HL Deb 10 July 1969 vol 303 cc1206-311

4.17 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Stow Hill.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ST. HELENS in the Chair.]

Clause 1 [Breakdown of marriage to be sole ground for divorce]:

LORD SANDFORD moved Amendment No. 1: Page 1, line 5, after ("Act") insert ("in accordance with the provisions of section 11").

The noble Lord said: This is only a paving Amendment to my Amendment No. 43. on Clause 11, which we shall not reach until the end of the Committee stage. I do not think there is need for the Committee to spend long upon this Amendment unless the Committee wish to do so; nor have I any intention of pressing it at the moment: I shall wait for Clause 11. I feel, however, that I owe it to the Committee to explain briefly at the outset of the Committee stage what I seek to do by my Amendment No. 43. It is not self-evident from that Amendment what its purpose is, but since the Amendment, if carried, will affect the whole Bill, it ought perhaps to be mentioned at this early stage.

My Amendment No. 43, for which, as I have said, Amendment No. 1 paves the way, is to secure that this Bill, if it is enacted, cannot come into force until both Houses of Parliament resolve that it should. I believe that the movers of Amendment No. 42 seek to do the same thing. Their reasons for doing so are clear from the terms of their Amendment, which is concerned with a variation of Clause 2(1)(e). However, their reasons differ from mine. My reasons are broader. They are to give both Houses of Parliament a further opportunity to satisfy themselves, after full debate, that Her Majesty's Government have done everything that is necessary, and that it lies within their power and responsibility to do, to prepare for the operation of whatever Act emerges—if it does emerge—from this Bill.

This preparation for which the Government must, in my view, assume responsibility includes the financial provisions for wives divorced under Clause 2(1)(e). But, to my mind, it should cover also the further measures and the further provisions that must be taken and made, which only the Government can see to. I refer to the whole question of legal aid, National Insurance, supplementary benefit pensions and increased resort to marriage guidance agencies. All these matters were touched on by the noble and learned Lord the Lord Chancellor and by many other speakers in our Second Reading debate. There may be other factors, as well, but these are the more obvious ones, and they all have a bearing on the working of this Bill.

On all these things the information given in another place was extremely fragmentary, but we have faired a good deal better here. The noble and learned Lord the Lord Chancellor was, I think, as helpful as he could possibly be at this stage. He read out to us a very full letter that he had had from Mr. Justice Scarman, the Chairman of the Law Commission, who gave advance information about what he thought his Commission might feel able to recommend in a forthcoming Report—which we have not yet got—on financial provisions. Mr. Justice Scarman ended his letter by saying: We also intend to make some recommendations regarding the determination of disputed rights in property to the acquisition or improvement of which both spouses have contributed, and regarding actions for enticement and damages for adultery.

I think your Lordships will agree that this information, useful and interesting as it is, and constituting as it does an advance on anything that was revealed in another place, does not yet give Parliament anything like a sufficient assurance about the precise way in which Her Majesty's Government will discharge their responsibilities even in these limited fields. We need assurances in these other fields that I have mentioned before the Bill comes into operation. Although it is more the concern of the other place, Parliament has not yet been given, in my view, a proper estimate of the total cost of divorce under all these fields under this legislation.

Having given that brief explanation to the Committee of the purpose behind Amendment No. 1 and, particularly, Amendment No. 43, I am content to place myself in the Committee's hands. If the Committee felt it helpful to discuss Amendment No. 1 and Amendment No. 43 now, and to settle the matter at the commencement of the Bill, at the outset, I should be willing to press this Amendment, if necessary, and press it now. The Committee, having had that preliminary explanation, may now want to leave this point until we come to Clause 11, and in that case I will gladly withdraw this paving Amendment, and keep my powder dry until later on. I thought at least I owed it to the Committee to make my purpose clear at the outset.


I am utterly opposed to these two Amendments. I know it is not in order to talk about what has happened in another place, but I may say that ever since this Bill has been introduced it has been the subject of every kind of procedural objection and obstruction in every way. This is really going too far. These two Amendments provide, in effect, that this Bill has to be dealt with twice over, and it is an impossible situation. I suggest that for the first time we get on with this Bill, and that we get on with it with electrical speed.


I hope that we will have the main discussion on this question when we come to Clause 11. We shall then see what is the content of the Bill. I do not agree with the noble Lord who has just spoken, because in view of what has been said about the financial situation of divorced wives, I think it is essential that Parliament should be satisfied that adequate provision has been made before this Bill, if it passes, is brought into operation. If there is a gap it might inflict great loss upon them. Surely, the right time to consider that is when we get to Clause 11. There is an Amendment down in my name, and that of my noble and learned friend, of a slightly different kind from that of the noble Lord, Lord Sandford, and I suggest that it would be easier to consider the whole matter then.


May I also support the noble and learned Viscount, Lord Dilhorne. I think it would be utterly wrong to decide this question at the outset of the discussion at the Committee stage. In so far as there is any argument for making Parliament as a whole discuss this again at a later stage, we can decide that after we have considered it on Committee stage, and not before.

4.25 p.m.


On the actual sequence of the discussion, I am entirely in the hands of the Committee. It occurred to me at this early stage, even though it may he the desire of the Committee to revert to the matter later on, that I could give an indication which the Committee might think of help. I do not want to argue the matter now at any length, in view of the expression of wishes which we have just heard. May I say that my own feelings with regard to the Amendments which are down to Clause 11 (which will be looked at in more detail later on) are that I should very much dislike a suspensory clause, as it were, which would have the effect of holding in a state of uncertainty—very distressful uncertainty—very large numbers of people who are asking themselves whether this Bill will help them to a more orderly and less distressing form of life than that which they are undergoing at the moment.

May I say in principle now—briefly, I hope—that I would not recommend to the Committee that there should be any provision introduced into the Bill which would make it uncertain when it is likely to come into operation, and uncertain in a very real sense—uncertain because it would depend on a number of events, the time of which would be difficult to predict and would prolong a feeling of unhappiness in a number of people which I think could be avoided.

Having said that, it might be for the assistance of the Committee if I give an indication of a suggestion, at any rate, which I should like to make, which during the course of the debate noble Lords who have put their names to the Amendments initiated by the noble Lord, Lord Sandford, might like to think upon. Their desire is that before this Bill is brought into operation—if it is brought into operation—Parliament should know precisely what it is the Government are prepared to do in order to alleviate the financial position of wives who are divorced in particular circumstances. The noble Lord, Lord Sandford, in moving this Amendment, indicated the respects in which he felt uncertainty about the matter: national insurance provisions, legal aid, and the projected Bill about matrimonial property. He also made a reference to what I think is Section 17 of the Married Women's Property Act 1894.

I should have thought that possibly one could obviate the difficulty about a suspensory provision of this sort if one tried to fix some actual time when the Bill should be brought into operation. What I should like to throw out now as a suggestion, so that it may be considered, is that the present provision of Clause 11, the result of which would be that the Bill would come into operation at such time as the Lord Chancellor orders, should be removed from Clause 11 and that instead a provision should be inserted indicating a particular time at which the Bill will come into operation. Then, at any rate, everybody would know precisely where they stood. It that is an acceptable suggestion, the question is, what is the right sort of time? Bearing in mind the anxiety which is the mind of noble Lords who stand behind these Amendments, and in particular that they would wish to see and to examine thoroughly in all its stages the Matrimonial Property Bill in particular, it seems to me that the right way to go about this would be to fix upon a time when that Bill would have gone through all its stages in Parliament.

At the moment the Committee has before it the undertaking given by the Lord Chancellor that he would not, if this Bill is passed, exercise his power under Clause 11 to bring it into operation until he had placed before the House his proposals, whether on Second Reading or not I do not quite know. At any rate, the matter would have gone no further than proposals, and the Bill would not have passed into law and have been subjected to the scrutiny to which this House and the other place would subject it. That being so, the time at which I should like to suggest that this Bill be brought into operation—the specific time—would be January 1, 1971. That would have this advantage: it would mean that the whole of the rest of this year and the whole of 1970 would have gone past, and in the ordinary course of things a measure introduced by the Government in order to improve the matrimonial property situation would in fact have passed through all its stages. Therefore, I do not ask the Committee to come to a final conclusion on this matter at this moment but rather than throw it out, as it were, at the end of the debate, I should like the Committee to know what I should like in due course to suggest. That is the suggestion I would make.

I would ask the noble Lord, Lord Sandford, to ask leave (without prejudice, I think, under the Rules of the House to his Amendments on Clause 11: certainly without prejudice to the similar Amendments in the name of the noble and learned Viscount, Lord Dilhorne) to withdraw his Amendment so that we may revert to the matter and the Committee can take a decision on the question whether the proposals that I have put meet the anxieties which are indicated on this particular aspect of the Bill.


It is not my intention to take any part in the Committee stage of the Bill unless I can assist the Committee on a question of law or a question of fact, or unless there is something with which the Government are concerned. But I should like, if I may, to take advantage of the opportunity to correct a figure which I gave on the Second Reading of the Bill. The Committee may remember that I pointed out to the House that the most common ground for divorce was still adultery alone, which accounted for nearly half the cases, and that of those petitions about half were petitions by wives against alleged adulterous husbands, and about half were by husbands against wives. The correct figures for 1966 are as follows: petitions by wives, 10,531; petitions by husbands on the same ground, 11,010; 1967, wives' petitions, 12,031; husbands' petitions, 11,624; 1968, wives' petitions, 13,171; husbands' petitions, 12,840. I am sorry that, inadvertently, in respect of one year I gave the figures for decrees absolute, based on the same ground, of adultery alone, instead of petitions. Therefore it is perhaps right that I should also give the figures for decrees absolute. They are as follows. In 1966 there were 9,751 decrees in favour of wives, and 10,212 in favour of husbands; for 1967, the figures were 11,061 and 11,016. Therefore the Committee will see that, whether one takes petitions based on adultery alone or decrees absolute given on adultery alone, within a few hundred each year, out of 23,000, the figures for husbands and for wives are substantially the same.

With regard to this particular Amendment, there is of course nothing unusual about the Bill in its present form where rules have to be made. There is nothing unconstitutional, or indeed unusual, in the course adumbrated by my noble friend Lord Stow Hill of fixing in the Bill a date on which it is to come into force. In my own opinion, there is nothing at all unconstitutional, since Parliament can do what it likes, in the form of Amendments proposed by the noble Lord, Lord Sandford, in his Amendments Nos. 1 and 43. But I should perhaps inform the Committee as a matter of fact that I have not been able to find any Act which provides that it is not to come into force without an Affirmative Resolution of both Houses; except the Easter Act 1928, which one noble Lord constantly brings up because it is now 41 years since it was passed and we are still waiting for the Affirmative Resolution.


We shall be grateful to the noble and learned Lord the Lord Chancellor for that correction. I should like to go on straight away to say that the last thing I want to do is to be accused of impairing the consideration of this Bill on Committee by procedural devices. Having had that short debate, and that indication, both from the Government and from the noble Lord, Lord Stow Hill, about first reactions to the Amendments we are proposing to Clause 11, I beg leave to withdraw my Amendment No. 1.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2:

Proof of breakdown

2.—(1) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say

  1. (a) that since the celebration of the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  2. (b) that since the celebration of the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  3. (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
  4. (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

(2) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(3) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (1) of this section, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 4 of this Act and section 5(5) of the Matrimonial Causes Act 1965, grant a decree nisi of divorce.

(4) For the purpose of subsection (1)(c) of this section the court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing the necessary intention if the evidence before the court is such that, had that party not been so incapable, the court would have inferred that his desertion continued at that time.

(5) For the purposes of this Act a husband and wife shall be treated as living apart unless they are living with each other in the same household.


Before I call Amendment No. 2, I must point out that if Amendment No. 2 is agreed to obviously Amendments Nos. 3 to 12 cannot be called.

4.35 p.m.

LORD ILFORD moved Amendment No. 2: Page 1, line 9, leave out subsection (1).

The noble Lord said: I beg to move Amendment No. 2 which stands in my name upon the Paper. This Amendment deals with one of the major changes that this Bill would bring about in our divorce laws. Your Lordships will recall that by Clause 1 of the Bill the sole ground for a petition for divorce will be that the marriage has broken down irretrievably. That is a very far-reaching and important change. It means, in the first place, that the matrimonial offence, which is the basis of our present divorce law, will disappear from divorce law altogether; at least, that is what one would expect to find.

I do not think that any tears of regret will be shed for the passing of the matrimonial offence. The fact that our law has been very largely based upon the matrimonial offence has, I think, done more to bring our divorce laws into ridicule and contempt that any other aspect of the law. The matrimonial offence as a basis has of course been roundly condemned. The Archbishop's Group condemned it in no uncertain fashion. The minority of nine on the Royal Commission who referred to it in their Report condemned it with equal emphasis, and I suspect that the Law Commissioners entertained the same view about its value as a factor in our divorce law.

In the light of this universal condemnation one would have expected that this Bill, if it is really to substitute a new basis for divorce, would have treated proof of the matrimonial offence in a petition of divorce as something which is totally unnecessary. But that is riot the case, because when one turns to Clause 2(1) of the Bill one sees set out five sets of circumstances, one at least of which must be proved to the satisfaction of the court before the marriage can be held to have irretrievably broken down. When one looks at those five facts or sets of circumstances one finds that they are not very dissimilar from the existing matrimonial offences. That in paragraph (a) is not substantially different from the present law on adultery. There are changes, and some of the changes are good and some perhaps not so good; but there are changes and I accept the changes. But still paragraph (a) remains substantially the present matrimonial offence of adultery.

When one comes to paragraph (b), here again there have been amendments in the law which I welcome; but paragraph (b) is still substantially the existing law of cruelty again. When one comes to paragraph (c), although here again there are amendments, this paragraph is still in effect the present law of desertion. I need not trouble your Lordships with paragraphs (d) and (e) because rather different considerations apply to them. However, the fact remains that in a petition for divorce one at least of these sets of circumstances must be proved before the court can hold that the marriage has irretrievably broken down.

If the matrimonial offence is no longer to be one of the grounds of divorce there is really no need for any one of these facts to be proved in the course of the petition. Of course the parties can prove one of these facts if they desire to do so. If it will advance their case to prove a matrimonial offence they are at liberty to do so, but as the Bill stands there is an obligation, which they cannot escape, to call evidence of at least one of these sets of circumstances. It is that part of the Bill which the Amendment proposes to change. It proposes to omit altogether subsection (1). The position then would be that the only obligation on the court to do anything specific is contained in subsection (2): It shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent. That is what the court has to do, and I should have thought there was no great difficulty in that. Indeed it is what the Court has to do in any case. But if the court also has to go on and find that one of these sets of circumstances in paragraphs (a), (b), (c) or (d) has not taken place, then the court must hold that the marriage has not irretrievably broken down and the petition must be dismissed.

I am glad to see my noble and learned friend Lord Reid here this afternoon, because he analysed Clause 2 during the Second Reading debate in, I thought, a most masterly fashion. I have not repeated any of the analysis that he then made, but I hope he will be able to repeat some of it this afternoon. This is a relatively simple Amendment, but it goes to one of the fundamental matters which this Bill is intended to put right. But if the Bill remains as it stands at present there will not be any great difference between a trial for petition of divorce under the existing law and a trial for a petition of divorce under the law as it will be altered by this Bill. I beg to move.


I am utterly opposed to this Amendment. I have been a silent Member of your Lordships' House for a good many years and I have heard a good number of Amendments made from time to time, but this I can only call a piece of legislative assassination. I use the word "assassination" intentionally, but I suppose, capital punishment having been abolished, that people take chances to-day that they would not have done in the past. The object of the Amendment is to cut this Bill out for all practical purposes. During the Second Reading debate it was proposed that the Bill should go forward on this basis. I sincerely hope your Lordships will vote against this Amendment forthwith, without any discussion whatever.


I am not sure that I can take quite as clear-cut an attitude to this Amendment as the noble Lord, Lord Meston. I think we are indebted to the noble Lord, Lord Ilford, because he has confronted us with a dilemma that we ought to face at the very outset of this debate. There is a palpable inconsistency in the Bill; but, on the whole, human affairs al e often better regulated when one accepts a certain degree of inconsistency. In my view, for all the inconsistency we shall have a better divorce law by enacting this Bill. Nobody is pretending that the Bill is total logic—of course it is not—but what we can be certain of is that if we were to agree to this Amendment we should have the completely impossible divorce law. With the greatest respect to the noble Lord, I would say that the investigation by a court as to whether a marriage has broken down at large and without guide lines to determine what matters were to be investigated, would involve endless expense, endless delay, and inquiries into matters of intimate human behaviour that I do not think it is appropriate or right for a court to inquire into. I do not think that within a modern society a court is entitled to inquire into matters that are personal and intimate, as to whether or not a marriage has broken down, in the sense of hearing both sides and investigating every aspect of the personal and private life in which they have been engaged for many years. In my view that would be substituting for our present divorce law a completely intolerable prospect of investigation.

I think there are inconsistencies here. There is no doubt that in a sense we are perhaps not paying much more than lip service to the breakdown principle; but I think it is valuable that we should recognise it, and valuable that we should enunciate in the opening paragraph the principle that ordinary human beings accept when they embark on matrimony. The clause then indicates those matters which enable a marriage to be dissolved. On the whole, I think that is not a bad rule. The alternative rule, of leaving the court to investigate the whole area of matrimonial activity and to hear both sides at immense length—as indeed they would so depose, and anyone acquainted with matrimonial disputes can aver with burning sincerity and a good deal of sorrow—would be disastrous. I think we should do far better to dispose of this Bill altogether in the dustbin than to make this particular Amendment.


I rise only to draw your Lordships' attention to what I believe would be the effect of accepting the Amendment. To begin with, by deleting paragraphs (d) and (e) we should abolish all time limits, so that anybody who alleged breakdown, be he guilty or innocent, could bring his action the day after the Act came into force. There would be no need for him to wait at all. There may be a difference of opinion as to how one proves breakdown. My own view is that if the petitioner goes into the witness box and says, "In no circumstances will I go back to my husband"—or wife—that is not only sufficient but complete proof of breakdown. The only way one could get past that would be to find that she, or he, is a liar. On the other hand, as the noble Lord, Lord Goodman, has said, if the interpretation turns out to be different from that, then there would be a formless investigation into all kinds of things. This would be possible enough in a defended case, but how we should ever get through the undefended cases if that sort of thing happened, I do not know. My own view is that this proposal is simply a charter for any body to come forward, in an undefended case at least, and say, "This marriage has broken down. I am not going back to my wife"—or husband, as the case may be—and if there is no competing evidence a decree would have to be pronounced there and then without any delay whatever.


I sympathise very much with the position taken by the noble Lord, Lord Goodman. On the face of it, there does seem to be an inconsistency here. Equally we must have some kind of inbuilt criteria as to when there is irretrievable breakdown. I wonder, however, whether in the last resort there is an inconsistency, because, as I see it, the important point is that these which are at present matrimonial offences would, under the new Bill, never by themselves be sufficient, would not even be necessary and would be put out only as possible criteria of irretrievable breakdown, of which there may be other criteria as well. So in the end I do not think there is a form of inconsistency. They are, in fact, helpful criteria as to whether a marriage has broken down irretrievably, without being them elves either necessary or sufficient, but only possible.


The noble Lord. Lord Ilford, has raised as has been pointed out, a consideration which is crucial and fundamental to the Bill; and, as the noble Lord, Lord Goodman, said, it is right that we should at the outset decide whether we do accept that measure of inconsistency which resides in its terms. I hope the Committee will say that it is prepared to accept it. So many powerful speeches have been made against the proposal of the noble Lord, Lord Ilford. that it hardly befits me to add my own submissions to them, but I should like briefly to say one or two things.

We have the great advantage in the consideration of this Bill of the fact that these issues were first considered by the Royal Commission over which the noble and learned Lord, Lord Morton of Henryton, presided with such distinction.

That was the first thorough inquiry. That was followed by Putting Asunder, a document, I should have thought, which was instinct with human understanding, a most valuable document. The third stage was that the proposals in Putting Asunder were subjected to the analysis of The Field of Choice, by the Law Commission, an equally valuable document, and I should have thought of the greatest possible help to us in our deliberations.

What the noble Lord, Lord Ilford, wants to do is to go back to Putting Asunder and to reject The Field of Choice. The Law Commission in The Field of Choice, stated I should have thought, with the greatest possible succinctness and clarity the difficulties in the way of the proposal contained in Putting Asunder that there should be a general inquisitorial process to ascertain whether there was in a real sense a breakdown. The noble and learned Lord, Lord Reid, put so clearly, if I may say so with respect to him, the difficulties in the way of that. The Law Commission, I thought, put the same point very succinctly on page 31 of their Report, where they said: A detailed inquest into the whole married life would prove more distasteful and embarrassing than proceedings under the present law. As the noble and learned Lord, Lord Reid, pointed out, you might have one of two sets of circumstances. A number of judges all over the country, county court judges, nine out of ten cases undefended, will be called upon to decide. One could very well say, if I may adopt the words of the noble and learned Lord, "Here is a grown-up person who tell me that in no circumstances will he or she ever resume cohabitation with his or her spouse. She looks sensible, sane and grown up and seems to be telling the truth. That is enough". Another learned judge, bringing equal care and conscientiousness to the decision, will say, "I cannot reach a conclusion unless I have subjected the parties to a full and minute questioning of every aspect of their married life together". It would be most distasteful. As the noble Lord, Lord Goodman, said, that is hardly the right sort of thing to ask a court to decide upon; it involves prying into intimacies which should be the private property of the two parties concerned.

The defect of Lord Ilford's argument was that he did not attempt to give one reason in answer to the arguments contained in the Law Commission's analysis, The Field of Choice. I hope that your Lordships will at the outset decide, as it has already decided, that the principle should be breakdown; that it is right that there should be certain factual situations chosen as prima facie indications that breakdown has occurred. That is the form of the Bill. It is not being realistic, if a husband or wife comes and says, "My husband (or wife), my spouse, has committed adultery on a number of occasions and I find it intolerable to go on living with him (or her)", to say, "Oh yes, but cannot you overlook it? Cannot you treat that as of no importance?" It almost always is of great importance. Sometimes, it is perfectly true, individual acts of adultery are not very significant in the matrimonial life of the parties. Equally, cruelty or unreasonable behaviour, as described in subsection (1)(b), or desertion. These things are all clearly prima facie indications that the marriage has broken down. I should have thought that the form of the Bill, with its inconsistency, which one has to accept in human affairs, nevertheless is rightly framed in that it selects certain factual situations and it predicates of them that they should be regarded as prima facie indications that the marriage has broken down.

When one looks at Clause 2(3) one sees that the court is required, in the event of that factual situation being established, to pronounce a decree unless, when all the evidence is looked at, the court comes to the conclusion that the marriage has not in fact, contrary to appearances, broken down. I should have thought that was the right and only practical form. I hope that the Committee at the outset of its consideration will accept that as a general principle, because it runs right through the Bill. If it is right, a great deal of the rest of the Bill follows. I would respectfully advise the Committee that the noble Lord's proposal should not be accepted and that his Amendment should be rejected.


I think the Committee is determined to persist in its inconsistency, and I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


Before I call Amendment No. 3 I must point out to your Lordships that if it is agreed to I cannot call No. 3A and No. 4.

4.56 p.m.

VISCOUNT DILHORNE moved Amendment No. 3: Page 1, line 13, leave out paragraph (a).

The noble and learned Viscount said: It may be to the convenience of the Committee, if the noble Lord, Lord Goodman, the noble Baroness, Lady Summerskill, and the noble Lord, Lord Hodson, agree, if we discuss Amendments Nos. 3, 3A and 4, which all relate to paragraph (a) of subsection (1), at the same time. Despite the wrath of the noble Lord, Lord Meston, I feel that we should be failing in our duty if we did not give very close examination to the terms of this measure. It is one for which I voted on Second Reading. I have for a long time wanted to get away, so far as one could, from the proof of the matrimonial sin and get to the establishment of the fact of breakdown of marriage. This Bill goes some way. As we have just heard indicated, it does not go the whole way. The noble Lord, Lord Ilford, said that there would be no tears of regret for the passing of the matrimonial offence. The noble Lord, Lord Stow Hill, has pointed out that the matrimonial offence is preserved in subsection (1) of Clause 2; but it is not preserved in quite the same form as it exists now, and the differences are very important and very material.

The first thing I would have to say about paragraph (a), which my Amendment seeks to leave out, is that the conduct which would come within it—that is to say, adultery—would certainly be covered, I submit, by the language of (b). The words in paragraph (b) are: that since the celebration of the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

Those words seem to me to be apt and wide enough to cover the commission of adultery, and if that be so then paragraph (a) is unnecessary.

There is a very curious thing about (a) when you contrast it with (b). In relation to (a) two things have to be proved. I did not quite understand what my noble friend Lord Stow Hill said about proof of these matters constituting a prima facie case. Proof of one of these matters is essential if a decree is to be granted. But it is necessary to prove, first of all, commission of adultery, and then the petitioner has to say that he or she finds it intolerable to live with the respondent. Can one conceive of any case where a petitioner brings a petition before the court complaining of adultery on the part of his or her spouse where that petitioner will not say, "I find it intolerable to live with the respondent"? The wife might say, if she were asked the question: "What on earth do you think I have brought this petition for? I want my freedom. I cannot live with him any more." In that paragraph the test is absolutely subjective. I cannot envisage any case where a court would be in a position to say that that second requirement was not established by the mere affirmation of the petitioner; indeed, that is all that should happen in al undefended case.

Contrast that with paragraph (b). There you have a different test; namely: that … the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. That is an objective test; and surely that is the right test if you are really going to have regard to the principle that this has led to an irretrievable breakdown of the marriage. It does not stop there. Another curious thing about paragraph (a) is that there is no ink in the clause—and we were told earlier that this has been a most carefully drafted clause, so I assume that the omission of a link is deliberate—between the commission of adultery and the petitioner finding it intolerable to live with the respondent. As it now stands, that clause would be satisfied if the petitioner found it intolerable to live with the respondent for reasons wholly unconnected with the adultery. That would come in. Therefore, I personally do not think that, as it stands, this particular paragraph is at all good.

Then what about this point? The discretionary bars have gone, or will go. As I understand it, it will be no bar to the operation of this provision that the petitioner has condoned the adultery, provided he has not lived for more than six months with his spouse during the period of condonation. It will be no bar that he has connived at it; and it will be no bar that there is collusion about it. I do not know whether it is right or not—the noble Lord, Lord Stow Hill, might take a different opinion—but under this clause as it stands, a man who has made his wife go out on to the streets and has lived on her immoral earnings can then turn round at any time he likes and say, "She has committed adultery. I find it intolerable to live with her", and that would be proof of the fact. The noble Lord may say that Clause 4 provides some safeguard against that, in that the court may say, if those facts become apparent, that it would be wrong in all the circumstances to grant a decree. We shall discuss Clause 4 in due course. I only say now that I have my doubts whether the language of Clause 4 is really a sufficient safeguard against matters of that sort.

If I may go one stage further, I would much prefer this paragraph to be left out. I think it would improve the Bill, and I think that you would lose nothing from the Bill. What would happen if this paragraph were left out? In cases where the trouble arose with the commission of adultery, the petitioner would come before the court and say "The respondent has behaved in such a manner that I cannot reasonably be expected to live with him again", and the commission of adultery would be behaviour in such a manner. Is that not enough? If paragraph (a) is kept in, is there any question but that the petitioner can obtain a decree on proof of the commission of one act of adultery by the respondent, even though the petitioner may have committed adultery on a great number of occasions?

I have put these points as shortly as I can, because I am worried about the inclusion of this particular paragraph, paragraph (a), in the Bill. I think it would be better if it were omitted. I do not think it would do any harm to the Bill if it were omitted. I do not think it would narrow its scope. But it would prevent the kind of abuse that it seems to me may yet occur if the wording of paragraph (a) remains in the Bill. I beg to move.


May I ask the noble and learned Viscount for some guidance in this matter? As I understand the situation in the Bill, under subsection (1)(a) it would be possible for a spouse to obtain a decree on a single act of adultery. If subsection (1)(a) is deleted and the spouse has to fall back on subsection (1)(b), would it not be within the competence of the court to interpret that a single act of adultery did not cause an intolerable situation?


Well, it is difficult to make a hard ruling off the cuff on a matter of that sort. But I would assume that if the petitioner established the commission of adultery by the respondent—and a recent commission of adultery—at least there would be a strong prima facie case that the petitioner could not reasonably be expected to live with the respondent.

5.7 p.m.


May I come back in a moment to the answer that the noble and learned Viscount has given which I would submit is not quite a sound reply to my noble friend? May I deal strictly with the Amendment which he has on the Marshalled List, which is to leave out paragraph (a) of Clause 2(1). In the course of his argument he referred to other paragraphs, but may first fasten on to that one. Is it, or is it not, a good thing to specify, as a factual situation, adultery plus a feeling on the part of the petitioner that he really cannot continue his married life with the respondent? Or, as the noble and learned Viscount suggests, should that be merged into subsection (1)(b)?

I would respectfully submit to the Committee that it is an advantage to have Clause 2(1)(a). If one looks at the ordinary sort of situation, which a judge sitting in the divorce court has to consider, he has before him a petitioner who alleges that the other spouse has committed adultery. I should have thought, men and women being constituted as they are, their natures being such as they are, that if that has happened—I do not say in every case; far be it from me to say that—then quite often the spouse who is the petitioner will have been so worried and affronted by the commission of the act of adultery that you have, therefore, isolated and separated out and ringed around, a type of conduct which the court can easily look at, and therefore it may easily predicate that it is the sort of conduct which is a symptom of a complete breakdown. That, I should have thought, was a great advantage.

I have some sympathy with the argument of the noble and learned Viscount to the effect that few judges, if they see a petitioner in the box charging adultery against his spouse, will find difficulty in coming to a conclusion that the petitioner is perfectly reasonable when he says, "I cannot go on living with my spouse." That, I should have thought, was almost self-evident. I think it is behind some of the thinking in an Amendment put down by the noble Lord, Lord Goodman. Nevertheless, I should have thought it was not completely otiose.

When I ventured to address your Lordships on the Second Reading of the Bill, I put these considerations in the forefront of my argument. I said that what we are doing here is making a major change and substituting breakdown for the matrimonial offence. It is not possible to go the whole way. Something in the nature of a shortfall has to be accepted. If you want to make the thing at all practical you have, as the Law Commission pointed out, to compromise with certain given situations which prima facie are to be taken as sufficient to constitute breakdown. Surely this is an ideal situation for that purpose. Surely when you have adultery by one spouse, on one occasion or more than one occasion, that is the sort of situation which easily enables a court to say, "Here is a prima facie situation which shows that there has been breakdown".

Is it better to merge it in paragraph (b)? I should have thought not, for this reason: that if paragraphs (a) and (b) are merged and a petitioner comes before a judge and says, "My spouse has committed adultery" there is placed on the judge the invidious and almost intolerable task of inquiring from the petitioner what circumstances there are in the case which make that act or those acts of adultery conduct which the petitioner cannot reasonably be expected to put up with. That is a most invidious and unseemly inquiry, and I should have thought that all judges would be most reluctant to undertake it unless they had to. Adultery proved, and the sane man or woman saying, "That is enough for me; I cannot go back and live with the respondent". I should have thought that that was a crystal clear situation in 95 cases out of 100 which would enable a court to conclude that prima facie that marriage was at an end. It is only prima facie, because the court has to look at the circumstances as a whole; but it would be a pity and a loss to the efficient working of this Bill if one eliminated that clear and straight path to the conclusion that there was in the particular case a breakdown.

It would be a great mistake to require a court, as a matter of ordinary routine when adultery is proved, to say, "We are not satisfied about that; we must ask whether all the circumstances are such that that adultery is something that the petitioner cannot be expected to tolerate." What is the judge to say? Is he to say, "Well, this is only just one act of adultery; there is surely not very much in that"? Is he to say, "You are both a young couple, you will forget it". That would be an intolerable form of inquiry. As the Bill stands now, with paragraph (a) in it, the judge can say, "This situation is proved; prime facie that is enough".

Should one have the words and the petitioner finds it intolerable to live with the respondent included in paragraph (a)? As I say, I accept that in nearly every case the judge would find very little difficulty in coming to the conclusion that the petitioner satisfies him of it. There may nevertheless be cases where there is still some doubt. There may be cases where you get an unstable, hesitant petitioner who does not carry particular conviction to the judge, and the judge may think it desirable to ask him or her some further questions. The judge may feel that that is a case in which Clause 2(3) is brought into operation, and that he should look more closely at the evidence as a whole to see whether or not it has established that there is no real breakdown, in spite of that adultery. As my noble friend Lord Wells-Pestell said, if you leave those words out you simply have the fact that one act of adultery is an almost unbarrable path to divorce. The only obstacle then can be Clause 2(3). If you reinforced the requirement by saying that a judge should at least have to be satisfied that he has a petitioner before him who can make up his or her mind, who is not acting against a respondent to whom he or she is still very greatly attached, and can conclude without any hesitation that the petitioner has decided that married life between them is at an end, it would greatly facilitate the task of our divorce courts.

Therefore, whilst I, if I may respectfully say so, see the force of the noble and learned Viscount's argument, I hope that he and the Committee will accept from me that, on balance, it is better to keep this provision in. It facilitates the work of the court, and it will in many cases extricate the judge from a task which will be very invidious, distasteful and may provoke public comment and public dislike if the judge has to embark on what is, in effect, an inquisitorial process when there is an act of adultery proved before him. If that is so, there is, in my submission, great advantage in retaining this particular paragraph in the Bill.

Ordinarily, if I may stress this point before I sit down, adultery in most marital relationships is not something that can be just laughed off and brushed aside; it is something, generally speaking, indicative of a fundamental change in the relationship between the spouses: lack of trust; lack of affection, or something of the sort. It may not be, but ordinarily it is; and that being so I should have thought that that particular touchstone, that particular test or measure, whether the marriage has broken down, ought to be retained. I ask the Committee not to accept the noble and learned Viscount's proposal.

5.15 p.m.


May I say a few words in support of this Amendment? I imagine that the real justification for paragraph (e), which we shall be discussing later, is the injury, the damage, to the children born out of wedlock when the guilty party has left the innocent; and for divorce by repudiation it seems to me that the possible damage to such children is the only real justification, if any. Surely that has to be balanced against the far greater damage to children who are born without a stable mother and father to look after them, with parents who are breaking up and strifing with each other. Therefore, as it seems to me, it is imperative in this Bill not to enable divorce to be easier and more children to be damaged. If one approaches it in that way it does seem to me, with all due respect, that paragraph (a) is divorce by consent, and nothing more. If that is the intention of the House, so be it. But collusion has gone, connivance has gone, and all that is necessary under this paragraph (a) is for the parties to get bored, for one of them to arrange to go through all the squalor of the hotel bedroom—which the divorce judges have been banishing slowly, and I think permanently—and for the other one to come forward and say not, "I am bored", but, "I find it intolerable to live with him"—or her. If that is not divorce by consent, I do not know what is.

It seems to me that, as the noble and learned Viscount has said, this can be dealt with under paragraph (b); and very much better under (b), because the court then has the opportunity of deciding whether, in all the circumstances, with that isolated act of adultery, it is reasonably to be expected that the petitioning spouse—he or she—should live with the other. As it seems to me, that is the proper approach, not for two people who are bored to arrange for one to go to the hotel bedroom and the other to bring proceedings and say, "I find it intolerable".


I am in something of a dilemma about paragraph (a). It does not seem to me to cater for the situation where the petitioner has himself committed adultery. A case may arise where a petitioner is a consistent adulterer, yet is nevertheless able to take proceedings against his spouse on the ground that that spouse has committed adultery. While my first reaction to this was to support paragraph (a), I feel that, in the light of the discussion, my noble friend Lord Stow Hill will be well advised to look at paragraphs (a) and (b) again to sea whether we cannot meet this position where the real test is whether the judge will decide whether the marriage has reasonably broken down. It seems to me that one of the advantages in relying on (b) is that in a case such as I have predicated, where you get an admitted adulterer coming along and petitioning, the judge could well say, "It is not reasonable. I cannot believe that you find it intolerable to live with your spouse. You are just as bad". It would then be a matter for the judge to consider whether a divorce ought to be granted.

Most of us who supported the Second Reading were not out to make divorce easier, but were out to make it more rational and more in line with public feeling, and this is a matter at which we might well look again between now and Report stage. I suggest to my noble friend that if we took that course, those who moved these Amendments would not press them, and we could return to the matter again at Report stage.

5.21 p.m.


I have never liked the presence of this paragraph in the Bill and I have always wished it away. I do not believe that the paragraph is at all necessary. It brings back the matrimonial offence in its most odious and dangerous form, because it retains all the worst features of our present law concerning the ground of adultery for divorce while removing such protections as the present law contains.

Of course, adultery excites in the minds of all decent people a deep revulsion, and it is no doubt for that reason that so many people feel that adultery is an obvious ground for divorce, or an obvious and irrefutable sign of breakdown. But though adultery is a very grievous sin, it is not an unforgivable sin. Though, indeed, it strikes a grievous blow at the marital relationship and destroys or cruelly weakens the trust and confidence which should exist between the married pair, adultery does not of necessity inflict a lethal blow. Married couples have recovered a certain amount of mutual trust and confidence, in spite of the adultery. I should have thought that it was a matter of common experience, particularly among the clergy and the judges, that a single act of adultery brought as a ground for divorce by the aggrieved partner, with a certain amount of impetuosity, suffering under great shock, and indeed anger, was a most insecure foundation upon which a court should find that a marriage had irretrievably broken down. We clergy, at any rate, know any number of marriages where adultery has occurred and where the marriage has been continued and has then been happy.

I do not think that this paragraph is necessary because, as the noble and learned Viscount, Lord Dilhorne, said, a really gross and scandalous and persistent adulterer can be brought under paragraph (b). And with the ordinary act of adultery—if I may use such a phrase—if the other party is unable to forgive it, is unable to continue to live together and separates, then, in nine cases out of ten, at the end of two years the case could be brought under paragraph (d), because the other partner would not usually object after two years of separation.

This would be a great improvement on our existing law, because it would make these quick remarriages after divorce much more difficult. For it is our experience among the clergy that the second marriages which break down are almost always those which are contracted either as a result of the adultery which was the cause of the divorce, or very quickly after the divorce. The second marriages which are contracted later are much more likely to be stable. Therefore, I think that the omission of this paragraph would not damage in the least the purposes of the Bill and would improve the present marriage law. I think that the inclusion of the paragraph is unnecessary and, on the whole, harmful.


It has been suggested that it would be convenient to discuss my Amendment at the same time as Amendment No. 3, which I am very willing to do. May I say that I have heard with very considerable sympathy the speeches in favour of leaving out this paragraph, but I think, once again, that the Committee has the dilemma of having to decide whether it is going to accept something which it does not particularly like because the alternative is something very much more disagreeable. May I venture to speak as a practising lawyer, as I think it is important that one should emphasise this point?

We have a legal system of great costliness. We have a legal system which renders it very difficult for many people to avail themselves of it, if it involves inquisitions and inquiries of great length and great expense. There is a very real danger that we may apply to this matter criteria too academic, to the detriment of a great number of people. I wholly sympathise with the objections 10 our having rigged divorces, divorces by consent and so forth, where there is a pretence that they are something else. But I think any practising lawyer, and any judge with experience in the Divorce Division, will know that, on the whole, this is unavoidable. In many ways we shall have a much more honest position instituted by this Bill than we have at the moment.

The Bill requires that there should be established to the court the fact that an act of adultery has been committed. I venture to suggest to the Lord Chief Justice, and others, that it is either an act of adultery or it is not. The fact that it is pre-arranged; the fact that a lady may not have been known before, and the fact that it is a hotel bedroom for one night, does not alter the fact that it is an act of adultery. If no act of adultery is committed, then it is blatant perjury, and there is available to the court a very drastic remedy for dealing with that situation. This is not a licence for a court to be deceived. This is a situation where the court, if it is in any doubt whether adultery has been committed, can take unto itself the powers which it already possesses to investigate the matter. A decree can be granted only if a court is satisfied that adultery has been committed; and adultery is committed where there is an act of adultery of which the court is satisfied.

The suggestion is made that it would be better to leave it to paragraph (b). Here I venture to suggest that we have precisely the objection of which we were speaking previously: that we leave the matter to areas of grave uncertainty. In many ways we should be very unfair to the Judiciary, because one thing that should not be left in doubt is whether acts of adultery are or are not regarded by particular judges as justifying the termination of a marriage. It would be a quite intolerable situation if we found that one judge, adopting a particular code, took the view that a single act of adultery justified the termination of a marriage, while another judge, adopting another perfectly proper code, took a completely contrary view.

I venture to think that the institution of marriage in this country—and with the learned ecclesiastics facing me it calls for immense courage to utter a word on the subject—is based so strongly on the notion of marital fidelity that the divorce law should state in the clearest and most certain terms what view it takes towards the infraction of that particular obligation. It seems to me anomalous in the extreme, even in this day and age, that we should leave out precise guidance on this matter because of a fear that there may be rigged divorces. I think this would be a grievous error. It would open up areas of great uncertainty: it would make the dissolution of divorce more costly, more difficult, more uncertain; and it would, in the end, leave us in a worse situation than we are in at the moment. I know that I shall find myself in disagreement with a number of learned Law Lords and with the Lord Chief Justice, who have spoken on the subject of paragraph (e), but it seems to me that here we have a clear-cut question. We have the question of whether we want to prescribe certain rules for the dissolution of marriage. And, whatever else we do, do not let us leave areas of total uncertainty. I believe that that would be wholly wrong.

May I venture to come to my own Amendment. I have had various representations made to me, even this morning. that it might have the effect of somewhat damaging the Bill. At the moment, I am very unrepentant about it, but I shall listen with great interest to the views which I am sure the noble Lord, Lord Stow Hill, and others will utter on the subject to see whether my view is changed. I find these words, and the petitioner finds it intolerable to live with the respondent", wholly objectionable for a number of reasons. One reason is that it seems to me that it will create two categories of petitioners. We shall have a classification of human beings by the court, one of men who go to get a divorce and are found to be men who tolerate adultery, and another classification of men who go to get a divorce and are found to be men who do not tolerate adultery. I do not think that is at all an appropriate job for the courts. It seems to be a most invidious classification of human beings when they are seeking to resolve their matrimonial situations.

But, further and perhaps more important, how can any court honestly seek to assess this immensely subjective inquiry? How can a court find out whether one human being can or cannot tolerate the adultery of his spouse? If I may venture to say so, it is imposing on the court an obligation that no one outside the Kingdom of Heaven can discharge. I do not think we ought to ask judges to undertake tasks of this kind. And it is open to precisely the objection that the noble Lord sponsoring this Bill was making in relation to paragraph (b), that there would have to be a wide-ranging inquiry into matters of general intimacy, matters of fastidiousness, matters of personal code, matters of moral approach and matters of religious belief. It seems to me quite absurd that all these matters should be introduced in relation to a question of this sort.

There is a further point. The noble Lord, Lord Silkin, raised the question of the man or woman who had himself or herself committed adultery—what to-day is called the discretion case. I should find it very difficult, sitting as a judge, to accept it if a person came to me and said, "I have committed adultery but I find it quite intolerable to accept my spouse's adultery". That would require some "logic chopping" of which I personally should find myself incapable. I should have to say to such a person, "If you find adultery such a tolerable pastime, you must find it tolerable on the part of your spouse as well". I would therefore go so far as to say that many judges would he completely justified in refusing to give a divorce in a case where the petitioner had himself or herself committed adultery.

Now what is the vice of losing these words? The vice is, if I may say so with the greatest of respect, a deficiency of draftsmanship: not that for one moment I should wish to criticise the excellent drafting of this Bill, which is in many respects a model, but I think the draftsman here has come up against an almost impossible problem. What he has been trying to do is to find a way of saying. "You may have adultery as a ground for the total breakdown of a marriage, but you must not make a meal of it". There is no way of putting that into a Statute. There is no form of legislative drafting which is going to achieve that result. The sensible thing to do is to leave these words out, avoid all the difficulties and dangers inherent in them, and make the clause a more sensible clause.


I should like to speak against the two Amendments. If we were living in a Utopian society, in a state of sophisticated grace, I should be one of the first people to say that we should dispense with paragraph (a) altogether, but that is not so. We still need the guidelines which have been mentioned. If we are to have those guidelines, it seems to me to be an improvement on the present situation to have the words which would be deleted by the Amendment to be moved by the noble Lord., Lord Goodman. In answer to the noble and learned Viscount. Lord Dilhorne, who pointed out that subsection (1)(b) covers the point, I would. with great respect, point out that there is a difference, because subsection (1)(b) says that the petitioner cannot reasonably be expected to live with the respondent and, as the noble and learned Viscount himself said, that is an objective test. But is that the only thing we should cover? Surely we should be covering a subjective test as well; and that appears to me to be the value of the words in subsection (1)(a), and the petitioner finds it intolerable to live with the respondent". As I have said, I do not think that we have reached a situation where we can dispense with the idea of physical fidelity being part of the basis for many people of monogamous society, and it would be unfair to the judges to leave them to sort it out. I cannot agree with the noble Lord, Lord Goodman, when he says that he interprets it as, "It is all right to have an act of adultery, but one must not make a meal of it." If some couples manage to make their marriage exist even if they do make a meal of it, then it seems to me that that is nobody's business. If one person tolerates adultery in a marriage, then it is a matter for the couple themselves. The reason why I prefer to keep in these words is that it helps us to move towards what I think is the more civilised climate of moving away from the one act of adultery. That was also in the evidence which I, on behalf of the Fabian Society, gave 10 the Royal Commission, and which many other organisations and people gave.

I think the inclusion of these word:; may cause a number of people to think. It brings a sort of hesitation, if you like, which could be valuable. I personally know of several women who have, out of hurt pride and so on, slapped in a divorce petition against their husbands when they have discovered adultery; and then have been very sorry later on that they had done so. I am not saying that the inclusion of these words is going to prevent everybody from quickly taking action, but it helps, I think, to create, as I have said, the climate that marriages should not almost automatically be broken down because of one act of adultery. For those reasons, I hope that the Committee will reject these Amendments, and also the following one, which I gather—I think I am in order—we are discussing as well, although it has not yet been moved; that is, the one which adds the words "by reason of such adultery". Again I think that this narrows Clause 2(1)(a), because the words "and the petitioner finds it intolerable" mean that it could be an act of adultery and other things; that in fact the act of adultery could be the final straw on top of a great deal of unhappiness in the marriage. If we then tie it up by adding the words "by reason of adultery", we are narrowing it and rather getting back to the present position. This is why I hope that these three Amendments will he rejected.


I may not have understood, but I am considerably worried by something which the noble Lord, Lord Goodman, said at the beginning of his speech. He seemed to be suggesting that in the interests of legal efficiency and economy our courts, our legal system, might accept, or at least wink at, a certain degree of collusion between parties petitioning for divorce. What worried me in his speech was that I understood that he might be advocating a system by which our courts would set up a great temptation to commit perjury vis-à-vis adultery in an hotel bedroom because that was the way the parties could most easily obtain a divorce by mutual consent. That would seem to me to be an intolerable system for the individual rather than for the legal system itself.


Your Lordships are long-suffering, and can be excused if you grow impatient. I shall therefore utter only about three sentences. I am in favour of leaving paragraph (a) as it stands at the moment. I do not want to argue about the ethics or the supposed respectability of adultery, about which we have heard a certain amount this afternoon: I merely want to talk about the machinery by which divorces will be granted. In the old days, when the administration of the divorce law was in the hands of a very small group of highly skilled, specialist judges, I should have been prepared to leave them to decide whether adultery was a factor that should enter into the question of whether or not a marriage had broken down. But to-day we have—shall have to a greater extent in the future probably—a very large number of county court judges administering this law, and there is a possibility that one of them might be—shall we say?—pro-adultery and another might be anti-adultery; that is, of course, in the administration of the law and not in their personal habits. I feel, therefore, that because of this very wide-dispersed group of judges with different attitudes towards life and different attitudes towards the administration of the law, the word "adultery" should appear in this Act of Parliament so that they have a clear guideline as to how the law should be administered.


I support the Amendment moved by my noble and learned friend Lord Dilhorne for the reasons which he gave and the reasons given by the right reverend Prelate. I also support the Amendment linked with this one which was put forward by the noble Lord, Lord Goodman. There is a third Amendment standing in the name of the noble Baroness, Lady Summerskill, and myself, which must be considered because, as has been pointed out already, I do not think the language of subsection 1(a) will do. On the face of it, it covers the man who sends his wife out to earn his living on the streets and then comes along and asks for a divorce because it is intolerable to live with her, because she has outlived her usefulness, her physical strength has gone. That is covered by this sort of language. That is the only reason why we have put in the words, "by reason of such adultery" so that a man will not be able to rely on adultery that he has connived at and then say that for other reasons it is intolerable for him to go on living with his wife. I might also mention that this aspect of the matter has been a matter of deep concern to the President who presides over the Division of the High Court which deals with these cases. I thought it my duty to bring that to the notice of the Committee in case the Committee decides to adhere to subsection (1)(a) as it stands. If it is adhered to at all, it ought to be amended in the way which I have suggested.


I hope that the Committee will accept the third Amendment and insert, "by reason of such adultery". It seems to me to meet the objections of everybody. In the first place, my noble and learned friend Lord Dilhorne said that these two parts of the Amendment were not linked; that adultery was not linked with the petitioner finding it intolerable to live with the respondent. On the other hand, the noble Lord, Lord Goodman, and others, have said that we must keep the guidelines; while from the Bishops' Bench, to my amazement, it is suggested that we should dispense with the guidelines for adultery. I believe, first, that we should keep the guidelines. We must not be too sophisticated. Perhaps on another planet we may find the union of men and women conducted in certain ways without rules—


On Venus?


Marriage is a simple process of a man living with a woman. She and he understand the rules of the game. The most important rule of the game in marriage is that one should try as far as possible to be faithful to one's spouse. If a spouse fails to be faithful, if there is an act of adultery, we have to face up to the fact that both the man and the woman are deeply distressed unless they are abnormal people, unless they are perverts. They are deeply distressed; and one cannot pretend that one can avoid this distress and expect them to set out on their marriage again in the way in which it was before this act of adultery. It may be that a thousand years from now people will laugh at these guidelines; but I feel certain that at the moment we must have them; and that for the sake of the judges we must leave "adultery" in. I agree that these two things are not linked. Therefore, the simple Amendment in the names of my noble and learned friend Lord Hodson and myself seems to meet the case: the petitioner finds it intolerable to live with the respondent by reason of such adultery.

That again points to the fact that this is dealing with adultery. If we leave it simply to read that the petitioner finds it intolerable to live with the respondent, we will find that many people have different ideas of what is intolerable. I seem to have heard a learned judge (perhaps in another life or somewhere) saying, "What is intolerable in your spouse?" The answer was: "I think the thing that is most intolerable is to be married to somebody who snores". At night harsh words will be used; then there will be prodding; then there will be violence and the next day, having had little sleep, they will be irritable with each other. As they anticipate another night of such horror, it must come into their minds: "Can we go on for years like this?"

Therefore, I agree that this cannot be left open and merely say that the petitioner finds it intolerable to live with the respondent. It is absolutely cruel to the judges to leave it to their discretion You must point at least to some fault, whatever that fault may be, in the other spouse which can be quoted by the petitioner. Therefore, I say that if we add at the end, "by reason of such adultery" we should meet all cases.


Strange as it may appear, I find myself in greater agreement with Lord Stow Hill and Lord Goodman on this matter than I do with the other speakers. The trouble is that such an immense variety of cases can arise; the merits and demerits are so various on the two sides that the result will depend on what kind of case you have to start with. I venture to start from this, I do not think a very uncommon, case. There has been bickering in the family for a long time. The wife finds it very near to being the last straw. Then the husband rather blatantly commits adultery with someone. She says, "This is the last straw. It is not so much the adultery I object to; but the whole thing added together." That is why I do not agree with my noble and learned friend and with the noble Baroness, because you would not be allowed to say that their Amendment were passed. You have to concentrate your attention on the adultery and nothing else. I do not believe that that is what, in most cases, wives in that position would feel. They would not feel that this was solely on the matter of adultery. They would say that the adultery is the last straw. A wife would say: "I cannot say that I find the adultery by itself intolerable; but I find the whole situation intolerable." For that reason, I would not agree with the Amendment of my noble and learned friend Lord Hodson and the noble Baroness.

Let us consider now the Amendment of my noble and learned friend Lord Dilhorne. What is to happen in a case of that sort? The wife goes to the court. Paragraph (a) has been deleted. She has to say: "It is unreasonable in all the circumstances to expect me to live with the respondent". As has been pointed out, with this enormous number of judges there will inevitably be very great differences of approach. It is a very difficult thing. There are constructive desertion and desertion cases every day, probably the most difficult cases to come before a court. It is very difficult to say who is reasonable and who is unreasonable. If you substitute paragraph (b) for (a), I think you will introduce enormous uncertainties.

What is going to happen? The woman comes forward. She is probably pretty unreasonable by that time. A lot of people start off by being unreasonable; but still more reach that position after a period of long nervous strain. And it is not at all unlikely that she is unreasonable at that stage. But she has made up her mind, "I will not live with this man any more". What are you going to do? Is she in desertion? The man has committed adultery. She says, "I find it intolerable". But my noble and learned friend Lord Dilhorne would relegate her to the position of a deserting wife—that is what his Amendment means—and therefore she would get no maintenance. Is it reasonable, in those circumstances, to balance the thing on a very difficult decision in fact? Is she unreasonable or not? If the court finds that she is unreasonable she is branded as a deserting wife; she gets no redress. She is told, "You have either got to live with your husband or go on public assistance". I do not think that is the right way to deal with that kind of situation, and it is for that reason that I shall vote against my noble and learned friend's Amendment.


I speak on the subject as someone who for nearly 40 years had from time to time to handle divorce cases, and I am looking at it from the practical point of view of a lawyer who has to deal with these problems. There is one thing that is most essential in law, and that is to try to have as much certainty as possible and not to leave things vague. If this paragraph is left out, we shall be abandoning something which the general opinion of people in this country considers to be a very grave breach of the obligation of a husband to wife. Whatever we may think about it, most people regard it in that way; and in my view quite rightly.

If paragraph (a) is left out and the structure of the Bill remains as it is at present, we shall still be singling out certain things as prima facie evidence that the marriage has broken down; but we shall be, obviously and clearly, leaving out the fact of adultery as one of those signals. I believe that that is completely wrong. It would be a very grave mistake to leave out paragraph (a). It would mean increasing the uncertainty and difficulties of litigation in this sphere, and it would lead to all kinds of contradictory decisions. If this is to be relegated to be a sub-item of paragraph (b), one can see all kinds of inquiries and divorce cases lasting for days and days when they might quite reasonably be settled in the course of hours.

Now let me turn to the Amendment of the noble Lord, Lord Goodman, to omit the second part of paragraph (a). I sympathise with the Amendment. I regard it as quite unnecessary, where the fact of adultery is proved, to compel the petitioner to prove that he or she finds it intolerable to live with the respondent". If adultery has been committed, there is prima facie a case that it is intolerable. It may not in fact be intolerable, however, and we have to look at this Bill as a whole. We have to consider subsection (2) of Clause 2, which says: … it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent". This involves the court in an inquiry as to whether the fact alleged by the petitioner, that he or she finds it intolerable, is or is not true. It means that in every case of adultery there will be an inquiry, and what are the guide-lines of that inquiry? What criteria are the court going to evolve to determine whether it has been intolerable or not?

Let us remember, also, that it is open to the respondent to allege any facts which he wishes, and under subsection (2) those have to be inquired into. If the respondent alleges that it has not been intolerable for the petitioner, what kind of a legal tangle shall we then be in? And how long is this kind of litigation going to last? I hope that paragraph (a) will not be deleted, and I hope that the Amendment of my noble friend Lord Goodman will be carried.

5.55 p.m.


I think that it will probably be in accordance with the practice of your Lordships, as we are discussing three Amendments together, if I wind up the debate before the movers of those Amendments make their closing speeches. I shall do so quite briefly. Regarding the first of the three Amendments, I always breathe a sigh of relief when I hear that the noble and learned Lord, Lord Reid, is on my side. If I may say so with respect, I thought that to-day he put the case admirably, and I wish that I could put it with such perfection. I do not think that I can add to what he said, but I hope that, for the reasons which he gave, we shall not accept the first Amendment. I should like to add one thing. When talking about a single act of adultery, the right reverend Prelate, the Bishop of Exeter, said, in effect, that surely all one should bother about was the scandalous and notorious type of adultery. I think that those were the words he used, or some words like them.

May I go back to the noble and learned Lord, the Lord Chief Justice, who said that that sort of situation should be treated under paragraph (b). Is it going to be easy for a judge, when he is told about adultery, to ask himself, and to decide, whether it is scandalous and notorious adultery; or whether it is something which should be overlooked as of no importance? As was pointed out, county court judges up and down the country will have these cases to decide. Nine out of ten of the cases will be undefended, and I should have thought it highly desirable that as much certainty as is practicable in the circumstances should be achieved. If county court judges are to be asked to decide problems of that sort, we shall find an extraordinary divergence of views. There may be very considerable public outcry about particular decisions, at any rate from those who are concerned.

I am quite certain that the learned county court judges will do their level best to arrive at a fair conclusion in each case; but there may well be cases in which they will differ from the petitioner, who will feel most acutely that they are hopelessly and absolutely wrong. Surely it is an obvious truism that it is the petitioner himself or herself who really knows most about his or her feelings and knows most about the question whether the adultery in a particular case is something which should spell the termination of the marriage. It is an almost impossible question to submit to the decision of a judge. I would therefore ask the House to reject Amendment No. 3, to leave out paragraph (a).

Regarding the Amendment of the noble Lord, Lord Goodman, to leave out the second part of paragraph (a), to be perfectly frank, I have considerable sympathy with what he said as a matter of reasoning; but I hope that he will not press the Amendment, for this reason. This Bill has been forged as a result of a great deal of cross-opinion on these very difficult issues. The whole basis of the Bill is to cleave to the idea of real breakdown. When adultery intrudes itself on the scene it is surely, after all, the major factor. The actual inclusion of the words which the noble Lord would wish to leave out would go some slight way towards keeping the idea that basically what we are asking is: has the marriage broken down? It may be said that one act of adultery and no more ought not be regarded as the end of a marriage but one act of adultery, coupled with the fact that the petitioner appears in the witness box and swears that he or she cannot go hack to the respondent after that one act, is some guarantee that we are cleaving to the idea of a real breakdown. We are moving some distance away from a single act of adultery which a sensible, kindly person need not necessarily treat as a rupture of all relations between him or her and his or her spouse.

My noble friend Lady Birk gave the sort of case which may arise: the case of a wife whose pride is hurt but who thinks it is much more hurt than it really is, and having consulted a solicitor about it and having launched a petition, is rather sorry about it. If she were asked if she would go back to the respondent she might change her mind. We have to consider that case together with the requirement under Clause 2(3). Even if there is a prima facie indication of a breakdown in the form of adultery, the court still has to look at all the evidence and ask itself, against that background, whether it is really the case that the marriage has come to an end. I put it to the noble Lord, Lord Goodman, that if we add these two things together, there is something a good deal more than a mere nothingness. There is the requirement that the petitioner must really mean what he says. The judge must be satisfied that he does, and there is the further requirement that the judge has to look at his assertion that he cannot go back to the respondent against the whole background, and ask himself whether the marriage is really at an end. Therefore, I hope that the Committee will reject the second Amendment also.

I come to the third Amendment. I wish that I could better, but I could never hope to better, the argument of the noble and learned Lord, Lord Reid. I should have thought that what he called "the last straw" was the conclusive answer. We get the case of a husband who is a drunk and is persistently tiresome and intolerable in his behaviour. Then, as a last straw, he goes out and commits an act of adultery. In that case, if you analyse the feelings of the unfortunate wife, it is the whole context of the situation which makes her feel that it is all at an end between him and her. It is the adultery added to the rest of his behaviour, which in itself perhaps does not come up to the level required for the application of paragraph (b) but which nevertheless has been thoroughly objectionable, which has continued for years and has driven the unfortunate wife to a state of semi-desperation. Then comes the act of adultery on top. That was the burden of the noble and learned Lord's argument, and for that reason I hope that the Committee will reject the third Amendment.

I omitted to answer the noble and learned Viscount about the husband who sends his wife out on to the streets. If ever there was a classic case which fell under paragraph (b) it is that case. If she came to court and said her husband wanted her to go out on the streets and prostitute herself, it is the clearest case for a petition by her under paragraph (d), on the ground that he has been guilty of conduct towards her which she could not reasonably be expected to put up with.


It is no answer for the noble Lord to say that. Of course, in that latter case the wife could petition, if she wished, under paragraph (b). The point I raised was whether the husband who treated her in that way could not succeed on a petition based on the ground in paragraph (a\).


Would the noble and learned Viscount not agree that that case would be dealt with under Clause 4?


I am coming to that in a moment. I am pointing out, to start off with, that the reply of the noble Lord that a wife could petition under paragraph (b) is no answer to the question put to him, There may be other answers, but the noble Lord, Lord Stow Hill, has not dealt with the question. It is all very well to talk about these cases where adultery may be the last straw, and so on. There may be such cases, but we ought to look a little to see how these provisions could be abused and whether safeguards against abuse are there and are adequate. I put a number of questions to the noble Lord about this point. The discretionary bars have gone. So far he has omitted to answer them.

The noble and learned Lord the Lord Chief Justice referred to the danger of collusion and connivance, the divorce by arrangement, the hotel divorce by arrangement, which is a form, and a very unpleasant form, of divorce by consent. What is the answer to that? That can easily be done under paragraph (a) as it stands. The noble Lord, Lord Goodman, sought to answer it. He said that either a person commits adultery or he does not, and if he does not it is blatant perjury. Maybe it is, but to me that is not a very satisfactory answer, because I think that he would frequently advise that there was not evidence available to secure a conviction, even if the offence was committed. I am worried about the possible abuse of this.


Would the noble and learned Viscount not agree, in regard to what he has been calling the abuse of Clause 2(1)(a), that if a couple were absolutely determined, then the case could be brought under Clause 2(1)(b)? In other words, even if we take out paragraph (a), we are certainly not going to do away with collusion and connivance, if two people are determined to obtain a divorce.


We cannot discuss all the provisions of this Bill at the same time, as on Second Reading. Unfortunately, as the noble Lady herself has pointed out, paragraph (b) imports an objective and not a subjective test That is different, come back to the case I was putting, which deserves serious consideration, of the possible abuse of paragraph (a). There is the case where now a discretion statement would have to be filed. We have had no answer here. No discretion statement will have to be filed in future, because the granting of a decree will not depend on the exercise of discretion. A person who has committed adultery, fifty times it may be, will, on proof that his wife or her husband has committed a single act, satisfy the requirement of paragraph (a) provided that he or she goes on to say, "I find it intolerable to live with my spouse." I am worried about the safeguards to prevent this abuse.

Would this be right or fair? It is all very well to talk about removing these areas of uncertainty. That has been the great argument for the retention of this present form. But look at the uncertainties that remain and the unfairness that can remain. The more I have heard of this debate, the more I have thought that only lip service is being paid to the idea that in future divorce shall be granted on establishment of the breakdown of marriage. The noble Lord, Lord Goodman, wants proof of breakdown to depend upon proof of adultery. He wants to carry an Amendment to provide for that and that alone—an adultery without any of the safeguards that now exist in relation to adultery.

The noble Lord, Lord Henley, referred to Clause 4. We shall have to consider that clause with great care. Under Clause 4, if hardship will be caused to the adulterous respondent and if the county court judge thinks it wrong in all the circumstances to grant a decree, that decree can be refused. All these arguments about certainty, and about how great a certainty there is under this Bill, seem to me to be absolutely fallacious if a provision of that sort is included in the Bill. Even if paragraphs (a), (b), (c), (d) and (e) are satisfied—even if proof of a matrimonial sin is given—it would still enable a decree to be refused on the ground that there is some hardship involved to the respondent and it would be wrong in all the circumstances.

I am grateful to those who have spoken in support of this Amendment. I doubt very much whether leaving the Bill as it is with this provision in it leaves it in a much more honest situation. I sympathise with the noble Baroness, Lady Summerskill, in wanting to keep something as to guide-lines; I have no objection to that. But I do not feel that these words will do.

I should have liked the noble Lord, Lord Stow Hill, to say, in response to the noble Lord, Lord Silkin, that he was certainly prepared to consider it again.

If he had said that, I should have withdrawn my Amendment as soon as I had the opportunity to do so. But he has held out no hope of any reconsideration of the wording as it stands. If that is the position. I must say that I think the only hope of getting improved wording is to take out these words and leave it to the noble Lord, should he be so disposed, to put other words in their place. I do not think that these words will do as they stand. I hope they can be improved. I should like to vote for this Bill on its Third Reading, but if it contains its present blemishes—and this I regard as a serious blemish—I shall find it difficult to do so.

6.13 p.m.

On Question, Whether the said Amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 106.

Atholl, D. Croft, L. McCorquodale of Newton, L.
Auckland, L. Daventry, V. Margadale, L.
Audley, Bs. Denham, L. Massereene and Ferrard, V.
Barrington, V. Dilhorne, V. [Teller.] Mersey, V.
Beswick, L. Eccles, V. Milverton, L.
Blackburn, L. Bp. Effingham, E. Molson, L.
Blackford, L. Exeter, L. Bp. Monk Bretton, L.
Brooke of Cumnor, L. Goschen, V. Mowbray and Stourton, L.
Brooke of Ystradfellte, Bs. Gowrie, E. Parker of Waddington, L.
Carnock, L. Grantchester, L. Phillips, Bs.
Carrington, L. Gray, L. Poltimore, L.
Chichester, L. Bp. Grimston of Westbury, L. Rankeillour, L.
Coleraine, L. Hodson, L. [Teller.] St. Aldwyn, E.
Colville of Culross, V. Ilford, L. St. Helens, L.
Colyton, L. Kilbracken, L. Sandford, L.
Coventry, L. Bp. Kinloss, Ly. Sempill, Ly.
Craigavon, V. Lauderdale, E. Simonds, V.
Craigmyle, L. Lichfield, L. Bp. Wells-Pestell, L.
Aberdare, L. Gage, V. Raglan, L.
Addison, V. Gaitskell, Bs. Rea, L.
Ailwyn, L. Gardiner, L. (L. Chancellor.) Reay, L.
Amulree, L. Garner, L. Redesdale, L.
Annan, L. Garnsworthy, L. Reid, L.
Archibald, L. Geddes of Epsom, L. Ritchie-Calder, L.
Balogh, L. Gifford, L. Royle, L.
Birk, Bs. Goodman, L. Ruthven of Freeland, Ly. [Teller.]
Blackett, L. Grenfell, L.
Blyton, L. Hankey, L. Sainsbury, L.
Bourne, L. Hawke, L. Segal, L.
Bowles, L. Headfort, M. Selkirk, E.
Brockway, L. Henley, L. Scrota, Bs.
Burden, L. Hill of Wivenhoe, L. Shackleton, L. (L. Privy Seal.)
Burton of Coventry, Bs. Hilton of Upton, L. Shepherd, L.
Byers, L. Hughes, L. Snow, L.
Chalfont, L. Hurcomb, L. Somers, L.
Champion, L. Hylton-Foster, Bs. Sorensen, L.
Chorley, L. Jacques, L. Stamp, L.
Clwyd, L. Kirkwood, L. Stocks, Bs.
Cohen. L. Leatherland, L. Stonham, L.
Cole, L. Lindgren, L. Stow Hill, L. [Teller.]
Collison, L. Llewelyn-Davies of Hastoe, Bs. Strabolgi, L.
Conesford, L. Lloyd of Hampstead, L. Strang, L.
Cranbrook, E. Longford, E. Strange, L.
Crook, L. Lucas of Chilworth, L. Strange of Knokin, Bs.
Donaldson of Kingsbridge, L. Mitchison, L. Summerskill, Bs.
Douglas of Barloch, L. Morrison, L. Swanborough, Bs.
Douglass of Cleveland, L. Mountgarret, V. Swaythling, L.
Drumalbyn, L. Moyle, L. Taylor of Gryfe, L.
Elliot of Harwood, Bs. Moyne, L. Taylor of Mansfield, L.
Emmet of Amberley, Bs. Nunburnholme, L. Trevelyan, L.
Falkland, V. Ogmore, L. Vivian, L.
Faringdon, L. Platt, L. Walston, L.
Foot, L. Plummer, Bs. Younger of Leckie, V.
Francis-Williams, L. Popplewell, L.

Resolved in the negative, and Amendment disagreed to accordingly.

LORD GOODMAN moved Amendment No. 3A: Page 1, line 14, leave out from ("adultery") to end of line 15.

The noble Lord said: I have listened with great attention to what the noble Lord, Lord Stow Hill, said on the matter, and I was certainly greatly impressed by the persuasiveness of his advocacy, but not, I am afraid, by his arguments. In a way, he made the situation worse from my point of view; he made it clear that in the case which ordinarily would involve an investigation of a single act of adultery, there would have to be an added element which amounted to turning it into a trial of a cruelty case as well. That seems to me to be wholly wrong. This is a matter we have discussed fully, and the impact of our discussions ought to have some time to settle. It would be wrong to bring the matter to an issue without an opportunity for considering the observations that have been made. Accordingly, what I propose to do is very earnestly to invite the noble Lord to consider what has been said in the course of the debate, and I propose to withdraw my Amendment. Unless I think some satisfactory change has been made, I will put it down again on the Report Stage.

Amendment, by leave, withdrawn.

BARONESS SUMMERSKILL moved Amendment No. 4: Page 1, line 15, at end insert ("by reason of such adultery").

The noble Baroness said: It is quite clear, after listening to the debate, that there is no consensus of opinion, and in view of the differing opinions expressed on this matter it is my view that these words should be considered more carefully. I am only too happy to agree with the noble Lord, Lord Goodman, and to ask the noble Lord to take the matter back, examine it and perhaps then present fresh words on the Report stage.

Amendment, by leave, withdrawn.

6.27 p.m.

VISCOUNT DILHORNE moved Amendment No. 5: Page 1, line 16, leave out ("since the celebration of the marriage").

The noble and learned Viscount said: This is a probing Amendment to find out from the noble Lord, Lord Stow Hill, what is the point of the inclusion of these words. We are considering a Bill to deal with the law of divorce, and divorce usually relates to conduct which takes place after the marriage, not before it. Why specifically do we have these words in this clause? We had them in an earlier clause, but I did not put down an Amendment then. There may be a reason for it here. When you are considering whether the conduct of the respondent is such that the petitioner cannot reasonably be expected to live with him, what useful purpose is there in including the words: since the celebration of the marriage."?

It may be that the use of the word "since" suggests that the misbehaviour has to start from the day after the marriage and continue until the petition is heard; and if, by the use of the word "since", is meant the word "after", then why not use the word "after"? "Since" connotes a running-on of time, and I must say I was puzzled to think why it was that this formula had been inserted in this subsection. I am still more puzzled to see that the noble Lord, Lord Stow Hill, has an Amendment down to put it in later on, in line 22. There may be a reason for that, because you are dealing with parties living apart. Bearing in mind that none of this will arise until there has been a marriage, I should have thought it was unnecessary to have in the words: "since the celebration of the marriage". We need not take up too much time on this point. If the noble Lord will look at it I shall be quite content. I beg to move.


I shall of course be very glad to look at it again. The noble and learned Viscount said that this was a probing Amendment. The object of the inclusion of those words was simply to make sure that the conduct you were considering was after the marriage was celebrated. If the word "since" introduces an uncertainly then I will look at it and I shall be glad to discuss it with him. I hope he will not feel that because I have recognised the uncertainty in the word "since" I ought not to move the Amendment that I have on the Marshalled List. I hope the Committee will agree to that, but I will look at that too, if I may.


I am obliged to the noble Lord. I think if you look at the words: since the celebration of the marriage the respondent has behaved in such a way they make it look as if the misbehaviour has to start immediately after the marriage. That cannot be the intention. The noble Lord said in the course of his speech that. "after" is a better word. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STOW HILL moved Amendment No. 6: Page 1, line 22, after ("that") insert ("since the celebration of the marriage").

The noble Lord said: This Amendment is designed to ensure that the period of separation that is referred to in paragraph (b) must be a period of separation that begins after the marriage has been celebrated. If the Committee would allow me for the time being to seek to insert the words "since the celebration of the marriage", I shall be most grateful, but I will, if I may, look at these words further. If it appears that the word "after" is better than the word "since" in both cases, I will ask leave at a later stage to put it in my Amendments as well.

On Question, Amendment agreed to.

6.30 p.m.

BARONESS SUMMERSKILL moved Amendment No. 7: Page 1, line 23, leave out ("two") and insert ("three").

The noble Baroness said: I beg to move the Amendment standing in my name and that of the noble and learned Lord, Lord Hodson, and the noble Lord, Lord Ilford. I hope that the Committee will give very careful consideration to this Amendment, which is to subsection (1)(d) of Clause 2. I believe it is a very important one. Desertion has been a ground for divorce for thirty years, but it has been necessary to show that it has lasted continuously for three years. Now we are making, in my opinion, a great change in this Bill by reducing the period of three years to two years. I believe that two years is a very short time in which to prove irretrievable breakdown. In fact, there are many couples living together to-day who may have been separated for two years or three years and they have gone back. I think that if we sincerely believe in reconciliation we should recognise that this is a way of ensuring that couples have plenty of time to think about their situation.

Marriage is a habit, and it is sometimes very pleasant to break habits. People change their way of life and perhaps for a year or two say, "Oh, how refreshing this is! I am away from the old background and away from somebody who did not treat me as I think I should have been treated". Nevertheless, after a time it is possible for people to think, and say, "Well, life is not so easy in other fields, with other women, or with other houses". They think about it and they go back. Do not let us say that after two years' separation a marriage has finally broken down. Let us keep it at three.

I would also remind your Lordships of this point which I think is very important. We have reduced the age of majority from 21 to 18—I have said this before and I apologise for repeating it—and we have in fact (and here I am protecting the male) told the boys of 18 of this country that they may now assume all the responsibilities of a husband; they may take hire-purchase on to their shoulders. They can no longer say to the girl friend who wants to get married—and, as I have said before, the girl is so much more mature than the boy—"Well, I can't get married because mother and father won't give their consent". The boy has been protected in that way. Now we have taken that protection from him.

A couple will go into marriage, and we know that they will do so at a very early age because the boy will be earning a high salary, the girl will be earning, and in their youthful enthusiasm and first love and affection for each other they cannot see that it can ever end. As I said recently, the home they generally get is a bed-sitting room. Then they quarrel, inevitably. They part for a short time, and part again.

We now propose to reduce the period of separation to two years to entitle them to a divorce. Give them a chance. This I think is a short-sighted policy. I think we should give these two people longer than that. Keep the period at three years. We have introduced this tremendous change in the lives of our young people, putting responsibilities of all kinds on their shoulders at 18. Let us see how it works. Therefore, I ask your Lordships not to reduce the period of three years to two years. I beg to move.


I wonder whether, for the convenience of the Committee, my Amendment No. 7A might be taken at the same time as this Amendment is taken. I should like to know whether the noble Baroness agrees.


It deals with a different point really, and I am going to oppose the noble Lord's Amendment.


I am opposed to this Amendment because it seems to me to go against a fundamental aim of the Bill. The Bill is trying to make divorce proceedings more rational, more honest, less squalid in so far as it tries to discourage gossip fodder in the Press, something which is so painful to children, and altogether it is trying to make the approach of divorce more dignified. I have listened to what my noble friend Lady Summerskill has said about young people. We know that it is a rather heavy strain for two young people to be separated for two years before they bring a petition. Until now, if they have gone back, as my noble friend has intimated, they have gone back to unhappiness because they cannot get a divorce. But if divorce becomes possible after two years they need not go on being unhappy for another year, and it seems to me that two years' separation for young people is quite enough to decide on irretrievable breakdown.

My noble friend Lady Summerskill has pleaded for these people and I believe she has talked about their teething troubles, but I believe that if we have an extra year, and make the period three years, we shall have only troubles, not just teething troubles, and soon there will be the temptation for them to manufacture and to think up adultery and other grounds for divorce on which to base their petition. This again, I think, goes against the whole spirit of the Bill.


I support the Amendment for a number of reasons, not least among them that we have no reliable information at the moment as to what really happens between the second and the third years. Perhaps I may draw on my own experience and the experience of a large number of marriage counsellors who have been working in this field for some considerable time. As things stand at the moment, your Lordships know that it is impossible to institute proceedings for a divorce in this country until the parties have been married for three years. I am hoping that this will remain so. I am not sure what the Bill we are considering to-day does in that respect, but apparently if two people have been married for three years and they have separated before the end of the three-year period, after two years' separation—namely, five years of marriage—they will be able to get a divorce by consent. That is precisely what it means.

May I say that the one thing we do know is that the first five years of marriage is a very crucial time. I would say to your Lordships that there is perhaps no other period in a marriage which is more crucial than the first five years. It is during the first five years that the couple have to make adjustments of all kinds which many of them may find extremely difficult, and in point of fact a very large number of them do. That is why I think it would be harmful, psychologically bad, to say, "If you don't hit it off and you have been apart for two years, then you can get a divorce by consent". This Amendment seeks to increase the period from two years to three years, and I feel that the extra year will give the couple an opportunity of making the necessary adjustments.

I realise that there is nothing magic about either two or three years; I am merely saying, as my noble friend Lady Summerskill said, "Give them the extra year." It will not impose a very severe strain on them, one way or the other. I can only say that there is a fair amount of evidence that, notwithstanding the fact that they have been married three years, couples who have separated do, after the two-year period, seek skilled and expert help to overcome their difficulties. In my opinion, my noble friend Lady Summerskill is right when she appeals to your Lordships and says "Do let us give them every possible opportunity of finding out what has threatened the security of their marriage, what has undermined it and what contribution they have each made to its failure, so that they can get skilled and expert help to overcome their difficulties". I attach considerable importance to this Amendment because I feel that the period ought to be three years rather than two years.


May I just say one thing in reply to the noble Lord, Lord Wells-Pestell? He asserted that the first five years of marriage are the crucial ones. This is a statement that no one can prove. I have found that the first five years are crucial, and I have also found that the next five years are crucial; and the following five, and the following five years—they all have been crucial. Therefore it is no case to say that the first five years are necessarily the crucial ones.


I am sure my noble friend Lady Gaitskell is speaking from experience of her own marriage, and I am quite prepared to accept it. All I am saying is that people who have worked in the field of marital conciliation over a period of years say that the first five years are crucial.


I must speak against this Amendment. There is nothing to be said for prolonging the two-year period to three years. I agree that we are lacking figures, but if we take what may be the more normal situation of people seeking a divorce when they have been married four, five or more years—often for ten years—then for a long time they have known that their marriage was failing. People do not just suddenly say, "Now let us live apart for two years and we can get rid of this marriage". They will have stuck together for years—because the children were growing up, or for all kinds of reasons. My noble friend Lady Summerskill spoke of the young people, but I would point out that for young people two years is a very long time.


Is there not also a grave danger that if we make this period three years, so that it is not in line with desertion, under paragraph (c), we shall be encouraging people not to use this paragraph at all? It is to be hoped that if this Bill is enacted the great majority of divorces—probably 70 per cent. of them—will come under Clause 2(1)(d), about which we are now speaking, but if we make the period three years we shall have people going back to the old idea of collusive divorce. I should like to say to the noble Lord, Lord Wells-Pestell, that I hope he will not regard this provision as being divorce by consent: it is part of the whole philosophy of this Bill about the breakdown of marriage.


I am in the ambivalent position of being able to say that I support what my noble friend Lady Gaitskell has said and I also support my noble friend Lady Summerskill, so I am in the position of being a thorn between two roses. This is really the very essence of the Bill: it really is divorce by con- sent, and I am not opposed to divorce by consent in many sets of circumstances, although I voted against the Second Reading of the Bill. I feel that there are two different kinds of cases which might be cited here. There is the case of young people who have been married for two years or so, and who have no children. If they came to the mutual conclusion that their marriage is "on the rocks" I should not object; but if they had children I should say to them, "For goodness' sake! go on for another year." At this moment I am unable to vote in favour of either of those choices, so I shall support my noble friend Lady Summerskill. But if between now and the next stage of the Bill an Amendment can be tabled to the effect that the period shall be two years if there are no children and three years if there are children, I shall support that.


I agree so much with what my noble friend Lady Gaitskell and my noble friend Lord Platt said about two years being a very long time. My son has been married for nearly two months and he says that it feels like years; and he and his wife do not seem to be able to be apart, even sitting round the dinner table. When we are considering this matter, and speaking of our own experiences, we might do better to remember that in New Zealand, where there is a similar provision, in December, 1968, the period of separation was reduced from three years to two years and they have found that this works quite satisfactorily: and there has been no pressure to increase it again to three years. If we increase the period to three years it seems to me that not only, as the noble Lord, Lord Henley, said, shall we be going back to the old matrimonial offence, but we shall also be encouraging people to live together without marriage for a long period because they will find it impossible to marry for another year.

I think that my noble friend Lord Wells-Pestell raised the question of whether people could get a divorce before three years, In fact they cannot get it before three years, but for separation the period is two years. Finally, I would say that I think this is another case where, if we accept the clause as it was originally drafted, with the period of two years' separation, this will be an impetus to do something else about which so many of us in your Lordships' House feel strongly; namely, doing something positive about educating young people for marriage, which seems to me to be a better approach than increasing the period from two years to three years. I am against the Amendment.


I had not intended to speak on this Amendment, but having listened to the discussion I feel moved to do so now. The aspect of this matter that worries me, about which I am fundamentally in agreement with the noble Baroness, Lady Summerskill, is this. If, with the implication of Latey we are now going to allow young people to marry at 18, what is to prevent them from saying "Two years? Let us 'have a bash'. We have not got to wait very long". I should like an answer to that question.

6.48 p.m.


I rise to support the Amendment moved by the noble Baroness, Lady Summerskill. One's approach to the whole of this Bill lies in the opening clause: that there shall be evidence that the marriage has broken down irretrievably. For those of us who think that divorce by consent after two years does not afford an adequate time, I would say that it was this point of the acceptance of the irretrievable breakdown of marriage that led the right reverend Prelates here to vote just now in favour of the Amendment proposed by the noble and learned Viscount, Lord Dilhorne, relating to adultery. It is not that the right reverend Prelates approve of adultery, but we disapprove of its being dragged in at this point, because we feel that everything for which this Bill stands in regard to the irretrievable breakdown of marriage is the foundation on which it should be built.

If the period is only two years, it does not give the couple sufficient time. Admittedly there is a temptation for them to bring forward the old matrimonial offence; that is why some of us voted for that Amendment, and we are sorry that it has been lost. I very much hope that your Lordships will support this Amendment, because two years seems to be a quite inadequate test as to whether there is irretrievable breakdown of marriage.


I do not want your Lordships to think me a "square", but I strongly support Lady Summerskill's Amendment. I would go even further and say that "five years" would be a good period to put in. My reasons are these. A young couple, about 18 years of age, get married. They love each other very much to start off with but they have a row. They go off and one finds somebody else, and most likely will have a row with the other person he or she has found. If the period runs for three years instead of two years there is hope of reconciliation. That is why I support the Amendment.


I would support the Amendment for one other reason. So often the Church is regarded as a body which condemns this and condemns that. In all this matter of marriage, it cannot be made too plain that our objective is to help people to have really happy married lives; that is what we are after and that is why we take the stand we do. If young people are to he helped in this way, I believe they must have a determination to make a "go" of it. from the start; and if they are given an impression that it may be easy to slide out if things begin to go wrong, that sense of determination may be weakened. On that ground I support this Amendment.


Lest it be thought that all the Bishops are of one mind, may I say that I myself do not agree with this Amendment, and for two reasons. The first is that, as I understand it, the law as it will be if and when this Bill goes through will be that a petition for divorce will be barred, except in exceptional circumstances, during the first three years of the marriage. This paragraph says that there must be continuous separation for two years immediately before the presentation of the petition; so it would in fact give the marriage three years. That, I think, is long enough even for a young couple to come to the conclusion that their marriage is quite hopeless or is not.

My other reason for objecting to the Amendment is that mentioned by the noble Lord., Lord Henley: that most of us hope that as a result of this Bill divorces will come about, if they must come about, under paragraph (d), where the two people agree together that they cannot go on with the marriage any longer, they have come to what they consider to be a reasonable arrangement for its ending, the court has decided that this is so, there is no evidence whatever that there is anything "phoney" in the background, and the marriage ends with dignity. We hope that that will be the normal method. But if we put the period up from two years to three years, for one to pretend that he or she has deserted the other would be an obvious advantage, and there would be an added temptation to have some kind of "phoney" divorce and do it even more quickly. For those reasons I oppose the Amendment.


I hope that the Committee will reject this Amendment for precisely the reasons that have just been given by the right reverend Prelate the Bishop of Exeter. May I try to list the arguments as I see them? First, I take the point made by the noble Lord, Lord Henley. It would be quite impossible to contemplate a situation in which a separation under paragraph (d) has to last three years whereas if divorce is asked for on the ground of desertion it is sufficient to say that there was desertion for two years. That would be the effect of carrying this Amendment. It would be an obvious invitation to parties who wish to get divorce to pretend there was desertion; it would mean that they would have to wait one year less. That is the point that was made at the outset by the noble Lord, Lord Henley.

As the right reverend Prelate said, the position as it will be if this Bill becomes law is that still under Section 2 of the Matrimonial Causes Act 1965 no petition for divorce, except in special cases of hardship and depravity, may be presented until three years have elapsed after the marriage takes place. The two years' separation which is referred to in paragraph (d) can take place within that three years. In other words, supposing the young couple get married, very soon tire of each other and then live apart for two years, at the end of that two years they cannot present a petition for divorce; they must wait until three years have elapsed since the marriage. So in any event you cannot marry for less than three years.

I would put the question simply in this general form. To begin with, one is not always talking of young couples; it may be people of 25, 35, 45 or 55 years of age. Supposing two sensible people have lived apart for two long years—that is a long time—and supposing at the end of it one asks for a decree of divorce and the other does not object. can one have stronger evidence than that that the marriage has broken down? Again I venture to repeat an observation I made earlier. These people are really far in the best position to know. They are not always scatter-brained young people; they are sensible and grown-up. They know whether there is a marriage between them or whether, for all practical purposes, it has come to an end.

My noble friend Lord Wells-Pestell said that the third year, the extra year, may be the magic year which will bring them together again. On what evidence that is based I do not know. It may be the case; it may not. Cases differ. Suppose there are a man of 40 and a woman of 38; they have lived together, and then they live apart for two years. Is it to be said that making them live apart one year extra means that there is a good chance of reconciliation? It is not what ordinary experience points to.


Would the noble Lord allow me? I do not think I said that the third year is a magic year. If my memory serves me correctly, I said that in my view there is nothing magic about two or three years.


I am sorry if I misquoted the noble Lord's argument. If there is nothing magic about either period, I would strongly go back to two. On the question of reconciliation, if one looks at the whole context of the Bill it is simply crammed full with provisions designed to achieve reconciliation. The relevant one for this purpose is Clause 3(5). Under that subsection it is provided that where the parties ask for a divorce on the ground of separation—that is to say, under either paragraph (d) or paragraph (e)—if they nevertheless have tried to come together, have tried to live together, either for one period not exceeding six months or for several periods not exceeding in aggregate six months, that shall not be any bar to asking for divorce on the ground of separation. That period of six months is not to count in the two years: in other words, they are given every conceivable inducement to try once again.

One thinks of the solicitor who is advising a petitioner who has been separated from his spouse for two years, and whose spouse does not object to a divorce. The petitioner, one assumes, is talking to his solicitor and his solicitor is bound to say to him—it is perhaps rather an empty exercise sometimes—"Have you thought of reconciliation?". The solicitor can then go on and say: "If you look at Clause 3(5) you can perfectly safely try to live with your spouse again. Why do you not go and try to live with her? So long as you do not live with her for more than six months you can still go to the court if you find that it is no good, that you cannot make a go of it, and ask for a decree of divorce on the ground that you have been apart for five years."

The Bill could not be more crammed full of provisions to try to get parties together and to prevent marriages from being broken up. I should not have thought that with those provisions in the Bill much advantage is likely to be achieved by lengthening a long period of two years to a long period of three years. Not only is it not an advantage, but it is a serious disadvantage. This has been touched upon by the right reverend Prelate the Bishop of Exeter in his speech.

A major purpose of this Bill is that one should put an end to the unseemly recitals of adulterous behaviour. It is hoped that well-behaved people who find that their marriage has come to an end, that they cannot get on together, instead of staging an act or committing an act of adultery, when they have discovered after a two years' separation that things are at an end between them, will come to the divorce court, in dignity, and say, "We have been apart for two years; we ask to be divorced". In that way, we will not have the, as I think, extremely unseemly and undignified statement by one spouse that the other has committed an act or acts of adultery.

One of the major objectives of this Bill, of this change, is to bring that about; and it is to be hoped, as has been the experience in some Commonwealth countries, that gradually well- behaved people who have self-respect and who do not wish to lose the respect of their children, if they must be divorced will rely on this sort of provision instead of the more expeditious method of going to the court and obtaining a decree because of an act of adultery, real or simulated.

If the period is lengthened from two to three years, I should have thought that if you have a case of two people who ardently wish to be divorced you are really asking them to go and commit adultery. If you refuse them divorce after they have been apart for two years, you are in effect saying to them, "Go and commit adultery and you can get the whole thing over in a few weeks or months." That is a situation one is trying to cut adrift from, and I should have thought that one makes it more likely that people will be impatient and refuse to wait for the period of separation to elapse, if they have to wait not two years, but three years. In all human reckoning, surely two years apart for a man and wife are just as significant as three years, four years, five years, or ten years. If they can be apart from each other voluntarily for two years, surely in all human understanding and experience that means that they neither love each other nor respect each other, or have the slightest desire to be with each other. If you add to that that one party does not object to a divorce, what more can you have and what public or private incentive could there be to keep these two people together? If one elongated this period for an extra year, I would respectfully submit that one is achieving no useful purpose, but is going some considerable distance to undercut the basis of this Bill and to take away the good that it can do.

I would say a final word about the children. If people wish to preserve their self respect and the respect of their children, the children of a divided marriage are unhappy creatures anyhow. They lose the security of a unified home and that is a scar which probably will remain in their minds as long as they live. One hopes that they will get over it. But it is so much worse if not only do they know that their parents do net live together and have lost affection for each other, but that one has gone off with another man or woman. It is so unseemly and so degrading in the eyes of a young child of 6, 7 or 8 who will soon understand what is happening if that indignity has to be added to the unhappiness of a disunited home. So I earnestly appeal to the Committee to say that the provisions of the Bill should be left as they are, for the reasons that I have suggested.


I apologise to my noble friend Lord Stow Hill for speaking after he has apparently given a winding-up speech on this matter.


I shall do the winding-up.


Then I can speak more freely at this moment. I realise that a good deal of what I would have said on my Amendment is just as relevant to what has been said already and to the general tenor of this debate. That being so, I promise that when my Amendment is called either I shall move it formally or I shall withdraw it. Meanwhile, may I say that, contrary to what the noble Lord, Lord Henley, has said, this particular clause of the Bill I think embodies the principle of divorce by mutual consent. I cannot see any great difference between not objecting, on the one hand, and consenting, on the other.

Be that as it may, I would say in passing—and I shall speak for only a moment or two—that certainly we have come a long way from those days in 1937 when I took an active part in the passing of the Matrimonial Causes Act of that year. I am not necessarily opposed to divorce by consent, but I would point out that paragraph (d) seems to insist that there shall be two years in which the partners live apart. Surely, to some extent that discourages the prospect of reconciliation. I fully appreciate that in other parts the Bill contains a great deal that will go some way towards reconciliation. I am not ignoring that at all, but it seems to me that this particular proposal discourages the possibility of parties coming together again or even making the attempt.

May I just add one thing that has not been mentioned in this debate; namely, the possible effect on those anticipating marriage. I have not had so much experience as my noble friend Lord Wells-Pestell and others, but I have had some little experience, particularly in supervising marriages, and I know full well that from time to time young people have come to me having no idea at all as to what marriage fully involves. They may appreciate the purely physical and emotional side, but they do not appreciate that inevitably after a while the tides go down and the rocks come up. That being so, it seems to me that if it comes to be known in the days ahead that it is quite possible to enter into marriage and, within a week, to part, that will be conducive to a more frivolous attitude to marriage.


I do not understand how they are going to part in a week. Will the noble Lord explain that?


Many have done so after a week of marriage. I have known of cases where people have parted within a week or so.


The actual physical fact of parting, yes; but is the noble Lord implying that they are going into marriage feeling that they can break it up in a week because of this Bill?


Not only feeling that they can break it up, but feeling that it is not so serious as all that, that after a week or so they can slip out of it just as easily as they slipped into it. I am afraid that a good deal of the influence from modern musicians rather encourages that assumption, that marriage is after all a casual event into which people can easily dive and get out again as early as possible.


The noble Lord is talking of parting after a week. Surely this couple to whom he has referred would know that they would still have to stay married for three years. Surely that is the point. While he is on that point, I wonder whether he has any evidence of people who go into marriage in that way? I should have thought that most young people go in still thinking that it is for life.


All I can say is that it has been within my experience. Perhaps I can convey more factual information to my noble friend after the debate. The records of newspapers indicate that a large number of young people imagine that marriage is an almost casual affair. Surely the records are there in the Press, of large numbers who have entered into marriage without any deep understanding of what it is all about and without any sense of responsibility. All I am saying is that I am afraid there is the possibility that this will be encouraged if this particular provision is enacted.

The other point I would stress is that sometimes a marriage is a matter of pure convenience. Again from my own experience, I know of a couple (who I think had cohabited together very often) who married in order that the woman might secure English citizenship and be known as a married woman, with the understanding that they should part; and they did so within two or three weeks after their marriage. All I am saying is that I am sure all of us here agree that although we welcome the destruction of much hypocrisy, make-believe and pretence, we nevertheless want to do all we can to try to get young people, in particular, to feel a deep sense of responsibility when they enter into this very sacred and significant relationship. It is for that reason I say these few words, which have some bearing on what has been said before. But when it comes to my Amendment. I do not propose to go through with it.


May I say a last few words on this Amendment? I have listened to the Committee and to several noble Lords who have said that two years is long enough—that in fact two years is a very long time—and that it is almost cruel to submit these poor young things to three years. I find this very difficult to understand. I appreciate the point when my noble friend Lord Platt talks about it being a long time when you are old: two years is a long time when one is talking about old people. For an elderly couple to have to wait it might be a long time.


I particularly said that to the young ones it was a long time.


thought my noble friend was talking about

older people. I agree that the older you get the longer two years will seem. But we are not talking about old people; we are talking about young people. They are the people who marry, it has almost been suggested here to-day that our permissive society is such that these young things should not be disciplined in any way. I am sorry if this sounds harsh, but we are talking about two people who did. after all, enter into a serious contract, that of marriage, and who have already, perhaps, brought children into the world. To hear noble Lords on either side saying, "We must not let them wait two years because something might happen" almost implies that there is the perfect wife round the corner who will marry, let us say, the man if he gets free after two years, and that after that everyone will be happy. That is not how life works.

If you allow people to regard marriage in an irresponsible way they do not, after they have been released from the first marriage in the shortest possible time, become different beings and adopt a responsible attitude to marriage. All they do is they say, "This seemed pretty easy; I can do it again if I want to". We must surely recognise that these Acts of Parliament should have embodied in them provisions aimed, to some extent, at disciplining people who enter lightly into a marriage contract.

I was very impressed by the speech of the right reverend Prelate just now, and I entirely agree with him; I can think of nothing that would more undermine the institution of marriage than to allow young people to think that after two years it is all over and they can try again. I hope very much that your Lordshtips will support this Amendment, because I think that to a young person three years is not a very long time.

7.15 p.m.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided:—Contents 34, Not-Contents 89.

Audley, Bs. Coventry, L. Bp. Fetters, E.
Blackburn, L. Bp. Craigavon, V. Gage, V.
Bourne, L. Craigmyle, L. Gray, L.
Brooke of Cumnor, L. Croft, L. Hodson, L.
Brooke of Ystradfellte, Bs. Effingham, E. Horsbrugh, Bs.
Carnock, L. Emmet of Amberley, Bs. Ilford, L.
Jacques, L. Nunburnholme, L. Simonds, V.
Kinloss, Ly. Phillips, Bs. Sorensen, L. [Teller.]
Lauderdale, E. Poltimore, L. Summerskill, Bs. [Teller.]
Lichfield, L. Bp. Rankeillour, L. Wells-Pestell, L.
Longford, E. Sempill, Ly. Younger of Leckie, V.
Milverton, L.
Addison, V. Garner, L. Plummer, Bs.
Albemarle, E. Garnsworthy, L. Popplewell, L.
Amulree, L. Geddes of Epsom, L. Raglan, L.
Archibald, L. Gifford, L. Reay, L.
Auckland, L. Goodman, L. Redesdale, L.
Beswick, L. Goschen, V. Ripon, L. Bp.
Birk, Bs. Gowrie, E. Ritchie-Calder, L.
Bowles, L. Grantchester, L. Ruthven of Freeland, Ly. [Teller.]
Brockway, L. Granville of Eye, L.
Burden, L. Grimston of Westbury, L. Sainsbury, L.
Burton of Coventry, Bs. Hawke, L. St. Davids, V.
Byers, L. Headfort, M. Sandford, L.
Champion, L. Henley, L. Selkirk, E.
Chorley, L. Hill of Wivenhoe, L. Serota, Bs.
Clwyd, L. Hilton of Upton, L. Shackleton, L. (L. Privy Seal.)
Cohen, L. Hughes, L. Shannon, E.
Cole, L. Hylton-Foster, Bs. Silkin, L.
Colville of Culross, V. Kennet, L. Stamp, L.
Cranbrook, E. Kilbracken, L. Stocks, Bs.
Crook, L. Kirkwood, L. Stow Hill, L. [Teller.]
Denham, L. Leatherland, L. Strabolgi, L.
Denning, L. Lindgren, L. Strang, L.
Donovan, L. Llewelyn-Davies of Hastoe, Bs. Strange, L.
Dunrossil, V. Lloyd of Hampstead, L. Strange of Knokin, Bs.
Falkland, V. Lucas of Chilworth, L. Swaythling, L.
Faringdon, L. Marks of Broughton, L. Taylor of Gryfe, L.
Foot, L. Milner of Leeds, L. Taylor of Mansfield, L.
Francis-Williams, L. Mitchison, L. Vivian, L.
Gaitskell, Bs. Morrison, L. Wigg, L.
Gardiner. L. (L. Chancellor.) Platt. L. Willis, L.

On Question Amendment agreed to.


I beg to move Amendment No. 8, which is purely consequential on the preceding Amendment which I moved.

Amendment moved— Page 1, line 23, after ("years") insert ("being a period").

7.28 p.m.

LORD REID moved Amendment No. 9. Page 1, line 25, leave out ("does not object") and insert ("consents").

The noble and learned Lord said: This is a comparatively short point, but it is a point of some considerable importance. It has just been decided that the proper period of separation where there is consent to the divorce is two years, and we are shortly going to discuss a provision under which, as the Bill stands, the proper period where there is no consent is five years. We have a sort of hybrid position. The Bill says, "does not object to a decree". I can understand the case where there is consent, and I can understand the case where there is no consent, but why does the Bill say. "does not object"? I cannot see the point of that. I have great difficulty in seeing how that distinguishes the two-year condition from the five-year condition.

The argument for giving a shorter period for consent is quite clear. If you have consent to a divorce, then there is a clear breakdown. There is no need for any more evidence about a breakdown. Both parties have said that they think the marriage should be brought to an end, and you cannot have clearer proof than that—assuming, of course, that they stick to their guns. But there are two safeguards there. There is the two years' delay, which means that they have ample time for second thoughts; and there is the fact that there has to be this reconciliation procedure so far as the petitioner is concerned, although not, apparently, so far as the respondent is concerned. I shall say a word about that later. Therefore, where there is consent you can assume that there is a clear breakdown. Moreover, you can assume that there is no injustice, because otherwise they would not have consented. Presumably, people consent with their eyes open after having taken adequate advice, and one assumes that they know their own business best. That is all right. Of course, it is easy to prove consent. All one needs is a signed statement, if the respondent does not turn up herself. But when the words are "does not object", that covers a whole variety of situations, and it is no proof of breakdown at all. Failure to object may be due to sheer inertia; it may be due to ignorance of the whole position; or it may be due, of course, to consent. If the Bill is left in its present state, it will not be known whether the case is going through on the basis of consent or on the basis of the inertia of the respondent.

I venture to think that if you are going to maintain the words "does not object" you ought to have the strongest proof that no objection really means no objection; in other words, that the respondent who is said not to object fully understands the consequences of not objecting and has had a full opportunity of consulting a solicitor and of understanding how to apply if she wants to make any kind of arrangement, financial or otherwise. But all we have in the Bill is Clause 2(6), and that, I venture to think, is wholly unsatisfactory. If it is alleged that the respondent does not object, provision is to be made for … such information as will enable him to understand the consequences to him of his not objecting … and the steps which he must take if he wishes to object". In other words, the only safeguard is that a legal document will he sent to the respondent.

Now we all know that there are a great many people in this country who are terrified of legal documents. They have never been to a lawyer in their lives and they do not understand legal phraseology. Is it the slightest safeguard to say that a legal document must be sent to an ignorant woman to tell her, "You can object if you like, and here is what will happen if you do not"? She will not understand a word of it. It therefore seems to me that this is no safeguard at all. This really is one law for the rich and one for the poor, because if the respondent is a well-paid, well- educated person who knows the ropes, then one can assume that non-objection is equivalent to consent; whereas in the case of the poor person who has very little education and who does not know the ropes you are saying, "Unless you go to a lawyer, which you are afraid to do, unless you undertake that burden, then you will be divorced".

It is really like the condition on the back of a ticket. I am sure many of your Lordships are familiar with the controversy which is going on just now, and which we hope will result in reform. Almost every common-form contract has a great many conditions written on its back. Sometimes they are intelligible, sometimes they are not; but whether they are intelligible or not, very few people read them. Then there is an outcry when they find later on that if they had read them they would have seen that they were getting into a situation they never dreamt they were getting into. That is precisely what will happen if the Bill remains in its present form and if all that is to happen for the protection of the ignorant woman is that she will get a lawyer's letter containing information about what the consequences will be and how she may object.

I venture to think that there is no issue of principle here. I am accepting that consent, if it is consent, is a good ground. If you are sure that there has been no objection by somebody who is well-informed and who fully understands the consequences, I think there is no great objection to saying that that is equivalent to consent. What I am saying is that there will be the most frightful outcry later on when these ignorant women find that they have neglected the lawyer's letter and that they have got themselves into a mess which they never dreamt they would get into.

Remember, they may never have thought that there was going to be a divorce at all. It may be that the first thing they know is that a petition is served on them, together with this letter, which an intelligent person might understand but which an unintelligent person will not. That is the first thing they know; then they have immediately to read the document (which they will probably not understand) or go to a lawyer—and they will not know how to do that or whom to go to. Or they will simply wait to find out what happens later on, when they will say, "If only I had known, of course I would have objected". I really think that this is an Amendment which I can ask the noble Lord, Lord Stow Hill, to accept, unless he wants all kinds of undesirable consequences to follow the passing of this Bill. I beg to move.


May I support what my noble and learned friend Lord Reid has said? He certainly has an understanding of women. May I also say to him—and I expect this is his experience, too; certainly it is my experience as a doctor, although he would not meet them in this way—that I find that when women are in emotional difficulty, whether it is a married woman or an unmarried woman who is pregnant, they almost instinctively, during the early days of their trouble, shrink from any fuss or publicity. For instance, while they may have the letter to which the noble and learned Lord referred, subconsciously they do not want to have anything to do with it. They want, somehow, to retire into themselves. They find it difficult to believe that this thing has happened to them. This, incidentally, is the reason, I believe, why there is such a small number of affiliation orders in the case of unmarried mothers. Later on, of course, they realise that they should have taken some action, but by then it is often too late.

I have the feeling that a woman would welcome a provision for a divorce which did not involve any positive action on her part. We must therefore see to it that she is helped; that by the insertion of the word "consents" she will be protected against what might happen in the future—because I think she will realise later that she should not have allowed silence to be taken for consent.

It seems to me that this Amendment has the support of the Law Commission. On July 22, 1968, there was published the Third Annual Report of the Law Commission. That was after the debate in another place on the previous Bill. The Report had an Appendix III headed: Reform of Grounds of Divorce—Result of Discussions Between Archbishop's Group on Divorce and Law Commission". One of the proposals, No. 6, reads: There should be a procedure to ensure that a respondent's decision not to object to the grant of a divorce had been taken freely and with a full appreciation of the consequences … It goes on to say that the court must satisfy itself that the respondent's consent is genuine and informed. The Bill before us does not suggest that the court must satisfy itself in this way. It simply provides that there is an absence of objection. How can a court satisfy itself unless it is made clear that the respondent has consented? That is the whole purpose of this Amendment, and I hope that the Committee will accept it.


I also support this Amendment. The Law Commission's recommendation, as the noble Baroness has pointed out, was that care should be taken that, whatever clause was arrived at in the end, the person who did not object was genuinely consenting. Surely it is the honest thing, if we are to have divorce by consent, to say so in clear terms and to see that there is a real consent. For that reason I support this Amendment.


I should like to add my own support for the Amendment. It seems quite unnecessary for this ground to be made to depend on negative evidence when it is so easy to obtain positive evidence.


I would oppose this Amendment. According to the ordinary practice to-day, the papers are served, often by post, on the other side. There is a form attached, to be filled in, whether or not the respondent is going to put in an answer, and the rest of it; and all the details. I have never known of any difficulty, whether the woman be said to be ignorant or poor or the like. When a person is served with divorce papers, they are immediately read. It is a serious matter. The respondent is going to get advice, and perhaps legal aid. Especially with the later provision in subsection (6), I should have thought there would be no difficulty or misunderstanding whatever. If that is the crucial point in the case, I suggest that it is perfectly satisfactory to have it in the form already in the Bill: with the papers having to be properly served, and the proper information given to the wife. If she does not object, that should be sufficient; as it is to-day.


I am sorry to find myself in disagreement with my noble and learned friend Lord Denning on this point. I think that where what is being introduced is really a form of divorce by consent it would be much better to have that consent recorded in a form which cannot he denied by the respondent. I think there is a difference here between the mere service of a petition to which the respondent does not object and this, which is antecedent to the service of the petition. I think it might lead to considerable trouble if you do not get here clear and positive evidence of the respondent's consent to the petition being presented on this ground.


May I briefly make a point that will perhaps commend itself to the noble Lord, Lord Stow Hill? It is this. I am wondering whether accepting this Amendment might not ease his task considerably in relation to the suggestions that have been made that this Bill should be postponed until the financial provisions have been worked out in detail. This is probably a matter that we shall be discussing at some length later. If this Amendment is accepted, will he perhaps consider that we shall then have narrowed down the area in respect of which new financial provisions need to arise solely to those arising under paragraph (e)—if it survives, as I hope it will. Here positive agreement is called for, and the fact that there is positive agreement is almost invariably an indication that the parties have agreed also on financial matters. So one could remove from the area of this Bill any arguments about finance. This would seem a very attractive reason, apart from the greater honesty of having the word "consents" instead of the words "does not object". It seems a very attractive reason for accepting this Amendment and knowing exactly where one stands in relation to the financial provisions which are then entirely limited to the provisions of paragraph (e).

7.45 p.m.


First, may I quote what the Law Commission actually said? They did not quite say what my noble friend Lady Summerskill said. I read from page 55. What they actually said was: After the expiration of the shorter period, two years is suggested, either party, subject to safeguards, could obtain a divorce if the other consented or perhaps did not object. They did not come down—


There is a reference to "genuine consent" somewhere in the Report.


That is what they actually said. I hope that the Committee will not accept this Amendment. I find myself entirely in agreement with the observations of the noble and learned Lord the Master of the Rolls. To assume that the respondents in these cases of two years' separation will always be poor, will always be women, will always be so ignorant that they cannot read a simple letter, seems utterly unjustifiable. To begin with, they will not always be women (I suppose half of them will be men), and if they are poor they will not always be so ignorant that they cannot read a letter. They may be unable to read a letter if they are millionairesses. The letter will not be so complicated as all that. Divorce does not happen every other day in one's life; it happens once in a lifetime. When someone who has been separated from their spouse for two years, and has completely lost interest in that spouse, receives a communication saying in simple language, "If you do not object" this or that will be the consequences, to assume that they will he left in a state of wonderment and amazement seems miles from reality.

One must try to think of the actual, factual human problem that one is dealing with. Of course, there are some people, men or women, rich or poor, old or young, who are so abysmally stupid that they can neither read nor understand anything if you say it to them. But the majority of people in this community are not like that. If they find a letter which tells them what will happen if they do not object they are not so puzzled that it leaves them in a state of wonderment, they nearly always have somebody they can show it to who could explain it to them.

I would say to the noble and learned Lord, Lord Reid, if I may say so with the greatest respect, that he has over-painted the picture. I do not think chat that is the situation that one is dealing with at all. One is dealing with a wide range of people. Some of them may be geniuses; of either sex, of all ages, of all stations in life, of all degrees of wealth and poverty. Some are extremely intelligent. The whole assumption on which the Amendment is based in my view is not well-founded.

There are other safeguards, as the Law Commission recommended. First, the noble and learned Lord has referred to Clause 2(6). Rules of court must be made for the purpose of "ensuring"—that is the word—that … where in pursuance of section 2(1)(d) … the petitioner alleges that the respondent does not object to a decree being granted the respondent has been given such information as enable him to understand the consequences …". It is not "may enable him". It has got to be clear, so that anybody can read it. One should read that together with the provision in Clause 5 which enables a decree to be rescinded if the court is satisfied that the petitioner misled the respondent about anything that the respondent took into account in deciding not to object. That is the second provision.

The third provision is in Clause 7. It is said that they may not understand the financial implications. Clause 7 contains machinery which enables any agreement between the parties that has been arrived at with reference to financial provision to be submitted to the court for the court's consideration of whether it is reasonable and for the court to express an opinion on it. That is a new provision. There is a similar provision in the 1965 Act; but this is an expanding provision. In most cases I should have thought—I do not know but it will be perhaps in eight out of ten cases; and this is pure conjecture—the parties would have been in contact; there will have been exchanges between them as to what the financial situation is to be after the divorce is pronounced in the event of there being a divorce.

That, in my submission, is the situation. Then the noble and learned Lord may say: "Even so, why object to the word 'consent'?" May I put some considerations as to why I object. May I borrow a phrase (which I think I am correctly quoting) of my noble friend Lady Summerskill. She said that there are a number of women, I think. who are very glad of a divorce so long as they have not to take any active part in it. That is one of the reasons why we want the words "do not object" instead of "consent". Quite a lot of women and men—


I said that, if there was a provision for enabling them to keep outside they would not mind a bit.


May I slightly adapt those words? If they do not have to take any active part in it; if it is done for them—




—they are only too delighted to be rid of their consort.


No, not of their consort; to be rid of the trouble. I think that I made it quite clear. The noble and learned Lord, Lord Stow Hill, really must not say things like that—I made it clear to the House what I meant. I described the women in detail: they are innocent and do not know how to go about these things. The words I used were, "They don't want fuss or publicity". Therefore their first reaction—just like the girl with the illegitimate baby—is not to take any part in whatever it is suggested to them that they have got to do. That is what I said. I did not say that they welcomed a divorce.


If I misunderstood or misrepresented my noble friend's argument, I apologise profoundly to her. I thought that probably I was on dangerous ground when I thought for a moment that she was my ally. Obviously, I was very wrong—and I am very disappointed, too. But, whatever my noble friend said, my argument is that constantly there will he cases in which the wife or the husband who is the respondent cannot be bothered. Sometimes it may be because of cussedness; sometimes they may not be in a mood to help the partner; it may be lack of interest or possibly dislike of the partner—at any rate they are not going to put themselves out. to help in any way. There will be cases where it is impossible to obtain any precise statement of consent. Their attitude will be, in effect, "Go ahead do what you like. I couldn't care less".

It is not as if that has just got to be guessed about; it has to be proved in court. A petitioner who comes to ask for a decree under paragraph (d) has to show, first, two years' separation, and secondly, that the respondent does not object. That is a matter of proof. The onus lies on the petitioner to prove it; so the court has to be satisfied in fact, affirmatively, that the respondent does not object. There is a further reason which I should like to urge. There may be, I suppose that there will be, respondents in that sort of situation perhaps for moral hesitations; perhaps for religious reasons. While they feel that there is no issue but to sever the marriage bond, because everything is over between them and their spouse, nevertheless they may feel that they cannot be active participants. That may well happen in the case of a number of people who have strong religious feelings about the matter. Their religious feelings may tell them that they ought not to be active partners in formally bringing the marriage bond to an end; although looking at the actual situation they recognise that to terminate the marriage for all purposes and free each other of the bond is the sensible thing to do in the circumstances.

There may be a number of cases like that. As I say, the reasons may be religious; there may be an inability to accommodate themselves to the new situation and an unreadiness positively to take steps to bring it about. There may be moral hesitations. This is a deep emotional issue with which people are confronted. There may be all sorts of reasons which may preclude them from actually putting their signature to a document and saying, "I hereby consent." People may be very reluctant to do so—ignorant people, such as the noble and learned Lord was talking about. They may be the very people who long to be divorced, but the last thing that they would do would be to put their signature to a document. So I very much hope that the Committee will say that the position under the Bill is better as it is. The petitioner has to prove affirmatively, with proof that the court is prepared to accept as proof, that the respondent does not object to the pronouncing of a divorce. I hope, for the reasons that I have ventured to urge, that the Committee may think it is better to leave the Bill as it is and not to introduce this Amendment.

7.56 p.m.


It sounds very important to say that the petitioner must prove affirmatively that the respondent does not object; but all that that mean, when you come down to realities, is that he must prove affirmatively that a letter was sent to the respondent and no reply has been received.


. Hear, hear! That is right.


You cannot prove affirmatively non-objection. All that you can prove is that they have done nothing, and you do not know why. But I am very disturbed when the noble and learned Lord, Lord Stow Hill, says that it would be possible to send a letter which complies with subsection (6) which one could read as one runs. Observe what is to be done. The person has to get details so that she can understand the consequences to her of her not objecting. We know from Clause 4 that the provisions in the Bill will sometimes create grave financial and other hardships. That is admitted in the Bill; it was admitted on Second Reading. Is this really going to bring home to the woman that she is liable to suffer grave financial or other hardship? I do not believe it for a moment. Is the letter going to say anything about pension? Is it going to say anything about insurance? Is it going to say anything about the financial position of the husband and what offer he is going to make? Is it going to say anything about the way in which she will be able to recover maintenance after the divorce? Of course it is not. It is not going to give her information sufficient to understand the consequences at all.

I should not think that this clause compels the body which deals with the rules of court to insist that the petitioner shall put down in this letter everything which may influence the mind of the lady; the position with regard to pension; the position with regard to all the other financial matters; what she has to do after the divorce if she wants to get some money out of the man—all that kind of fling. If the noble and learned Lord tells me that that is all implicit here may I say that I should not think so; and I think that if this is to be something you can read as you run, it is just to be a formality. It would tell a highly-skilled person something, but it will tell the woman nothing; and you will have the most dreadful outcry when you find that these letters produce situations in which the woman feels that she has been tricked.


In reply to what the noble and learned Lord has just said, may I say that I ventured to take the time of the Committee before by reading actually from subsection (6). Whether the information will be given by letter, or whether it will be given in some other form—with the petition, or in some other way—I am not in a position to say. What I am pointing out is that under subsection (6) there is an obligation that rules shall be made for the purpose of ensuring—I underline the word "ensuring"; the rules must go to that length. that where in pursuance of Section 2(1)(d) of this Act the petitioner alleges that the respondent does not object to a decree being granted the respondent has been given such information as will enable him to understand the consequences to him of his not objecting to a decree being granted and the steps which he must take if he wishes to object"— whether it is a letter, or whatever else is the means selected by the rules for procuring compliance with that very strong requirement. If the method chosen is not one which has that result, the rules do not comply with the requirements of the subsection.

The rule-making authority has to devise rules which shall specify and lay down a method which will ensure that the result achieved is that the respondent has the information; that he understands the information; that he knows the consequences of not objecting and that he knows the steps he has to take if he wishes to object. That is a very stringent requirement, and if the rules do not live up to that requirement, all I am saying is that the Act—if this Bill becomes an Act—has been disobeyed.


Does the noble Lord really assure the House that in his understanding of the Bill—and it is his Bill—it is obligatory on the rules of court authority to see that all information is given to the woman with regard to pensions, insurance and all other relevant matters? If that obligation is really to be put on the Rule Committee, I do not believe that it will be possible for the Rule Committee to follow it out.


I do not want to prolong this discussion and keep on rising to reply to the noble Lord. I can only refer him to language of the subsection, which is of extreme stringency. I do not think it is possible to devise language which can place a greater obligation on the rule-making authority. If this language is not enough, then I should have thought that no language could be devised to bring about this result. If this subsection is complied with, I should think it will rarely be found that the respondent does not know quite enough for him or her to understand what his or her situation is or will be if a decree is pronounced.


Before we divide, may I he allowed to put this point to the noble Lord and the other noble Lords who wish to see this Bill intact on the Statute Book? Almost every noble Lord who has taken part in this debate, with two exceptions, has been a lawyer. I am not a lawyer, but for many years I have been doing my utmost to see difficult matters through the eyes of the public. The public, or a very large part of the public, have accepted at this point of time the idea of divorce by consent after two years. What has become clear from the noble Lord's speeches is that what he wants is something different from divorce by consent, something wider. What he wants is divorce if one does not reply. And I am extremely doubtful whether the general public, who would support divorce by consent, would support divorce if one did not reply.


What I am asking for is divorce in accordance with the provisions of paragraph (d)—that is, after two years' separation, provided that the respondent does not object. The word "consent" has been imported into this debate. It does not appear in the Bill. This is divorce after two years' separation, there being no objection on the part of the respondent to a decree being pronounced. If I may say so, it is dangerous to import into debates descriptive words which in point of fact misrepresent the substance of the situation—I do not mean deliberately, of course. But this is not divorce by consent; it is divorce which is pronounced when husband and wife have been separated for two long years and one of them does not object to a decree of divorce being pronounced on the petition of the other. That is what I commend to the Committee. What descriptive adjective is applied to it seems to me not to matter very much. I hope that when its effect is being represented,

Resolved in the affirmative, and Amendment agreed to accordingly.

8.15 p.m.

LORD REID moved amendment No. 10: Page 2, line 1, leave out paragraph (e).

The noble and learned Lord said: This is an extremely important Amendment. The proposal is to leave out the whole of paragraph (e):

it will be borne in mind precisely what the words of the Bill are.

8.5 p.m.

On Question, Whether the said Amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 61.

Ailwyn, L. Denham, L. Leatherland, L.
Albemarle, E. Dilhorne, V. Lichfield, L. Bp.
Auckland, L. Douglas of Barloch, L. Longford, E.
Audley, Bs. Emmet of Amberley, Bs. Lucas of Chilworth, L.
Barrington, V. Exeter, L. Bp. Milverton, L.
Belstead, L. Ferrers, E. Morris of Borth-y-Gest, L.
Beswick, L. Gage, V. Phillips, Bs.
Blackburn, L. Bp. Goodman, L. Rankeillour, L.
Blyton, L. Goschen, V. Reid, L. [Teller.]
Brooke of Cumnor, L. Grantchester, L. St. Oswald, L.
Brooke of Ystradfellte, Bs. Gray, L. Sandford, L.
Carnock, L. Grimston of Westbury, L. Selkirk, E.
Champion, L. Headfort, M. Sempill. Ly.
Coleraine, L. Hilton of Upton, L. Serota, Bs.
Colville of Culross, V. Hodson, L. Simonds, V.
Conesford, L. Hylton-Foster, Bs. Stamp, L.
Cork and Orrery, E. Ilford, L. Stocks, Bs.
Coventry, L. Bp. Kennet, L. Strang, L.
Craigavon, V. Killearn, L. Summerskill, Bs. [Teller.]
Craigmyle, L. Kinloss, Ly. Wigg, L.
Croft, L. Kirkwood, L. Younger of Leckie, V.
Cromartie, E. Lauderdale, E.
Addison, V. Gardiner, L. (L. Chancellor.) Raglan, L.
Archibald, L. Gifford, L. Reay, L.
Balogh, L. Gowrie, E. [Teller.] Redesdale, L.
Birk, Bs. Granville of Eye, L. Ritchie-Calder, L.
Bowles, L. Hawke, L. Ruthven of Freeland, Ly.
Brockway, L. Henley, L. Sainsbury, L.
Burden, L. Hill of Wivenhoe, L. St. Davids, V.
Byers, L. Hughes, L. Segal, L.
Chorley, L. Jacques, L. Shackleton, L. (L. Privy Seal.)
Clwyd, L. Kilbracken, L. Shannon, E.
Cole, L. Lindgren, L. Silkin, L.
Cranbrook, E. Llewelyn-Davies of Hastoe, Bs. Sorensen, L.
Crook, L. Lloyd of Hampstead, L. Stow Hill, L. [Teller.]
Denning, L. Milner of Leeds, L. Strabolgi, L.
Donovan, L. Mitchison, L. Strange, L.
Effingham, E. Morrison, L. Strange of Knokin, Bs.
Falkland, V. Nunhurnholme, L. Swaythling, L.
Farinedon, L. Platt, L. Taylor of Mansfield, L.
Foot, L. Plummer, Bs. Vivian, L.
Francis-Williams, L. Popplewell, L. Willis, L.
Gaitskell, Bs.

"that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition".

It was, I think, admitted during the Second Reading debate—and unless I misheard the noble Lord, Lord Stow Hill, it was admitted again this afternoon—that this Amendment can be corded without having any effect at all oil the other provisions of the Bill, and therefore no one need be afraid that by making this Amendment they in any way impair the operation of the first four grounds of divorce provided by the Bill; nor does it impair, so far as I can see, the general principle.

There are at least three reasons why I venture to submit to the Committee that this Amendment should be carried. The first I shall only mention and I shall leave it to others to develop. It has always been a principle, not only in the law of England but in the commonly accepted decencies of society, that a man is not permitted to benefit from his own wrong. This paragraph allows the man who has left his innocent wife in the lurch, and has set up house with another woman, to make his discarded wife into a divorced person at the end of five years.

I am not going over the ground which I attempted to cover in the Second Reading debate, but I entirely agree that there are a number of wives who, to some extent at least, deserve the fate that would be coming to them under this provision if it were allowed to stand. But that does not in the least excuse the fact that, if this provision is enacted, it will have the effect of divorcing a large number of wholly innocent wives who are not in the least to blame for the fact that their household has broken up. It may be that in some cases the husband lets his eyes stray elsewhere by reason of fault on the part of the wife, but it is surely common knowledge that there are a number of unscrupulous young women about who will entice a husband away from his wife without the wife being in the slightest degree to blame. I believe that that happens a good deal more often than one likes to admit. Are the unscrupulous woman and the weak man to be allowed to benefit at the expense of the innocent wife? That is the point of wrongdoing.

The second point is financial hardship. I shall not say much about that, because I said something about it in the Second Reading debate. We shall have further opportunities of discussing financial hardship on the assumption that your Lordships approve the principle of this provision later on; and others no doubt will discuss it this evening. I should like to expand another matter which I do not think has been referred to at all. I deal solely with the women because, on the whole, the man who is deserted by his wife is better able to fend for himself, and when he is divorced he is not in such a difficult position, generally, as the divorced woman.

In spite of the fact that in progressive circles divorced women are apparently regarded as at least as good as undivorced women, there is no doubt that in certain circles the position of a divorced woman is anything but enviable, and for a very simple reason. Most divorced women—in fact, up to date one might say almost all divorced women—have been to blame; they have offended. If this Bill is passed nobody will believe that Parliament has really said that perfectly innocent women are to be divorced and put away. Nobody will believe any such thing about Parliament. They will think, even if they know the circumstances, "It may be she says she is innocent, and the others say she is innocent, but we know quite well that people are not divorced unless there is something wrong about them". The woman, however innocent she may be, will have to bear that hardship for a very long time, if not for the rest of her life.

I say that people will never believe it for this reason. Those who promote this Bill have made one of their arguments that a great many women bring this on themselves. Therefore that is an excuse, apparently, for ill-treating the women who have not brought it on themselves. I very much hope that the noble Lord, Lord Stow Hill, will not fall so low as that, but I have heard, and I have read, advocates of the Bill take the view that because a great many women who will be divorced under the Bill, if it goes through, have themselves to blame, therefore that is a good excuse for divorcing the others. I doubt whether there are many Members of your Lordships' House who would support that argument.

If there is to be that infliction of a stigma—because that is what it is, in many circles—on innocent women, in addition to financial hardship, one would suppose that there must be some overwhelming reason of public policy which makes it necessary to inflict injustice in order to bring it about. I have come across very few such overwhelming considerations of public policy, although I have been a Member of one or other House of Parliament for what will very soon he 40 years. I agree that they exist, but I do not think this is one of them. I do not think there is such an overwhelming case of public policy here as to justify the hardships which will inevitably and admittedly follow if this provision is enacted.

There is another matter. This is a democratic country and therefore the main lines of public policy ought to be settled not by one section, however progressive, of the community, but by the community as a whole. I ask, therefore, is there any evidence that the bulk of the people in this country want women to be put aside in this way in order to benefit the erring husband and his wife and their children? Is there any consensus of opinion in the country to that effect? Women are the most affected and, therefore, one looks first to women's associations. The noble Baroness, Lady Summerskill, knows much more about them than I do, but I should be surprised if any supporter of this provision can find any substantial support among women's associations in this country. I should have thought that that in itself is about enough to warrant the rejection of this provision from the Bill.

But there is another matter that was adverted to earlier this afternoon. Can it really be said that there is a great public demand for this reform when we find that no more than one quarter of the representative Members in another place thought it worth their while to vote? Can it really be that their constituents are convinced, and let it be known they are convinced, that this is a good measure? Others know more about feeling in the country than I do, perhaps, but I venture to submit that if a poll were taken tomorrow there would be an overwhelming majority against the enactment of any such provision as paragraph (e) here.


It does not follow, however, that the 75 per cent. thought it was a had Bill, otherwise they would have turned up and voted against it.


That may very well he. But if public opinion is lukewarm we should not perpetrate this injustice.


What is public opinion?


The noble Lord will remember the experience in another place. This, I gather, was on a Friday, and there is a system of pairing in the other place.


Of course; but if there is a great deal of public interest in a matter a great many Members, even on a Friday, manage to stand up and be counted, in order that their constituents may see that they are doing as their constituents want. The fact that they are away in such enormous numbers seems to indicate that there is no great strength of feeling in the constituency. That is what I say.

The noble Lord, Lord Stow Hill, a few minutes ago, if I understood him aright, told us that there was no difference between two, three and five years so far as the principle is concerned. So why is five years put in here? If it is right that people who do not object should be divorced in two years, why is it right, when one person does object, that they should wait for five years? I will tell you why: because the promoters of this Bill were afraid to put in two years in the case of a partner who objected; public opinion simply would not stand for it. Therefore they think that by prolonging the period from two to five years, in some way they pacify the opponents of the Bill. They give three years grace to the woman who objects.


The noble Lord really cannot get away with that one. They are two totally different things. It is two years where both parties consent, and that is perfectly reasonable. By the time it has gone on for five years, then it must be absolutely conclusive to almost everybody that the marriage is as dead as a doornail.


I have already accepted the two years where people consent. What I objected to was two years where they did not consent. I think I was right in objecting to that. I cannot understand why five years is taken, if it be the case that irretrievable breakdown can easily be proved earlier; and in the great majority of cases if you are really going by irretrievable breakdown—


May I ask the noble and learned Lord whether he would settle for 10 years, or 15; or perhaps 20; or for life?


Of course I will not settle. You do not settle when it is a question of principle. You settle only when it is a question of degree; this is a question of principle, although the noble Lord apparently has not yet recognised that.


Does the noble and learned Lord not see the difference between a situation where two people have agreed that the marriage has broken down and the situation where only one person believes that and the other person, although the marriage possibly has broken down, still clings to the feeling that it has not? Does he not see that difference; and does he not see that it makes the difference between the two years and the five years? Does he not think it extremely unfair that he should use this in order to hit the Bill, when in fact it is an extension of a kind of compassion and understanding of the situation?


Of course there is a difference. But the promoters of the Bill did not seem to think so, because they said that merely not objecting made all the difference between two years and five. Fortunately, that has now been remedied. I do not understand why, if there are numerous cases, as there must he, where irretrievable breakdown is as plain as a pikestaff long before five years, the promoters of the Bill do not have the courage of their convictions and say that you may bring in your action as soon as you can prove irretrievable breakdown but that there is a kind of "long-stop" of five years if you cannot prove it before that.


May I ask the noble and very learned Lord why he has not the courage to do this if he thinks this?


I thought I had. I am trying to knock the thing out altogether. I cannot see how I can do better than that. However, I do not wish to prolong the argument. Others will take it up. But I do say that, with all these reasons of principle against bringing this brand-new provision into the law, and also the grave hardship it will admittedly create in many cases, we ought not to make this leap in the dark. I invite the Committee to reject out of hand paragraph (e) as a ground for divorce.


Before the noble and learned Lord sits down may I ask him specifically what these hardships and the stigma are?—because I thought that the whole point of this Bill was to get rid of the stigma, in the first place, and also to look after the hardships, in the second place, for which all kinds of clauses are written in. So will he kindly tell me specifically what the stigma is and what the hardships are?


Of course I will. The mere fact that a number of noble Lords and others think there is no stigma does not affect the fact that a great many people in this country think, and will continue to think, that there is something wrong about a divorced woman.


If we think there is going to be no progress whatever in public opinion, let us go home.


I think it would be a very good thing if some people went home.


So do I.

8.34 p.m.


May I be so bold as to take issue with the noble and learned Lord, Lord Reid? I am going to be so bold simply because he has just made a speech which was not a legal speech but simply the kind of social speech, the kind of ordinary speech, that anyone—any person like myself—can make. I am afraid that my remarks will be a little disjointed because I had to take brief notes while the noble and learned Lord was speaking.

The great point about this Amendment is that it cuts across the whole principle of this Bill. It seems to me that it is absolutely absurd to bring forward the arguments that the noble and learned Lord has done as serious arguments against this Bill. For instance, I do not agree with anything he has said about public opinion, about the stigma, about what happens to a divorced woman—that she is looked down upon. All these are the most old-fashioned, the most dated views that one can possibly have.


There are still old-fashioned people in the world.


Yes, there are a great many. And more's the pity! It seems to me that the deductions the noble and learned Lord has made about this Bill are false. He implies that there will be a great number of divorces as a result of this Bill. Maybe there will be some—a backlog—but I do not think there will be an excessive number. They will be the people who have waited for a very long time for their divorce. I have had the most pathetic letters from people who have waited; who have lived in great trouble and distress because they have been unable to obtain a divorce.

Now there is this story—another of the suppositions—that there are hundreds of young women going round trying to entice older men. Does this happen the whole time? Is the whole of Britain full of young women going round snooping, trying to find older men—perhaps like the noble Lord, Lord Reid, himself—to entice them away from their wives? I do not know, but I do not think there are so many as he makes out.

One of the things I resent about people who are against this Bill is that they always say, "I feel solely with the woman, with the innocent wife." I really resent this. I feel for the woman, too, just as they do, and I would not vote for this Bill unless there were safeguards about finance, about distress, about all these difficulties. I feel for a woman left in a household with an unloving husband. Let us take this case. She is 50-plus; she is left in her (if you like) gilded cage with an unloving husband, just sitting there "waiting for Godot", waiting for her pension. Is that what woman to-day wants? Is that what an emancipated woman wants? I am shocked and surprised at my noble friend Lady Summerskill, who is a great feminist and who has done so much for the women of this country. This is what she wants. She wants that woman to sit there, to sit in the house, to sit in her home and to wait for her pension. Surely any woman with spirit would hate to do that.

I have received a letter which I wish I had with me—from a woman of 45. She said: "What is this about the women of 45 who want to wait for their pension like this? My husband has allowed me £6 10s. a week. I go out to work. I earn £15, I earn £20, and I live my life." It seems to me that to-day the proper way is for women to fight for the marital financial provisions and not to sit in a home where their husband does not love them and wait for their pension.

If what the noble and learned Lord, Lord Reid, said were true about public opinion and about Parliament there would be no piece of progressive social legislation passed in this country. We should not have had the homosexual Bill; we should not have had the theatre censorship Bill. We should not have had a great many pieces of progressive social legislation which are extremely good and which the whole country accepts. We cannot wait on public opinion; we must lead it.

After all, there is one strong, clear instruction in this Bill, and that is the power given to judges to refuse a divorce to any mart after five years' desertion if he does not make the best possible provision for his abandoned wife. The judges have complete power. In fact, I think they may have too much power. I want to challenge the noble and learned Lord, Lord Reid, and the noble and learned Lord, Lord Hodson, and all the other judges. I want to ask them straight: would you grant a divorce to some poor, or rich, Casanova who came to you after five years' separation from his wife and asked you for a divorce if he did not make proper provision for his abandoned wife? I do not believe that you would.


I am afraid that we shall come to this, and if I get the chance I shall have to explain that the judge will have to do that because the Bill will compel him to do it.


That is just what I was saying. The Bill compels him to do it; therefore he will do it and there is no question but that the abandoned wife will be looked after under Clause 4.


I think the noble Baroness has misunderstood the position. The Bill as it stands will compel the judge to give a divorce which will cause grave financial hardship. That is compulsory.


I do not believe it, my Lords. Indeed, if the Bill says that I would not vote for it, and if by some sort of legal argument—


I hesitate to interrupt the noble Baroness, but it would be useful if the noble Lord would show us the clause in the Bill which compels the judge to grant a decree without proper financial provision.


It is very simple, and if the Committee would like me to do so, I will do it now. If the noble Lord will turn to Clause 4, he will find that the judge can refuse only if two conditions are both satisfied. There must be grave financial or other hardship, and that in all the circumstances it would be wrong to dissolve the marriage. In other words, grave financial hardship by itself is not enough, nor is it enough that it would be wrong in all the circumstances to dissolve the marriage. There must be both, and therefore I say that the Bill as it stands undoubtedly compels judges to inflict grave financial hardship, unless the other limb can be satisfied.


May I point out to the noble and learned Lord, as I did in my Second Reading speech, that it would be not only grave financial hardship but other hardship.


I have not quite finished—I am sorry. Actually, so far as grave financial hardship is concerned, it seems to me that no reform in regard to family property or financial relief could give the innocent wife (as you call her) who is divorced against her will, greater protection than under this Bill. In fact, for all its adverse publicity—and my goodness! this Bill has had a lot of adverse publicity—the safeguards in this Bill make divorce harder, not easier. Everyone is going around talking about "divorce by consent". That is not true. I cannot believe that all the judges in this country are now going to grant divorces wholesale. I just do not believe it. I wonder whether the noble and learned Lord, Lord Reid, believes it? If so, I must say that he cannot have very much trust in his colleagues. It is a fact that when two people have been separated for five years, that is what determines the irretrievable breakdown, not the consent to divorce.


I should like to take the emotional atmosphere down and return to square one. I am a very "square" person and I have a very simple mind. I shall vote against this part of the Bill, for this reason. As I have always understood it, marriage between two people is a contract. It is a contract made either in the Church, the Church of England, where it is legal, or other churches where the registrar has to attend, or in front of a registrar in his office. That is a contract between two people in front of witnesses in the Church, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part". That is said in front of witnesses by both sides and that is a contract. What I object to about this particular part of the Bill—never mind about women sitting in gilded houses waiting for pensions—


Gilded cages!


I find it repugnant that, once a contract is made between two parties, one party can repudiate it against the will of the other. This is a very simple point of view, and yet it seems to me that on the whole simple points of view in the end have a good deal of common sense behind them. I shall not detain your Lordships any longer, except to say that I am voting against this part of the Bill because I think it is the only case that I know where a contract between two people is broken on one side with the support (if this Bill is enacted) of the Legislature of this country.


Perhaps following two ladies, I had better take another independent point of view and come between the noble Baroness, Lady Gaitskell, and the noble Baroness, Lady Summerskill. I find myself in a difficulty with regard to this provision. If we start off on the basis that we are still going to have the attribution of blame as the consequence of the grant of a decree. then I entirely agree with my noble and learned friend Lord Reid that the granting of a decree of divorce against an innocent woman, because there has been a separation for five years, sounds very offensive and objectionable indeed. I hoped that we were getting away from that. We have not got as far away from that as I should like. I do not agree with the noble Baroness, Lady Gaitskell, that that time has come. I would hope that we should get away more and more from the attribution of blame and the stigma attaching to the guilty person in a divorce. So my attitude to this particular provision is rather dependent upon that. I should have thought that if there has in fact been a separation for five years or more there could be little argument about the fact that that marriage had irretrievably broken down. I start with that: not with trying to attach blame, whose fault it is or anything else, but if you find those facts is that not the result and the conclusion you draw? After all, we are only dealing with paragraph (e) in connection with the proof of a fact which establishes what is required to be established in Clause 1; namely, that the marriage has broken down irretrievably.

The reason why I am in a difficulty about voting on this particular Amendment is this. If we are going to include a provision of this sort, I think it is absolutely essential that the respondent to a divorce petition, be it a man or be it a woman, who is being divorced against his or her will, who has not consented to it, should not be worse off in consequence of that decree being granted. I think that is an absolute sine qua non, and unlike the noble Baroness, Lady Gaitskell, I am not satisfied that Clauses 4 and 6 in their present condition—and I shall hope to amend them—provide anything like the protection that I should like to see financially for the woman or man who is being divorced under this particular clause.

If it had been possible I should have liked the Committee to consider in detail the provisions of Clause 4 and Clause 6—and the latter is a very important clause in relation to this particular provision—and to have considered Amendments to those clauses before deciding whether or not to include this particular proposal in the Bill.

I say quite frankly, that I would not be in favour of this proposal unless I was as certain as I could be that it would not bring financial loss and financial suffering on an innocent party who is the respondent to a divorce, on the ground not of blameworthiness but on the ground that the marriage has irretrievably broken down. I think myself that it would be much happier if we could postpone a decision on this particular issue until after we have dealt with Clauses 4 and 6—and that would mean at Report stage—rather than to decide on it tonight, not knowing what will be the ultimate form of those clauses until later on, maybe next week.

8.50 p.m.


I am very sorry that the noble and learned Lord, Lord Reid, has been subjected to an attack to-night. I can assure him that if he had made the speech he made to-night at a conference of any women's organisation in the country he would have been cheered to the echo. He is a Judge who has had tremendous experience of the kind of things we are talking about now. He is a Judge also who has commanded the respect of everybody in the country. His words of wisdom to-night were based upon experience. He pictured to us what is absolutely true; that is, that we are introducing legislation to-day which if it is implemented, will undoubtedly bear very hardly on a certain section of the community.

It is no good our sitting here pretending to ourselves that all the women of the country are emancipated; that all of them have higher education; that all of them are skilled, and that all of them can earn their own living. The fact is that the great majority of married women in this country have worked well for their families; they have done, day after day throughout their married life, those awful chores—chores which very often, noble Lords will agree with me, their husbands try to escape. They have borne and reared children; they have nursed; they have cooked and cleaned for years. As the years go on no doubt they lose many of their physical charms, and of course, as the noble Lord said just now, it is possible for a man to look elsewhere.

These women can be completely innocent of any matrimonial offence, and now legislation is being introduced which, when it is put into operation, will compulsorily divorce this particular section of society against their will. That has been their world. The noble Lord knew that world of women and I know that world. Their world is their husband, their home and their children, planning all around the home for holidays, for shopping, for buying new clothes. Their minds, as we see it, are very pure minds. They may say, "That is a handsome man down the street", but generally they will say it with a smile in chaff. These people, under this Bill, are going to be compulsorily divorced against their will.

I am not quite so high-principled as the noble and learned Lord, because I am going to say that if I had been assured that the Matrimonial Property Act was going to be on the Statute Book, if I had been assured that these women, after years of work, would have some financial provision, I should not have objected so very much to paragraph (e). But, of course, that is not so. Incidentally, on the question of finance, one must remember that this is the only section in the community who have not been entitled to save money in their own right, except for that little Bill that I got through, the Married Women's Property Act. They have not been entitled even to keep the whole of the savings of the housekeeping allowance, because in law they are only the agent of their husband. This particular group have no nest-egg. Until two years ago they were not entitled to save money in their own right in the Post Office Savings Bank. If there was a separation the husband could demand whatever they had saved. So this particular group have no money in their own right.

What skills they had when they were first married have left them, whereas the husband, on the other hand, has been able to improve his skills; as the years have gone on he has had better chances of promotion. The woman has not. No wonder the noble and learned Lord, Lord Reid, brings to the House the picture of this particular woman who is going to be divorced against her will without any financial support of her own, without any nest-egg and with no way of earning her own living—unless of course she does the ordinary manual unskilled work! This is a true picture; it is not an exaggeration. This is going to be the position when this Bill is put on the Statute Book. The noble Lord is absolutely right.

This woman has to plead that she is suffering very grave hardship. How can she prove to a judge that she is suffering very grave hardship? Hardship is not going to be enough; it has to be grave hardship. This is the legislation that we are passing to-night. I have been hoping month after month. I have heard that the Law Commission is going to draft some Bill which will help this woman.

When the Matrimonial Property Bill was introduced I thought that this would be a contribution, but, as the noble and learned Lord the Lord Chancellor knows, that Matrimonial Property Bill was withdrawn. On the Second Reading of the Bill that we are discussing now I waited, because I felt that the Lord Chancellor would tell us precisely how this particular category of women were to have some financial protection. The Lord Chancellor read a letter which the Chairman of the Law Commission sent to him on the subject, and this is what he said: Those who will particularly benefit are those who might be divorced under the present law rather than those who for the first time may be divorced as a result of this Bill. Surely we cannot in cold blood support paragraph (e). It is opposed by every women's organisation in the country, and they, as we know, are not represented in this House in great numbers. Surely we cannot do this unless we know that there is a Bill drafted which we can all examine and which we can finally approve. Until that time comes, I ask your Lordships to afford relief in some measure to these particular women by rejecting paragraph (e).

8.58 p.m.


I shall be brief because I made a speech on Second Reading in which I said almost everything I wanted to say; but I should like to make a few observations. I think it is very important, particularly having heard the last very impressive and moving speech, that we know what we are dealing with. Lady Summerskill's speech, moving and impressive as it was, had very little relationship to what we are proposing to enact, and therefore it may be useful if we remind ourselves what we are proposing to enact.

We are proposing to enact a provision that where a spouse, male or female, has been already deserted for a period of five years it shall then be possible for either party to dissolve the marriage. There is no question of encouraging desertion. There is no question of creating a situation in which someone is having a divorce made more easy. There is an established situation, and it is a situation in which the financial provisions will almost always already have been regulated. After five years of separation or desertion by her husband a woman will have made provision to support herself, or will have taken appropriate action for relief in the courts. The financial position will have been determined. It may be that some additional provision will be required, but in the ordinary way no financial problems of a new nature arise. That is why that letter was properly written by the Chairman of the Law Commission. He pointed out that there was nothing that could be done, or required to be done, in this situation.

There are two provisions in this Bill. I venture this comment in a slightly jocular vein. I have noticed a difference between Members of this House who have come from another place and those who are initially Members here. Those who have come from another place have a remarkable skill in disregarding those facts not particularly helpful to the arguments they are putting forward; and I was slightly distressed to discover that that is an infection that has passed to even a distinguished lawyer, in the person of the noble and learned Lord, Lord Reid, because Clause 4 is, as it were, a "long-stop" clause. He drew attention to Clause 4 of the Bill and said that this will enable a judge to grant decrees in circumstances where he knows that no proper financial provision can be made for the wife. But the answer is that Clause 6 of this Bill prohibits this in the most explicit terms. The clause says that no decree is to be made absolute unless fair provision is made for the wife or the best possible provision.


Really, the "best possible provision" may mean absolutely nothing at all, because the man cannot provide anything.


The answer to that is self-evident. You have a situation where a separation has already been in existence for five years. If the man is a pauper, the woman has been suffering from his pauperdom for five years. No legislation can assist in that situation. There is precisely nothing that can be done about it. The court must make the best possible provision it can according to the situation. To suggest that there is anything that can he enacted in the way of future legislation that will alter the situation is simply an airy hope; it is based on a fanciful notion that we have powers of magic. We have no such powers. We cannot enrich adulterers. We cannot give them special incomes to enable them to maintain several wives. They wilt commit adultery whether we enable them to marry the wives or not. The women will be deserted, separate households will be established and the same financial problems will arise, irrespective of whether or not this power is given to rectify cases of genuine hardship—because it is the genuine hardship cases which are being relieved by this Bill. A man of no moral content will not mind in the least whether he marries his mistress. It is the man who, for some reason, has some moral content who will be concerned about this matter, who will want to regularise the matter.

I should like to conclude by repeating what I said on Second Reading. It is hypocritical to pretend that there are not many women who will be done grave injury, and have been done grave injury, by the desertion of their husbands when they are at a later stage in life. Of course that is so. But that injury is not done by this Bill. It is not the function of the divorce law to punish people; that is an improper use of the divorce law. We should not be looking for penal provisions to insert into divorce legislation. We should make it possible for people to lead seemly and civilised lives. I believe that this Bill, particularly this clause of this Bill, does in some measure advance that objective and it is for that reason that I strongly support the clause and I hope that your Lordships will not allow this Amendment to succeed.

9.4 p.m.


May I say just a few words? I had not intended to speak; indeed, it is a very long time since I addressed your Lordships. I am not only old-fashioned—and therefore, I am afraid, will earn the noble Baroness's disapproval—but I am also very old, and I had little thought of ever addressing your Lordships again. But this is a unique occasion, unique in this: that this Bill not only makes a great change in a most important part of our social law—of that, I think there is no doubt—but it also does what no other measure that I, in the course of a quarter of a century in this House, have ever heard before. It patently, blatantly and I think avowedly does grave injustice to many individual human beings. It is for that reason that I venture to rise.

I wonder whether I could bring to your Lordships' minds as vividly as possible the simple issue which arises between two human beings who have somehow gone astray and are, both of them probably, certainly one of them, in sore distress. I would ask your Lordships to regard yourselves, each one of you, as a judge before whom a case of this kind comes. These cases are, of course, of infinite variety, but I will take a simple case and will ask your Lordships to imagine that you are sitting as a judge, dedicated as you of course are to the administration of justice according to law; and according to law, if this measure passes unamended—as God forbid!—then this is the sort of case you will meet.

A man (or it may be a woman; the sex does not matter) will come before you claiming a divorce from the other spouse. You ask that man, "What is the ground upon which you claim a dissolution of your marriage?" He says, "My marriage has irretrievably broken down". You say, "Upon what ground?" He says, "For five years my wife and I have been living apart". You say to him, "Well, how did that come about?". He says, "Well, it was in the year 1960 that I married my wife. She was young and rather inexperienced. She bore our child and she nourished it. She looked after me and my house and home. But, poor wretch, she got very dull and tired, and I got bored. So in the year 1963 I left her. Since then, we have been living apart, I sometimes alone, sometimes with another woman. She has asked me to go back. Quite recently she asked me to go back, saying that our son had now reached an age at which he needed the care and guidance of a father. But I have refused, and you will see, therefore, that the marriage has irretrievably broken down; and it cannot be denied that I have done the best I can to break it down irretrievably."

That is the case that a judge will have to hear and, if you can imagine even a hypothetical judge getting hot under the collar, I think you would get hot under the collar and you would say, "You have done grievous wrong to this woman, and now you seek the benefit of the wrong you have done and ask for the dissolution of your marriage." To which he will answer, "But in the House of Lords this question of getting the benefit of your wrong was raised and discussed, and the noble Lord who introduced the Bill said that the principle that a man should not get the benefit of his own wrong was really senseless." He said that—I think I quote him rightly—"it was as perfect and as unfeeling, as a skyscraper."

What exactly the noble Lord, Lord Stow Hill, meant by that I do not know, but it seemed to me to be a somewhat frivolous derision of a principle which is as deeply embedded in our system of law and equity as any, and is, moreover, a part of our universal morality. I cannot understand any man whose conscience is not affected by such a consideration and who would not say, "I will not vote for a measure which has that result", unless indeed he has reached a stage of civilisation and passed from that to a stage of decadence.

It is upon the ground of the injustice which this Bill will do to individuals that I oppose it. How well and wisely one of your Lordships—I think it was the right reverend Prelate, the Bishop of Exeter—said that the issue was a simple enough one; it was one between logic, which might demand that a petitioner in such a case should get his divorce—and I would pause to say that in the words of a great historian and lawyer, "the law is life, not logic", and anyway a logical conclusion drawn from an inadequate premise should not be regarded—or of following the principle of justice and decency. In another place it was thought proper to follow what was assumed to be a logical conclusion. I would beg your Lordships to follow the pattern of justice, decency and honour, and refuse to the man who comes before you the benefit of his own wrong.

9.11 p.m.


I am sure that all of your Lordships have listened to the noble and learned Viscount who has spoken just now with all his accustomed clarity, eloquence and skill.


And feeling.


And feeling. But, may I say that the principle of this Bill is the irretrievable breakdown of marriage. We have, I hope, in the practice of the law attained that result already, and if we were to listen or to give weight to the arguments in support of this Amendment we should be reintroducing the notion of the matrimonial offence. In these days divorce has lost the stigma, and rightly so, of the past, because you cannot tell in the long run who has been guilty or who has been at fault; and in these days divorces should be arranged with as little bitterness, humiliation and stigma as possible. The argument put against is based on this legal maxim that no person can take advantage of his own wrong. That is quite inapplicable in this matrimonial sphere. Indeed, every day the divorce courts are faced with cases where one could say that the petitioner has taken advantage of his own wrong. Just look at his discretion statement; just look at the half a dozen women he has been with, and look at her; he is charging her with cruelty.

But the cases go through for the simple reason that the judges realise the factual situation, that the marriage has irretrievably broken down, and it is no good keeping it alive. Indeed, after five years, as was just said, the marriage is as dead as a door-nail. What good does it do to the wife, as she was, to keep it alive? May I ask for a touch of compassion for the woman and children of the new union—a stable union? When the other marriage has completely broken down, should not this new family be able to put itself on a proper and regular footing? Nearly 25 years ago, when I presided over a Committee on divorce, we saw the force of that principle and, as near as we could, we recommended it.

My noble and learned friend Lord Reid said, "This is a leap in the dark". But it is not. We have only to look at those great territories overseas—and I know them; I have been to them all. I do not know whether Australia or New Zealand first adopted this principle, but now Canada, too, has introduced it. They all have clauses similar to this, so that after five years' irretrievable breakdown there should be a divorce for the good of the community at large. So we are not leaping in the dark. We are following the good examples of our brethren overseas.

It is said that the whole argument against this is injustice; that it is doing a grave injustice to the innocent wife. If that aspect were not taken care of, we should all oppose this Bill. But it is, I venture to think, taken care of, as well as anything can be taken care of in a practical world, by the provisions for financial safeguarding so far as that can be done. As my noble friend Lord Goodman said, you have these two families anyway; but protect the wife financially so far as you can. As to the plea that we are doing an injustice, I ask your Lordships to trust our judges. In the case of an injustice such as the noble and learned Viscount cited, any of our judges would say, "Of course this man shall not have a divorce". Such a case can be well taken care of. Whenever it is wrong in all the circumstances that there should be a divorce, then it should be refused. It is a matter on which I hope I can say to your Lordships that you can trust the judges of this country. Therefore, let the principle of this Bill be maintained by keeping the Bill as it is, intact, and I ask your Lordships not to introduce by this Amendment what is, in effect, a halfway destruction of it.

9.17 p.m.


I should like to do two things: first, to support what my noble and learned friend Lord Denning has just said; and, secondly, to opt out of the sweeping condemnation of the judges uttered by the noble Baroness, Lady Gaitskell.


May I interrupt for one moment? I did not make an attack on the noble and learned Lord. Lord Reid. I had a strong argument with him, but I made no attack on the judges. I trust them implicitly not to grant a divorce to an erring husband who does not take care of his abandoned wife.


I apologise if I misunderstood the noble Baroness. What I wanted to add was that I agreed entirely with what she said, apart from that. Except for the noble and learned Lord, Lord Hodson, my noble and learned friend Lord Denning and I are the only two judges who have spoken on this Amendment and who have had practical experience of trying divorce cases. I do not claim that that confers any special qualification upon anybody to speak on this subject, because sometimes the nearer you are to the trees the more difficult it is to see the wood. But if two parties, in spite of having taken a solemn vow to live together for ever, until death do them part, continue to live apart for five continuous years, there is at least an impetus towards the view that the marriage has irretrievably broken down. This is really all that Clause 2(1)(e) provides.

There is still the safeguard that the court must nevertheless be satisfied that in fact the marriage has not broken down irretrievably, and that safeguard is contained in Clause 2(3). In my view, it simply is not realistic to oppose this provision. Such opposition simply plays into the hands of those spouses who, on grounds of sheer malice or prejudice, want to prevent the other spouse from obtaining his liberty—and all of us know of cases of that kind. Therefore I shall certainly go into the Lobby against this Amendment.

9.21 p.m.


This Bill really contains two absolutely fundamental provisions. One is for divorce (now by consent, in view of the Amendment which has been carried) after two years' separation and the second is for divorce after five years' separation whether or not there is consent. It is perfectly true that if the second of those two provisions is struck out the first still survives, but I am profoundly convinced that if one does strike out that second provision one is taking away an enormous amount of the good that this Bill will do. The provision about the five-year separation will bring relief from distress in countless cases, and I think it will be, if I may say so, a first-class tragedy if this particular paragraph is omitted.

What is the problem with which one is confronted? It really is not the case that the only persons who may be divorced against their will are ladies in their fifties who cannot make their own living, who have nothing to be said against them and who have brought up children and have devoted themselves to their families. That there are some persons of that sort I do not, of course, dispute. But if you look at the table in Appendix C to the Law Commission's Report you will see that the vast majority of women who are divorced are divorced when they are under 40. Those who are divorced when they are over 50 comprise only a tiny proportion, as will be seen from that Appendix. Therefore what we are considering here is the human problem, which consists in the fact that marriages have come completely apart in many cases when women and men are quite young enough still to make their own lives, to build a new career and probably to meet somebody else with whom they can form a really happy, stable union. The question before your Lordships is: ought they to have a legal bar preventing them from doing so?

Several noble Lords who have spoken have said, "What is a judge to do? Are you really asking a judge to allow a wrongdoer to take advantage of his own wrong?" When I ventured to address your Lordships' House on Second Reading I quoted from a letter. I do not think I shall be trespassing unduly on your Lordships' patience if I remind your Lordships of a few sentences in that letter. This is not a hypothetical case but a genuine case. It is a letter that I received from a lady; who wrote: We have waited twenty years for this Bill, we are now old-age pensioners and we wept for joy when we saw it had been proceeded with … We started life together twenty years ago, after much consideration, having seen each other every day for seven years, we went into it with our eyes open in the hope that one day his wife would realise how futile and hopeless it was and give him his divorce. He is a very sick man and it upsets him dreadfully that he could die without, as he puts it, having put things right for me and his son". The noble and learned Lord, Lord Reid, said that he thought that if a poll were taken there would be a vast majority against paragraph (e). I ask him this. If a poll were taken of the first thousand people that one met in the street as to whether those two people, that old lady and that old gentleman, both old-age pensioners with an illegitimate son, should be enabled before he died, he being now old and ill, to become lawfully married and to legitimise their son, would not all that thousand say unanimously, "Of course, and at once. Any law which prevents them from doing so is utterly inhuman and evil."?

That is one case. There are heaps of cases like that. It is said by the noble and learned Viscount, Lord Simonds, that you must not allow a wrongdoer to take advantage of his or her wrong. In that situation, who is the wrongdoer? Is the old gentleman the wrongdoer? Is the old lady the wrongdoer? Suppose the situation is that a husband, having lived apart from his wife for five years, vicious and spiteful, determined to do her every possible harm, refuses to agree to a divorce simply and solely to prevent her from making a new life with a new partner with whom she is obviously in love, where is the wrong and where is the right there? When one talks about the innocent wife and the wrongdoing husband, to test the question, "Which is innocent and which is not innocent?" simply by asking the question, "Which has committed adultery (or some other matrimonial offence) and which has not?" is really utterly unrealistic.

When marriages split apart, when people leave one another, the wrong is probably on both sides—the real wrong. It may not consist in adultery; it may consist in selfish behaviour. They may be heartless, they may be insensitive, they may be intolerable in every respect; but their conduct may not be such as to amount to cruelty. Where is the right and where is the wrong there? By what criterion is one to test it? One has a human situation in which both parties, with their frailties and weaknesses and the virtues which most of us have, cannot live together. Simply to say of one: "Have you committed adultery? Answer, 'No'; therefore you must be as virtuous as the driven snow"; and to say to the other, "Have you committed adultery? Answer, 'Yes'; then you must be as black as night", is remote from anything which human experience throws up. To apply the maxim that the wrongdoer must not be allowed to take advantage of his wrong is so inhuman, so utterly feelingless, as to be completely inapplicable as any test where right and wrong lies in these situations.

We know that there are at least 180,000 children—that is the estimate of the Law Commission's Report—who are now illegitimate. About 20,000 a year are born. The noble and learned Lord, Lord, Reid, said that a divorced wife suffers under a stigma. What about those illegitimate children? Do they not suffer under a stigma? A man and wife when they marry go into it with their eyes open; they know the risks. These unfortunate, wretched children who are horn into the world of a second union, are not asked. They come into the world and they suffer under a stigma—undeserved, goodness knows! If there is a stigma anywhere, there are plenty of people in this world who are ready to call people "Bastards", to throw against them their illegitimacy, to whisper behind them that their fathers and mothers were not married. That is the worst sort of atmosphere in which a child could be brought up. If one is measuring this in terms of stigma, surely they should come first. They are not profiting by their own wrong. They were not asked before they were brought into this world and into this situation.

Speaking for myself, if I were trying to weigh up where right and wrong lay or to measure hardship in individual cases. I would put their claims far and away above the claims of anybody else; far and away above the claims of a wife, who may perhaps be an intolerable woman, but who simply possesses the virtue of not having committed adultery—or not having been found out committing adultery. That is the way I feel about it; and I feel that these legal maxims—so perfectly expressed, no doubt, by distinguished lawyers—are so utterly inept to afford any guidance in human difficulties and human situations that one really ought to discard them, and that is what the Bill tries to do.

The whole objective of the Bill is to jettison all this old fabric of the matrimonial offence and substitute for it something more civilised. Those who wish to remove paragraph (e) from the Bill are really cutting away half the stuffing from the Bill. I do not say that it would not be a useful Bill without it, but it would be far more useful, and would bring far more relief from distress with the inclusion of paragraph (e), and I greatly hope that the Committee will not remove it from the Bill.

May I go back to something said by the noble and learned Lord, Lord Reid, and the noble and learned Viscount, Lord Simonds? Both of them sought to look at this paragraph through the eyes of the judge. May I take the text of the Bill and, I hope without wearying your Lordships unduly, ask you to give thought to the charge which the Bill imposes on the judge? He first has before him a situation in which it is demonstrated that a husband and wife, of any age, have been separated for five years. One may have lived in the North of England and one in the South; one may have lived abroad and one in this country; they may not have communicated with each other for years and years; they may dislike each other and have not the least remnant of feeling for each other. That is the first situation which the judge has to consider. That is prima facie an indication of breakdown. I should have thought that if anything could be, that is.

Then the judge has to take another step, as the noble and learned Lord the Master of the Rolls pointed out. He has to look at Clause 2(3). Even if he finds that the husband and wife have been separated for no fewer than five years, he still cannot proceed towards the granting of a decree until he has considered also whether or not he is satisfied on all the evidence that the marriage has not broken down irretrievably … That is the second limb of the exercise. In other words, he has to be satisfied that he has a situation before him in which there is no marriage at all; that all that is left is a legal paper bond with no meaning; that the marriage is completely sterile. Those are the first two steps which the judge has to take.

But the judge has to go much further than that before a decree is pronounced. He has to turn to Clause 6 of the Bill and ask himself, in the first place: should the petitioner who asks for the divorce—whether husband or wife—make provision for the respondent? He may, of course, conclude that the petitioner should not be called upon to do so. The husband may be the respondent, and he may be earning a high income. The wife may be the respondent, and she may be a rich woman, and perhaps herself earning a high income. So the judge may conclude in the first place that there is no need for the petitioner to make any financial provision for the respondent. On the contrary, he may think that there is need. Then he is not to make the decree absolute. supposing he is of that opinion, unless, first, financial provision is made by the petitioner for the respondent which, in the opinion of the judge, is reasonable and fair; or secondly, if the petitioner is not in a position to make financial provision for the wife which is reasonable and fair, that at least he has done the best he can in the circumstances.

The noble Lord, Lord Goodman, pointed that out, and the noble and learned Lord, Lord Reid, intervened and said, "Yes, but if he is a poor man, he will not be able to make any provision." Of course that is so, but during the five years that have elapsed he will not have made any provision. If one looks at what happens to deserted wives of men who have very modest incomes, quite irrespective of any question of divorce, owing to the fact that their marriage has broken down they unfortunately have to ask for assistance from supplementary benefit.

I thought it might be of assistance to try to get some figures, from what I believe to be a reliable source, to see how far that statement is made good. These are the figures as calculated in November, 1968. The total number of wives concerned is 150,000. They are kept by public funds as to £49 million, and their husbands contribute £11½ million. The fact is that if we are talking of married couples who have slender means, as a result of the breakdown of marriage, not of any divorce, the unfortunate wives have to ask for supplementary benefit.

Having decided what he has to do under Clause 6 and refused to make the decree absolute until any provision he thinks necessary has been arranged, the learned judge has then to turn to Clause 4. And this says that the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would be wrong in all the circumstances to dissolve the marriage it shall dismiss the petition. I really do not see how in language one could devise more extensive safeguards to prevent hardship. If hardship would he caused, then it would he wrong to pronounce the decree. I think that the provisions of this Bill safeguarding the position of the wife against hardship are ample in the extreme.

I would ask your Lordships to say that in the sort of case I have given, where one cannot say who is right or wrong, but the fact that stares one in the face is that the marriage between these two people is at an end, there can he no point, in public interest or in humanity, in keeping it alive and that the provisions of this Bill which provide for dissolution, subject to safeguards, are eminently and obviously right. I ask your Lordships to vote against this Amendment.

9.37 p.m.


I hope that I, at least, shall be brief. I am really surprised at the line taken by the noble Lord, Lord Stow Hill. I thought he had got past this, but his argument appeared to be that because a number of women are malicious, and cause undeserved suffering to husbands who have run away with other women, therefore those women who are not malicious and not in the least to blame must suffer along with the others. I had hoped that this argument had disappeared, but apparently the noble Lord thought it his best argument, because he put it at the end of his speech.

I am astonished at another line of argument. The noble Lord seemed to say that people are at the same time so old-fashioned that they look down upon illegitimate children and make them suffer, although they know perfectly well that illegitimate children are not to blame, yet so modern in their outlook that,

when it comes to divorced wives, they do not look down on them, although they know perfectly well that they are to blame. I think that people are not quite so silly as that. And the noble Lord cannot have the argument both ways.

It is said that we can trust the Judges. My noble and learned friend said that. I am not going to delay your Lordships tonight, but I have adumbrated the argument under Clause 4 which makes it perfectly obvious that the Judges ate tied hand and foot and they are bound to commit injustice, except in one case in a thousand. I shall hope to demonstrate that tomorrow. I have given the best attention I can to Clauses 4 and 6, and it seems to me that the judges. in the vast majority of cases, have no option but to commit injustice. That is what the Bill says. I do not wish to add any more, because I made my points before. I am not in the least convinced, and I trust that your Lordships are not, by the line of argument that we heard recently. I think it is time that I did not stand any longer between your Lordships and the Division.

9.40 p.m.

On Question: Whether the said Amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 35 Not-Contents, 85.

Abinger, L. Craigavon, V. Longford, E.
Ailwyn, L. Craigmyle, L. Phillips, Bs.
Albemarle, E. Emmet of Amberley, Bs. Rankeillour, L.
Audley, Bs. Ferrers, E. Reid, L. [Teller.]
Barrington, V. Gage, V. St. Oswald, L.
Blackburn, L. Bp. Grimston of Westbury, L. Sempill, Ly.
Blyton, L. Hodson, L. Simonds, V.
Brooke of Cumnor, L. Ilford, L. Somers, L.
Brooke of Ystradfellte, Bs. Kinloss, Ly. Summerskill, Bs. [Teller.]
Carnock, L. Lauderdale, E. Wells-Pestell, L.
Coleraine, L. Leatherland, L. Younger of Leckie, V.
Coventry, L. Bp. Lichfield, L. Bp. Younger of Leckie, V.
Addison, V. Clwyd, L. Foot, L.
Annan, L. Cole, L. Francis-Williams, L.
Archibald, L. Cranbrook, E. Gaitskell, Bs.
Auckland, L. Crook, L. Gardiner, L. (L. Chancellor.)
Balogh, L. Denham, L. Gifford, L
Beswick, L. Denning, L. Goodman, L.
Birk, Bs. Dilhorne, V. Gowrie, E.
Bowles, L. Donovan, L. Gray, L.
Brockway, L. Effingham, E. Hawke, L.
Byers, L. Exeter, L. Bp. Headfort, M.
Champion, L. Falkland, V. Henley, L.
Chorley. L. Fatingdon, L. Hill of Wivenhoe, L.
Hylton-Foster, Bs. Morrison, L. Shackleton, L. (L. Privy Seal.)
Jacques, L. Nunburnholme, L. Shannon, E.
Kennet, L. Pearson, L. Silkin, L.
Kilbracken, L. Platt, L. Sorensen, L.
Killearn, L Plummer, Bs. Stamp, L.
Kinnoull, E. Raglan, L. Stocks, Bs.
Kirkwood, L. Reay, L. Stow Hill, L. [Teller.]
Lindgren, L. Redesdale, L. Strabolgi, L.
Listowel, E. Ripon, L. Bp. Strange, L.
Llewelyn-Davies, L. Ritchie-Calder, L. Strange of Knokin, Bs.
Llewelyn-Davies of Hastoe, Bs. Ruthven of Freeland, Ly. [Teller.] Swanborough, Bs.
Lloyd of Hampstead, L. Taylor of Gryfe, L.
Lucas of Chilworth, L. Sainsbury, L. Taylor of Mansfield, L.
Marks of Broughton, L. St. Davids, V. Vivian, L.
Milner of Leeds, L. Segal, L. Wigg, L.
Mitchison, L. Serota, Bs. Willis, L.
Morris of Borth-y-Gest, L.

Resolved in the negative, and Amendment disagreed to accordingly.

House resumed.