughly unreal, and I think it can promote and foster bitterness. I think we should, if we possibly can, find a more real basis, a more just basis for the termination of marriages when that has to occur. That is my approach, and I am definitely attracted to the proposals contained in the Report of the Archbishop's Group.

I have always felt—I say this quite frankly—a great deal of doubt as to whether that system could be operated practically. I think the language about an inquest used in the Group's Report has had attached to it perhaps far more importance than it really merits. As I see it, in many cases the documentary information provided on affidavit by the parties will be sufficient to satisfy the court beyond all doubt of the fact that the marriage has really come to an end. I was astonished, therefore, to hear the noble and learned Lord the Lord Chancellor say that he estimated that every single case of this kind would take half a day or a day. It would, I think, follow from the intepretation that has been placed on the right reverend Prelate's Report, by the Law Commission as well, that if this system was adopted there would be nothing similar to an undefended divorce case. I personally did not read this report in that way. I thought it was right to emphasise the inquisitorial aspect as opposed to the litigious aspect, because that is important. I thought, also, the criticism could be made that it was not perhaps sufficiently emphasised that the court might well be satisfied that that condition of affairs existed without engaging in an inquisition in every single case, and certainly without raking over the whole marriage history, as the noble Baroness, Lady Summerskill, seemed to think it involved. I feel that it would be a better basis for our divorce system if when it was established that the marriage relationship had in fact ended, the law would then treat the marriage as terminated. But, as I have said, I have always doubted whether a practical scheme for that could be worked out.

If I might venture one criticism of Putting Asunder, it is that I think the Group dealt perhaps too lightly with the practical aspects. My noble and learned friend Lord Devlin signed that Report; so did Mr. Justice Phillimore; so did my noble friend Lord Colville of Culross. I am quite sure that none of them would have signed that Report unless they were satisfied that was practicable. They make that quite clear in paragraph 27, because, having reached the conclusion that the doctrine of breakdown of marriage should be comprehensively substituted for the doctrine of matrimonial offence as a basis for divorce, they said The rest of our work consisted in trying to make sure that the substitution was practicable. So I conclude from that that, rightly or wrongly, the members of the Archbishop's Group in fact satisfied themselves that the adoption of this new basis was workable and practicable.

Then, of course, came the Report of the Law Commission. I do not wish to criticise the noble and learned Lord the Lord Chancellor for having taken advantage of the powers under the Act to get advice from the Law Commission. But I think it has its disadvantages, because anyone reading their Report quickly would, I think, get the impression from it that they were in favour of divorce after six months' separation with consent, and after five to seven years' separation without consent. That is not the case, but I think that is the impression that one would get from glancing through their Report. Bringing the Law Commission into such a political and social field has its disadvantages, I think.

However that may be, I think the Commission produced a Report of great interest; but, whether they are better qualified to express a view on the practical aspects of the Group's Report than the Group itself. I must say I rather doubt. Mr. Justice Scarman can speak with great authority with regard to divorce. So, of course, can Mr. Justice Phillimore. Mr. Neil Lawson I think did some work in the Divorce Division, but one would not regard him as a member of the Divorce Bar. As to the other gentlemen, most distinguished, some of them most distinguished academic lawyers, I am not at all sure that they are the people who are best qualified to say whether or not a scheme is practicable.

It was interesting to me to note that the noble and learned Lord the Lord Chancellor, while claiming to be in the best position to judge whether or not the scheme was practicable, did not rest at all upon the views expressed by the Law Commission. I hope I am not doing his argument an injustice when I say that his approach was, if I can put it shortly, that he had spoken to a particular gentleman who had served on the Archbishop's Group, had found out what was in that gentleman's mind and then calculated how many judges would be required, which would be a vast number.


My Lords, if the noble and learned Viscount will forgive me, I was not relying upon something that was in his mind, but upon one of the appendices. I think it is Appendix G of the Report itself.


My Lords, I am much obliged to the noble and learned Lord. He was relying upon that. I am not seeking to attack the noble and learned Lord. If I had been in his position, I am sure I should have made the same calculation. I might have made the same comment. That is the real issue about this, and all I would say about it now is that I do not believe we can solve this question in this debate, whether it is practical or whether it is not practical.

So far the arguments seem to me to be fairly evenly balanced. But I start with this: that if the majority of your Lordships'House—I hope I have the noble and learned Lord the Lord Chancellor with me on this point—regard the present system as highly unsatisfactory, then we should seek to replace it by something else. I am not in the least worried by Lord Hodson's observation about scrapping the lot and starting again. I think that would probably be the best thing to do to get right away from the doctrine of matrimonial offence and establishing someone's guilt. I wonder how often the courts do find out who is guilty of bringing a marriage to an end?

I come back to this: that whatever system is to be found in the Appendix to this Report, if the majority of this House think that the basis put forward would be a better basis, then do not let us quarrel about whether the Group are right in saying that it is practicable or the Law Commission are right in saying it is not, or the Lord Chancellor is right in his deduction from the Appendix, but let us find some way in which a body of people can get together to see whether they can work out a practical way of putting this basis into effect. I am not trying to attack the Law Commission, but I think the right body for that particular kind of work ought to comprise people who are experienced in the courts; and, just because the proposal or the machinery put forward in the Appendix will not work, if we really regard the present system as unsatisfactory then we ought not to leave it at that, but should see whether there is any way in which it can be made to work satisfactorily.

There is one other matter I should like to touch upon. I shall not take up too much of your Lordships' time. Breakdown of marriage has been assumed always to apply in the sense that my noble and learned friend called compulsory divorce. I think that is a different question. I should like to see the matrimonial offence categories swept away and replaced by one of breakdown of marriage. But I am by no means convinced that a divorce should be granted on that basis if one of the parties objected, and objected for good reason. By that I mean that I do not think the objection ought to be allowed to prevail if it is done purely out of spite, or with a view to extracting more money, and the court thinks it is reasonable. I personally do not think that the adoption of this recommendation necessarily means compulsory divorce.

I apologise for taking up so much of your Lordships' time, and I am sorry that I shall not hear the noble and learned Lord the Lord Chancellor when he comes to reply. I welcome the fact that he consulted the Law Commission, for one reason particularly: that I hoped it meant that the Government were going to take an attitude and take action with regard to this matter. For many years Governments of all complexions have so far left it to private enterprise. Years ago I myself introduced a Bill which did reach the Statute Book and among other things abolished the rule in Russell v. Russell. The kind of reform that is required in this branch of the law—and I believe this is a branch of the law which requires reform perhaps more than any other—is not the kind of reform that can possibly be undertaken by a private Member. I hope that I can persuade the noble and learned Lord, the Lord Chancellor, to persuade his colleagues—because that I am sure is where the trouble will come— to let him take action on this matter. He, as he has said, is the Minister responsible. It is not enough, surely, for him to say after that that his position is neutral—full-stop. I do not think it is necessary to have a Royal Commission. What I hope he will say is that he will ask a body of experts on this subject to see whether they can work out a machinery, very different, perhaps, from that advocated in the Report, but a machinery which could make divorce based on breakdown a practical and workable proposition.

6.31 p.m.


My Lords, most people in this country distrust revolutionary reforms, and until a few minutes ago I thought that my noble and learned friend Lord Dilhorne was in that category; but apparently he is not. If I oppose, as I do, Putting Asunder as the basis of reform, it is not because I wish to block all useful reforms. I should like to see reforms which are at once practicable and likely to be acceptable to the people of this country, and I do not believe that Putting Asunder comes under either heading. My noble and learned friend who has just spoken tried to make out that this document sets out a practicable scheme. If time permitted I should like to take that up, but the time is getting on and I will only say this. If there is to be real inquiry so as to differentiate breakdown from divorce by consent, then I think that the scheme is wholly impracticable, at least within any measurable period. If, on the other hand, there is not to be real inquiry, then it seems to me that the scheme is almost indistinguishable from divorce by consent.

I would start off by saying this—and this matter was referred to a little earlier by the noble Earl, Lord Balfour, whose maiden speech we all so much enjoyed. I am in the position of agreeing heartily with half of what he said and disagreeing equally heartily with the other half, but I am sure we all hope that we shall hear him again soon. He referred to the passage on page 34 of the Law Commission's Report: Under the present law, when both parties want a divorce, in most cases they get one sooner or later. Sometimes they get one by questionable means… It appears to me that we might as well start by recognising the fact that if the present position is that most people who want a divorce get one, then the first task should be to make it possible for them to get one without employing questionable means. I think that would go a very long way towards solving 90 per cent. of the problems which confront us.

The Law Commission, for some reason which I do not wholly understand, have put separation and consent into different compartments. I believe they can well be combined. They are not really independent grounds, and if the spouses have in fact been living separate for, let us say, two or three years—I would accept any reasonable period—and if they both genuinely want divorce, then I believe they should have it. The fact that they have been living separately for several years is surely ample evidence that the marriage has broken down; and if they both want divorce, what earthly good is there in sending a welfare officer to try to persuade them to live together again? Therefore I should think that even on the breakdown theory, all the public interest is on the side of permitting a divorce in those circumstances. But we have to ensure, of course, that both parties really do consent. One knows that the weaker spouse is very often overborne by the other. Therefore I would not give a divorce on this ground unless both parties appeared before the judge and made it clear to him that they were both desirous of having a divorce.

On the whole, I should think that if that is the position, the children would be better off if there were a divorce; but I should be quite content to leave the discretion to the judge to refuse divorce if he was satisfied that that was in the interests of the children. That would certainly get rid of the objection to the present system that it engenders bitterness, because if the parties are going to appear as one before the court and say that they consent, there is no need to go into any past history. I cannot see how you could have a less humiliating or less embarrassing means of bringing a marriage to an end, certainly far less humiliating and embarrassing than an enquiry such as I understand is envisaged in Putting Asunder. But I would not permit that kind of thing if one of the parties really objects. If a party, against whom nothing can be said that he or she has contributed to the breakdown of the marriage, says, "I will not ask for a divorce", divorce ought not to be thrust upon him or her.

At this point I take issue with Putting Asunder. The theory behind Putting Asunder, as is explained in a number of passages, is that breakdown and matrimonial offence cannot live together in our law. I have read and re-read the passages in which that is set out. Clearly it is obvious to them that they have put forward an irrefutable argument, but the argument appears to me to be of no weight whatsoever, and I think I am living in a different world from those who framed Putting Asunder. Speaking as a lawyer, I can see no difficulty at all in principle in combining breakdown with matrimonial offence for different kinds of cases; and, speaking as a member of the public, it seems to me common sense that they should be combined. After all, we are dealing with two kinds of case. In one case one party has committed an offence and the other party seeks a remedy. Why should he not have it? In the other kind of case, where there has been no matrimonial offence, the question is whether in the public interest a marriage should be dissolved. I can see no reason at all why these cases ought not to be dealt with separately.

If I may turn for a moment to the Law Commission's paper, I think they have been rather led astray by the use of metaphor. They speak not once but several times of an empty legal shell. They speak of decent burial for dead marriages. Nothing is more dangerous, when you are trying to find a remedy for something which is wrong, than to allow metaphor to come between you and reality. That, I think, is what the Law Commission have done up to a point, although I do not want to suggest that I have the same objection to their paper as I have to Putting Asunder. I think there is a great deal in the Law Commission's paper which I could heartily accept.

We are not looking for a panacea here. Breakdown is put forward, so far as I can see, as a panacea to cure all ills. But no remedy is going to be equally applicable to all the multifarious types of case which require the intervention of the State for their remedy. I am struck by the fact that, although the most reverend Primate's Group have put this on a high logical basis, at once they find they cannot press breakdown to its logical conclusion, which seems odd when they start off in that very high way.

Take the case of the really innocent wife who has done nothing to contribute to the breakdown of the marriage. The husband goes away with another woman, or perhaps, as often happens, he is snatched away by another woman, and the wife has nothing to reproach herself with. What does Putting Asunder say about that? It says something which astonishes me. It says, on page 53, that sometimes a divorce will be permitted; sometimes it will not. What is the criterion to be? The Report refers to cases where the husband who has gone off with the other woman is "patently responsible" (I do not know what that means) for the breakdown—that is one element but that is not enough—and has "blatantly flouted the obligations of marriage". I venture to ask the right reverend Prelate, what is the force of the word "blatantly"?


My Lords, if I may intervene for a moment, I think that what the Group had in mind was that whereas it is in general in the public interest that marriages which are dead should be dissolved, even though one party cannot be proved in a court of law to have committed an offence which would legally justify such a divorce (if the matrimonial offence condition were to continue), nevertheless there are other cases where the behaviour of the one spouse has been so blatantly self-seeking as to cause a public scandal, a general offence.


My Lords, it seems very odd, if we are going to tell husbands who are thinking of going off with another woman, or to tell the other woman who is thinking of snatching away the husband. "Provided you carry on your affair smoothly and adroitly, it is in the public interest that you shall get a divorce against the innocent spouse. But if you are not so smooth and adroit, then the public interest is different". That may be some people's idea of public interest, but it is not mine.


No, my Lords. It would be the noble and learned Lord's idea of public interest, would it not, that a decree should not be issued if it would strike a blow at public morality? That is all we mean.


My Lords, I venture to think that any decree given in those circumstances, however adroit the methods of the man who goes off with the other woman, is a blow at public morality.


My Lords, that means, does it, that the noble and learned Lord would not admit the principle of the breakdown of marriage, either as a substitute for a matrimonial offence, or as an addition to it? Do I understand the noble and learned Lord correctly?


No, my Lords. I have already said that I will not admit it as a substitute. I will admit it as an addition, provided that both parties consent.


What happens if they do not both consent?


Then I think certainly the public interest is that the spouse who has taken the other spouse for life and wishes to continue with that should not be divorced against her will.


My Lords, in other words, the noble and learned Lord has no answer to the problem which is created by the dead marriage and the co-existing stable, but illicit, union.


My Lords, I had the advantage of hearing the most reverend Primate, and I was very much struck by what he said about the woman who kept on hoping and kept to her marriage vows. I am very much inclined to think that on this matter there must be a schism between the most reverend Primate and the right reverend Prelate.

There is another respect in which it seems to be that Putting Asunder fails lamentably, and that is with regard to financial considerations. They say on page 48, that full protection of economic and financial rights must be "assured". That is their word. Of course, it is quite impossible to assure financial protection, full or otherwise, in the case of the ordinary wage-earner, and I cannot read this as anything other than one law for the rich and one for the poor. Then it is said a few pages later on—on page 73 to be exact—that everything will depend on the ability and willingness to make this contribution. Ability I have already dealt with. As regards willingness, a rogue will promise anything. Is that to be accepted? And even the promise of the honest man—once he gets into the clutches of the second wife—will not get very far.

I am astonished that this idea should be put forward, unless the framers of this document are contemplating some really effective method of enforcing this promise. I do not suppose they want, any more than I do, to put a man in prison if he does not come up to his promise. That does nobody any good. The only other possible remedy is to stop the money out of the man's wages. I am not sure that a great many people, either trade unions or employers, are in favour of that. But that is not enough, because the man changes his job, and in that case the only possibility would be that the Ministry of National Insurance should be put under an obligation to tell the wife who the new employer is, so that she can get her money out of him, get him to stop the wages. Is it really the intention of the authors of this document that that should be done? If it is not, then this is, in my view, so much waste paper.

I shall not detain your Lordships at this time of night, but I wish, in conclusion, just to say this. I realise that in supporting the right of the blameless, deserted wife to refuse to be divorced I have not only Putting Asunder but also, I think, the Law Commission against me. But I am not in the least worried by that, because I firmly believe that in this matter the balance of public opinion is to-day, and for any measurable future time will continue to be, on my side. At least I can say that I shall continue to oppose any proposal of this kind.

6.50 p.m.


My Lords, I want to thank the noble Earl, Lord Iddesleigh, for allowing me to speak now, before him, because I shall have to be away, I am afraid, all too shortly. My Lords, I have had some experience in this field. I have sat as a divorce judge, I have been chairman of a Divorce Committee, and I have presided over many divorce cases in the Court of Appeal. I would say at once how much I support the recommendations of the Archbishop's Group, set out in Putting Asunder. By Statute, the law at the present stage is based on the matrimonial effects. In law, we have to find cruelty, adultery or desertion, and we have to use our discretion, but the day-to-day practice in our courts is to act on the principle of the breakdown of the marriage. I have seen it all the way through my experience.

At one time—I think it is now nearly fifteen years ago—sitting in the Court of Appeal we sought to limit the strict doctrine of cruelty, which went on violence or near-violence, as the case may be. We limited or reduced it by saying that if there was an intent to injure or an intent to cause misery, whether it was by a gambling husband or the like, that would be cruelty in law. That was one advance. But my noble and learned friend Lord Reid, sitting in this House judicially in the year 1964, made a landmark in our law as to cruelty. It is no longer necessary to have an intent to injure; it is no longer necessary to have an intent to cause misery, or to aim your conduct at another. It is sufficient—and I say this deliberately—if an intolerable situation is created. Indeed, that very case was one in which an intolerable situation had been created. The wife had run a guest-house on her own for years, and the husband incurred considerable debts. All the husband could do was look after the garden and a few agricultural machines. The wife's life was made a misery, and her health was broken. Was he guilty of cruelty? Without going into details, I may say that in that case my noble and learned friend widened the conception of cruelty to far beyond that of the layman, and we really have, in fact, divorce because of the breakdown of marriage. We have applied that since in the Court of Appeal.

Fifteen years ago we in the Court of Appeal said that if one spouse refused sexual intercourse to the other then that was not cruelty. Since my noble and learned friend's case—I say it is his; he took the leading part—we have had cases of refusal of sexual intercourse. Suppose a woman, through fear of child-bearing, refuses her husband intercourse because of a psychological inhibition. That has been held to be cruelty. Suppose a man is so under-sexed that for years he has no intercourse with his wife and, I add here, the marriage breaks down, she has to leave him and her health is ruined. Rightly or wrongly, following the good guidance we have had, when the marriage has broken down we have held that to be cruelty.

Then take the discretion cases—as though you could tell what was right or wrong! We invariably exercise our discretion when the marriage has broken down. Let me tell your Lordships of a case that came before us just a few weeks ago of a sailor's wife in Portsmouth. Her husband had gone abroad, at sea, and then the painter or decorator, in coming to the house, formed a liaison with the wife and set up house with her. He then found that his wife had gone off with another man, and brought his suit for divorce. He had to admit in his discretion statement how he had gone off with the sailor's wife. The county court judge said, I do not like a man who goes off with a sailor's wife; I am going to refuse this man a divorce". In the Court of Appeal we looked at it differently. We asked ourselves: "Has this marriage completely broken down?" Although this man did very wrong in going off with the sailor's wife, a new stable union had been created, and his own wife had gone off with somebody else. The marriage had completely broken down, and so we granted a decree. In desertion cases—and you never can tell; it is six of one and half-a-dozen of the other—if the parties have been separate for three years there is no difficulty in getting a divorce.

My Lords, I say that the law has evolved in accordance with the social needs of our society at the present time, and that these stable illicit unions (as Putting Asunder calls them) call for remedy—remedy, indeed, in the interests of marriage, so that the new union can be regularised. That, as I conceive it, is the principle which is introduced, and I welcome the courage, as indeed it is, of the Archbishop's Group in introducing this new principle.

My Lords, are there great practical difficulties? I fear that the Law Commission have magnified them no end. As I see it, an inquest is not considered necessary in every case, or even in the great majority of cases. In the great majority of the cases that come before us, we have no difficulty. I do not know what the proportion is, but in nine out of ten, or it may be ninety out of one hundred, the parties have already set up their separate establishments. They are already living with other people, and have formed their families. In those cases there will be no difficulty in saying that the marriage has broken down. They can be dealt with at once, just as they are now. Indeed, in many of the cases which are fought now—they may be fought for four or five days, with both sides wanting a divorce—they are fighting because they know that whoever wins will have a better say on the question of the children or on the question of maintenance, as the case may be. That is why the cases are fought, and that is why the breakdown of marriage should be the test.

Then with what should we replace it? Here I see no real difficulty. When sitting on the Committee which I have mentioned (it is now twenty years ago) I thought to myself, "It is too early yet, but perhaps in twenty years' time we might have family courts." My Lords, I still think that is the right solution. The mechanics of the legal machinery are not apt to deal with these human problems. Indeed, at an inquiry such as is suggested I should like to see both sides coming informally, not to wash their dirty linen in public but just coming. I do not think it would take too much time to arrange everything—the future of the children, the maintenance of the wife and, mark you, the public interest also, because I should not like to let an innocent wife be divorced against her will where the public interest did not demand it. Indeed, a family court (if you call it a court), with an inquiry such as this, ought to be held in all cases. Many of them will be as quick as can be, for the parties will have arranged it themselves, in a way, beforehand, by their own conduct. I also think that in many other branches of the law we ought to have family courts; but this system, boldly attempted, would, I think, be a solution of these social problems.

I was glad to hear the most reverend Primate refer to a breakdown without inquest as being, perhaps, the solution—and here the Law Commission, it seems to me, have failed to notice a cardinal point. They say, quite rightly, that if a long period were chosen, such as three years' complete separation, then the breakdown of a marriage could be presumed. Of course, it might not always be so: one would have to see whether it was a proper case. But then they go on to say, "But how would you deal with cases of outrageous conduct within less than three years?"—and a shorter period of six months is suggested. No one would visualise that if there was outrageous conduct it could not be dealt with. What I would have said is: Do not let cases be brought under three years, but let a judge be able to give leave to bring one within that time in a case of outrageous conduct. Complete control can be kept of these cases. My Lords, having seen the operation of the law in this matter over many years, I think the time has come for this brave new principle to be upheld, and I hope that the machinery can be adapted as recommended by Putting Asunder so as to implement it in due course.

7.0 p.m.


My Lords, it is a tradition (I do not know whether it is a good tradition or not) that one of my faith should take part in your Lordships' debates on divorce. I have, however, very little to say. It is quite unnecessary for me to explain to your Lordships the view which my Church takes of the indissolubility of a valid and consummated marriage; your Lordships know that very well. The matter was raised at the last General Council. It was decided, and it was decided by an overwhelming majority, that no change could be made in that position.

Nevertheless, I am a citizen of a country which, whether I like it or not, has divorce as one of its institutions. There is nothing to stop me, or any Roman Catholic, attempting to obtain for this country the best and most just divorce law possible. I should gladly contribute to that, and I should not consider that my principles are in any way affronted by my doing so. The same view, I am glad to say, is taken by the Archbishop's Group, and I was particularly impressed by the very able piece of theology which the Report, Putting Asunder,contains on the subject of Our Lord's teaching as recorded in St. Matthew. May I say, however, that I have been profoundly influenced by the course of this debate? I have torn up my notes, and I must confess that, after hearing so many speeches, I am left in very grave doubt—much more doubt than I had when I came into the House with the full intention of giving the utmost support in my power to the Archbishop's Group Report. But now I do not know what useful contribution I can make, except this.

I am in the position of the young lady in Dickens who did not know what she did like but did know what she did not like. What I do not like is divorce for the single matrimonial offence. Against that I have a very strong prejudice indeed, and it dates from my days in the Army when officers had sometimes to help poor, wretched soldiers who had heard that their poor, lonely wives had betrayed them and when they felt the only course open to them was to apply for a divorce. The real horror and misery that I felt in handling those petitions has left a very deep impression on my mind. Divorce for the single matrimonial offence, or even for half a dozen matrimonial offences, is no longer in harmony with public opinion.

I remember that forty or fifty years ago, when I was young, if you mentioned divorce at all you always mentioned it with reference to the guilt or innocence of the parties. You always, I believe, said, "She had to divorce her husband "or "He is a divorced man." If it was the other way round, if the wife was the guilty party, one might say, "She is a divorced woman"; but in point of fact it was rather bad form to do so; the words were so terrible that they could hardly be pronounced in English. One usually said it in French. One said, "She is a divorcée."

Public opinion at that time was behind the concept of the innocent and the guilty party; and I say that it is not behind that concept to-day. I find to-day that if people mention divorce they will say, "They have had a divorce", or, "Her previous marriage has broken up." They will use words like that. The question of innocence or guilt. to the modern mind, is not relevant. I am therefore in favour of divorce law reform; but the only thing I want to say on the kind of reform is that protection to the really innocent parties, the parties who have not had discretion exercised in their favour, the real, genuine, innocent parties, is of the utmost importance.

Just before coming into the Chamber, I received a letter. It was marked "Urgent". The writer underestimated the importance of this debate. She thought we were going to pass a law based on Putting Asunder straight away—possibly this afternoon. Of course she was wrong. But what she was very much concerned with was her pension. She implied in her letter that she would have given her husband (who had deserted her for a younger women a long time ago) his freedom, but would lose her pension if she did so. That is a real question. When better-informed speakers than I come to wind up this debate I hope very much that that woman's fears will be entirely set at rest, and that practical proposals will be made (I do not value very much mere assurances) to ensure that she will be looked after. As a practical issue, if a change is made in the divorce law so that she can divorce her husband, I want to know what will happen to that pension.

7.8 p.m.


My Lords, this has indeed been a remarkable debate. I think that every speaker has made a valuable contribution, and the value of the debate has been that these contributions have been so diverse. Like the noble Lord who has just spoken, I feel that my own views have been somewhat shaken since I have heard these diverse views. I hope that that is the position of most of the speakers to-day—although I have very little hope about one of them who has left the Chamber recently. But I should hope there is a possibility that others will have been influenced by what has been said.

May I offer two sets of congratulations? First, one to the authors of Putting Asunder. Whether or not one agrees with that Report, it is a remarkable effort, and I want to congratulate the authors sincerely on having made a valuable contribution to our thoughts in this field. Of course, few people will agree with every word of it, and I do not suppose that on consideration the authors themselves would; but it certainly can be put Into the arena as a most valuable contribution. I should also like to congratulate the noble Earl, Lord Balfour, on a remarkable maiden speech. One is accustomed to congratulating maiden speakers and very often one does so with one's tongue in one's cheek. I can assure the noble Earl that my tongue is not in my cheek on this occasion; his was a really most valuable contribution to the debate.

Almost everyone has agreed that the law requires changing. I do not think that anyone, with possibly one exception, would contend that it is perfect, but there was not a great deal of agreement about the way in which the law requires to be changed. The most revolutionary proposal was that we should abandon the existing law altogether and rely entirely on the concept of the broken marriage. There is a great deal to be said for that and I must admit it is a very attractive idea. But I am bound to say that marriages end for a great variety of reasons, and it would be very difficult to put them all under the one umbrella of the broken marriage. To-day we have the concept of the matrimonial offence which covers a considerable variety of offences.

There is, for example, cruelty. The noble and learned Lord, Lord Hodson, was somewhat cynical about cruelty and so was the noble and learned Lord, Lord Denning, but those of us who have had some experience in practice, as I have had (I have had many years of practice in divorce proceedings, although I have not specialised in divorce), realise that cruelty is a real thing. It may have been somewhat extended recently by judicial decision, but those of us with experience know that a great deal of cruelty takes place and that some of it is intolerable. To pretend that this can just be brushed aside is to be cruel to those injured people who have suffered from the effects of cruelty.

Imagine the position of a woman whose husband is consistently unfaithful. Is she to be expected to put up with that or to wait until she can establish that the marriage has broken down or use that as evidence of the breakdown of the marriage? It may not be accepted as evidence of the breakdown of the marriage, and I feel that in such a case the injured party ought to have the right to go to court and ask for a divorce on that ground alone—that her spouse had been unfaithful or cruel. I would gladly have the concept of the breakdown of marriage as an additional ground. I know that is opposed to the whole trend and theory in the document Putting Asunder. I realise that the authors of that document have devoted a great deal of space to establishing that you have to make a choice—either a matrimonial offence or the breakdown of marriage. I agree with the noble and learned Lord, Lord Reid, that there is no need to make the choice and that the two conceptions are not incompatible. On the one hand, you may have the concept of the broken marriage and on the other, the concept of the matrimonial offence.

As we know—I have had much experience of it there are—cases of couples who, having lived together for years, find they have lost all affection, love, respect, interest or anything else in one another. I know couples who do not speak, and may not have spoken for weeks, to each other. If they have anything to say, they communicate by written messages. I have known that happen over and over again. No matrimonial offence is committed; and there for it is right to give them a ground for divorce, if they want it, by saying that the marriage has broken down. In such a case you would give that right to either spouse. Neither is wholly to blame and neither is blameless. No one would wish—I say this to my noble friend Lady Summerskill—toperpetuate a marriage of that kind, and there are so many of them. Even if there are children I do not know whether anyone would say that such a marriage had to be maintained at all costs for the sake of the children. In such cases as I have instanced surely the children would be better off if the marriage was terminated than if they were brought up in that kind of atmosphere. I can assure noble Lords that this is not a piece of fiction. This kind of situation is occurring on a large scale.

It has been said that 93 per cent. of divorces are undefended and a number of speakers asked us to draw from that the inference that they are therefore collusive divorces. I am sure that is not right. It is my experience that almost everyone who wishes to petition for a divorce feels that he has suffered injury, and that the other party has committed an offence. It is as simple as that. If there is any hesitation on the part of the wife, it is because she is afraid of losing her home or afraid of the future financial insecurity which she may suffer. But these are not collusive divorces simply because 93 per cent. of them are undefended. The truth is that in 93 per cent. of the cases, or near enough, there is no defence to offer, and people will not defend a petition for divorce if they have no defence.

My Lords, I think that most of the things I wanted to say have already been said, particularly by the noble and learned Lord, Lord Reid, but I did not altogether agree with him about the unsatisfactory nature of this Report. I am sorry that the noble and learned Lord is not in the Chamber, because I wanted to criticise his logic. I think that when a person professes to be logical, and works things out by logic, and then comes to the wrong conclusion, there must be something wrong about his logic. The conclusion that the noble and learned Lord arrived at was that there ought not to be divorce at all when a marriage has broken down. I wonder whether he would say that there ought not to be a divorce for the kind of case I have quoted.

The right reverend Prelate asked: where do we go from here? A number of suggestions have been made as to where we do go from here. First, I think that this debate has given us so much stimulation that it would not be a bad idea if we read it over and thought about it and possibly came back in a few months' time and discussed it again. Secondly, I think that there might be something to be said for a discussion between the Church Group and the Law Commissioners. The Law Commission are not there to determine policy and this is a policy document. None the less, they have great experience on the practical side, and it may he that the Group would modify to some extent views which arose from a misunderstanding of their practical effect, and it would perhaps remove a number of misconceptions which have been aroused in the public mind.

One of them, to which my noble and learned friend the Lord Chancellor referred, is that every case would take half a day and involve minute investigation. I am sure that that was not intended, but that may be the impression unintentionally created by this Report, and it would not be a bad idea if the Group looked at it again. I am not in favour of a Royal Commission. The last Royal Commission sat for four years and produced at least three different Reports, possibly more. They came to no definite conclusion, not even to a satisfactory majority or minority; in some respects they were equally divided. Nor am I in favour of the Government itself introducing legislation—because I do not want to break up this present excellent Government, and whatever legislation we introduced, it would quite likely break up the Government.

This is essentially a matter for a Private Member's Bill, with free speech, plenty of time given for a discussion and a free vote. It is no good letting a private Member introduce a measure one Friday afternoon, if he is successful in the ballot, and leave it at that—I think most of us have agreed that the law is in need of some kind of revision, and I would suggest that if the Government would encourage some private Member to introduce a Bill, and would give ample time for discussion, it would be the best way of revising it. I have come to the conclusion that it would be wrong to come to a firm decision on this matter as a result of to-day's debate. We all ought to think more about it. We are all agreed that there is need for something to be done, and I hope that we can come back to this subject fairly soon and eventually decide that some action should be taken.

7.24 p.m.


My Lords, it is my misfortune that I have been unable to be present for the whole of this debate, and therefore I am unaware whether any specific reference has been made to the Free Churches. It may not be your Lordships' opinion that such reference should be made, but I venture it, because I believe that in the Free Churches we have good reasons to be grateful for both of these documents. If I were to select one, in particular, it would be Putting Asunder, the principal reason for that being the deep concern which we have, like the Church of England, for the facts of divorce and for our experience of the great number of unhappy mar- riages of which divorce is a culminating end-product.

The second reason we in the Free Churches are grateful is that in avoiding rigidity we have only achieved imprecision. We are in considerable difficulty as to what we ought to believe, and we are only too grateful for any help we can receive. Though I cannot always speak on behalf of the Free Churches on every matter, I am quite sure I can say that we are thankful for the help which we have received from this report. It is an illuminating, compulsive, and in some respects convincing, document.

I would agree that there are many things yet to be said and that we should postpone final judgment, but I think that if some ballot could be taken of the Free Churches it would be found that the overall attitude was a general support for what Putting Asunder sets forth as the main principle of the substitution of breakdown of marriage for the existing matrimonial offences. And not least for a theological reason: the disagreeable element in the thinking of all Christian people when they think of the contriving, and conniving, and achieving, of divorce. It may be somewhat specious, but it is somewhat more comfortable to the theology I seek to embrace, to take the far more simple proposition that there are conditions under which a marriage is dead, and that in that case it is not necessary to infer that those whom God has joined together man can put asunder. In a very real sense these marriages have died and therefore they should be decently buried. There is a sense in which this is a piece of escapism, but there is also a sense in which I think the Free Churches would in general agree that this principle of a substitution of a breakdown, or a collapse or a decease—not only a nervous breakdown, but the actual end of an existing marriage—should be recognised as such, and should be decently buried.

In the second place, I am sure that this proposition has the immeasurable advantage of unity and simplicity which again is a specious argument in some cases; but not, I think, in this. It lays down an overall principle within which it is possible to frame the various ancillaries and clauses, corollaries and riders. I was much interested when the noble Lord, Lord Derwent, talked of the common man and in an extraordinary way associated himself as an ordinary man. I took the precaution earlier today of consulting about 400 ordinary men, in a larger and louder place than this, and I put before them many of the matters which have exercised your Lordships' minds in the last few hours. It may be of some interest that I should record a few of their reactions. One of them was this. With the typical morality of the non-churchgoer, they were concerned to ask, in the case where a marriage no longer existed and could be presumed dead: who had killed it? They thought that many of these cases were cases of murder. And I believe that this is a matter on which great and deep thought has to be dedicated, and upon which the provisos which have been ventilated to-day are of the utmost importance.

It is true that there are marriages which have broken down—and in my experience I can think of many—where the adjudication of blame would be extremely difficult. But there are many other cases, of which I deplore the memory, in which no one would doubt that in large measure one party had been the "villain of the piece", and one party had indeed betrayed the other. In these cases I am glad that this natural and somewhat bucolic attitude of the man in the street about the preservation of the elementary principles of right and wrong should not be obscured. And any concept of compulsory divorce would be most repugnant.

I do not share the view (though I have not the competence with any precision to deal with it) that this particular change, revolutionary as it is, would require practical adjustments which at the moment are quite out of reach. I read in the Report, Putting Asunder, of the possible recruitment of what are called "forensic social workers". I put that suggestion to the crowd on Tower Hill. They thought that the word "offensive" was too near the word "forensic" to give it any viability, and suggested that there might be other and better names. I think that is true. We in the Church have a curious aptitude for the wrong names. I belong in the Methodist Church to those who are called "worn-out ministers"—it is purely, a description of those of supernumerary rank.

Whatever be the nomenclature, I do not subscribe to the view that it would be impossible to find a sufficient number of people within the period which obviously is at our disposal before this can possibly become law. I should not be surprised if parsons could not be recruited. Most of them have not enough to do; or—let me re-phrase that—many are engaged on duties which could be more profitably exchanged for others. They are not without competence. They are in grave need of training, of course, but I think that training could be offered to them. If the idea is right, then let us not put it aside as a principle simply because at the moment we cannot exercise it as a fact.

I would venture, even though the hour is late, to introduce one other theme which, so far as I know, has not so far been ventilated. I was rather surprised to find there was no special place, even in the Appendix to Putting Asunder, for what I should regard as very important elements in this whole concern—namely, economic considerations. There are sociological considerations in that particular Appendix which, for lack of time, as I understand it, could not be approved by the Commission. But, in general, I do not think it is necessary to re-read the Communist Manifesto of 1848 to recover one's sense of shock and of contempt for the idea that marriage in modern society is economically determined, and that all the superstructure of love and care and spiritual values are to be discontinued, if not to be utterly repudiated.

On the other hand, I think it is dangerous to think not only that marriages are made in Heaven, but that is not only their provenance, but their pasture. I think this would be extremely stupid to pretend as a fact, and I, for one, take refuge in what the immortal Dr. Temple quoted—whether he was the author of it or not is perhaps another matter—that of all the world's religions Christianity is the most materialistic. I am quite confident that a great many of the marriages which have broken down have done so principally not because those who are partners to those marriages were evil-minded or lust-minded or even weak-minded, but because they were ordinary people compelled to face particular economic circumstances which might have overthrown most marriages.

I, for one, am impressed by the comment that is made in Appendix F (I think it is), that we are still, when thinking of marriage, concerned with a majority of people who are poor. I wonder how many marriages which now are regarded as beyond repair could be repaired if the whole housing concept in this country were transferred from the realm of profit to the realm of service and regarded in the same light as, for instance, a health service and an education service. I know how in many of the problems which come to me past orally the psychological difficulties of marriage which have become intolerable are often associated with the physical proximity of families in crowded conditions, and in many cases the physical proximity of a mother-in-law.

There is an interesting comment in the same Appendix of the different functions that now belong to marriage in the so-called affluent society. Many marriages, though they may begin in a flame of passion, are maintained only by the cords and bonds of a common responsibility and an allocation of duties. I remember that when I was a boy I played the piano and my brother played the violin. Neither of us was a great musician, but we made music together, and we needed one another. If we had both played the fiddle, we might have gone outside to find our accompanist. It is surely true that many marriages are maintained because the funtions between the two parties are clearly defined, and mutually included and mutually demanded. But where today the man and the women may indeed he bread-winners, and where there is rather a separation of duties, that has been largely disposed of. We need new contexts and we need new cements; and many of these cements have to be found in a society which has destroyed the cements that appertained hitherto. This is ranging more widely, but it would not, I think, be a reasonable debate in your Lordships' House on the matter of divorce unless we were to take into account the overall context of the society in which people, many of them heartily and sincerely, are endeavouring to maintain permanent relations.

This is no occasion for the end of a sermon, but I should be untrue if I did not record my own conviction and offer it in the pool of those things that have hitherto been said in welcoming, as I do most heartily, the main recommendations of the Archbishop's Report. I would say at the same time that our principal business in the maintenance of marriage as a permanent institution is that for Christians it provides the language without which we could not speak our faith, and in society it provides the only cement and integument in which there is any permanence, as I think, of those great virtues which, whether Christian or not, we cherish.

7.37 p.m.


My Lords, the noble Baroness, Lady Stocks, has taken compassion on your Lordships and decided not to speak, and I therefore rise now to make my contribution to this debate. Since the war, I doubt whether many social questions have engaged the attention of the community more than the matter of divorce. Many years ago we had the Denning Committee, followed by the Morton Commission, and in July of this year the Church of England Report, and more recently the Report of the Law Commission. The proposals and views of both Reports have been ably considered by a number of your Lordships to-day and I do not feel that I can usefully add anything to what has already been said. As I see it, the main difference between the two Reports is that the Church of England would substitute the irretrievable breakdown of marriage for the present system of matrimonial offences, while the Law Commission would retain matrimonial offences and take marriage breakdown into effect.

I should like to say at this stage that I find myself ranged on the side of the right reverend Prelate, the Bishop of Exeter, and on the side, generally speaking, of the Anglican Report. But I should like to say that those responsible for both Reports are to be congratulated on their sincere and sustained attempt to find a more acceptable solution to this grave and growing social problem. I think that both Reports recognise that there is not an easy solution. But what I feel is perhaps more important is that both are genuinely concerned with strengthening in every possible way the stability of marriage. It is the strengthening of marriage with which I am chiefly concerned, and I hope your Lordships will grant your usual indulgence and allow me to say something on this matter which means casting the net of discussion much wider than it has been hitherto to-day.

Before doing so, may I say that I regret that the Law Commission feel that the proposal of the Church of England in respect of the broken marriage is unworkable because the procedure to determine whether a marriage had irretrievably broken down would be time-consuming, expensive and difficult. Surely this matter of cost in itself is not a sufficiently good reason to abandon the suggestion made in the Anglican Report. When we consider the grave personal and social problems stemming from marriage breakdown and the consequent cost of that breakdown to the community, it might not prove to be so expensive after all.

I recognise that no one knows better than the noble and learned Lord the Lord Chancellor what would be involved in giving effect to this proposal. The noble and learned Lord has referred to the need for more judges and for more buildings. But would it be a matter that could be dealt with adequately only by Judges of the High Court? Surely, the deciding factor would not be, strictly speaking, a matter of law. It would be a matter of the quality of the relationship existing between husband and wife. Here I would suggest—and I hope the noble and learned Lord the Lord Chancellor will not think I am being impertinent, and I hope the noble and learned Judges will not think so, either—that, in view of the fact that the court would be more concerned about the quality of the personal relationship rather than a matter of law, this could be done by lay people better equipped, perhaps, to make that kind of assessment.

I would remind your Lordships that most of the matrimonial orders in magistrates' courts are made by lay justices who have in many cases an uncanny knowledge of people; and not only that, but an uncanny knowledge of their lives and the problems they have to face. Nor do I think that buildings are necessarily a problem. There are hundreds of elegant council chambers in our town halls up and down the country used only one day or one evening a month. During the rest of the time they are empty. I suggest, with great respect, that these could be brought into use and could be made into very good courts, conveniently situated for the people involved.

Both Reports refer to the importance of reconciliation, and both pay tribute to the work done by marriage guidance agencies. Perhaps at this stage I ought to declare an interest, being one of the founders of the National Marriage Guidance Council, although I do not benefit financially from my association with it. I was glad to see that the Law Commission referred to the comment often made—and here I quote from their Report: …a disproportionate amount of public money is spent on dissolving marriages in comparison with the small sum spent on marriage guidance and conciliation. It also expresses the view: …that the preventive medicine of guidance before marriage and help during the marriage is likely to achieve far more than attempted cures after the breakdown has occurred. Nevertheless, the Law Commission's Report says subsequently: The saving even of a very small number of marriages is worth while…". I should like to stress the importance of making more money available to the marriage guidance agencies in order that they can extend the valuable work they are doing already—work which, I suggest to your Lordships, is of supreme importance to the community.

I am not unmindful of the fact that this Government and previous Governments have been reasonably—I say "reasonably"—generous to the three marriage guidance agencies, the National Marriage Guidance Council, the Catholic Marriage Advisory Council, and the Family Discussion Bureau. But the grants given to these three bodies amount to only £62,625 per year. It is estimated that about £3 million of the £5,500,000 spent last year on legal aid is spent on providing legal aid for divorce. This means that, for every £50 which we make available for terminating marriage, we spend £1 on trying to preserve it. Surely we need to be more realistic in our approach, and more generous in trying to prevent this social problem.

I do not agree that it is hardly worth while to provide facilities for reconciliation when a marriage has reached, or is on the way to, the divorce court. I believe the divorce court puts an end to a number of thoroughly bad marriages every year; but I also believe that it puts an end to a number of potentially good ones. Surely, in a progressive and enlightened community we need, alongside this mortuary for dead marriages—for that is what the divorce court is—a growing hospital service for sick marriages. It is all very well for people to argue that 93 per cent. of divorces are not contested and that they are therefore consensual. I think the noble Lord, Lord Silkin, was quite right when he said that in many cases they are not defended because there is no defence; because a matrimonial offence has been committed.

I hesitate to draw on my own experience. I have for many years been chairman of a domestic court in London, and I know from experience that when there is no defence it is because a matrimonial offence has been committed, which is followed by the making of a matrimonial order, and in many instances the case finds its way to the divorce court. The case has already been established and proved in the lower court. I am not worried about what is likely to come out if society decides to make irretrievable breakdown in marriage a ground for divorce. Nothing could come out in an inquiry of that kind which does not already come out in the lower court. If your Lordships were to attend a domestic court, I think you would be surprised at the—I was going to say basic intimate details which come out in that court, and I do not think that if irretrievable breakdown in marriage became a ground for divorce any unpleasant details could come out that have not already come out in many of the matrimonial cases in our domestic courts.

While I am opposed to the introduction of compulsory conciliation procedures, I feel that the facilities for exploring the possibilities of reconciliation should be available in the divorce court so that couples can avail themselves of conciliation services if they so wish. I am not persuaded, if I may be permitted to say so, by the suggestion that solicitors acting for the petitioner should be required to draw their clients' attention to the availability of marriage guidance organisations. I do not think it is a realistic suggestion, for reasons which I will not go into. It could easily become a meaningless requirement performed by the solicitors, and have no more effect or influence than that. If we had conciliators attached to the Divorce Court—and I see no reason why we should not—I suggest that the solicitor should be required to notify the conciliator, or the conciliation department, when a matrimonial petition had been filed. This would enable conciliation officers to make their own contact with the petitioner, and explore the possibilities of reconciliation in an informal way rather than in a formal way.

Petitions for divorce have risen sharply since 1960, from just under 29,000 in 1960 to just over 42,000 in 1965. I have not the figures for the number of children involved in these petitions in 1965, but I understand that in 1964, when the total number of petitions was nearly 42,000, over 50,000 children were involved; but that means up to the age of 21. I understand that it was in the region of 22,000 children under the age of 16–22,000 children at a time in their lives when they should feel needed, wanted, loved and secure. There is not a single Member of this House who can get up at any time and say, "I am indifferent to whether people love me, want me or need me". From the cradle to the grave we need somebody to love us, we need somebody to want us, we want to feel that somebody needs us; and yet in the region of 22,000 children under the age of 16 are being uprooted and often set down in a new environment at a time in their lives when they should have this feeling of being wanted and needed and loved.

I think we have to face the fact that the applications for divorce will tend to increase because we are living in a period of earlier marriage and longer life. This means that marriage to-day has a life span of between 45 and 50 years, which means that it is going to be exposed to the stresses and strains of a much longer period than perhaps in a generation or two ago. This means that the social and personal disorder stemming from the breakdown of marriage could get more and more acute. We see the effect of marriage breakdown in juvenile delinquency and in the deprived child.

I have already referred—and I hope your Lordships will allow me to remind you—to the importance the Law Commission attaches to what it describes as the preventive medicine of guidance before marriage". At this point I quite unashamedly ask the Government to make more money available to those marriage guidance agencies engaged in this work. We have about 70,000 children in care—a nice little expression which covers a very grave social problem. We spend between £500 and £600 per year on keeping one child in a local authority home. We cannot do it for much less. The total amount given by the State to the three marriage guidance organisations to which I have referred is roughly the sum that we spend in one year on looking after 100 children in local authority homes.

If matrimonial offences—as we know them are to be retained, and perhaps added to by other grounds, I would ask the noble and learned Lord the Lord Chancellor whether he would consider establishing a Family Division of the High Court, if the status quo is to be maintained. I think the problems of judicial separation and divorce and all these other things warrant a Family Division. I am disturbed at the intention—if it is not already a decision, and I fear it is—to refer undefended divorce cases to the county court. The noble and learned Lord the Lord Chancellor has already dealt with that and I will not pursue the matter, other than to say that while I agree that the "dead" marriage must have an unceremonious burial, I think it ought to be one with dignity, and I cannot think that the county court, with its associations in the public mind, would do anything to improve the image of marriage.

Divorce law may well need reform, but law reform in itself is not enough. We must find practical ways of preserving family life. In my view this means a considerable extension of the marriage counselling services, and the provision of education for family life in all our schools, not to mention the need for the State to provide more money to make all this possible.

7.58 p.m.


My Lords, in the first place I should like to congratulate the noble Earl, Lord Balfour, on his excellent and sincere speech.

I think the majority of people feel that the Anglican Report must eventually come to pass, but I have listened carefully to what the noble and learned Lord the Lord Chancellor said, and I can see that there are considerable difficulties. I drew a mental picture of somebody being married in a big cathedral by one of the right reverend Prelates and the marriage ending in a divorce in a 1914–18 hut by a second-class magistrate. The time must come when there is sufficient legal apparatus to deal with this new law, but I look at the position in a rather different way. I would refer to what the noble Lord, Lord Wells-Pestell, has just said concerning the rise in the divorce rate to 42,000 a year, and the 50,000 children a year who are cast out. I feel there must be some reason for this. Obviously one reason is that we have a Welfare State and people can get free legal aid, which makes many people get divorced who would not otherwise do so; but if we could only find one other reason which could be cured, I believe it would reduce the divorce rate.

If I were coming to your Lordships' House and on the way I found two people locked up in an iron cage, and they said to me, "Let us out", I would first say to them, "Who locked you in?" If they said, "We locked ourselves in", I would ask them why. I think the first thing to grasp is the reason why people get married. We have heard to-day of the sad way in which they get divorced, but why do they get married in the first place? First of all, of course, it is because of physical attraction. They see in each other the possible genes which could make better and healthier children; they can admire each other's intelligence, for the same reason, and also they can get married as a mariage de convenance. They can get married simply for money, or because they are lonely and they want companionship, and I believe a great many women get married for security. The point is that every person who gets married—myself included—does so because they want something out of it. Both partners want and expect something from marriage, and they are out to get it. That is the reason, I think in every case, when people get married.

Of course, there is the fact that people fall in love at first sight; there is no doubt that that happens quite a lot. The psychiatrists have an explanation for this. I think the most plausible explanation is that a man sees a girl with a brown hat and he admires her, and he sees another girl with bacon streak hair and he admires her, and a third with a green dress and he admires her; finally he meets a girl with a brown hat and bacon streak hair and a Breen dress and he falls in love. I think it is Freud's explanation of love at first sight.

There is another explanation, but I do not intend to give it because it will upset my whole argument, so I will cheat on that. However, even though love at first sight comes by Freudian explanation, those concerned are still wanting to get something; they expect to get something out of marriage, and they get married but do not always get what they want. As the Americans say, "the cookie crumbles" and the marriage comes to an end. There are many reasons why nothing can be done about it. There are occupational dangers which occur in every trade or business—the man goes mad or something like that happens. I am not quite sure that the fact of a husband going mad causes divorce. I have a friend whose husband is shut up periodically. She has never thought of divorce; she is quite happy when he goes to "the bin". She was rather worried about it, and I said, "Look at it this way. He has got a certificate to say he is sane, and we have not", which is a very striking point. On the whole, one can do nothing about these occupational dangers of marriage: the madness, the alcoholism, the homosexuality, these things which crop up. They break a marriage. I do not think anybody can stop it; it is going to go that way. In America, which is a race-ahead country, living up to the Joneses, they all want something else and they are always looking over their shoulders to see if there is anything better, and so they get a three-to-one marriage rate.

We in this country are not like that. I believe a great number of people want to get married and stay married. I think I should have declared before now that I shall have been married 39 years on February 8, and we have got on extremely well. I first met my wife in 1913, which is a long time ago, and there is nothing worse we can know about each other than we know now. I make a speech occasionally when the children come on the anniversary, and I say this, "During the whole of our married life we have had only one fight, but we have had armistices every now and again." My wife says, "The only reason I have stuck to John all these years is that he has never bored me", and perhaps that is one of the secrets of marriages sticking together.

We have heard many of the reasons for divorce. Is there any other reason why more people get divorced to-day which has not been mentioned? I am certain it is a question of the mother-in-law. I know the mother-in-law is a stage joke; it has been a stage joke for years. I remember reading a play of David Garrick which starts off with a scene with everybody in deep black and the women in tears. Suddenly, the husband says, "Oh well, she will never be a mother-in-law again". I had a mother-in-law. I was very fond of my mother-in-law and she was very fond of me and we got on very well, but if we had been shut up in a small house together we should have killed each other. I think the housing problem is the biggest cause of divorce to-day in this country. These young people want to get married and be happy but cannot get a house. I do not think mother-in-laws are wrong; I can understand them for looking after their children. But a decent husband like myself gets his wife away from the children. You cannot be cooped up in a house. However, I will say what I said some time ago in your Lordships' House. It was not very popular then and it will not be any more popular now. I think housing is a national interest, and it should not be a matter of Party politics.

8.15 p.m.


My Lords, I must declare an interest in this matter, in that I am one of the mediæval men upon whom the noble Baroness, Lady Summerskill, poured such immense scorn during her speech.


Mediaeval society, I said.


Belonging to a medieval society, if the noble Baroness would rather have it that way, who was on the Committee which produced Putting Asunder. Perhaps since the noble Baroness quoted from the chapter of the Report which sets out the position justifying the attempt by the Church Group to advise or comment on the law of divorce, I might just draw her attention to this passage. Since the noble Baroness quoted the words: where marriage is concerned lifelong monogamy is what human nature really needs for its fulfilment."— with which sentiment she disagreed—it might be as well to read the whole of the sentence, which goes like this: Christians must continue seeking to persuade their fellow-citizens, by example no less than by explanation when called for, that where marriage is concerned life-long monogamy is what human nature really needs for its fulfilment. It is perhaps a different matter if you disagree with the whole of the sentence.


I do completely disagree with it.


I suppose that if any of us on the committee had hoped there would be unanimity in support of this Report this evening we must have been most woefully disappointed. On the other hand, I think there have been only a few speakers this afternoon who have not joined in the general refrain, with which the Law Commission now seem to be in accord, that there is something wrong with the existing divorce law.

The right reverend Prelate, the Bishop of Exeter, quoted to the House paragraph 28 of the Law Commission's Report, which I think summarises what is wrong in their view, as indeed, I think, in the view of the authors of Putting Asunder. But he did not perhaps deal altogether with the further points that we raised in some of the following paragraphs, because these are also of the greatest importance. First of all, in paragraph 29 the Law Commission deal with the question of reconciliation, and here, as in so many other parts of the Report, there seems to be a large measure of agreement between what the Law Commission have said and what appears in Putting Asunder. It is perhaps upon that helpful note that I can continue this speech. This is, of course, of the greatest importance, and what the noble Lord, Lord Wells-Pestell, said about the need for' money and encouragement for marriage guidance agencies to be avail- able and active, at the right time and in the right place, is of the greatest importance.

Some of the procedural matters which the Law Commission recommend also seem to be fully in agreement with what appears in Putting Asunder. There is perhaps just one point that I might mention, about the power of the court to adjourn. When dealing with divorce based upon the matrimonial offence in cases where, as so many noble Lords have said this afternoon, the petitioner has a right to a divorce upon proof of the offence having been committed, it must be rather more difficult for the court to refuse to hear him and, instead, to adjourn the matter for further consideration, if he is in a position to be able to prove the offence and presumably, therefore, is entitled automatically to his relief. Leaving that point aside—and this is perhaps where the concept does not mix so well—I find myself entirely in agreement with what is said on reconciliation.

Then we come to the stable illicit union with which the Law Commission deal. Here, I must confess, the figures seem to me to be most impressive, and I think it is a matter which ought to be dealt with, and dealt with in accordance with a general philosophy, rather than put forward as the prime reason for reform and the rest of the reform built around it. Our Report, Putting Asunder considered whether the proper way to start divorce law reform was by looking at these stable illicit unions and the illegitimate children resulting from them, but on the whole we came to the conclusion that it was better to start at the other end, but of course to bring in that matter in its right place. So there again there is agreement.

The question of justice to wives on the financial front is something which goes much wider than simply a matter of divorce. It is a complicated question of how to collect maintenance; and a large number of other bodies are involved. It is therefore a great relief to me, at any rate, to find that the Law Commission are actively proposing to look into this problem, and into the financial position of children whose parents are divorced. It may be that the cart will not be before the horse, as the noble Baroness feared, because the result of their considerations may easily come to fruition before any change in the divorce law is put into effect. So I do not think we necessarily need fear that one.

But if there is one thing that the debate has emphasised, it is that one has to be particularly careful where, in the words of the noble and learned Lord, Lord Hodson, there is "compulsory divorce". If there is one matter, above all else, which exercises one's conscience and one's mind on this matter, it seems to me to be that in the proper and fair solution (if there is one) of that problem is a most important ingredient in planning a satisfactory solution to a reformed divorce law.

The children, of course, have got to be considered, and if it is possible to improve upon the consideration given to their future by the courts, over what is now given, then any improvement will be welcome. I hope that here again the Law Commission may be able to give some assistance. I think that in Putting Asunder certain other ideas are put forward, such as sending the name and address of the children to the county council or the county borough council in which they are going to live, so that at least the children's authority will know that it has within its area children who may need help. Going on in a tone of agreement with what the Law Commission have said in commenting upon Putting Asunder, I would not, I think, want even to query many, if any, of the basic assumptions which they set out in paragraph 52. I believe that these are probably right, and certainly I do not believe that there will be any fruitful result in arguing about them.

But there is one matter which arises here, and it is one that I feel to be of the greatest importance. I commented last week, in the debate upon the first Report of the Law Commission, that when they are dealing with a subject of this nature they have inevitably, unless the policy is given to them by some Government Department, to determine in the first place the scope of the policy within which they are to work. In this case there has been no exception, and in paragraph 15 the Law Commission set out what they think to be the objectives of a good divorce law. In the second of these they say, first, this: When, regrettably, a marriage has irretrievably broken down"— the good divorce law ought— to enable the empty legal shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation. I think nobody would quarrel with that; but it depends how far you take it, and I have a feeling that, later on in their Report, the Law Commission have perhaps taken this concept a little too far, because unless one allows for the occasional incident—perhaps it would be the defended case—when some sort of unpleasantness, which one hopes would be less than now occurs, is endured by the parties to the suit, I do not believe that the court can fulfil its role as representing society; and I do not believe that it can fairly take up any sort of posture in which it can impose or use the safeguards that everybody again seems to agree are necessary. It is not a matter that I believe would be widespread.

But when the Law Commission go on to say this sort of thing, which they do in paragraph 60: If our divorce laws are to be made more humane, it seems to us that the undefended divorce offers a better model than the dilatory, expensive and distressing defended divorce, that may well be so, but frankly, I would not take the undefended divorce as the model for an ideal hearing of a divorce case. I do not believe that it witnesses to the dignity of marriage to dissolve it in a rather desultory way, in some cases in about 7½ minutes; and I greatly doubt—I believe this is a matter that ought to be considered further—whether it is necessarily an imposition to take a little longer than that, or whether the public would necessarily resent it. There is a great difference between taking a little longer than that and a whole day on each case.

The Law Commission take the matter of humaneness further still. This can be found, I think, in paragraphs 92 and 93. They have suggested by this time that the ground of separation should be added to the other existing matrimonial offences; and they then say: If a single period of separation of five or seven years were prescribed, but divorces were also obtainable on the ground of matrimonial offence, it would be on those latter grounds that petitions would continue to be brought when possible and all the distasteful features of the present system would remain. So they suggest that the time should be cut down. The result of that, they feel, would be that in a large number of cases petitioners would choose the separation ground because it would avoid their having to go through the unpleasant process of bringing a suit in adultery, in desertion or in cruelty, and they think that this would be an advantage.

I suspect that it would not, because where we have thrown out, or where we have sought to throw out, the concept of the matrimonial offence on the ground of hypocrisy of its use, I believe we bring it back in again if we introduce a system where people, while in fact complaining about a matrimonial offence, would be much better advised, and it would be much more pleasant for them—and the system allows it—that they should ignore that matrimonial offence and pretend that the matter was simply one of separation.

The other thing that I believe would happen is that there would be no further defended cases at all unless the petitioner was extremely badly advised. Under a matrimonial offence system you can at least defend a suit by saying that no such offence was committed. The alternative to that is for the petitioner to wait for two years, having lived apart from his wife for that period of time; then, provided that he proves the two years' separation, there is no defence, because it is a mandatory ground upon which he should get relief. The further point is that, under that sort of system, it will not matter whether it was the petitioner or the respondent who was really the cause of the separation starting. Therefore it seems to me, as I say, that one is seldom going to get a case that will be defended.

If that is so I would suggest it is open to argument, even if you wish, as I do, to avoid the humiliation and the bitterness which I accept is inherent in the present system, whether the system should be one where, as a matter of principle—and this is what, I believe, comes out of what the Law Commission said—everything should be made as sugar-sweet and smooth as possible for every conceivable case. Ought we not sometimes to have cases where somebody's conscience is pricked? Are we really going to set up a new system of divorce which in fact will mean that in no circumstances must anything discreditable ever have to be said by anyone? I believe that if we do that there is a danger that we shall make it too quick, too easy, too agreeable to get rid of and to escape from the responsibilities of the institution of marriage, and that this may very well reflect upon the value in which those responsibilities are held and are entered into.

If that appears to be a somewhat harsh doctrine, I also can quote from the same article by Mrs. White horn. She said that she was inclined to think that the aspect of the Putting Asunder recommendations which the Law Commission rejected, the prolonged social inquest, had a lot to recommend it. It was rejected because it would take too long and would cost too much, but she thought that that was exactly what was in its favour. She thought that there were occasions when a divorce should be a little unpleasant for the petitioner. Even if, therefore, the Law Commission criticise a little the authors of Putting Asunder and their paragraph 60, in which they say that they look with equanimity upon an inquest into the history of the marriage, I do not think this is necessarily wholly disreputable and something to be rejected in all circumstances.

I should now like to deal with what seems to me to be a main misapprehension. Of course, if there was going to be in every single case a full social inquisition into every fact of the whole of the marriage in question, it would take a long time; it would involve a large number of courts and judges; it would be very unpleasant; and I do not think either the public or the Treasury would consider it for one moment. Further, it is perhaps true, as the noble Lord, Lord Silkin, said, that the authors of this Report are a little sad that they used that analogy. I believe that a genuine misunderstanding has arisen from their analogy of "an inquest". The noble and learned Lord the Lord Chancellor is always most impressive when he produces the sort of practical objection to which he treated the House this afternoon. Nevertheless, I hope that he has not finally made up his mind that this matter is impracticable. My noble and learned friend Lord Dilhorne and the noble and learned Lord, Lord Denning, said that they did not think that we had been quite so foolish as to put forward a system so totally and obviously impracticable as both the Law Commission and the Lord Chancellor appear to have thought it.

I do not believe—I do not hold this view myself—thatit is in any way necessary in every case to have a full day's inquest. I do not believe it is necessary in every case to have a forensic social worker, or whatever one chooses to call him (and we will take the noble Lord, Lord Soper's advice on this) snooping into the background, or inquiring, as the Queen's Proctor's agents sometimes now do, into every possible aspect that might be of interest to the court. On the contrary, I think that Lord Dilhorne and Lord Denning were quite right. In the vast majority of cases it would be perfectly possible, with the lengthened pleadings which the Law Commission say seem to be perfectly practicable, and a new method of entering, not an appearance, but simply an acknowledgement of the service of the petition, for the respondent, without having to take part in the case, to comment on the matters set out in the petition, and it would be perfectly clear to the court whether or not it could safely proceed quite swiftly.

Equally, there would be cases where it would be clear from what was said by one side or the other, or both, that some further inquiries should be made. Then perhaps the welfare officer might do something useful, and then indeed the court might ask for something to be found out or to be investigated which might in due course go towards the imposition of one of the bars which are suggested and agreed by everybody. I do not believe this to be an impracticable matter, and I am very sorry that there has been this grave misunderstanding about it. I hope that the advice given by several noble Lords this afternoon that there could be some sort of collaboration in order to see whether or not this matter is practicable may come to something, because I do not believe it should be abandoned. I will return to this matter very briefly in a moment.

I said that I feared for the addition of the ground of separation to the existing matrimonial offences, and so indeed I do. If your Lordships consider that that combination is the final and most satisfactory conclusion to the whole prob- lem so be it. But let there be no misunderstanding about this. This is not a half-way house to the sort of breakdown which is envisaged in Putting Asunder. Indeed it is the very contrary. Enormous care has been taken in this new report to try to explain why. I will not bore the House with all the points, but there are two which are of importance. Here the Australian experience is most relevant. In the context of divorce on the ground of matrimonial offence one has a verbally formulated set of circumstances which automatically, if proved, give relief. If then you add in that context a ground which consists of separation for two years, then that is another verbally formulated set of circumstances and, if proved, is automatically a ground for relief. That is not likely, in fact the very contrary, to induce the court even to begin to take a very profound view of what has gone wrong with the marriage. Indeed, the very proponents of it suggest that it will be used as a masquerade in order that the parties may avoid having to disclose in public the more unpalatable features of what has gone wrong with their marriage. That is the very contrary of what "breakdown", in the terms of Putting Asunder, is meant to mean.

Another point is to be considered. As in Australia, I believe that the court here would find it extremely difficult to apply the safeguard which has been put forward as being in the public interest—the safeguard against scandal. I was interested to hear that the noble and learned Lord, Lord Denning, thought there would be cases where this would be most applicable; and it was the noble Lord, Lord Soper, who said: Who killed the marriage? There may well be cases where the person who killed it ought not to be able to rely on his murder in order to get a divorce.

But if the court is simply looking for a set of verbally formulated circumstances, why should it look for any other circumstances which would lead it to bring into operation this bar? It was not thought by the Australian authorities that this was likely to happen. Therefore, if you are never, as I believe to be the case, going to have a defended case, where is the court going to get the information from by which it will be able to use its discretion and, even in the most scandalous case, refuse the decree to the petitioner? One of the very objects of this operation, unless one agrees with the noble and learned Lord, Lord Reid, is to allow, in circumstances where public interest requires it, even those persons who now would have been guilty of a matrimonial offence to seek and obtain a decree.

Again, when you insert that idea into a context which is, so far as the rest of it is concerned, entirely based upon the matrimonial offence, with its concepts of guilt and innocence, the biggest crisis of conscience of all arises when you say that the person who would otherwise be guilty is to be given a decree at his petition, against a person who would otherwise have been innocent. Above all, it is for this reason—and I think the noble and learned Lord, Lord Reid, was not thinking of these cases as being covered by the matter at all—that I myself, at any rate, would not in any circumstances wish to see the ground of separation attached to a law of divorce which was otherwise based upon the matrimonial offence, because it would be bound to appear extremely unjust when it was used by the guilty petitioner.

If you transform the whole matter into the realm of breakdown, guilt and innocence disappear, and although on occasions it may still be unattractive and on occasions it may still have to be refused, I think the matter is much less offensive to one's conscience. The sort of case in the letter which the most reverend Primate quoted is, I think, capable of some sort of answer in this set of circumstances.

The noble Earl, Lord Balfour, whom for the record I should also like to congratulate on his interesting maiden speech, quoted an example of what could happen as a result of attaching the ground of separation to the present law. He said that the person might have to wait for five years, or whatever period of time it was, and by that time he might have got over the infatuation. But it is perfectly possible that there is some merit in allowing the wife, in the example that he quoted, where she did not wish a divorce, to defend the action on the grounds that the marriage had not broken down; and, of course, if you introduce the ground of separation, and that is a fact, then there is no room for such a defence at all. Therefore one thing is quite clear: that the noble Earl was wrong in suggesting that the authors of Putting Asunder were only being logical in refusing to attach the ground of separation to the matrimonial offence. In my view, at any rate, the two are completely repugnant.

Therefore, what I think is left, as I think both the right reverend Prelate and the most reverend Primate suggested, is that there is perhaps a great deal less between the Report of the Archbishop's Group and that of the Law Commission, when they deal with the breakdown without inquest, than might otherwise be supposed. It is a very short passage in the Law Commission's Report and it starts at paragraph 71. Let us, perhaps, at this point do what has been suggested and face two matters. First of all, let us face the fact that divorce with the consent of the parties is not necessarily wrong, and there is all the world of difference between that and divorce because and on the ground of the parties consenting.

The other fact—let us face it—is the one which the noble and learned Lord, Lord Denning, told us: that in many cases the courts are already acting on the principle of breakdown. If we look at the passage on breakdown without inquest, I would not quarrel for one moment with the questions set out in paragraph 72, nor would I quarrel with any of the procedural matters set out in paragraph 74, save only for this. The Law Commission have suggested that this could work only if the court could operate on the assumption that, when the prescribed period of separation had run, it could assume that the marriage had broken down, and a great deal of the rest of the difficulty depends upon how long the prescribed period is to be—indeed, I think all the rest of the difficulty.

Why must there be a prescribed period? If, as I believe to be the case, the documents and the facts establish perfectly clearly that the marriage has broken down—not because there has been a separation, but because there has been a whole chain of other circumstances which have had this result—and if the petitioner comes fairly soon after the last of these have occurred and asks for relief, and says that the marriage has broken down, is it not perfectly conceivable that the court, within the sort of concept that is set out in breakdown without inquest, would be able very often to deal with it there and then? And if that is so, then the separation cases—the grounds where now desertion would be an issue—may have to take rather longer, and it may be that the court would not be satisfied until a rather longer period had elapsed and the separation had been seen to continue. But that does not stop the court from dealing with the other cases urgently.

Because the Law Commission say that inquest would be impossible, they have put forward the alternative, which they say is different, which is breakdown without inquest. I have attempted to argue that in many cases breakdown will, in any event, be without inquest, and, if that is so, then I believe that there is a very possible marriage between the Law Commission's proposals in paragraph 71 and what was in the minds of the Group who wrote the other Report. Therefore, if there can at least come the degree of reconciliation out of the debate this evening that the noble and learned Lord the Lord Chancellor will look at this subject again, and will see whether the matter is quite so insurmountable as he supposed, then I have no doubt whatever that, if there is anything that can be done by those who composed this Report of the Archbishop's Group, they will be only too glad to discuss it with him. Perhaps, therefore, if we come back, as one noble Lord suggested, in a few months' time, after having thought about it, we shall find that to-day's debate has been of immense use and in the end has a fruitful result.

8.38 p.m.


My Lords, may I have your Lordships' permission to speak again? Having said that, I would say that I think I shall be mercifully brief. I should like, first, however, to congratulate the noble Earl, Lord Balfour, upon his maiden speech and to say that we shall look forward to hearing him again when he goes further with his own Bill on this subject. May I just say to the noble Earl, Lord Iddesleigh, that I think we shall all agree—I believe there has been a very general tendency in all parts of the House to agree—that the financial relations between the spouses are of immense importance, par- ticulalry of course, the question of pension, and it may be that this is one of the next things which we really ought to look at.

My noble friend Lord Wells-Pestell speaks with particular authority in this field, as one of the founders of the National Marriage Guidance Council. As he knows, I have always been a strong supporter of the Council, and I think I am right in saying that the present Government have approximately doubled the financial support which they have given to it. He specifically asked me whether I was opposed to a Family Division of the High Court. No, I am not at all opposed. There is obviously a great deal to be said for transferring probate work from that Division to the Chancery Division, having an Admiralty and Commercial Court, and transferring adoption cases and ward ship cases from the Chancery Division to what would then be a Division which dealt with nothing but family work.

Nor am I in any way opposed to local family courts, which may deal with divorce as well as cases of the kind now dealt with in a magistrates' court, which usually holds people who are accused of crime and has never seemed to me a very suitable place for matrimonial matters. I should have to say, if asked, that personally I think a mixture of lawyers and laymen is a very good court for this sort of purpose, and that if one had somebody of the standing of a county court judge and four local justices that might be quite a good court. But I should like to make one thing quite clear: when, if Parliament agrees, the Government transfer undefended divorce cases to county courts, this will be entirely without prejudice to any radical overhaul of the whole of our divorce laws.

Finally, in answer to the noble Lord, Lord Derwent, may I say that I do not anticipate that the Government are likely to appoint a Royal Commission in this field. After all, Royal Commissions are the classic way of people who do not really want any real reform, any more than I think the noble Lord, Lord Derwent, really wants any real reform in this field. If my recollection is right, the Royal Commission were appointed because there was Mrs. Eirene White's Bill, and the Government (I quite forget which Party were in power; there are a lot of common features between all Governments) did not know what to do, and so they appointed a Royal Commission. That hung up the whole matter for five years. Now we have Mr. Abse's Bill, and we are back where we started. The main object of appointing a Royal Commission is to ascertain facts which are not easy to ascertain; but I should have thought that in this field we know the facts, and that the people who ought to decide are Parliament. I do not see that a particular group of 24 people are any more fit to decide this than Parliament itself.

Then the noble Lord asked me whether the Government might themselves produce proposals. My Lords, all I can say is that the Government's present attitude is that of neutrality; which has generally, I think, been the attitude of Governments in this field—which, of course, is concerned, in part, with religious beliefs. But perhaps I should add that, clearly, Governments are influenced by public opinion. If I had been asked two years ago whether I thought that a Bill enacting the Wolfe den recommendations, or a Bill altering the law of abortion, would be likely to pass through both Houses of Parliament (as it looks rather as though they may well do) I should have said, No; I should not have thought so. But the result of discussion in your Lordships' House of a Bill which was going through all its stages here was that there were many articles in the newspapers—and not only articles in the newspapers, but a lot of discussion on television—and we suddenly woke up one morning to find that 65 or 70 per cent. of the people were in favour of the proposed changes in the law on abortion. I am quite sure that if a popular vote had been taken before your Lordships started to discuss that matter the result would have been very different. It is, of course, in the course of discussions of this kind, on television and otherwise, that people learn a lot more about the facts of a thing than they knew before. So I hope that those who seek radical reform in this particular field will not get too depressed with the Government statement that at the present time their attitude is one of neutrality.

I think the noble and learned Viscount, Lord Dilhorne, asked me whether the Government would appoint some Committee to see how practical the reform suggested by the most reverend Primate's Group might be. There again, my Lords, I should not think that that is a matter for the Government, but (and this is the only personal opinion I would express) I am not at all clear that the gap between the most reverend Primate's Group and the Law Commission is unbridgeable, and it may be that one of the next things that could most usefully be done would be to have a continuance of discussions between those two bodies.

8.45 p.m.


My Lords, I do not wish to prolong this debate. It would obviously be impossible to cover all the arguments which have been made and to comment on them. I am extremely grateful to all of your Lordships who have contributed to this debate. I myself have learnt a great deal from it, and I hope that your Lordships may also have done so.

I should like to say that it was with particular interest that I heard the noble and learned Lord the Lord Chancellor say that he was not unsympathetic to the creation of a Family Division of the High Court and of family courts throughout the country. The authors of the Report Putting Asunder had that kind of reform at the back of their minds most of the time they were deliberating, but they realised that such a reform must necessarily take a long time, and they therefore decided they must try to put their main proposal into some sort of shape which would fit the existing court structure. I think that that is the reason for what is really a great misunderstanding: the misunderstanding that the authors of Putting Asunder intended, with the existing structure of courts, that there should be a deep and prolonged inquiry into every case of divorce. Nor, indeed, even if we had the reformed courts, should we expect there to be a prolonged inquiry into every case; but, obviously, with the smaller, local courts, something more like an inquest and less like a trial would be easier than I think it would be in the present High Court or county court.

Several of your Lordships have asked, Where do we go from here? I know very well where I am going from here—I am going to dinner. But to-morrow morning I am going, with one other member of the Archbishop's Group, to have a friendly discussion with Mr. Justice Scarman and one other member of the Law Commission about this gap between divorce with inquest and divorce without inquest, because I myself am quite convinced that this gap is not so very wide and that in fact we could come to an agreement about a practicable method of working a divorce law which was based wholly on the principle of the breakdown of marriage. If that comes about, the authors of Putting Asunder will feel completely justified. We shall also feel very greatly indebted to your Lordships for allowing us leave to take up so much of your time this afternoon, from which I believe the country will greatly benefit. With those remarks, my Lords, I beg leave to withdraw my Motion.

Motion for Papers, by leave, withdrawn.

House adjourned at eleven minutes before nine o'clock.

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