DIVORCE REFORM BILL

HL Deb 11 July 1969 vol 303 cc1313-87

11.5 a.m.

LORD STOW HILL

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 2:

Proof of breakdown

(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.

(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.

(6) Provision shall be made by rules of court for the purpose of ensuring 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.

LORD STOW HILL moved Amendment No. 11: Page 2, line 1, after ("that") insert ("since the celebration of the marriage")

The noble Lord said: Amendments Nos. 11 and 12 are, in effect, consequential Amendments, and are parallel to a similar Amendment that was carried yesterday with regard to paragraph (d). Their effect is to ensure that the period of five years referred to in subsection (1)(e) must be a period which begins to run after the celebration of the marriage, and does not include any period before the celebration of the marriage. As the noble and learned Viscount, Lord Dilhorne, made a point as to the actual wording of the Amendment, I promised to consider the wording in relation to the previous Amendment to paragraph (d) in the light of his observation. I would, if I may say so, give him a similar promise with regard to this Amendment.

I beg to move.

VISCOUNT DILHORNE

I have no objection to these Amendments being carried in, subject to what the noble Lord, Lord Stow Hill, has said, but I would just say to him that it does not seem to me that there can be any case for the inclusion of the words, "since the celebration of the marriage". If the words are inserted, paragraph (e) will read: that since the celebration of the marriage the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. I should have thought that the words, "since the celebration of the marriage" add absolutely nothing. What you have to look at is the five years immediately preceding the presentation of the petition. Perhaps the noble Lord will bear that in mind when he comes to consider it.

On Question, Amendment agreed to.

LORD STOW HILL

I beg to move Amendment No. 12.

Amendment moved Page 2, line 2, after ("years") insert ("being a period").—(Lord Stow Hill.)

On Question, Amendment agreed to.

LORD HODSON moved Amendment No. 14: Page 2, line 8, leave out ("unless") and insert ("provided").

The noble Lord said: I beg to move Amendment No. 14. This is a rather difficult matter; it is a question involving whether it is for the petitioner to prove that the marriage has broken down or whether it is for the respondent to prove that the marriage has not broken down, and I have no doubt that a great deal of thought was given to the way the clause was framed by those who drafted this Bill. From the point of view of practical working, there is a great deal to be said for putting the burden on the respondent to defend himself, or herself, against the allegations that the marriage has broken down.

On the other hand, as my noble and learned friend Lord Reid pointed out during the course of the proceedings on the earlier Amendments, if a man or woman comes forward and says, "My marriage has broken down", it is very difficult to contradict him or her. If that is the way these things are to be done, it may be that cases in the divorce court will be treated in a very slapdash manner. If the man is asked to explain himself further he will say to the court, "I don't have to do that; it is for the other side to say that I am wrong". I should have thought that, quite apart from the legalistic approach to this matter which I may be accused of having, if breakdown is to be the basis of dissolution in the future, it would be fairer and more sensible to put the burden of establishing that breakdown on the man who says that the marriage has broken down.

This Amendment and the two following, Amendments stand together. My noble and learned friend Lord Dilhorne prefers the word "if" to the word of three syllables that I put in. I do not know that it makes much difference. Otherwise the Amendments are all really to the same effect—to put the burden of proof the other way round. I beg to move.

VISCOUNT DILHORNE

My noble and learned friend Lord Hodson is quite right in saying that Amendment No. 15 really raises the same point as Amendment No. 14, and that they both go with Amendment No. 16, but I would ask your Lordships to look at this question on a somewhat broader angle than that put forward by my noble and learned friend. By Clause 1 we are making irretrievable breakdown the sole ground for a divorce, and by Clause 2(1) that breakdown can be established in certain ways. One is now proof of the commission of adultery. When we were discussing that question yesterday, the noble Lord, Lord Stow Hill, said this in relation to adultery: 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."—[OFFICIAL REPORT, 10/7/69, col. 1226.] Let us take the undefended case, first of all. There never will be an undefended case where proof of the commission of adultery will be accompanied by evidence tending to show that the marriage has not broken down. So you will automatically get a decree based, as I see it, solely on the finding of the commission of adultery. If one wants to be consistent, that decree should be granted, as I see it. only if the petitioner satisfies the onus of establishing that the marriage has broken down. The wording does not leave much discretion to the judge, because Clause 2(3), as it stands, reads: … unless it is satisfied on all the evidence that the marriage has not broken down". If the matter is left in doubt, then a decree will have to be granted.

I cannot think that that is right. It must be a departure from the main principle established in Clause 1. Therefore I would put that as a powerful argument for saying that the onus here is wrongly placed. It should not be for the court to be satisfied on all the evidence that the marriage has not irretrievably broken down. Surely, if we are basing it on the ground of breakdown, it should be for the court to be satisfied on the evidence that the marriage has broken down.

When one comes to the defended case, there you will have the petitioner, in a simple case of adultery, alleging adultery by the respondent and the respondent probably contesting that issue. That may be, in a defended case, the only ground of controversy. It is not likely at such a trial for any evidence to be brought by either side to establish that the marriage has not broken down irretrievably, and there is therefore not likely to be any case, as I see it, where the court will be satisfied on all the evidence that the marriage has not broken down irretrievably. Therefore, although the noble Lord, Lord Stow Hill, put great weight on this subsection, both in his Second Reading speech and in the course of our debates yesterday, in its present form it is really a broken reed.

I do not think the Bill will be harmed in the least if this onus is put round the other way. Indeed, it will add consistency to the Bill and, I think, improve it considerably. I therefore support the arguments put forward by my noble and learned friend, and it matters not to me whether the word to be inserted is "provided" or "if", although I personally prefer the word "if". It is shorter and I think it is possibly better English. Then, if we take the next Amendment to remove the word "not", the subsection will provide that the court will grant a decree if satisfied on all the evidence that the marriage has irretrievably broken down. That surely is the test which is envisaged by the passage of Clause 1 of this Bill. I repeat that, in its present form, subsection (3) seems to me to be a grave departure from that test, and it will leave the court no option but to grant a decree, even if it is not satisfied that the marriage has, in fact, irretrievably broken down.

LORD HODSON

I am quite content to substitute "if" for "provided".

LORD REID

I think there are strong theoretical arguments for this Amendment, but much stronger practical arguments against it. If this Amendment is passed, it will make no difference whatever in a defended case, because if the respondent thinks that there is any chance of establishing that the marriage has not irretrievably broken down, he or she will lead evidence. It is a commonplace in the law that, although you may start with an onus one way or the other at the beginning of a case, by the end of the case the question of onus has really disappeared and what you have to look at is the state of the evidence after it has all been led. Therefore, we can leave out of account the defended case. It makes no difference at all.

But what is to happen in the undefended case? There will be great uncertainty for a time. Different views were expressed yesterday about the meaning of "irretrievable breakdown" and about how to prove it. I took the view, as I think did some other noble Lords, that all that this Amendment would mean was that you would ask the petitioner one extra question when he is in the box: "Have you any intention of returning"—I would not put it in the way of a leading question, but that is the effect of it—"to your wife if you are not granted a decree?" The petitioner will say, of course, "I am not going back in any case." That is irretrievable breakdown. lf, on the other hand, you have to go into a long investigation about the history of the marriage, that will involve a tremendous addition to the time taken in undefended cases, a very considerable addition to the number of judges who will be necessary, possibly an addition to the number of courthouses which will be necessary and certainly an addition to the expense.

What will happen, I think, will be that some judges will take the view that a mere question to the petitioner is quite sufficient to discharge the onus; others will take the view that that is not so. Then, if one of the judges who thinks that there ought to be a full investigation is confronted with a case where the only evidence of breakdown is the question to the petitioner, "Would you go back to your spouse?" and the answer "No", and the judge refuses a decree because there is insufficient evidence, the question will then go to the Court of Appeal and the Court of Appeal will have to pronounce an authoritative statement on the meaning of this particular provision. It seems to me that it is wholly unnecessary to introduce this change of onus. The only effect will be confusion for a time; and in the end. I venture to think, we shall be back where we were.

LORD HENLEY

The noble and learned Lord, Lord Reid, has in effect pointed out that this Amendment would reintroduce an inquisition. Under the Putting A sunder provisions of the Church there was provision for a grand inquisition, and it was pointed out that this would not work. This Amendment would in fact produce a mini-inquisition, as the noble Lord has said. It seems to me that the balance which has been struck in the inquisitorial aspects of this Bill are about right now; and I was very sorry about yesterday's Amendment changing "does not object" to "consents". That is another of these things which bring in a mini-inquisition; and if you bring in mini-inquisitions you are going to defeat a great part of the object of this Bill. I hope that noble Lords will pay very close attention to what the noble Lord, Lord Reid, has said about this Amendment, because that is exactly what it is doing—it is bringing in a mini-inquisition.

BARONESS GAITSKELL

I intervene for only a moment to say how difficult it is for people who are not lawyers to make up their minds about a provision such as this. Having listened to all the noble Lords who have spoken on this to-day, I find that I agree with all of them. It seems to me very difficult, and I hope my noble friend Lord Stow Hill will solve the problem for us.

11.24 a.m.

VISCOUNT DILHORNE

May I say just a word in answer to my noble and learned friend Lord Reid? I do not entirely agree with his conclusions; nor do I think that in the undefended case you are likely to have, as the noble Lord, Lord Henley, suggested, a series of mini-inquisitions if this onus is changed. Let us take, first of all, the undefended case. There, you have only the petitioner present. I quite agree that, in relation to that case, it will usually be extremely easy for him to discharge the onus. He will say, if it is a male petitioner, "My wife has committed adultery, and in consequence we are living apart. We have lived apart, and I have no intention of going back". That will be the end of the matter; there will be no further inquisition. So this really does not arise so much in relation to the undefended cases.

But in relation to the defended cases, my noble and learned friend Lord Reid really brushed it all on one side by saying that it made no difference.. There I beg to differ from him, for this reason. Although it is perfectly true to say that at the end of the day one is apt to disregard the question of where the onus lies, still at the end of the day, as the clause now runs, the court will grant a decree unless it is satisfied on all the evidence that the marriage has not broken down. Now take the case where the petitioner says that the marriage has broken down for this or that reason. Then the respondent comes forward and says, "No, that is not so; I still hope for a reconciliation. It really has not broken down irretrievably". Suppose you have evidence on both sides to that effect. What has a judge to do in the end to decide it? He has to apply the test—not the test as to whether he is satisfied that in fact the marriage has broken down, but he has to say to himself, "Parliament has required me to grant this decree, even though I am not satisfied that the marriage has irretrievably broken down, but because I am not satisfied on all the evidence that it has not broken down".

LORD HENLEY

May I——

VISCOUNT DILHORNE

May I just finish this point? I shall certainly give way to the noble Lord. That situation is bound to arise where that kind of issue is raised by the respondent. In the vast majority of defended cases, I would suspect that the fight will be as to whether there has been conduct on the part of the respondent of the character alleged by the petitioner, and it may well be that in a hotly contested case the judge will realise at the end of the case that the matter is conclusively established from the attitude of the parties that the marriage has irretrievably broken down. So here I would agree with Lord Reid to this extent: I think that the question raised by this subsection will be of importance only in a small number of cases. There I think it will be of very great importance indeed; and we must, as I suggest, put the right test here for the judge to apply when he comes to make up his mind at the end of a case as to what the position in fact is. Now the noble Lord, Lord Henley, wanted to say something.

LORD HENLEY

My difficulty as a layman is this. If one party to a marriage says that the marriage has broken down, it seems to me almost irrefutable that it has. I sometimes wonder whether we are not making difficulties where none exist. This means having an inquisition on evidence which it seems to me is incontrovertible.

VISCOUNT DILHORNE

I think that in a great number of cases it will be. I agree with the noble Lord in the majority of cases—and that is the answer to his argument about there being a mini-inquisition. But there will be some cases where there is real controversy on that: where, for instance, the respondent says that it has not broken down, and gives reason for that view, so there is a conflict of evidence upon that issue. It is in that kind of case that I want the judge to apply what I think is the right test running right through this Bill: has the marriage irretrievably broken down? If the onus is changed, that is the test he will have to apply; but if the Bill is left as it is, a decree will be granted on proof of one of the facts mentioned in subsection (1) of Clause 2 without the judge being satisfied that the marriage has irretrievably broken down: it will be enough only that it may have broken down.

THE LORD BISHOP OF DURHAM,

I should have thought that in practice it is much easier to decide that a marriage has in fact broken down than to be satisfied that it has not, if only for the practical reason that marriages which have not broken down are already so variegated, so manifold in their circumstances, that one could not be sure that it fitted in to one of those many circumstances. I should have thought it was much more easy to prove the positive case than the negative case, so I support the Amendments.

LORD SANDFORD

I have considerable fellow feeling with the noble Baroness, Lady Gaitskell, among all these noble and learned Lords; but one has to try. I should like to speak in support of Amendments Nos. 14 or 15 and 16. It seems to me that the evidence before the court will be mainly evidence brought by the petitioner, and designed to give proof of breakdown. The court may have some evidence brought by the respondent, particularly if the respondent is consenting under paragraph (b), to confirm proof of breakdown alleged by the petitioner. Under Clause 2(2) a duty is laid upon the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner …"— not all the facts, but the facts alleged by the petitioner, although they may be alleged by the respondent as evidence of breakdown. The Archbishop's Group, in their book, Putting Asunder, wanted a very thorough inquiry into the relative facts of each alleged breakdown of marriage. To that proposal the Law Com- mission put their objections and considered that this was not practicable.

On page 30 of their Report, The Field of Choice, among other things which they said give weight to the objections, they said: Present resources are fully extended to achieve about 35,000 divorces a year. Therefore greater additional expenditure would be required on courthouses, Judges, court staff, etc. Scarce highly skilled manpower would have to be diverted to this work. A great expansion of the Queen's Proctor's Office would be required, since it is proposed that numerous officials should be employed to investigate the truth of the evidence contained in the pleadings. The proposal to employ a considerable number of officers on this work is unattractive. They went on: If a thorough investigation into the marriage were to be mounted a large number of trained social workers would be needed. That was another objection. Then the Archbishop's Group continued: A detailed inquest into the whole married life would prove more distasteful and embarrassing than proceedings under the present law. Those seem to me to be pretty weighty objections.

In balancing the proposals of the Archbishop's Group with the objections of the Law Commission, a compromise of which Clause 2(2) is the expression, was reached on that point. If one accepts subsection (2), that it is not practicable for the courts to go exhaustively in to all the evidence that is presented to them or is available, how much less practicable is it for them to go further into the whole condition of the marriage and to consider the evidence called for under subsection (3) as it is now drafted? Any evidence pointing to the fact that the marriage has not broken down, is evidence which, by and large, is not before them—at any rate, it would not have been brought before them by the person who wanted the divorce, the petitioner. It seems to me that subsection (3) as it is now drafted requires the court to secure, to go out and get, to send for, all sorts of evidence which, generally speaking, will not be laid before them, certainly by the petitioner. For those reasons I support Amendments No. 14 or No. 15 and No. 16.

11.34 a.m.

LORD STOW HILL

I hope that the Committee will reject these Amendments. May I try to put my arguments shortly in this way? First, take the defended divorce case. Put oneself in the position of the judge. Let us suppose that we have a wife petitioner who says, and proves to the satisfaction of the judge, that her husband has been cruel to her (that comes under paragraph (b)) or has committed adultery (paragraph (a)) and that she would find it intolerable to go back to him. On the one side, that is proved to the satisfaction of the judge. The respondent husband says: "If you hold that, nevertheless I say"—pointing to this, that and the other fact—"that the marriage has in fact irretrievably broken down." When he has given his evidence and the case has come to an end, the judge's mind, so far as the evidence is concerned, is in this state. He is not certain from the evidence given by, or tendered on behalf of, the respondent that the marriage has not broken down. He does not know. He is certain that the adultery and the cruelty was committed. He is left in a state of uncertainty as to whether the marriage has broken down or not. What is he to do?

I should have thought that the clause as it stands struck precisely the right balance. In a case of that sort, clearly the judge should be required by the Act of Parliament (if this Bill becomes an Act), to pronounce a decree of divorce. The prima facie situation envisaged in paragraphs (a), (b), (c), (d), or (e), has been proved to his satisfaction; it has not been shown to his satisfaction that the marriage is otherwise than one wholly in ruins. I should have thought that the right balance is to say that in those circumstances he should pronounce a decree. That will be the case in the defended divorce case.

So far as contested cases are concerned, I agree with the noble and learned Lord, Lord Reid, that at the end of the day, when you come to the end of the evidence, as in all other cases of onus the way it is put does not make very much difference. The judge looks at all the evidence and makes up his mind. But in the sort of case that I have given where he is satisfied as to the factual situation and he is not satisfied whether or not the marriage has broken down, clearly he should be required by the letter of the Act to pronounce a decree. That is the defended case.

With respect, I agree entirely with the noble and learned Lords and with Lord Henley that in undefended cases probably only on rare occasions will Clause 2(3) be brought into operation, because of the obvious fact that if one party to a marriage comes to the court and asks for a decree it is almost certainly the case that the marriage has broken down. One starts from that fact. So, obviously, when you have a petitioner in the box asking for a decree the obvious inference in 99 cases out of 100 is that in fact the marriage is at an end. A husband or a wife goes into the witness box and says: "My spouse committed adultery and I find it intolerable to go back to live with him". Only in very rare cases could any judge come to the conclusion that nevertheless, in spite of that, the marriage still subsists. There could conceivably be cases like that. I would submit that Clause 2(3) is a valuable clause because it is one of the provisions inserted at the desire and as a result of the thinking of those who are extremely anxious that everything that can be done should be done to preserve a marriage from wreck which could be pieced together in spite of the conduct that led to the petition.

If somebody says, "What sort of case can one conceive in which, when the judge has a petitioner before him alleging adultery, he could nevertheless hold, on the evidence in an undefended divorce case, that the marriage has not been irretrievably wrecked?". I would emphasise that these are very rare cases. But I would put before the Committee the sort of case of which the noble Baroness, Lady Birk, gave an example yesterday. A wife goes into the witness box. It is obvious to the judge that she is speaking with great sincerity and is bitterly hurt by the fact that her husband has committed adultery. The facts as deployed in the ordinary way in an undefended divorce case will be something as to the nature of the adultery. Let us suppose that the husband went away for a weekend with some other woman, but it is also apparent to the judge that the marriage had subsisted for 25 years. The wife makes no other complaint against her husband. She does not relate any other act of adultery except the adultery on that weekend. There are four children of that marriage; their ages range from, say, 5 to 12.

Let us suppose that the judge, no doubt assuming that the wife in the witness box is very fond of the children, asks: "Is your husband fond of the children?"; and her answer is, "Yes". The question is, "Has he been a good father?" The answer is, "He has been an excellent father". The question is asked, "Would it not be a pity to break up this marriage?". Then an appearance of hesitation may manifest itself. The judge may think, in spite of the fact that the petitioner is bitterly hurt for the time being, that nevertheless there is room for further affection on her part.

I emphasise that that is a very rare case, but it is a possible case; and I relate that to the thinking of those who composed Putting Asunder and their great desire that a marriage should be preserved if it possibly can be. I believe that one of the only feasible ways of preserving it would be the insertion into the Bill of a clause like Clause 2(3).

Has it the right balance? I think that it has. Clause 2 is constructed in this way. You select certain factual situations set out in paragraphs (a) to (e) which almost certainly demonstrate, when they are proved, that the marriage is at an end. But you recognise that there may conceivably be a case now and again where, in spite of the demonstration of the existence of the factual situation, the judge may come to the conclusion on the evidence that the marriage is not at an end. Those two things are put together in the clause and I should have thought that that strikes the right balance. The noble Lord, Lord Henley, said that if we depart from it and say to a petitioner, in those circumstances, "First, you have to show the factual situation and prove it; and secondly, you have to prove that the marriage has also broken down" (he would be required to perform both those processes of proof) we are back again to square one and the inquisition.

We discussed that yesterday. The whole point, or a great deal of the point, of this Bill, is that you strive, so far as you can, and with as little inconsistency as you can, to achieve the principle of breakdown. You cannot go the whole way because, as was demonstrated by the Law Commission, it is not practicable to do so; and it would be distasteful and distressing if the inquisition process had to be embarked on. So you go as far as you can, and in my view the result achieved prima facie, of a factual situation, which dence pointed to there being no breakdown, is the right balance between the two. For these reasons I hope that the Committee will decide—as, impliedly, the Committee decided yesterday when voting on the Amendment of the noble Lord, Lord Ilford—that the Bill should be left as it is and that we should exclude the process of inquisition.

VISCOUNT DILHORNE

I should like to answer the noble Lord, Lord Stow Hill, to this extent. In his speech he has really produced cogent arguments in favour of these Amendments and I will seek to demonstrate how he has done so. Let me take, first, the instance he gave of a marriage which had existed for 25 years, and there have been several children of the marriage and one single act of adultery. The noble Lord posed the case that on proof of those matters the judge might well hesitate about whether or not that long subsisting marriage had in fact irretrievably broken down. That was the case he put in relation to an undefended petition. But as I think the noble Lord, Lord Stow Hill, must agree if he goes a little further, however much the judge may hesitate about whether or not the marriage has really broken down, as subsection (3) stands he can do nothing about it because he is bound by that particular provision to grant a decree unless he is satisfied: … on all the evidence that the marriage has not broken down … And so in that rare case (I agree that it is a rare case but one that we should consider) the very arguments advanced by the noble Lord are cogent arguments for saying that the judge should have an opportunity for getting reconsideration where he hesitates, and be able to say, "I am not at the moment satisfied that this marriage has irretrievably broken down."

Now let me turn to the case of the defended petition which the noble Lord put forward. There may, of course, be cases where the matter is absolutely clear. The parties are at such arms length that it is clear from the mere evidence about it that the marriage has irretrievably broken down. The fought case may be some indication of that. But suppose you get a case—I think that this is the one put by the noble Lord—where the petitioner is saying that in no circumstances would he or she go back and live with the respondent. That may be the present intention of the petitioner; but the respondent, who has been in contact with the petitioner, still has hopes that there may be a reconciliation. A judge may feel that those hopes are not ill-founded; that possibly there may be a change of view on the part of the petitioner and that if efforts are made for a reconciliation as this Bill proposes, that reconciliation may still ensue.

What is the position of the judge? Under the clause as it stands he cannot say on that evidence, "I am satisfied on all the evidence that the marriage has not irretrievably broken down." He will be in doubt, and he will have to grant the decree. Although in Clause 1 it is affirmatively stated that irretrievable breakdown shall be the sole ground for divorce, the whole of the noble Lord's argument on this provision is to get away from that and to say that on proof of any of the matters dealt with in Clause 2(1) a divorce shall be granted whether or not there is in fact irretrievable breakdown, unless affirmative evidence is called to satisfy the judge on all the evidence that that has not taken place. That is getting right away from the main principle of the clause. It does not give the judge the discretion which the noble Lord, Stow Hill, thinks he ought to have and which I think he ought to have.

The only other argument which has been advanced by the noble Lord is the inquisition argument. The noble Lord, Lord Sanford, referred to subsection (2) and the burden put on the court to inquire into all the facts. I am not very oppressed by the inquisition argument in this context because I should have thought that the proper course for the court to take (and which I should like the court to have power to take) where it is not satisfied that there has been an irretrievable breakdown, is not to have an inquisition over the past but to see whether efforts to effect a reconciliation may be effectual.

You may take the position that the petitioner is saying that he or she is not prepared to live with the respondent again. You may take the position of the other party who says, "I know I have been very naughty; I have done my spouse grievous wrong; but still I hope that the marriage has not come to an end." Does that involve an inquiry over the past history of the marriage and the bringing forward of distasteful details? I do not think so at all. I think that what it does promote is the view that possibly the efforts of reconcilation officers and wise counsel may lead to the preservation of the marriage. I must admit that I regard this change of expression in this subsection as a matter of very great importance. I agree with the noble Lord in his desire to secure the preservation of marriages so far as possible, even when something has gone wrong; and it is chiefly for that reason that I think the clause is wrongly worded, as I hope the Committee will agree. I think that my noble and learned friend Lord Hodson is prepared to withdraw his Amendment, and if so, I shall ask the Committee to express its opinion on the one that I have moved.

BARONESS SUMMERSKILL

As my name was down to this Amendment, I should like to say a few words on it. We are extremely fortunate to-day in that we have a Bench full of the most brilliant Judges in the country. It is very interesting to note that they are a little like doctors; they do not always agree on the diagnosis. I must confess that although my name appears on this Amendment, I was impressed when the noble and learned Lord, Lord Reid, said that the only way to decide the question of breakdown is to ask the two people concerned whether they can go on living with each other. I was particularly impressed when I heard my noble friend behind me quote the case, which shocked me, of a man who had committed adultery after being married for 25 years, and that although the woman felt that she could not go on any longer, he was going to tell the judge that he could.

Generally, adultery is the culmination of a series of quarrels and general unhappiness, but in the case which my noble friend quoted, and which rather disturbed me, it was suggested that, provided the man said that he loved the children, the judge would be in a position to say that no divorce would be granted. We are in the difficult position to-day of having to weigh all these matters. Before the noble and learned Viscount, Lord Dilhorne, spoke, in view of the difference of opinion between noble and learned Lords. I was going to ask my noble friend whether between now and Report stage he would not reconsider the wording carefully, perhaps take more advice and decide just how this should be drafted. That seems to be the wisest thing to do, but if the noble and learned Lord, Lord Hodson, wants to go into the Division Lobby——

LORD HODSON

I certainly do.

BARONESS SUMMERSKILL

I would not in any circumstances dissuade him.

LORD HODSON

I do not want to add much to what has already been said. I remain of the same opinion as I had at the outset. This is a very difficult problem. I recognise the point raised by the noble and learned Lord, Lord Reid, and by the noble Lord, Lord Henley, that we are in danger of this inquisition, which is something to be avoided. On the other hand, I do not think that it can be avoided in some cases, and the powerful winding up speech of the noble Lord, Lord Stow Hill, in my favour impressed me strongly. When he made that speech, I think he forgot which side he was on. But it is obvious that there will be cases—undefended cases if you like—where the judge, if he is conscientious, has to ask some questions. Is he to have his mouth shut? I should not have thought so. In view of the powerful practical arguments referred to by noble Lords, who have obviously given great thought to this matter, I feel strongly enough to wish to insist on the Amendment in the form in which it now appears in No. 15, and in those circumstances, if the noble Baroness assents, I would withdraw No. 14.

LORD STOW HILL

I do not know whether your Lordships would allow me to add a few words. There has been more than one winding up speech in favour of the three Amendments we are considering. I have made only one speech myself, and I hope that I do not trespass on your Lordships' favour. May I put the issue as I see it? The judge has before him a lady, a wife petitioner—

BARONESS SUMMERSKILL

A woman.

LORD STOW HILL

A woman, a wife petitioner, who says to the judge, and is believed by him, that her husband has committed adultery and she finds it in-tolerable to go back and live with him. At that stage, ought it not to be the case that there should be a decree, unless there are the strongest possible reasons for not pronouncing that decree? Any other conclusion would be one which I should have thought would really outrage suitors to the divorce court. Should there be room for any other possible reason? If, looking at all the evidence before him, a judge finds that, in spite of what the wife says, there is a great deal of doubt and he is left in a state of uncertainty as to whether there has been a final breakdown of the marriage or not, what should he do? He is still left in the position that he has a wife petitioner before him, who has sworn and been believed that because her husband has committed adultery she has been led to the conclusion that further married life with him is intolerable. The commonsense answer, and any other answer would be unacceptable to public opinion, is that this is a situation which must result in a decree. It is the only common-sense view, I would respectfully suggest.

VISCOUNT DILHORNE

May I interrupt the noble Lord in the hope of saving time? I agree that that is the common-sense view, and that would be the result if this Amendment were carried.

LORD STOW HILL

It would be exactly the opposite, with the greatest respect to the noble and learned Viscount. If the Amendment were carried, the position of the judge would be that after adultery or cruelty has been shown, the judge would have to ask himself what he thinks with regard to breakdown, and if there are circumstances which point both ways and he is in a stale of uncertainty, he would have to dismiss the petition. The noble and learned Viscount need not shake his head.

VISCOUNT DILHORNE

I am perfectly entitled to shake my head, because the noble Lord is delivering himself of a series of non sequiturs. He has stated the evidence before the court in the illustration he has given and that is all the evidence. In that kind of undefended case to which the noble Lord is referring, which is entirely different from the one he put before, there is evidence only one way—that the marriage has irretrievably broken down—and on that issue, whichever way it goes in this Amendment, a decree would be granted.

LORD STOW HILL

We cannot go on arguing this matter for ever; we must come to a decision. I am sorry that I must disagree and disagree rather strongly with the noble and learned Viscount. In the ordinary case, that is all the judge knows and ordinary common sense would indicate that a decree must be pronounced. In some cases, there are additional circumstances which point both ways and leave the judge's mind in a state of uncertainty. As the Bill stands, he must pronounce a decree. If the Amendment is carried, he must say that there is to be no decree, that although adultery or cruelty has been established, he refuses a decree. I would respectfully submit that that would be a nonsensical result and entirely unacceptable to public opinion. If I may say so respectfully to a lawyer of such acknowledged distinction as the noble and learned Viscount, Lord Dilhorne, that is the position.

I go back to the noble Lord, Lord Henley. A petitioner, to safeguard herself against that situation, would have to come to the court with a whole stream of evidence showing that the marriage had broken down—that the husband was a drunkard and so on—and the parties would be submitted to all the indignities

and distress which this Bill is designed to obviate.

I hope that the Committee do not think that I have trespassed on their patience by speaking again, but this is an important series of Amendments and I hope the Committee will oppose them.

VISCOUNT DILHORNE

I thought that this was my Amendment and that I had an opportunity of winding up upon it. I thought that I had done so, but the noble Lord has sought to make a further winding up speech. I make no complaint and I do not intend to speak for long, but I would say to the noble Lord that he really has misrepresented the position as I see it. In the kind of case he mentions, the undefended case, there will be none of that further inquiry. In the kind of case I put, the onus will be discharged. It will be clear that the marriage has broken down, and that will be the end of it. I cannot accept what the noble and learned Lord has said, and I must ask your Lordships to divide.

LORD HODSON

I beg leave to withdraw Amendment No. 14.

Amendment, by leave, withdrawn.

VISCOUNT DILHORNE

I beg to move Amendment No. 15.

Amendment moved— Page 2, line 8, leave out ("unless") and insert ("if").—(Viscount Dilhorne.)

12.1 p.m.

On Question, Whether the said Amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 77.

CONTENTS
Abinger, L.	Cromartie, E.	Longford, E.
Ailwyn, L.	Daventry, V.	Luke, L.
Albemarle, E.	Dilhorne, V. [Teller.]	McCorquodale of Newton, L.
Ashbourne, L.	Dudley, L.	Milverton, L.
Auckland, L.	Durham, L. Bp.	Morris of Borth-y-Gest, L.
Audley, Bs.	Emmet of Amberley, Bs.	Mowbray and Stourton, L.
Barrington, V.	Erroll of Hale, L.	Newcastle, L. Bp.
Beswick, L.	Exeter, L. Bp.	Norwich, L. Bp.
Blackburn, L. Bp.	Falmouth, V.	Rankeillour, L.
Blackford, L.	Ferrers, E.	St. Helens, L.
Brooke of Cumnor, L.	Goschen, V.	St. Oswald, L.
Brooke of Ystradfellte, Bs.	Grantchester, L.	Sandford, L.
Canterbury, L. Abp.	Grenfell, L.	Selkirk, E.
Carnock, L.	Hodson, L. [Teller.]	Sempill, Ly.
Chichester, L. Bp.	Horsbrugh, Bs.	Somers, L.
Colville of Culross, V.	Ilford, L.	Stamp, L.
Cork and Orrery, E.	Kinloss, Ly.	Summerskill, Bs.
Craigavon, V.	Lauderdale, E.	Thurlow, L.
Craigmyle, L.	Lichfield, L. Bp.
NOT-CONTENTS
Addison, V.	Gowrie, E.	Popplewell, L.
Amulree, L.	Greenway, L.	Raglan, L.
Archibald, L.	Grimston of Westbury, L.	Reid, L.
Balogh, L.	Hacking, L.	Ritchie-Calder, L.
Birk, Bs.	Hawke, L.	Robbins, L.
Blackett, L.	Henley, L.	Ruthven of Freeland, Ly. [Teller.]
Bowles, L.	Hill of Wivenhoe, L.
Brockway, L.	Hilton of Upton, L.	Sainsbury, L.
Buckinghamshire, E.	Hirshfield, L.	St. Davids, V.
Burden, L.	Holford, L.	Segal, L.
Burton of Coventry, Bs.	Hurcomb, L.	Shackleton, L. (L. Privy Seal.)
Champion, L.	Jackson of Burnley, L.	Shannon, E.
Clwyd, L.	Jacques, L.	Shepherd, L.
Collison, L.	Kilbracken, L.	Silkin, L.
Cranbrook, E.	Kirkwood, L.	Snow, L.
Donovan, L.	Listowel, E.	Sorensen, L.
Douglass of Cleveland, L.	Llewelyn-Davies of Hastoe, Bs.	Stocks, Bs.
Effingham, E.	Lucas of Chilworth, L.	Stow Hill, L. [Teller.]
Falkland, V.	McLeavy, L.	Strabolgi, L.
Faringdon, L.	Mitchison, L.	Strang, L.
Foot, L.	Morrison, L.	Strange, L.
Francis-Williams, L.	Moyle, L.	Swanborough, Bs.
Gaitskell, Bs.	Moyne, L.	Swaythling, L.
Gardiner. L. (Lord Chancellor.)	Nunburnholme, L.	Taylor of Mansfield, L.
Geddes of Epsom, L.	Pargiter, L.	Vivian, L.
Goodman, L.	Plummer, Bs.	Wells-Pestell, L.

On Question, Amendment agreed to.

BARONESS SUMMERSKILL moved Amendment No. 16: Page 2, line 9, leave out ("not").

The noble Baroness said: Amendment No. 16 is consequential—

VISCOUNT DILHORNE

As we lost on that Division, and as this Amendment was consequential on the one that we failed to carry, I would have thought, with great respect to the noble Baroness, that the right course would be to withdraw this Amendment.

Amendment, by leave, withdrawn.

12.11 p.m.

LORD REID moved Amendment No. 17: Page 2, line 20, leave out from ("apart") to end of line 21, and insert ("if they have separated and at least one of them does not intend to resume cohabitation").

The noble and learned Lord said: I do not think this Amendment raises any fundamental questions of principle. The Committee have decided that in the case of divorce by consent there shall be a period of two years, and in other cases a period of five years. The question is from what date shall those periods begin to run? One might suppose as a matter of common sense that the periods would begin to run from the time when the parties fell out; because the reason, as I understand it, for these periods is to give time for second thoughts, in the case of consent, and in the case of divorce under paragraph (e) to allow sufficient time to elapse to make quite certain that there has been a breakdown. Under the Bill the period may begin to run years before there is any falling out of the parties at all. That seems to me to be wholly illogical. If a man takes a position abroad where he cannot take his wife with him; or if, to take a more extreme case, he goes away as an explorer, the time is going to run against him from the moment he leaves home, although at that time, and for months and years afterwards, he and his wife are perfectly good friends, because the incident which causes the disruption has not yet occurred.

Take another case. One of the spouses may have to go into hospital. It is not so common nowadays for people, apart from the aged, to have to remain in hospital for a very long time. In he old days, a person would go to Switzerland with tuberculosis for years. Fortunately that does not happen so often nowadays, but there must be cases where one or other of the spouses is in hospital for a very long time. In such a case the time would begin to run from the day the spouse went into hospital, even though for months thereafter the other spouse is coming to visit him or her, and relations are perfectly amicable. Surely the right period from which the time should begin to run is the time when the parties quarrel in some way. What I suggest is that it should be the time when one of them makes up his or her mind not to resume cohabitation with the other.

The noble Earl, Lord Cork and Orrery, has on the Order Paper a similar Amendment, slightly differently phrased. He seeks to include circumstances over which neither party has any control, but I think the thought behind the Amendment is the same. It seems to me that common sense requires that the time should run from the date when there is some rift between the parties, because it is only from that time that they can begin to have second thoughts; it is only from that time that the five years which are supposed to prove irretrievable breakdown can possibly begin to run. How can the five years begin to run from the date one of them goes into hospital, when the other goes and visits the sick spouse weekly for, maybe, twelve months thereafter? Therefore, not in the name of any principle, but in the name of common sense I ask your Lordships to support this Amendment. I beg to move.

BARONESS SUMMERSKILL

I approached this question in a more limited way. I am thinking of many households where people live in small homes and cannot get any alternative accommodation. It seems to me that this point needs clarifying, in order to remove any doubt as to the exact relationship of the spouses. Two people may well live in the same house though not in the same household; but this may be a little difficult to prove. The Amendment would still allow them to live separate lives in the same house, but if one declares that he or she does not intend to resume cohabitation, the true relationship of the two people is established. I think, therefore, this matter can be approached from two entirely different angles: that we should have, first, concern for those who are living outside the household, and, second, concern for those who are compelled to live in very overcrowded conditions.

LORD STOW HILL

May I say at once that I think this question of the definition of "living apart" is one of extreme difficulty. A great deal of thought has gone into the choice of the wording which appears in subsection (5).

The noble and learned Lord, Lord Reid, suggested that the time when the period should start should be the beginning of the rift, the quarrel; the beginning of the difference arising between the parties. May I be permitted to make one incidental observation? I am not sure, with great respect, that as a matter of drafting his own Amendment would achieve that. It leaves in some degree of uncertainty when the intention not to resume cohabitation begins. I should have thought probably that must mean when the separation begins; but it is not certain, and I should have thought it was open to the argument that perhaps the time when the petition is before the court might be the relevant time which is pointed to in the draft. However, perhaps I may be able to come some way to the noble Lord's view.

May I indicate to the Committee why the definition which is at present in the subsection was chosen? It was chosen for the purpose of making the separation a purely factual test, irrespective of intention: intention was ruled out. It was desired that the test should be the factual one: are the parties apart or are they one of the same household? The thinking behind that was that being a member of the same household is a concept that is easily understood as a matter of ordinary English connotation. Admittedly in some given situations it may not be easy to apply that test; but on the whole it will. There is a factual test selected, as distinct from an intention to separate, or an intention, founded upon a dispute, to live apart, and it exists for this reason.

Under Section 1(1)(a)(iv) of the existing Matrimonial Causes Act, as the Committee will know, it is a ground for divorce that the respondent is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition". That particular provision will be repealed by this Bill, if it passes into law. Noble Lords will notice when they go through the provisions of the Bill that there is no provision which deals with the case of incurable insanity. The existing section in the 1965 Act, as noble and learned Lords will know, has given rise to a great deal of case law, and sometimes, one might think, with very unhappy results.

In this context, what is the meaning of the words "continuously under care and treatment"? What is the meaning of "incurably of unsound mind"? With the progression of modern science it becomes more and more difficult to say whether in any individual case a person is incurably of unsound mind. Methods of treatment are far more efficacious in these days than they were in days gone by. That is, I should have thought—and I think it is generally recognised—the one departure in the 1965 Act from the existing concept of the matrimonial offence. It is not the fault of the unfortunate respondent that he or she has become incurably insane.

What those who framed this Bill were anxious to achieve was to provide for that case without repeating in this Bill what I would describe as the distressful features of the existing provision in the 1965 Act. If a respondent has become insane and is confined in some institution away from the petitioner, and has been so confined for a period of five years, then those who framed this Bill had it in mind that that case would automatically come within the scope of paragraph (e). It either is right or is wrong that a petitioner should be entitled under our law to ask for divorce from a respondent on the ground of that respondent's insanity. But if it be assumed that it is right—and that has been, I think, accepted by public opinion for a considerable number of years—it was the object of those who framed this Bill to try to cater for that situation, as I say, in a more humane way by bringing it in within the scope of these much more general words in paragraph (e) which relate to the five-years' separation period.

Your Lordships will see that, supposing there is a case in which the respondent is in an institution because he or she is insane, if the result of that is that he or she is away from the petitioner for five years, then paragraph (e) is operative and it is unnecessary to embark upon a further inquiry whether it can be said on medical prognosis of the respondent that he is incurably insane whether it can be predicated of him that he has been (or she has been) in need of continuous care and treatment for a period of at least five years. It is sometimes not very easy to satisfy that provision, and quite often it is not easy to say whether the treatment, whatever it may be, which is being applied in the individual case does, within the meaning of that section, constitute "continuous care and treatment". I hope that your Lordships would think that this is a distinct advance. This is a much more humane approach and it cuts adrift from the distressing situations which arise under the existing law.

What I would put to the noble and learned Lord who has put this Amendment down on the Order Paper this. If we have as the test the intention of one of the parties not to resume cohabitation because of a quarrel or because of a rift, to quote I think the noble and learned Lord's words, it is very difficult to apply, or it may often in many cases be very difficult to apply, that test to the situation where the respondent is incurably insane. Sometimes it will be possible, but very often it will not be possible.

Having said that, and given that as the main object of the choice of these words, I of course recognise that one may get the case of a soldier serving overseas. A case that has been put is perhaps an even rather more moving one—the very rare case of somebody confined in a labour camp behind the Iron Curtain or something of that kind. That is obviously a distressing case, and one would wish to provide for that if one could. Of course it is, happily, a very rare case, even in modern days. But supposing, however, there is a situation in which the petitioner says, "I ask for a decree on the ground that I have been living apart from the respondent", and goes the whole length of going to a divorce court and seeking that form of release from the respondent, ordinarily one would have thought that that is a very clear indication that the marriage has broken down. And we still have Clause 2(3) which enables the learned judge, if he thinks for any reason there is doubt, at any rate to ask himself the question: Is it shown that the marriage has irretrievably broken down notwithstanding this five year separation? So we have that kind of situation provided for.

Ordinarily one would have thought that, even in the case of some unfortunate person being detained behind the Iron Curtain, if his or her spouse (and may I put a hundred miles away from this consideration any individual case anybody may have heard of; I certainly have no actual case in mind) said, "I ask for a decree. My husband" (or my wife) "has been behind the Iron Curtain and separated from me for five years", one would have thought that it is almost certain, because of the very fact that a decree is asked for in those circumstances, that that marriage is at an end.

Having said that, I certainly recognise that this is a very difficult problem and I certainly feel the force of thinking behind it. Having said that, I hope the Committee will accept from me, as I am sure it will, that I have myself given very anxious thought to this matter. I would say that I myself came to the conclusion that the existing definition was the better one, although I should have liked to examine others. I am still hoping, if I may respectfully say so, that I may consider the matter further, and possibly in those circumstances the noble and learned Lord might think that he is not obligated to press his Amendment.

I should like to say this. I want to stress, if I may, that I have given a great deal of thought to it myself so far as it depends upon such advice as I can tender to the Committee. I myself came to a pretty clear conclusion that the existing definition is the best one, but certainly I am open to argument. However, if I suggest to the noble and learned Lord that he might like to put his Amendment down again on Report if no change emerges in the Bill, I should not like him to think that I am giving any implied undertaking that I will seek to introduce a change to the Bill or try to incorporate the thinking which underlies the Amendment which he has put down on the Order Paper. My own view, and the advice I would respectfully tender to the Committee, is that the existing definition is the best one that can be found to deal with a very difficult set of circumstances, and in those circumstances I hope that either the noble Lord might feel able not to press his Amendment, or that, if he feels he would like the decision of the Committee, the Committee will vote against his proposal.

LORD HAWKE

May I ask the noble Lord a question before he sits down? Why is it necessary to have subsection (5) in the Bill at all? Apparently, according to my noble and learned friend Lord Reid, it gives rise to certain difficulties and anomalies. Surely a court can decide on the evidence whether a husband and wife have been effectively living apart, without a definition clause having to be produced.

LORD MITCHISON

With great respect, and a great deal of diffidence, and in one sentence, may I say that I shall not vote for this Amendment if it is pressed to a Division because I think it would introduce the trouble which was dealt with by the old judge who said, The mind of man is not triable, for the devil alone knoweth what he wotteth.

LORD GOODMAN

I should like to follow up the inquiry of the noble Lord who asked why it was necessary to have this clause at all. That seems to me to be cogent, because this is obviously a matter of great difficulty. I do not think that the proposed Amendment is at all satisfactory, for a considerable number of reasons, but I will not occupy the time of the Committee by enlarging on them. But, equally, there seem to be a number of matters which might arise which would create hardship under the existing definition. One has encountered cases where people have lived in the same hereditament but in different parts of it and in fact have been living apart for all effective purposes. That sort of thing is quite well known. One has the case where people have to occupy the same premises because of their employment—the husband and wife may be in a single employment. Also there are people who live together for part of the year during the children's school holidays but who are entirely remote in terms of any physical association.

These are all difficult matters, and it seems to me that it is far better to leave the judge to deal with the question than to attempt to put in an elaborate definition clause, which in the event would be inadequate in certain details. One of the great advantages of our judicial system is that we rely on judicial interpretation and allow the judges to have some latitude, and I think we ought here to have the best of both worlds.

BARONESS BIRK

Before my noble friend replies, may I say that many of us are concerned about the definition of "in the same household" and I took the point made by my noble friend Lady Summerskill. As I understand it, "in the same household" does not necessarily mean "under the same roof". One can be living under the same roof but not in the same household. If this point could be clarified even further it would be of assistance. We know perfectly well that people who petition for divorce on the grounds of cruelty are often living under the same roof, and if this phrase is interpreted in any other way it can only be prejudicial to the people who cannot afford to have separate households.

VISCOUNT DILHORNE

I hope the noble Lord will give serious consideration to the suggestion put forward by the noble Lord, Lord Hawke. This particular subsection seems to me to be for the purpose of giving guidelines to the courts. I doubt whether they are necessary, and I can see that if the clause is left in its present form a great deal of argument will arise as to whether or not the parties were in fact "in the same household", and as to how one defines "household". What one wants to get at is whether the parties have parted, and that concept comes from the living apart. I am not at all sure that it would not be much wiser to take this subsection right out and leave it to the judges to determine whether, on the evidence in that particular case, the parties have parted. That will not depend on whether they are living in the same household, or whether one is living in Scotland and the other in England, or one in Wales and one in England; it will depend upon whether the judge finds that the husband and wife have parted and have ceased to regard themselves as being under any obligation to live together. If the noble Lord will say that he will give serious consideration to that suggestion I think it will be an improvement to the Bill.

LORD REID

In view of the speech of the noble Lord, Lord Stow Hill, I shall not press this Amendment. This is not a matter of principle; it is a matter of finding the best way of dealing with a practical question. If I cannot have an Amendment on the lines I have suggested then undoubtedly I will accept the suggestion that subsection (5) be omitted altogether. If it is too difficult to find words, let us leave it out. But let me make one observation. We seem to have reached this difficult position because the draftsmen have been attempting to ride two horses at once, and unfortunately that is very apt to happen. Apparently the draftsmen have been trying to deal in one clause with two entirely separate types of case: the case which we were discussing yesterday at considerable length and which is dealt with under paragraph (e) in the ordinary way, and the case of incurable insanity. They really have nothing in common at all. I can see that if we try to deal with two entirely different types of case by the same form of words, we are apt to get into trouble. But surely we are not going to prejudice the general public in order to avoid any difficulty there may be in finding a suitable form of words for the fortunately not so common case of incurable insanity.

When the noble Lord is reconsidering the matter suggest earnestly for his consideration that incurable insanity and five years separation—something which is not desertion only because the two parties have agreed and it cannon be said that one is the deserter and the other is not—are poles apart and we should not attempt to deal with them at once. With that further suggestion I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.38 p.m.

THE EARL OF CORK AND ORRERY moved Amendment No. 17A: Page 2, line 21, at end insert ("and shall not be treated as living apart if they are separated only by circumstances over which neither of them has control.")

The noble Earl said: Subsection (5) seems to have developed a rather unusual characteristic of growing and shrinking. We had an Amendment proposed, and I am moving another Amendment to it, and my noble friend Lord Hawke has suggested that it should be taken out altogether, which may well be done in the end. But my particular Amendment will, in my opinion, stand, even though the clause should disappear, although I suppose it would then become a new clause. It is not in fact part of the definition of "living apart" but a qualification, and it refers particularly to subsection (1)(e), which we have debated at such length.

I have in mind particularly the case of persons who are living apart for five years for reasons that, in the words of my Amendment, are not under the control of either of them. As the clause now stands, living apart for five years is taken as being conclusive evidence that the marriage has broken down, but I submit that there is no necessary connection in logic between those two concepts. The mere fact of separation does not necessarily imply a breakdown of the marriage. For example, it does not necessarily imply any such thing in the case envisaged by the noble Lord, Lord Stow Hill, of somebody in a labour camp behind the Iron Curtain. When the noble Lord used that example he envisaged the possibility of the other partner—and probably the wife in this case—putting in a petition on the grounds that her husband had been kept away from her by force majeure. She would then be the petitioner; but under subsection (1)(e) the husband can become the petitioner if it is he who is in prison.

I can foresee a situation in which a man has been in prison for one reason or another. The most straight-forward example is that of a political prisoner in a foreign country, I suppose—Russia or China or wherever it may be. He comes out of prison. He may have been brain-washed, physically or psychologically or physically disorientated when he was in prison. For one reason or another he is reluctant to go home, and perhaps falls in love with somebody else. His wife has been waiting devotedly at home all those years, perhaps looking after the children, counting the days till his return; and she finds herself as respondent in a divorce action in which, under Clause 2(1)(e), she has no defence at all. So I submit that what is required is an Amendment, or as it might turn out a new clause, to prevent that kind of thing happening, because it cannot possibly have been the intention of the Bill. The intention of the Bill, as we know, is to establish that the only reason for divorce shall be the irretrievable breakdown of marriage. The kind of situation which I envisage and have described is one of many possible which in no way implies irretrievable break down, and I defy anybody to argue that it does.

Also, to move on to a slightly different situation, we must admit the case which has already been touched on in a previous debate—though I thought it inappropriate to intervene then—where a state of breakdown might occur while the two parties are in fact apart. That we need not particularly go into any more. But I envisage another one, and that is where the enforced separation occurs after the breakdown; that is to say, a case like this. A marriage has broken down or is obviously breaking down, the couple decide to live apart and are doing so. On that basis they will become eligible for divorce under subsection (1)(e) in five years. In the middle of those five years, say after three, the man goes to prison. That should not, in my submission—and I think this is fairly clear—stop the running time from running; it should continue. It is for that reason that the word "only" appears in the Amendment. So we now have it that they shall not be treated as if living apart if they are separated only by force majeure. Force majeure, unfortunately, I understand is not draftable in a Bill. But that is what "circumstances over which neither has control" is intended to mean.

There are difficulties about that phrase itself, such as whether or not a man has control over whether he is sent to prison. That point will no doubt come up, and I may just as well touch on it right away. If a man commits a crime—this is my submission; others far wiser will tell me if I am wrong—he is doing something under his control. If he goes to prison for it, he is not. Is this hair-splitting? I think a little legal advice would be of great help to me in this matter. I intend it to be taken that if a man is in prison, even for his own fault, it is a circumstance over which he has no control. If, therefore, he comes out of prison and then says he wants to divorce his wife, the time that he was in prison shall not count against the five years. I shall probably only confuse myself and the Committee as well if I go any further, but I hope I have made my point clear. I believe it is a real one, and I very much prefer at this point to leave it to more learned brains than my own. I beg to move.

LORD MESTON

I do not mean to be discourteous to the noble Earl, Lord Cork, but I cannot see the slightest object in this Amendment at all—absolutely none. I am not a judge myself, never having had sufficient brains to arrive at that august position, but I still bow with great respect to the Judiciary and their opinions, and I cannot imagine a court finding that a person has intentionally separated himself—that is the point—from his spouse in consequence of circumstances over which he has had no control. It simply would not arise. Therefore I respectfully submit that if we are going to have Amendments of this description in the Bill, instead of clarifying divorce we shall only make it more difficult.

LORD STOW HILL

The real issue o1 principal in a practical sense which is raised by the Amendment put down by the noble Earl is the position of persons who are sent to prison. Members of this House may disagree as to what the result of imprisonment should be in the calculation of the five years. If I might offer advice to the Committee, I should say that the clause as it stands, with the existing definition contained in subsection (5), would in fact include the case in which a person is sent to prison. In other words, the time that he is in prison would count as part of the five years. That is what I should think is the effect of the existing clause. Certainly that is the effect that, I respectfully submit, it ought to have. One asks oneself what is the real answer when a woman is married to a man who commits a very serious offence. Let us say that he commits murder and under the existing law is sent to prison for life. That will in fact mean imprisonment for a great many years, if not for ever.

What should be the position? Should the wife in those circumstances be precluded ever from getting a divorce against that man? The man cannot commit adultery, he cannot commit cruelty, he will not be able to commit any other factual activity such as is described in paragraphs (a), (b), (c) or (d). So if you take the case of a man who after a most brutal crime is sent to prison for life or a very long period of time, if that period is not included in the definition and does not form part of the five years, the unfortunate wife is tied to him for ever. I submit to the Committee that that ought not to be the result of this Bill. It is not, as I understand it, the result at the moment. At the moment the situation is that if a wife is married to a man who commits such an offence and who is sent to prison for a very long period of time, the five years will begin to run as from the time he is sent to prison, because it will not be able to be said of him and her as from that time that they are living together in the same household. They are not; it is a factual separation. They are not together in something which in ordinary English parlance is recognised as a household. They are separated, and the five years begins to run.

I understood the noble Earl to say that in his view that ought not to be the situation. Perhaps he had in mind a rather shorter term of imprisonment. I believe he was thinking of somebody sent to prison for six months, and he thought that should not count. I think it should count. But I submit to the Committee, with much more emphasis, that where you are talking of the longer terms they should certainly count. It is almost impossible to distinguish between different terms by reference to length. If a long term should count, so should a short term. I hope that the Committee will accept that, whatever wording is adopted for this definition, it should mean that a woman tied to a man serving a long sentence who is away from her for five years should be entitled to present a petition for divorce from him.

I do not want to paint heartrending pictures, but suppose she wishes to form another association or actually has formed another association. I would respectfully submit that it seems harsh that she should not be enabled to do so lawfully according to law, and that she should be tied to a man who by his conduct shows himself, one assumes, to be an utter villain with but little to be said in his favour. The worst of us, I know, have something that can be said in our favour, but it is hard to tie a woman to a man like That, with no hope of ever being able to obtain redress. She is condemned, if that is the view, to eternal celibacy in a real sense, unless she is prepared to set up an illicit establishment.

Therefore, I submit to the Committee that the basis on which I believe the noble Earl founds his proposal to your Lordships in moving this Amendment is one that cannot be substantiated. I would come to a different conclusion from that which he has reached, and ask your Lordships to say that a person who is sent to prison must suffer that disadvantage in that the five-year period begins to run from that moment. Of course, if the wife is prepared to wait for him to come out of prison, the point does not arise because she will not go to the divorce court. But if she is not prepared to wait, and is horrified at the thought of being tied to somebody like that, she should be allowed to go to the court.

That, I should have thought, was the acid test as to whether this Amendment should be adopted. I would say at once to the noble Earl that there may be other cases, notably the insanity cases, but that is the prime case which I think would be caught by his Amendment. I hope that the Committee will not feel that the Amendment should be introduced but I would say to the noble Earl that I will certainly consider the arguments he has advanced, and the proposal he has made to the Committee, during the general consideration which I shall most earnestly give to the arguments that were advanced in support of the previous Amendment with which the Committee has dealt. I do not know whether the noble Earl feels that that is satisfactory, but if he feels that he would prefer to take the decision of the Committee, I hope the Committee will not accept his proposal.

LORD THURLOW

Before the noble Lord sits down, would he consider the question of the Serviceman who often is sent abroad on an unaccompanied tour for two years, or on active service for two years, or even three years? He has no choice in the matter. Would my noble friend's Amendment cover a case of that sort?

LORD STOW HILL

I should have thought it might well cover a case of that sort, and I accept the point that the person who either is serving in Her Majesty's Forces or holds an appointment abroad is in fact away from his wife for a long period of time; and I should desire to cater for that sort of case. If I commend the existing form of the definition to your Lordships in relation to that sort of case, I would do so upon the basis that, supposing you have a soldier serving overseas, or a sailor serving in the Navy, or somebody holding an appointment in, say, Africa, or something like that, you do not ordinarily find that the wife approaches the divorce court to ask for a decree unless there is a hopeless rift. I would have thought that the noble Lord may feel: is it right that such a man should have the anxiety lest his wife might profit by his absence to go to the divorce court? Is that really a realistic situation? He must have the grossest lack of faith and confidence in his wife if he suspects her of something of that sort. I think that this would rarely happen, unless it is in a real sense a marriage that has broken down. I think that is the answer to the question posed by the noble Lord, but I have in mind all these sorts of separation, and I should like to consider them further, although I must emphasise that as at present advised I feel that the existing definition can hardly be bettered.

12.55 p.m.

VISCOUNT DILHORNE

The noble Lord in his reply has raised what I think is a most serious issue to which more consideration than usual ought to be given. He has put forward the proposition that if anyone has the misfortune to be sentenced to a term of imprisonment which means that that person will serve a sentence of more than five years, that person can be divorced by his wife on the basis that they are living apart. Although they are living apart, it is certainly not at the wish of the person who is in prison. He is sent there by the courts, and he has no option in the matter.

So it has emerged that this particular proposal in this Bill will add considerably to the sanctions of our criminal law. Whether that is desirable or not is another matter. But I can see great difficulties arising in the courts. They will have to consider whether the passing of a long sentence—and a long sentence may be required—may lead to the break-up of a marriage when it might not have broken up before. Again, it may lead to a great difficulty for the Parole Board who may receive passionate pleas from people who are serving sentences that they should be let out on parole to resume cohabitation with their wives, so as to prevent the possibility that they can be divorced because of their continued absence for five years.

Although it is easy to argue that in some cases the hardship may be great on the wife, I am not myself at all sure that one ought to allow a divorce to be granted as simply as the noble Lord, Lord Stow Hill, suggested, on proof that the husband has been in prison for five continuous years. I should always have hoped that paragraph (e) (leaving on one side the case of insanity) would apply only where there was a voluntary intention on the part of the parties to live apart. I am not at all sure that I would go along with my noble friend Lord Stow Hill and say, "You need not worry about that: if they are parted, that is enough."

In that connection I do not see how the noble Lord, Lord Stow Hill, draws, or would seek to draw, a distinction between the man in prison for five years and the man in the armed services who has to serve overseas for five years. What is the difference? Probably neither of them is there of his own volition. Both of them would probably want to go home as soon as they can. But I do not think the noble Lord, Lord Stow Hill, answered the question put to him by the noble Lord, Lord Thurlow. Is the noble Lord really saying that if, because of active service or for other reasons, a member of the armed forces is stationed overseas for five years, away from his wife, and cannot come back, the wife can get a divorce on the ground that they have lived apart for five years? If that is so it seems to me very hard, and without any intention to produce that result.

One knows of cases where this happened in the last war. There were a number of marriages which, when the husband was called up, went along perfectly well for a considerable time; then something occurred which put that marriage in danger. What might happen under this Bill is, it seems to me, that because of the length of absence one spouse might get attracted to someone else and then, towards the end of the five years, would seek to take advantage of this particular provision. Although we had earlier a great debate on paragraph (e), what the noble Lord, Lord Stow Hill, has said to-day makes me feel that if this is the real effect of paragraph (e) we ought to give it much further consideration at a later stage.

I know that it is not the practice to put down the same Amendment twice over, and certainly I should be reluctant myself to do so in regard to any of the Amendments I have moved and which have not been carried. But this seems to me a matter of such great importance that we ought not to leave it in any doubt. And if it be the case that the promoters of the Bill intend this result; if a man who is serving a sentence of five years' imprisonment, or is serving overseas, can be divorced because he has lived apart from his wife for five years, though it is a situation over which he has no control, then either special provision ought to be made in this Bill to prevent that happening, or, if no such special provision is made, I would submit that is a reason for saying that paragraph (e) really will not do.

What was the real essence of my noble friend's argument? I am sorry to disagree with him so much on this Bill because, as he knows, I am one of those who supported the Second Reading and I hope to see a Bill with which I can agree reaching the Statute Book. But the real argument of my noble friend was that a man would not have gone to prison for that length of time unless he had committed a most serious crime, a train robbery or something like that. Are we to add to the punishment of that crime the threat of a divorce if the crime is punished by a long sentence? Are we really to say that the man who is serving his country and serving the national interest for maybe a long time abroad can be divorced if his service exceeds five years? Take a man who is posted to some Foreign Office post, or Commonwealth Service post, whose wife is unable to accompany him—can she then divorce him after five years?

The time is getting on, and I certainly do not want to detain your Lord: hips. I think that by his Amendment the noble Earl has drawn attention to something of the greatest importance. We cannot deal with it on this Amendment, but I hope that further thought will be given to it. Perhaps before the Amendment is withdrawn it would be a good thing from the point of view of the promoters of the Bill to see whether there are indeed any in your Lordships' House who support the view put forward by the noble Lord, Lord Stow Hill, that a sentence of imprisonment—and, I think it follows, five years' service overseas—should give an automatic right to a divorce.

BARONESS GAITSKELL

May I, as a non-lawyer, make a very few comments on this debate. I have great sympathy with the problem of the Armed Services, and I hope that whoever deals with sending abroad people in the Armed Services will take into consideration that men should not be sent abroad for a considerable period without their wives. I believe they try to do this, but I do not know. The fact is that separation in itself can lead to breakdown of marriage, whatever one feels about it. I have great sympathy for the problem of the Armed Services, though I have less sympathy for the problem of a prisoner who has been given a long sentence, because very often the wife has a real excuse for bringing an action for divorce. I really cannot understand the legal argument that the prisoner has no control over the sentence that is passed. That does not seem to me really to carry any weight at all. The problems of the Armed Services and the problems of prisoners seem to me to be rather different.

LORD STOW HILL

It is just after one o'clock, and if I sense the feeling of the Committee I do not feel that it is quite ready to come to a conclusion on this particular Amendment. Some matters of importance have been raised. I do not know whether it would suit the convenience of the Committee if I now moved that the Committee do now adjourn until, say, ten minutes to two. If that would meet the pleasure of the Committee, may I formally move.

[The Sitting was suspended at 1.5 p.m. and resumed at 1.50 p.m.]

1.50 p.m.

LORD CONESFORD

This is the first time I have intervened in any proceedings on this Bill, and I promise the Committee that I shall be brief. I think that my noble friend Lord Cork and Orrery has, by his Amendment, introduced a very interesting and important discussion, though I do not think his Amendment is really suitable. I have little doubt that in due course he will seek to withdraw it.

We have to deal with a very important problem indeed. In the crucial Division, on the omission of paragraph (e) of Clause 2(1), I must make what will be considered on both sides to be a disgraceful admission: I in fact abstained. I can explain very briefly why I abstained. I did not wish to exclude paragraph (e) altogether from the Bill, because I agreed with the promoter that there may be a case for doing something on the lines of paragraph (e), and if we omitted it altogether the Bill might fail in many of its legitimate objects. On the other hand, I could not support it until I knew how various other provisions of this Bill would stand, because it seemed to me that on that would depend whether or not paragraph (e) was tolerable. One of those provisions is the subsection which we are now considering.

My noble and gallant friend Lord Thurlow introduced the case of the soldier who may be sent abroad for a number of years. That produced two replies, both of which were not very satisfactory. It induced a very remarkable reply from the noble Baroness, Lady Gaitskell, that nobody should send soldiers abroad for any length of time without their wives. I doubt whether that proposal is wholly practicable in peace time, and it seems to be wholly impracticable in any period when the country is engaged in war. But what was the reply of the noble and learned Lord, Lord Stow Hill? He said, "I do not think many wives, in the circumstances of their husbands being posted abroad for a period, would bring proceedings for divorce. But if a wife did so it would be some indication of the irretrievable breakdown of the marriage." Would it? It might only show that the wife was a very nasty woman.

That reply really will not do, and for this very simple reason. Paragraph (e) was justified last night on the ground that a five-year absence indicated that the marriage had broken down. The indication was alleged by the promoters of the Bill to be the mere length of time of the absence. That was adduced as the reason from which we could conclude, in the absence of contrary indications, that the marriage had broken down. But if there are large periods in the five years when the absence is accounted for by totally different considerations, which do not at all indicate the breakdown of the marriage, then it follows that the conditions on which we were asked to conclude that the marriage had broken down simply do not apply.

I am not going to say anything on the vexed question of prisoners, on which something has already been said. I have said something about the soldier, who seems to me to be an obvious case. However, it is not the only case. Let us take the Polar explorer. If a man goes on a Polar exploration, with the assent and approval of his wife, is it to be said that because he is absent for, perhaps, three years, that is to count as a period indicating a breakdown of the marriage? Furthermore, a man's job might take him abroad for a considerable time. For all these reasons, it seems to me that we cannot possibly leave the Bill as it is. I do not think that either the present subsection (5), or any of the Amendments hitherto proposed, is satisfactory.

I think that far the best suggestion hitherto made as regards subsection (5) was that made by my noble friend Lord Hawke, that it should be omitted altogether, a suggestion which I am glad to say was supported by the noble Lord, Lord Goodman, and, I think, was greatly preferred to the clause as it stands by my noble and learned friend Lord Reid. But something more may be required, and I have no doubt whatever that the noble and learned Lord, Lord Stow Hill, for whose conduct of this Bill I have great admiration and sympathy, will consider very sympathetically a remedy for the obvious shortcomings of the provisions as they stand. I agree with him on the difficulty of putting them right, but I hope that he, too, will agree on the necessity for putting them right.

What I should like him to consider as a possibility—I am not going to attempt a draft—is the exclusion from that period of five years of any period which is obviously accountable for by something which has nothing to do with any possible indication of the breakdown of the marriage: absence on a job, absence on a legitimate occasion—for example Polar exploration, absence on military service, and many other things. I think I have made it clear to the noble and learned Lord, Lord Stow Hill, that if that is not put right we shall really be destroying what has hitherto been put forward as the justification for paragraph (e) namely, that the mere length of five years indicates the breakdown of marriage. For those reasons, I hope that in due course, after what further discussion may take place on this Amendment—and I very much hope, and do not doubt, that we shall have another speech from the noble and learned Lord, Lord Stow Hill—my noble friend Lord Cork and Orrery will withdraw his Amendment.

VISCOUNT DILHORNE

Not yet.

LORD CONESFORD

But I am very grateful indeed to him for introducing this subject and for producing what seems to me to be a most important debate.

LORD SILKIN

This is a discussion which is not merely on the question of language. So far as we have gone, the discussion has certainly brought out that the language of subsection (5) is inadequate to meet all the cases that have been put forward. But it has also produced a very definite cleavage of opinion as to what is to happen in the kind of cases which the noble Earl contemplated, where the parties are separated because of matters over which they have no control.

A number of fanciful examples have been given, and the noble Lord has rather stretched matters. He could not stretch the explorer to five years; he had t3 go to three years. But let us take the real case—the case that is in the mind of most of us and the one that is most likely to occur. That is the case of the person who is sent to prison for five years or more. What is to be the position of that marriage? The noble Lord, Lord Stow Hill, has said quite plainly that in his view that marriage has broken down. Presumably it has broken down from the moment when this person is put into custody—not necessarily even from the time when he is sentenced. He may have been arrested and not given bail, and the five years will presumably date from the time when he is arrested.

Others take a totally different view. The noble Viscount, Lord Dilhorne, took a quite different view. This person is being punished for a crime which he has committed, and to add to that punishment by giving his wife the option of divorcing him would be intolerable. In fact, any sensible and decent judge—and most judges are decent—if he has in mind sentencing a man to five years, would make it four years so as to obviate the possibility. Of course, there is the possibility that, for good conduct, the person might get released before the expiration of his sentence, and then the question of the five years would not arise.

I think that this matter needs far more consideration than my noble friend has been prepared to give it. I hope he will not mind my saying so, but I am taking the liberty, as a much older man, of giving him a word of advice; that is, that he really must be a bit more resilient. This Bill is not the last word; it is not Holy Writ. It is the word of individuals in another place. The noble Lord is entitled to say, "This is the best I can do", but he must be prepared to consider that the collective wisdom of this Committee may be able to do better. I hope that, in giving an undertaking that he will look at it, he will not start off with the idea that the wording as it stands is the best possible provision and that it is most unlikely—which is what I gathered from what he said—that any change will be made. It needs change. I do not agree that this provision can be omitted from the Bill; in my view some kind of definition of what is intended by the phrase "living apart" is required. The wording as it stands is much too vague.

I recognise the immense difficulty in getting a definition, but I do not think it can be done in one sentence; it will have to be done in a rather more elaborate way. Certainly I hope that the person who is compulsorily separated from his spouse will not be treated, for the purpose of this Bill, as living apart from the other spouse. There are the circumstances which have been set out, but I am thinking particularly of the prisoner, who may not necessarily be a vicious person: he may not deserve to have his home broken up as well as to serve a term of imprisonment. He may be a loving husband, with a nice family, and may be looking forward to going back to them; but, nevertheless, all the time he is at the mercy of a wife who may conceivably form an attraction elsewhere and be prepared to start divorce proceedings the moment the five years are up. I think that is utterly wrong; and it would be against the feelings and wishes of this Committee. I hope therefore, if I may respectfully say so, that when my noble friend looks at this again, as he has promised to do, he will look at it with a completely open mind.

2.6 p.m.

LORD SANDFORD

I rise to support the points made by my noble friend Lord Conesford and, particularly, by my noble and gallant friend Lord Thurlow. Before I come to them, however, I should not like to lose this opportunity to congratulate the right reverend Prelates on their performance on the last Division, when they got themselves all into the same Lobby at the same time. If I may, I should like to offer the Law Lords a gin each if they manage to do the same thing before the end of this Committee stage.

The point I want to make is brought to my mind as I contemplate the situation we should have been in if this Bill and this provision had been operating during the Korean war. At that stage it was the standard, normal thing for the troops, ships' companies and aircrews serving there to be required to serve a period of two and half years unaccompanied—and not only one spell, either; there were often two in quick succession. When the Americans go to war—the war in Vietnam, for instance—they know that no troops will serve there for more than a year. They come back on a precise date. We have never been able to achieve that. Our troops, when they are serving abroad, serve under very considerable strain, and one of the things which is under most strain is their marriage. Not all sailors, soldiers and airmen are angels; nor are their wives. And it is the common experience of anybody who is responsible for the welfare and care of troops that from time to time they have to be sent home on compassionate leave when things are beginning to go wrong with their marriages.

Imagine what the state of affairs is going to be if, from the moment a man is posted abroad on unaccompanied service, this period of five years begins to tick up against him. The noble Baroness, Lady Gaitskell, is quite unrealistic if she thinks that under the conditions of the Korean war, the Malaysian difficulties or the Indonesian confrontation—anything like that, which fortunately we have not had for the last couple of years—it is possible to have troops accompanied by their families. The noble Lord, Lord Stow Hill, will have to look at this section again, and I would ask him to bear in mind this particular situation. It is not hypothetical; it has occurred—and it could easily occur again.

BARONESS GAITSKELL

May I interrupt the noble Lord for one second? I am sorry; I was not speaking of war. I left out the problems of war. I was speaking only of Servicemen in peace time.

THE LORD BISHOP OF NORWICH

I should like briefly to support the point of view taken by the noble Lord, Lord Sandford, the noble Lord, Lord Cones-ford, and the noble Viscount, Lord Dilhorne. One of the points which causes anxiety is that Clause 2(1)(e) can stand on its own as a sufficient ground, without any of the others being additional to it. The words are "one or more". As I understood the noble Lord, Lord Stow Hill, in respect of this five-year period, he was resisting the concept that if, during part of that period, the parties were separated by circumstances over which neither of them had any control, that period of separation should not be counted in the time.

It seems to me that the kind of situation which one needs to bear in mind is that of a person who has to go overseas unaccompanied, or away from her husband or his wife—because it might be a woman as well as a man who is placed in such circumstances on account of her job. Suppose that, just on the point of departure, they have something of a row—and it may or may not appear at that time to be a serious one—and then, subsequently, this gradually gets more and more on the mind of the one who is left at home, who puts in a plea for divorce. There is no access to the person overseas which will enable him or her to gain the opportunity to produce reconciliation.

As I see it, there are really two separate issues in this Bill. One is to enable those people who have married and whose marriage is intolerable to obtain a divorce if (after a sufficient period and under the provisions of Clause 2) the marriage is proved to have broken down. There is the other aspect of the matter, the one that I know most of us will appreciate, that it is imperative, it this is to become law, to give ample opportunity for reconciliation to take place if it can be attained. For these reasons I feel very much in sympathy with those who have felt that Clause 2(2)(e) as it stands—and without going into it much more deeply, as has been suggested by the noble Lord, Lord Silkin—is really wholly inadequate.

LORD HENLEY

Is not this point taken care of already in the Bill to a much greater extent than we think? Under Clause 2(3), if the court is satisfied that the marriage has not broken down they can refuse a divorce; that is to say, if there is an unwilling respondent who has been absent for more than five years and is being divorced against his will, the duty of the court is to refuse the divorce if under Clause 2(3) they feel that the marriage his not broken down. Again, under Clause 3(2) if the court feel that there is a reasonable possibility of reconciliation they have power to adjourn for that reason. Lastly, if those two clauses are not enough there is still Clause 4 which deals with any other hardship. I should have thought that the provisions of those clauses cover the difficulty. I shall be interested to hear what Lord Stow Hill has to say about the use of these provisions to get over the difficulty which, quite rightly, has been pointed out.

THE EARL OF SELKIRK

I feel that the point made by the noble Lord, Lord Henley, is really not good enough. Under Clause 2(1) certain facts have to be shown as a basis for divorce. Some persons, whether they are serving in Alaska with British Petroleum or are serving as sailors (and until recently, I think I am correct in saying, the normal commission was for over two years; now, I believe, it is shorter) might well serve a period which would of itself constitute one of the bases of divorce. That is wholly wrong. It can be saved by other clauses, no doubt, and with the common sense of the judges. But I can see no reason why this of itself should constitute a fact to be taken into account in divorce proceedings at all.

I think it is wholly wrong that the regulations which the Services have to make for the execution of their duties should have anything to do with divorce at all. It should have nothing to do with this subject. There was a time when there was a period of five years' overseas unaccompanied service. That is no longer the case. But who can say that it might not be necessary in the future. It is possible that it will be necessary. It is wrong that any consideration of what the Services may consider necessary—whether they take their wives or not—should be borne in mind or considered in connection with this Bill at all.

I do not dare to make a suggestion on this, but it seems to me that it is difficult now to leave out Clause 5 altogether. I believe that the courts have a way of dealing with the word "apart" about which somebody may speak in due course. But what seems the essence of it is that people are living apart because they do not want to live together as man and wife. That is what the Bill is trying to say. Whether that can be included in the Bill I should not like to say, but that seems to be the object we are trying to attain.

EARL FERRERS

Reference has been made by a number of noble Lords to people in the Services or to people in prison being separated from their wives or husbands. I would ask the noble Lord, Lord Stow Hill, to look at this again. I support many noble Lords who have suggested that that should be done. One of the points which comes to mind is the person who may be put into prison or who may be in the Services, who at the time of the separation was living happily with his spouse. It is only after the separation has taken place that, in the case of the wife, she may find another attraction. One can visualise the wife saying to the new-found lover: "It is all right; we can get married in a year's time. I have already done four years of my necessary separation." I think that such a suggestion is quite intolerable, and I suggest that it would be wholly unacceptable in principle.

VISCOUNT BARRINGTON

I have not worried your Lordships by speaking in this debate before. I hope you will forgive me for a few minutes if I speak of some of the difficulties I have had. I am in need of guidance—I think that I am not the only one of your Lordships in need of guidance. There has been no lack of guidance, but it has been in contrary directions. I believe the reason for this is the reason why I had hesitations in deciding—in fact, I decided "not"; and I had better confess this—to vote for this Bill in the first place. I believe that in this Bill we are asking judges to do something which is, if not impossible, at any rate very difficult.

The spirit of the Bill is that the only ground for divorce, as the noble and learned Viscount, Lord Dilhorne, pointed out, shall be simply and solely that a marriage has irretrievably broken down. Anything else is ancillary to the proof that that is so or is not so. I am probably being stupid; but I cannot see how any judge can possibly be convinced that a marriage has broken down irretrievably or has not broken down irretrievably. I think that here there are two negatives to be proved. Many marriages break down for a week. I think it was the noble Lord, Lord Mitchison, who said that, "Only the Devil knows the mind of man." I take a less monotheistic view, and think that God does, too. With respect to the Law Lords I do not think any of them will claim to know it.

What we are asking the judges to accept in evidence is not whether the breakdown is irretrievable but whether it appears to be so to them; so that any balance of evidence is going to be a very delicate adjustment, and one that different judges will resolve differently. I think that is proved by the fact that a single Bench of Bishops of all Parties and three Benches of Liberals with only one Party have on frequent occasions been in different Lobbies on this point, all coming down slightly on one side or the other. I say this only because I think the noble Earl, Lord Cork and Orrery, has raised an extremely clear case here. We are all in need of guidelines, and all the guidance that reasonably can be given should be given. It is fairly clear to me from this debate (I have listened to almost every important speech, and I would not say that any have been unimportant) that we have had very little guidance as to when a marriage has irretrievably broken down.

The point we are now discussing is one of the most vital. There has been some reference to fantastic cases. The noble Lord, Lord Conesford, supplied a fantastic one when he spoke about Polar exploration. I can think of many more fantastic ones; such as that of astronauts in the future. There are all kinds of possibilities. There are explorers in Borneo. I will not suggest traffic blocks on the Great West Road or loss of memory; but I believe this problem should be taken seriously. I do not know what are the intentions of the noble Earl, but I shall certainly support him if he goes into the Division Lobby. I have every hope that that will not be necessary, and that the noble Lord, Lord Stow Hill, will consider the advice given by people more qualified to speak than I am. I apologise for having taken up the time of the Committee for so long.

2.20 p.m.

LORD STOW HILL

When I addressed the Committee before on the Amendment of the noble and learned Lord, Lord Reid, I indicated, as is the case, that I have always been somewhat anxious about this definition. What I said was that I found it difficult to find a better one. That did not mean that I was not prepared to look for one. The noble and learned Viscount, Lord Dilhorne, has been very critical of me in this debate but he may agree with me in what I am about to say: he may have shared the same experience. Often, when sponsoring a Bill, one hears what seems to be a very formidable argument from critics of a measure that is proposed—as has occurred in his and my experience in another place. One feels impressed by the argument and gives an indication that one will introduce a change at a later stage in the consideration of the Bill. One then goes back to Parliamentary Counsel and has many agonised hours of discussion with them. They say, "What do you propose?", and at the end of the day, after much argument with them, one feels at a loss to suggest anything better than the wording already in the Bill.

It is because I am always anxious, having given a promise on which noble Lords have relied, not to come back to the Committee without anything to implement that promise, that I am extremely careful in the language that I use. I say to the noble and learned Lord and to the noble Earl, Lord Cork and Orrery, that I undertake definitely that I will consider most carefully what has been said in this debate. Frankly, I feel impressed by many of the arguments. I have always felt so. The noble and gallant Lord, Lord Thurlow, asked whether, in view of the advice I felt able to tender to the Committee, I thought that a serving soldier or sailor would be within the scope of the definition; in other words, if he were serving abroad, under the existing terms of the definition would the time, as it were, run against him? The advice that I offered to the Committee was that, purely as a matter of construction, it seemed to me that, as present dratted, it would run against him; and I believe that is right.

What I did not say, and what I do not say now, is that it should run against him. I think it is an extremely difficult question. At any rate, in my view the question of the long-term prisoner, as a matter of principle, is rather easier to determine. I would say to both noble Lords that one is not only considering a case in which there has been the prolonged absence which the Committee has envisaged; one is considering a case in which, after five years of that prolonged absence, the wife has come to the divorce court and has said that the marriage is at an end and that she wishes to he divorced from the absent husband. That is the complete picture that one is envisaging. When I was answering the argument of the noble Earl I was thinking of, and trying to depict before the Committee, a situation in which a prisoner had, because of the commission of a very serious crime, been sentenced to a very long term of imprisonment, and after five years of separation his wife had come to the conclusion that their marriage is at an end and had actually taken the extreme step of approaching the divorce court to have it dissolved. That is the complete picture that one is envisaging.

When one is considering the case of the serving soldier or sailor, one hopes that in only the rarest of cases would there be such an eventuality. I have said, and I repeat to the noble and gallant Lord, that I should like to consider this matter much more closely. But I would always do so with the caveat that I know from past experience (I feel sure that the I repeat to the noble and gallant Lord, Dilhorne, will agree with me) that very often one goes back to discuss the matter with experienced drafting counsel and comes away with one's tail rather between one's legs, being unable to suggest any improvement on what they have done as they have already taken all the considerations into account. So I hope that the Committee will not think that I am in any way falling short of an undertaking if I should come back on Report and make that avowal to your Lordships. I will undertake to give this very careful thought, and I should be most grateful to any noble Lord who may wish to put forward any proposals between now and Report that I can discuss with him.

LORD REID

Would the noble Lord, Lord Stow Hill, make clear that he also undertakes to consider the question of insanity separately from the other questions that have been discussed? I believe the whole trouble is the attempt to combine incurable insanity with all these other things.

LORD STOW HILL

I certainly will take into account the noble and learned Lord's argument that they should be dealt with separately. Speaking for myself, I should have thought that there was a lot to he said for, as it were, subsuming that sort of case into the existing structure of paragraph (e); but of course I will consider with great care what he has said. If my noble friend, Lord Silkin, suspected that I was in any sense disrespectful of the enormous combined wisdom of the Committee, he was far from being accurate in his diagnosis of my mental working. I have the greatest possible respect for the wisdom of this Committee and I listened most intently in order to absorb every word that fell from the lips of noble Lords. I will consider very carefully what has been said. All I am saying is that it is an extraordinarily difficult point.

I should like to take up one thing he said about prisons. I have had some past experience in this matter, and if there is one thing that impressed itself on my mind it is that if there is a hope of rescuing a prisoner it resides in the loyal wife. I always tried my level best to ensure the maximum access to prisoners by their families, and I should never dream of trying to reverse any trend in that direction. I accept at once that where the wife is waiting for the prisoner to come out of prison, and hoping that he will come back to rejoin her and return to his family circle, that is far and away the best guarantee of a hope of his rehabilitation and reintegration into society. I always did my level best to promote that, and I believe that my predecessors and my successors at the Home Office always took precisely the same view. The case I am envisaging is one where there is a very prolonged separation and a situation which makes it perfectly clear that the wife is not waiting for her husband; that she has despaired of their ever coming together again and has come to the conclusion that the marriage between her and the prisoner is finally at an end.

The question that I put interrogatively in the form of argument was: where a wife is married to a prisoner who is, for example, sentenced to a life sentence for a serious crime such as murder, should she (as he obviously in the circumstances will never commit a matrimonial offence) never be able to seek a divorce? All of those questions I should like to re-think. I have thought of them before, and I cannot help feeling, as at present advised, that the answer to the question I have just put is that if she is determined that the marriage is to be ended, it would not be right always to hold her bound to him. But where she will wait, I cannot repeat too often that there can be no greater hope of bringing him back to a useful way of life.

Therefore I hope that the noble Earl will be so good as to ask the permission of the Committee to withdraw his Amendment, upon my undertaking that I will again go most carefully into this definition and explore carefully with those who have been advising me whether it is possible to improve it in order to take account of the sort of arguments that have been advanced. Some of them raise some question of principle, but I will do my best to come back to the Committee with an improved clause. If I should fail to do so, I hope that the Committee will acquit me of any lack of real endeavour to try, because I promise the Committee that I will try.

VISCOUNT DILHORNE

As the noble Lord, Lord Stow Hill, referred to me more than once in his speech, I should like to say that I do not think anyone in this Committee would want the noble Lord to give an undertaking in wider terms than he has already given. I regard it as very satisfactory. But I would add one thing. That undertaking, I am sure, goes beyond the question of a new definition in subsection (5). The point that he last touched on, about the position of the long-term prisoner, raises the question of the content of paragraph (e), and it seems to me (I am not trying to find the answer; I think it must be found if we can find it) that the answer to the problem which has now arisen may involve reconsideration of the terms of paragraph (e) and probably drafting an exception upon the terms of that paragraph just as much as reconsidering the question of definition. I take it that what he said does not exclude that possibility. If that is so, I, for one, am perfectly content.

THE EARL OF CORK AND ORRERY

May I thank the noble Lord, Lord Stow Hill, for his reasonable and courteous attitude to this Amendment which I accept with greatest pleasure. Perhaps, without being unhelpful, I may take him up on one or two points, because I feel that they have been missing in this extremely interesting debate. Emphasis has been placed—and, I think I cannot unfairly say, particularly by the noble Lord himself—on the situation in which the husband is incarcerated, or sent away in some way or other, and finds himself in the position of being divorced by the wife he has left behind. I made the point in my earlier speech that it can happen the other way round. Let us get away from the concept of prison and move off in a slightly more likely direction than that of the noble Lord, Lord Conesford, and his arctic explorer and even that of Lord Barrington's astronaut. Let me take the more likely situation of the miner who gets a five-year contract at the Snowy River scheme in Australia. He has been perfectly happily married to his devoted wife, whom he has had to leave at home. He writes to her every day and no doubt dreams of her at night. He gets a few weeks' leave, shall we say, after four and a half years, goes off to Port Moresby and falls in love with a Papuan floosie, and says, "This is the life for me!" on the beaches under the palm trees. And he suddenly finds that he already has four and a half years' running time propped up behind him before he starts.

This is a perfectly feasible situation, and perhaps is more to the point in underlining the danger which gives rise to my Amendment than the converse proposition, in which the left behind wife suddenly gets fed up and goes off the rails. I confess to having been last night in the same disgraceful (if that is the right word) position as my noble friend Lord Conesford in abstaining on the Note on Clause 5(1)(e), not because I disapprove of the clause—in general I approve of it—but because I felt that it was impossible for me to vote knowing that I was going to move this Amendment this afternoon. If this Amendment were not carried and no such safeguards as have in mind and in which I have been supported by other noble and learned Lords were inserted, and paragraph (e) remains exactly as it is now, I would not have wanted my name put to it in the OFFICIAL REPORT.

LORD CONESFORD

The noble Earl has given us the interesting case of the miner who found another lady. How does he fit that exactly with the words of his own Amendment, when they are separated "only by circumstances over which neither of them has control." How can neither of them have any control?

THE EARL OF CORK AND ORRERY

It is to be supposed, I think, that when a miner in Port Moresby forms an illicit liaison with a Papuan floosie, he has up to a point a certain measure of free will, though he may depart from it at a later stage.

LORD HENLEY

Would the noble Earl not agree that no case has been instanced this afternoon, however remote, that does not fall under the three clauses I mentioned?

THE EARL OF CORK AND ORRERY

I think that that is quite possible, but I do not think that the safeguards as put forward by the noble Lord, Lord Henley, even when we take them altogether, are adequate. They might have been if the earlier Amendment to Clause 2(3) had been carried and positive proof of breakdown of marriage had been required. We are left with the necessity of the judge being satisfied on all the evidence that the marriage has not broken down. This is a matter for argument and discussion of course, but at the moment my impression is that the safeguards there are will not in all cases be adequate. There is no more to say, except that I am very grateful to the noble Lord, Lord Stow Hill, and on the strength of the undertaking he has most courteously given, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

2.35 p.m.

VISCOUNT DILHORNE moved Amendment No. 18. Page 2, line 24, leave out ("does not object") and insert ("consents").

The noble and learned Viscount said: This Amendment and No. 19 are both consequential on the change we made yesterday in the last line on page 1 of the Bill, altering the words "does not object" to "contents". Having regard to the Division last night, I imagine that at least for the time being the noble Lord will not wish to debate this again and will accept these as consequential Amendments. Amendment No. 20 is also in a sense consequential. If the two previous Amendments are made then the word required is not really "object" in that context. That is why Amendment No. 20 has been put in this form, to make it accord with the Amendment carried into the Bill last night. I hope that the noble Lord will accept that these Amendments are consequential, so that we can deal with them straight away without debate and pass on to more important matters. I beg to move.

LORD STOW HILL

As the noble Viscount said, these Amendments are fairly consequential. My only difficulty is that as I was entering the Chamber a note passed to me by an expert suggested that there was a slight technical difficulty in one or more of them. Would the noble Viscount accept an undertaking that I will go into these Amendments and if there is any technical error, after communicating with him, I will put them down on Report in their improved form, if there is such a form?

VISCOUNT DILHORNE

I have a later Amendment, which cannot be said to have a technical difficulty, to change the word "thereof" to "hereof" and which I hope will be accepted. But it is seldom that one escapes some technical criticism. I will be content that these be accepted by the noble Lord, with the right to correct technical errors at a later stage.

VISCOUNT DILHORNE

I beg to move Amendment No. 19:

Amendment moved— Page 2, line 27, leave out ("not objecting") and insert ("consenting").—(Viscount Dilhorne.)

VISCOUNT DILHORNE

I beg to move Amendment No. 20.

Amendment moved— Page 2, line 28, leave out ("object") and insert ("oppose the grant of a decree").—(Viscount Dilhorne.)

BARONESS SUMMERSKILL had given Notice of her intention to move Amendment No. 21. Page 2, line 28, at end insert ("and has been given the name and address of a solicitor whom he may consult free of charge").

The noble Baroness said: It will be recalled that yesterday many of us voiced concern at the plight of the simple and ignorant respondent who would be involved in a divorce under Clause 2(1)(b), but an Amendment was moved by which the words "does not object" to a decree were changed to "consents". When we were considering this Bill, I felt strongly that what appeared to be a helpless individual should be protected and that at least she should have the attendance of a solicitor, whom she may consult free of charge. Since then the position has altered greatly. The Amendment accepted by the Committee will involve discussion between the respondent and people with special knowledge, and there will be no question but that the respondent will be well advised. Having regard to that, I feel that there is no need for me to move this Amendment.

Clause 2, as amended, agreed to.

Clause 3:

Provisions designed to encourage reconciliation

3.—(1) Provision shall be made by rules of court for requiring the solicitor acting for a petitioner for divorce to certify that he has discussed with the petitioner the possibility of a reconciliation and given him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged.

(2) If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation.

(3) Where the parties to the marriage have lived with each other for any period or periods after it became known to the petitioner that the respondent had, since the celebration of the marriage, committed adultery, then,—

1. (a) if the length of that period or of those periods together was six months or less, their living with each other during that period or those periods shall he disregarded in determining for the purposes of section 2(1)(a) of this Act whether the petitioner finds it intolerable to live with the respondent; but
2. (b) if the length of that period or of those periods together exceeded six months, the petitioner shall not be entitled to rely on that adultery for the purposes of the said section 2(1)(a).

2.41 p.m.

LORD GOODMAN moved Amendment No. 21A: Page 2, line 30, leave out ("that") and insert ("whether").

The noble Lord said: This Amendment was suggested to me and to other members of the Committee by the Law Society. I may say that I am extremely grateful to them because, having read subsection (1) with care—and I had not really noticed it previously—I find it thoroughly objectionable, and I would invite your Lordships to consider whether it should continue as part of the Bill. It introduces some principles of startling novelty and, I venture to think, also, startling absurdity.

First of all, it is a novel principle that a solicitor should certify about a matter that he has been discussing with a client. As a solicitor, I find this, to use a mild expression, wholly objectionable. What goes on between myself and my client, and between any solicitor and his client, should be a matter that is totally privileged and confidential; and the privilege is that of the client and not that of the solicitor. That I should be required to certify against my client's wish, that I may have had some conversation with him and expressed a view on some matter from which a conclusion adverse to him may be drawn seems to me to introduce an entirely new principle into the relationship between a solicitor and his client I need not tell your Lordships that the relationship between lawyer and client, is one of the most precious relationships in preserving liberty that we possess. On that very important line of principle, I think this particular provision is thoroughly objectionable.

It is also practically absurd. It requires a solicitor, when consulted by a client, immediately to discuss with him a reconciliation. The client appears and says: "My wife has just flown off to Bolivia with a millionaire, and has taken the children with her. What shall I do—get my children back and institute proceedings for divorce?" I am supposed to say to this gentleman: "The first thing I need to do is to discuss reconciliation with you. Please do not worry me with mundane details of trawl, or sordid details of your problems in relation to your wife's adultery. Let us get down to this important question of reconciliation". He will be sidling towards the door, because he will believe that he has encountered a certifiable lunatic. It is clear that in a great many cases it will be totally inappropriate that the question of reconciliation should he raised at all.

There may he cases, for instance, where the solicitor has over a period of time, even of years, already been advising the client in relation to the lady—or advising a wife in relation to her husband. He may even have presumed to advise that a dissolution of the marriage was highly desirable. He is then confronted with the necessity of having to reverse that advice and inform the client concerned that his first obligation is to discuss reconciliation; and not merely to discuss reconciliation, but to provide the client with the name and address or an agency where he can discuss reconciliation in greater detail. This is an obligation that should not be thrust on a solicitor. I think this is a sort of piece of garden suburb paternalism that might appear somewhere, but not in an Act of Parliament.

It seems to me that no more need he said about it. One could carry on at great length about this, but it might give offence to the draftsman and to people who conceived this provision to say more than I have said. As a solicitor, I take the strongest possible objection to it; and as a person who has to deal with clients I think that we solicitors can be relied on to decide when it is and when it is not necessary to discuss reconciliation. I have drafted the Amendment in terms suggested by the Law Society, to leave subsection (1) so that it says the solicitor if he has discussed this matter can, if he wishes certify that he has so discussed it. My own inclination would be to expunge the clause altogether, and I am not sure that when we come to the Report stage, warming to the subject, I shall not put down another Amendment so that there is no trace left of this phoney objectional provision. I beg to move.

BARONESS SUMMERSKILL

I have listened to my noble friend Lord Goodman on many occasions; I admire his eloquence, and very often agree with the views that he expresses. But I am profoundy disappointed to-day. I can hardly believe that in these modern times, when we are in the process of putting a Bill on the Statute Book which will afford many people the opportunity of divorce—and, therefore, many people will think about this problem—that he can adduce an argument which suggests that he is opposed to what a doctor might call preventive medicine. He says that somebody will come to him wanting advice, and he is afraid that he may be thought to be a certifiable lunatic if he gives this individual sound advice, and does not just give him the legal advice which will persuade him to go on with the case. Would he not agree that the people who come to see him are often a bit hot under the collar? There are people who love going to lawyers, and when they get to a lawyer—that is, a good lawyer like my noble friend Lord Goodman—what they need is sound advice based on common sense. I would say that it is a bad lawyer who encourages a would-be litigant to go on with a case before advice that could prevent the litigation is given.

Here we are faced with a question of divorce, a most serious matter for the other party concerned and for the children. I should have thought that a good solicitor would have leaned over backwards to prevent the case from going forward, and would say: "Now think this over. Go and see somebody." He might well say: "I am a solicitor and a busy man, and this is not in my field. Go and have a few conversations with so-and-so, so that you can think this out calmly and coolly before you go on and take the inevitable step." Surely I am using the right analogy in saying that this is preventive medicine. A modern doctor, with the assistance of the pharmaceutical industry, will tell a patient that what he needs, perhaps, is to stop smoking, to eat less, and so on, and not simply to take pills. This surely is the correct analogy. What the solicitor is being asked to do here is to say whether he has given this would-be litigant, this man or woman who wants a divorce, good advice with regard to reconciliation. I do not think any solicitor should be ashamed of that; rather should he be proud of it. I hope that the noble Lord, Lord Goodman, will think again.

LORD SILKIN

My noble friend Lord Goodman (I am not sure whether or not he is technically my noble friend: he is sitting as if he is, but he does not always do so) put a point of view which I think has to be considered in this Bill. There will be cases—not every case—where it is quite ridiculous to suggest the possibility of reconciliation. For instance, where a woman has gone off with another man and has a family by him, and the husband comes along and says that he wants a divorce, is the solicitor to say to him: "Before we talk about divorce, I am going to give you the name and address of somebody to whom you have to go for a reconciliation."? It is just a farce. But there will be cases where it might be the appropriate and right thing to do. I hope that my noble and learned friend the Lord Chancellor will be able to say that the Rules of Court that he has in mind for dealing with this provision will provide for cases of this kind. I hope we shall not be made to look foolish by compelling the solicitor in every case, whatever the circumstances are, not only to recommend reconciliation but actually to advise a person where to go to for a purpose which he must know, and the other party must know, is perfectly hopeless.

2.51 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

I have not, as your Lordships know, said anything so far, but this subsection requires rules of court to be made, and the effect of the relevant legislation is that no rules of court can be made unless the Lord Chancellor agrees with them. The rules of court here in question are rules imposing duties on solicitors, and for those reasons I am clearly ministerially responsible.

I am in some difficulty in approaching this matter because, if I may respectfully say so, I should not like it to be thought that I am approaching the question on some of the principles which have been expressed by some noble Lords in the course of the long discussions we have had. May I start by saying this. It is my recollection that when we discussed the document Putting Asunder, in your Lordships' House, the noble and learned Lord, Lord Hodson, said words to this effect—I am speaking from memory: there are only two principles on which you can have a law of divorce. One is the principle of the matrimonial fault and the other is the principle of the breakdown, and you have to choose between the two. As your Lordships know, our present law is the law of the matrimonial fault. It assumes in the main that the reason why marriages break down is that you have a wholly innocent person on one side and a guilty person on the other. It conceives of divorce as being a way of giving a prize to the innocent party and punishing the guilty party. That is quite a possible view to take; it is a view which many people do take. I rather think that the noble and learned Lord, Lord Reid—and, as he knows, I have no higher opinion of anyone's view than his—is basically a matrimonial fault man, if I may put it in that way.

The alternative view is to say that in real life there are few marriages that break down unless both parties are to some extent at fault—sometimes no one is at fault—and with many people forming second regular unions which last for years, on the whole you will do more good to the institution of marriage if you abandon the practice of the law in pretending that a marriage still exists when in fact it does not. The function of the law should rather be to enable people to bury a dead marriage with dignity, and still have respect for one another, than to go on pretending that a marriage exists when it does not. As the noble and learned Lord said, you have to choose one or the other; you cannot just end up with a muddle. If you choose matrimonial fault, then you will disagree with a lot of the necessary consequences if you choose breakdown.

The Bill is quite clear. Clause 1 says: After the commencement of this Act the sole ground on which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably. Yesterday this House, like the other House, accepted all the provisions of Clause 2, including paragraph (e), by a two to one majority. If you do that, then when you come to decide whether a marriage has broken down or not it is no good saying, "But this person is innocent". Because while fault will still be relevant to the custody of the children and in questions of finance, if the court's function is to be subject only to the very exceptional kind of case provided for by Clause 4, in the main the function of the court will be to recognise an existing state of affairs, and then conduct is not really relevant.

I cannot help thinking that there has been some confusion in your Lordships' Committee regarding paragraphs (d) and (e)—the two-year paragraph and the five-year paragraph. The five-year paragraph may well be hostile. This gives somebody, who may have behaved badly, a claim to a divorce on the ground that as husband and wife have not lived together for five years and the marriage is obviously over in fact, on the whole it is in the interests of the community that the court should recognise the fact,;rather than leave the man to say, "If I am not to have her I am not going to let any other man marry her", or vice versa in the case of a wife. To take the latter course does not necessarily make a deserted party any happier. In that sense, the paragraph would be hostile.

The two-year paragraph, paragraph (d), which, if I may say so, I thought the noble and learned Lord, Lord Reid, was also regarding as hostile, in some senses, was not intended, and is not in our Commonwealth countries used, in a hostile sense at all. Paragraph (d) is to provide for the present consensual case. There are cases where after six months people may realise that they have nothing in common, that they are totally unsuited to one another and that the whole thing is a tragedy for both of them. They agree to part; they make their own arrangements and, sooner or later, one or other finds somebody they want to marry. So the husband asks the wife whether she objects, or the wife asks the husband whether he objects. He may say, "No, I will go and see a solicitor". Very often they are amazed to discover that under our law these two respectable people can never re-marry as long as they live, because neither of them has done anything wrong; neither of them has committed adultery or is prepared to do so. Neither of them has been guilty of cruelty; neither of them has deserted the other. This is our present law.

The whole object of Clause 2(d) is to provide for just that kind of case. I have been wondering whether instead of our old petitions "John Smith against Mary Smith", we could not, under paragraph 2(d), have put in "In re John and Mary Smith's marriage" and they could go to the court together to end a marriage which was a tragedy for both of them and end it with decency and with respect for one another. Nobody is more concerned about reconciliation than I am, and I always have been concerned.

I would respectfully support my noble friend Lord Goodman in restoring this subsection to what it was until a very late hour in another place, when the word "that" was introduced on an Amendment, I think, by Sir Cyril Black. The difficulty from the point of view of a solicitor is this: I do not altogether agree with the noble Lord, Lord Goodman, that a solicitor ought not to he required to say whether he has discussed reconciliation or not. I cannot see that that will do him any harm. To say that he has to certify that he has discussed the possibility means that he has to do it in every case, whereas the Amendment proposed by the noble Lord, Lord Goodman, is to the effect that he would only have to say whether he has done so or not.

It cannot be right, I think, that a solicitor should be required to consider reconciliation even in cases where it would be obvious nonsense to do so. Where it is obvious nonsense, I should have thought he should then say: "No I have not". Take a case I read about in a newspaper the other day. A man writes a letter to his wife on his golden wedding. He is 72 years of age. He married when he was 22 years of age, and they very soon found that they were quite unsuited to one another. They parted company by agreement. He agreed to give her £10 a week, and two or three years after that he found another woman he wanted to marry, but his wife would not agree.

Now 45 years have gone by, and during all that time there is another woman who has cooked his food, darned his socks and borne him four children, who are now grown up in their turn and married. They themselves have children. Now he is writing to his wife on his golden wedding day to ask her whether she will now divorce him so that his children may be legitimised. He has always done what he has said: for 45 years he has sent her £10 a week, so she has had about £20,000. She writes back to him and says that no, she will not divorce him because she is hoping that he will die first, and then she will get his pension. It is 45 years since this man has seen his wife. They were together for only a few months, and he cannot honestly remember what she looks like. Forty-five years is an awfully long time to go. Can one, in those circumstances, imagine the noble Lord, Lord Goodman, or any solicitor, saying to the dear old man, "Well what about being reconciled with your wife"? This is the sole point of the Amendment. It will leave the position that the solicitor would have to certify whether or not he has discussed reconciliation, but it will mean that he will not have to discuss reconciliation in cases in which it would obviously be fatuous, and indeed rather insulting, to his client to do so.

BARONESS SUMMERSKILL

May I ask the noble and learned Lord whether we should leave in the word "whether". What it means is that we shall allow the solicitor who is not conscientious, the solicitor who feels he has not time to discuss matters with his client, to escape from this obligation. The original word used was "that". Obviously, wealthy people, who perhaps have discussed the whole matter before, and feel that they have not got to go to somebody who will hope to reconcile them, need not go. But if we leave the wording like this we are perhaps denying to people who really need that advice the opportunity of having it, because this wording will allow the bad solicitor a way out.

3.2 p.m.

BARONESS GAITSKELL

As I have been extremely confused, with my noble friend Lady Summerskill, may I, very briefly, make my position clear? I think that this is one of the weakest clauses of the Bill. I should like to support my noble friend Lord Goodman on this Amendment. I can only think that this is the result of one of those compromises that one has to have when drafting a Bill like this. I am entirely for reconciliation, but I believe (I say this with all respect) that there are far better people to do this than solicitors. There are marriage guidance officers; all kinds of societies can do this. As I say, I think this is one of the weakest clauses in the Bill.

LADY RUTHVEN OF FREELAND

I should like to support the Amendment moved by the noble Lord, Lord Goodman. I think that when a marriage has irrevocably broken down, and one party has taken the step of going to a solicitor to try to obtain a divorce, he or she would be extremely annoyed if the solicitor suggested that there should be reconciliation. You have thought about—it you do not enter into these matters lightheartedly—and I think that if that were done the average person would leave that solicitor and go to another.

LORD HAWKE

May I ask the noble Lord, Lord Goodman, whether, in the event of his Amendment being passed, it would be proper for the court to ask the solicitor why he had not discussed with the parties the question of a reconciliation?

LORD GOODMAN

I can only say this. I am not in love with this clause as amended. I imagine that the powers of the court would be limited to the provisions in this particular clause and that, the solicitor having certified that he had discussed the matter, that would be the end of it. But I think there is a certain vice in having the provision go even this far. I believe that the discussions between solicitor and client should be totally confidential; they should not be the subject of any disclosure to anyone. There are matters transcending in importance even matrimonial positions in preserving that relationship.

LORD WELLS-PESTELL

Far be it that I should rise to the defence of solicitors—or for that matter of my noble friend Lord Goodman, who I am sure does not need it; but I think the situation should be clearly understood. I know how couples come to conciliators so far as the country as a whole is concerned.

I am thinking not solely of marriage guidance counsellors but also of probation officers, clergy, and other people who can be called conciliators. A substantial percentage of the clients who go to them are in fact referred to them by solicitors.

I do not like this clause at all. What worries me is this. Who is gang to compile the list of conciliators? Who is going to determine their competence and ability. I should certainly like to see Clause 3(1) looked at afresh, because I feel there must be another way of doing what is wanted. I think one ought to say that solicitors as a whole have shown that they have a very real interest in conciliation and do in fact refer quite a large number of their clients who are wanting separation or divorce to conciliators.

LORD DOUGLAS OF BARLOCH

This is a most objectionable subsection. At the very least it ought to be amended in the way the noble Lord, Lord Goodman, has proposed. Better still, it should be left out of the Bill completely. It is insulting to the profession of solicitor to put in this provision. Here is a Bill which says that divorce is based upon the breakdown of marriage. If somebody comes to consult me about this, surely, the very first thing I do is to find out whether there are grounds for believing that the marriage has broken down. If I come to the conclusion that it has not. I advise my client that there is not a case for divorce. If I come to the conclusion that it has broken down, I advise my client accordingly. But it is not my business, as a solicitor, to try to upset things as they exist at the moment when I am consulted. I must take the facts as they are; it is not my business to try to alter them. That may be a very proper business for somebody else, and in my experience in the vast majority of cases there have already been attempts to produce conciliation between the parties They have been to probation officers they have been to marriage guidance clinics or to clergymen or to others. Let them do so by all means: I do not want to break up marriages. But it is insulting to ask me to put in a certificate that I have considered the very first thing that I must consider; namely, whether or not the marriage has broken down. It is an accusation that solicitors are constantly in breach of their normal duties.

LORD CHORLEY

I think we are making altogether too heavy weather of this business. The noble Lord, Lord Goodman, suggested that he had to start off, when the respondent had gone off to Columbia, by mentioning this to the client. Of course he does not. It does not say at what stage one must do it. Solicitors are sensible men. It is done when it is appropriate. If it is obviously a case where reconciliation is not possible, one would say, "Well, by the terms of the Act of Parliament I must draw your attention to the point: is reconciliation possible?"

The noble and learned Lord will draw up rules which will set out the proper sort of societies, which gets over the difficulty of the noble Lord, Lord WellsPestell. I should not have thought there was anything very much in this. Nor does the solicitor have to disclose the sort of secrets which the noble Lord, Lord Goodman, suggested. All he has to do is to certify to the court that mention has been made of reconciliation. I think we are wasting a lot of time over a very small point.

LORD CONESFORD

I do not think it is ever a waste of time to consider whether we are putting something rather ridiculous into an Act of Parliament. I do not wish to elaborate, but I can see no useful result following from this subsection. However, we need not consider that now, because everybody is of opinion, so far as the debate has been conducted, that if it is to be retained in the Bill at all we must have the Amendment proposed by the noble Lord, Lord Goodman.

LORD FOOT

May I express some surprise at the intervention of the noble Lord, Lord Chorley, in this matter? I had thought that at the outset of this discussion the noble Lord, Lord Goodman, had completely demolished this clause as it stands; indeed, it does not bear any further investigation. What I find offensive in the clause as it now stands is that we are writing into a Statute an instruction to solicitors as to how they are to conduct their affairs with their clients and what advice they are to give them; and we are requiring of them by Statute that they shall tender certain advice, or discuss certain matters with their client. That seems to me to be wholly objectionable, and this appears to be the answer to the noble Baroness, Lady Summerskill, when she asked why solicitors should object to being required to discuss reconciliation. I do not think they do. What we object to is the fact that it is being written into a Statute that we are under an obligation in every case to put the question of reconciliation to the client, however, absurd and ridiculous the whole thing may be. Therefore I think that, without further ado, we should accept the Amendment, which is at least some mitigation of what, on the face of it, is a complete absurdity.

3.12 p.m.

LORD WELLS-PESTELL moved Amendment No. 22: Page 2, line 35, after ("divorce") insert ("or any proceedings ancillary thereto").

The noble Lord said: In moving Amendment No. 22 I hope your Lordships will feel that I can deal at the same time with Nos. 23 and 24, which also relate to Clause 3(2). Subsection (2) deals exclusively with reconciliation and imposes a duty on the court to adjourn a case if the judge feels that there is a reasonable possibility of reconciliation between the parties to the marriage. I would like to point out that this particular subsection is concerned only with reconciliation. So if the court is of the opinion that there is no possibility whatsoever of a reconciliation being effected between the parties, it will not adjourn the case. What I seek to do in Amendments 22 and 23 is to widen the situation slightly, and I hope your Lordships will feel, and that my noble friend Lord Stow Hill also will feel, that these are not contentious matters and are there only to help the parties who are coming before the court.

In my view, we have to keep in the forefront of our minds the fact that when a husband and wife appear in a divorce court, no matter how many years they have been apart, there is still, in the vast majority of instances (and I say this with some experience of divorce and separation, in divorce courts and magistrates' courts), a marked degree of hostility existing between them. There is also, shall say, a good deal of conflict existing between them. In many instances the hostility is so marked and the conflict so deep that they are not able to take either a fair or a reasonable view of each other—and this is perhaps perfectly understandable. What I should like to see is that the court can use the services of conciliators not only in matters of reconciliation but also in the many other flatters affecting both husband and wife, and particularly the children. We have had for some years divorce court welfare officers, and they are mainly, if not exclusively, probation officers who have been specially assigned to the various divorce courts to assist the court in all sorts of ways.

My first Amendment, which seeks to insert "or any proceedings ancillary thereto", is designed to enable the court to use the services of the conciliators where there are perhaps difficulties over the custody of the children, where one party wants the child simply because he or she wants to use the child as a stick with which to heat the other, and not so much because he or she may want the custody of the child. Even where the custody is agreed upon between both husband and wife, there is often disagreement between the parties with regard to access. Those of us who sit in domestic courts, in magistrates' courts, know that very often there is agreement between the parties as to who shall have the custody of the children, but not infrequently, as many of your Lordships know, the parties cannot come to an agreement with regard to access. This is a matter, if I. may say so with very great respect, that conciliators in divorce courts could undertake. If they are confined, as they are at the moment, to reconciliation, then I suggest that the conciliators will not be able to be used for the ancillary matters.

With regard to my second Amendment, "or a narrowing of the areas of conflict", I think that by seeing the husband and the wife, not together but separately, the conciliators can help them to discharge the pent up emotion that has been building up over the years. By helping them to get it off their chests and helping the husband and wife to discharge these feelings of conflict and hostility, one can so often get them in a much better frame of mind whereby they can come to agreement on matters of property, on matters of the children and relating to the children.

My third Amendment is to delete the last few words in line 39, "to effect such a reconciliation." That is not because I am against reconciliation. Reconciliation is already mentioned in lines 36 and 37, and what I want is for it to be broadened so that the conciliators can deal not only with matters ancillary to reconciliation but can also be used, if the court thinks it desirable, to help to narrow the conflict between the parties. I beg to move.

BARONESS BIRK

I have great sympathy with what my noble friend Lord Wells-Pestell has said. As I sit on a matrimonial bench, I see many of the problems that he meets. What worries me, quite frankly, is the second Amendment, "or a narrowing of the areas of conflict", not because I do not think that attempts should be made to do this, but because I think there are some dangers involved in it. In the first place, I think that attempting to effect a reconciliation automatically includes what my noble friend desires. I am sure that my noble friend will agree with me when I say that in my court, and I am sure in his, at every possible opportunity we try to adjourn a case in order that the parties can talk to the probation officer in the hope that there will be a chance of reconciliation. I wish sometimes that the magistrates could get together with the parties alone, without all the lawyers around, and talk to them. But that is a different point.

I think my noble friend will agree that the problem is that when people have geared themselves up to come to the matrimonial court, or in this case the divorce court, it is very difficult to unwind the wheels again; so that a great deal of this work needs to be done in advance. What worries me about "narrowing of the areas of conflict" being put in the Bill is that it could be interpreted so that proceedings are adjourned in order that this may be done. Although the will and the intention are good, you might come up against the danger of building up more bitterness between the parties; because by creating a further lapse of time it is often made more difficult, as there is this amount of bitterness, and you might do more harm than good. I should have thought that this did not need to be spelled out, that the divorce welfare officers, in the same way as probation officers, are perfectly well aware that there are possibilities of reconciliation. It follows absolutely naturally that if you cannot get that you get the best accommodation or agreement between the parties on access to children, and so on. One thing that has been of help has been the changes in regard to maintenance, so that one can give more for the children. This also helps in regard to the question of bitterness. It is not that I am against this provision, but frankly I do not feel that it has a place in the Statute Book.

3.20 p.m.

LORD STOW HILL

I should like to endorse what the noble Baroness, Lady Birk, has said. Obviously, this is an Amendment which springs from the best of motives. But is it really practicable? What one is talking about is the judge adjourning proceedings for divorce—proceedings which will lead to the dissolution of the marriage bond—if he thinks that there is a chance of reconciling the parties so that no divorce takes place and the marriage is saved.

As originally drafted, this clause allowed the judge to adjourn the proceedings only for a maximum period of three months. That limit on time was removed when the matter was discussed in another place, so that the judge has an unlimited power. I submit to the Committee that if we were to incorporate these additional provisions in the Bill, we should be introducing an element of uncertainty which is not in the interests of the parties. They want to know, are they to be divorced or not?

If there is a chance of reconciling the parties an attempt can be made. But the first thing that really should reach certainty, after any attempts at wholesale reconciliation have been gone through, is whether or not the marriage is to be dissolved. The courts can always adjourn ancillary proceedings. One does not have to put a specific order into an Act of Parliament. A judge or registrar, or a county court judge, can adjourn proceedings relating to children or to the financial arrangements, if he thinks it appropriate, with a view to the parties' coming to some understanding. It is not necessary to put that in a Statute. But what is, I think, thoroughly undesirable is to introduce this element of waiting to find whether, in the ultimate resort, this marriage is going to stand or to go. For those reasons, I hope that the Committee, while understanding perfectly the sincerity and excellence of the noble Lord's motives, will nevertheless think that these proposals are not necessary.

LORD WELLS-PESTELL

It is not my intention to keep your Lordships long, but I find it difficult to understand the reasoning of my noble friend Lord Stow Hill. If a court can do these things, then presumably it can adjourn for the purposes of reconciliation. Why do we have Clause 3(2) in at all? If the court has these powers it seems to me to be quite unnecessary to incorporate them in the Bill. It is because of the wording of Clause 3(2), which in my view limited it to reconciliation, that I felt it was desirable, in the interests of the parties, that we should include something whereby the conciliator could at the request of the court deal with other matters. I think there is a danger in confusing the function of a probation officer in a domestic court with that of a welfare officer in the divorce court. The two functions are rather different, and I cannot see that by talking matters over the couple can, shall I say, increase their hostility, as my noble friend Lady Birk suggested——

BARONESS BIRK

May I intervene? It was not the talking over that I thought would increase the hostility: it was rather the adjournment or the delay in order to achieve the narrowing of the area of conflict which my noble friend has in mind.

LORD WELLS-PESTELL

There is going to be an adjournment in any case if the learned judge feels that there is a possibility of a reconciliation. Therefore, as there is going to be an adjournment for that purpose, I see no reason why the ancillary matters could not be dealt with at the same moment.

LORD HODSON

Before this matter is finally disposed of I should like to put one point of view, which I think has already been mentioned. It seems to me to be very odd that Clause 3(2) should be necessary at all. As things are, it would be a very strange judge who, if he saw a possibility of reconciliation emerging, did not adjourn the case. I have never yet met such a stony-hearted judge. I agree that it seldom happens that the chance of reconciliation arises at that late stage. If it does, what judge would not adjourn the case? It is very odd that he should be told in an Act of Parliament what he ought to do.

On Question, Amendment negatived.

LORD WELLS-PESTELL move Amendment No. 23.

Amendment moved— Page 2, line 37, after insert ("or a narrowing of conflict".)—(Lord Wells Pestell.)

On Question, Amendment

LORD WELLS-PESTELL move Amendment No. 24.

Amendment moved— Page 2, line 39, leave out ("to effect such a reconciliation").—(Lord Wells-Pestell.)

On Question, Amendment negatived.

THE CHAIRMAN OF COMMITTEES (DIE EARL OF LISTOWEL)

Before I call Amendment No. 25, I think I should point out to the Committee that if Amendment No. 25 is agreed to I cannot call Amendment No. 25A.

3.31 p.m.

VISCOUNT DILHORNE had given notice of his intention to move Amendment No. 25: Page 2, line 42, leave out subsection (3).

The noble and learned Viscount said: I do not think that my Lord Chairman need have the least anxiety about not being able to call Amendment No. 25A, for the simple reason that I do not think there is any possibility whatsoever of subsection (3) being left out. I tabled this Amendment as it was consequential on my first Amendment on the Order Paper, which was, as the Committee will remember, to leave out paragraph (a) of Clause 2(1). In order to make the matter look right, I had to table this Amendment.

But I should like to ask the noble Lord, Lord Stow Hill—and I hope the Committee will agree with my doing this—whether he intends to go beyond Clause 3 to-day, because, as I see it, when we get to Clause 4 we are going to start a very important debate on Amendment No. 27, which is hound to last a very considerable time, and it would be a great pity if that debate were interrupted.

I know that the noble Lord, Lord Stow Hill, does not think that we have made good progress to-day But I should like to congratulate him on the progress that he has made, despite the length of his and my speeches, and to say that I should have thought that any promoter of this Bill would have been very satisfied and pleased by the progress that has been made.

I must be careful, or I shall be getting out of order and shall be accused of filibustering, which I am not. All I have risen to my feet to do is to ask leave not to move this Amendment. But if the noble Lord will say that when we have finished Clause 3 we can then call it a day, and leave this very important debate to be taken as one item, at one bile—as, otherwise, we shall certainly have to adjourn it—I think the Committee will welcome it.

BARONESS SUMMERSKILL

My name is down to this Amendment, and may I say a word in support of my noble and learned friend Lord Dilhorne in his appeal to my noble friend Lord Stow Hill behind me. I would ask him to reconsider the matter, because I think he wants to go on. We shall soon be starting on finance, and since Clause 4 is tremendously important it would be a great mistake if some people made speeches to-day and we then waited until next Tuesday before the debate was continued. Of course, it is for the Committee to decide.

LORD STOW HILL

I am very grateful for the patience of noble Lords in their consideration of this Bill to-day. I should be very pleased indeed if we could break off after concluding out discussions on Clause 3. What I had in mind to do, as it seemed to me that we were fairly near the end of our discussions on Clause 3, was to ask leave to move the adjournment of the Committee as soon as we had done that, which I anticipated might be at about ten to four, or something like that. I am sorry that the noble and learned Viscount received the impression—I hope not from my countenance—that I was discontent. On the contrary, I thought that my countenance was beaming with beatitude: that was the state of my inner soul. I am indeed grateful for the hard work which noble Lords have put into this Bill on this Friday, and I should have thought that we had progressed well and were within measurable distance of the end. I have indicated what would be my intention—if that is relevant to what is before the Committee at the moment.

Clause 3, as amended, agreed to.

House resumed.