HL Deb 24 July 1969 vol 304 cc1079-90

3.6 p.m.

LORD STOW HILL

My Lords, I beg to move that the Report be now received.

Moved, That the Report be now received.—(Lord Stow Hill.)

On Question, Motion agreed to.

Clause 2 [Proof of breakdown]:

VISCOUNT DILHORNE moved Amendments Nos. 1 to 4:

Page 1, line 13, leave out ("since the celebration of marriage")

Page 1, line 16, leave out ("since the celebration of the marriage")

Page 1, line 22, leave out ("since the celebration of the marriage")

Page 2, line 1, leave out ("since the celebration of the marriage").

The noble and learned Viscount said: My Lords, I think it would be to the convenience of the House if the first four Amendments in my name were all taken together. They all raise the same point, to leave out the words "since the celebration of the marriage" where those words appear in paragraphs (a), (b), (d) and (e) of Clause 2 (1) of the Bill. I referred to this matter in Committee, and the noble Lord, Lord Stow Hill, said that he would consider it. I have put down these Amendments because it seems to me that the inclusion of these words really serves no useful purpose; and, indeed, their omission from paragraph (c), if they are in all the other paragraphs, might lead to difficulties.

I do not suppose that anyone would think that a divorce founded on adultery could possibly be granted on adultery if that adultery was committed before the marriage. Therefore, in relation to paragraph (a), it really seems unnecessary to have the words, "since the celebration of the marriage", included in relation to adultery. It might be, I suppose, that someone could be regarded as having committed adultery through cohabitation with a married person before marriage. But if anyone, after this Bill is passed, had the temerity to seek to base a petition upon that ground, I should think that it would have very short shrift indeed.

With regard to paragraph (b), it seems to me that the language as it now stands is open to misunderstanding. That paragraph reads: that since the celebration of the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". The inclusion there of the words, "since the celebration of the marriage", would make it appear that to come within that particular provision you have to find conduct which commenced on or shortly after the celebration of the marriage. I know that that is not the intention of the promoters of the Bill, but it seems to me to be a fair or possible interpretation of the language used. Therefore, I think that the words would be better left out of paragraph (b).

When one comes to paragraph (c), it is curious that the words included in the other paragraphs are not included there, and I think it shows that there is really no need for them at all. But when one comes to paragraphs (d) and (e)—the living apart provisions—there is a specific reference to the parties to the marriage living apart for different periods, and it really is otiose to say that the parties to the marriage must have lived apart since the celebration of the marriage. These are really drafting points, and I should therefore like to move that those words be omitted. I beg to move.

LORD STOW HILL

My Lords, I am grateful to the noble and learned Viscount for the thought that he has obviously given to this matter, and for the trouble he has taken in framing the Amendments and putting them on the Marshalled List. The advice that I give to your Lordships is that they will improve the Bill and remove uncertainty, and I hope that your Lordships will accept them.

LORD LEATHERLAND

My Lords, we are asked to accept all four of these Amendments in the same spirit. But is there not a difference in the significance of the words, "since the celebration of the marriage" in the respective paragraphs (a), (b), (d) and (e)? I would myself have no objection to deleting them from paragraph (a); similarly, with regard to paragraph (d). But let us look at paragraph (b). It may come to the knowledge of the wife that her husband, ten years before the marriage, had been living a homosexual kind of life. Is she to be deprived of the opportunity to bring that up and say, "I cannot continue to live with him."? The noble Viscount, Lord Dilhorne, may have an answer which will explain that.

VISCOUNT DILHORNE

My Lords, I think I have a very short answer to that point. If the noble Lord will look at paragraph (d) again, he will see that it reads: that since the celebration of the marriage the parties to the marriage have lived apart for a continuous period of at least two years being a period immediately preceding the presentation of the petition …

LORD LEATHERLAND

No, my Lords; I am referring to paragraph (b).

VISCOUNT DILHORNE

As to paragraph (b), I would certainly say that conduct prior to the marriage should not afford a ground for divorce, and I do not think that there is any risk of that happening as a result of the dele ion of these words. If these words are kept in as they are now, it seems to be arguable, to say the least, that you can come within paragraph (b) only if you find that the conduct complained of had started fairly soon after the celebration of the marriage.

On Question, Amendments agreed to.

3.12 p.m.

THE EARL OF CORK AND ORRERY: moved Amendment No. 6:

Page 2, line 22, at end insert— ("Provided that in the calculation of the period of at least five years for the purposes of section 2 (1) (e) regard shall not be had to any period during which the parties to the marriage lived apart prior to the time when one party decided on account of matnmonial difficulties to live separately from the other.")

The noble Earl said: My Lords, this Amendment is designed to provide a much more complete and, I think, more satisfactory definition of "living apart" than is at present contained within Clause 2 (5). Its particular application is to Clause 2 (1) (e), the matter of living apart for five continuous years affording grounds for divorce, and, to some lesser extent, to Clause 2 (1) (c), the matter of desertion for a period of two years. Your Lordships will remember that we had an interesting and quite important debate during Committee stage on an Amendment somewhat similar to this. At the end of it, the noble Lord, Lord Stow Hill, undertook to go carefully into this definition and to do his best to come back to the House with an improved clause. However, the noble Lord has not succeeded, for reasons which he has, with his invariable courtesy, indiciated to me and which he will doubtless explain to your Lordships in due course. But it remains true that the problem of the definition of "living apart" contains what the noble Lord himself has described as "an extremely difficult point". I think those were his words.

The point, my Lords, is this. It is not enough to say, I submit, that a five-year separation is sufficient by itself to prove that a marriage has irretrievably broken down; and I suggest that it is important to bear in our minds those words which have been put forward by the noble Lord and others as the basis of this Bill—that irretrievable breakdown is the only acceptable basis for divorce. A five-year separation is not enough in itself to prove that such a breakdown has occurred. It must be necessary also to show, I submit, that that separation was brought about by causes which themselves arose from a difficulty of a matrimonial kind; or, to put it in another way, that the people concerned had been living apart for five years because, for one reason or another, they could not bear to live together. In other words, they must have been undergoing some conditions of estrangement, to put it at its mildest, for the whole of those five years. This notion of estrangement is at present totally absent from this part of the Bill, and the Amendment is designed to bring it in.

At the risk of being repetitious, the intention is clear. The five-year separation must, to be effective, provide proof, or must amount to proof, of breakdown of the marriage. Does it in fact prove anything of the sort? I think the answer is "Yes" if the petitioner can satisfy the court that the whole separation was brought about by matrimonial difficulties. The onus rests upon him, as it must upon any petitioner, of showing that that is so; and showing in this case that the five-year period began at a particular point, that point having arisen or occurred when the matrimonial difficulties became such that one party to the marriage decided that he could no longer live with the other. That is probably clear. May I, for the sake of brevity, refer to that period of five years, beginning with a matrimonial whim, as period A? It will save a lot of words later on if your Lordships will accept that idea.

Now what happens if these people have already lived apart for other reasons, or were living apart for quite other reasons, when period A, the five-year qualifying period, began? Are we to add that earlier period of separation, which had nothing to do with the breakdown of the marriage, to period A, the breakdown period, thereby putting the beginning of the five-year period back to an earlier starting point in time? The Bill, in Clause 2 (5), says "Yes", for the Bill, or that part of it, is interested only in the total length of living apart and is not interested in any way in the reasons why those people were living apart. Therefore, the whole of the period, however caused, may be taken into account as a part of period A, and qualify as grounds for divorce. I say it ought not. If I may—I hope, again, in the cause of simplification and not of complication—refer to that period as period X, I say that period X must not be added to period A.

Let us consider what period X consists of. This is separation which has arisen through causes quite unattributable to any kind of marital breakdown—and they may be causes which are either voluntary or involuntary. On the Committee stage we discussed only involuntary ones, such as imprisonment or overseas postings, but voluntary ones must be thought of as well—where, for example, the husband, with the full agreement of his wife, accepts a job overseas. They agree to this, looking forward to a happy reunion at the end of it, perhaps in more prosperous circumstances. He may have been able to take a job at more money than he is getting for the one he is doing. Or the husband may perhaps elect to sail around the world. The wife approves and is perfectly happy. This is something of which we have heard quite a lot lately. Is that kind of separation to be included in the five-year period qualifying for divorce? Surely not, my Lords.

Now involuntary separation, which we have already touched on in the earlier debate; that is to say, separation quite unattributable to rift in the marital lute, brought about by circumstances quite outside the control of either of the parties—such as, for example, a man who finds himself in prison or in hospital, or a regular soldier sent to Hong Kong, or an airman, or a sailor on patrol in a nuclear submarine, or a policeman in Anguilla. Are these periods apart to be included as well in the qualifications for divorce, in period A? Again, my Lords, surely not.

One answer to this question has already been advanced with considerable cogency by the noble Lord, Lord Stow Hill. He says, "They should be added", and he puts forward this particular argument. What will happen if a person is separated from his wife, or one is separated from the other, perhaps for a long period of years in prison, and then it turns out that the one who is left outside, probably the wife, concludes that she cannot possibly look forward to a reunion at the end of this long period of separation? Is she then to be prevented from starting the five-year period simply because the other person is not there?

The answer, I concede at once, is, No. if we take the ground for starting this five-year period as being one of matrimonial difficulty, which is the phrase used in the Amendment, it is open to the potential petitioner to say, and to make it perfectly plain, that she would not have a temporary reunion with her absent partner on any terms. She is able to do that, or should be able to do that, Whether that person was living in the next room or sitting on the next chair, or was in prison or in Siberia or in Australia or anywhere else. The point is that a matrimonial difficulty has occurred which is established by the fact that one partner cannot go on; and therefore the irretrievable breakdown of the marriage, the five-year period, begins to run from that time.

The petitioner is protected against the difficulty which has been argued reasonably by the noble Lord, Lord Stow Hill, of being unable to initiate the qualifying period A for divorce, the five-year period, simply because his or her partner has been absent, whereas the other person who is presumably the respondent is in turn protected from receiving the extra punishment of finding himself liable to divorce, of finding his marriage being destroyed, in addition to the punishment he has already received by being in prison or in Australia—which is manifestly unjust to him. By this means I think that both parties to the marriage will be protected from injustice and unfairness and at the same time the divorce will become possible at the end of a five-year period for the reason that is laid down—and I will repeat this again—on the basis that the marriage has irretrievably broken down and is seen to have been in a state of having broken down for five continuous years.

The noble Lord, Lord Henley—and perhaps other noble Lords, but particularly Lord Henley—suggested that there are already safeguards in the Bill to prevent things going wrong in the way that I have suggested unjustly to the absent partner. He adduced his argument in support of this contention from the provisions of three subsections already in the Bill. The first is contained in Clause 2 (3) which says that if the court is not satisfied that the marriage has broken down it shall not grant a divorce. That is to say, to quote the noble Lord, they could refuse a divorce. The noble Lord said: … if there is an unwilling respondent who has been absent for more than five years and is being divorced against his wi11, the duty of the court is to refuse the divorce … under Clause 2 (3) … "—[Official Report, 11/7/69, col. 1358.]

This, in fact, is no safeguard, because the court may be satisfied that the marriage has broken down and therefore will be required to grant a divorce. But under this clause the court will no; have to be satisfied that the marriage has been in a state of breakdown for five continuous years. All it requires is that the people should be living apart—perhaps one is in prison—and that the marriage has broken down; and that can be after a period of breakdown lasting only one year. The petitioner can say that his marriage is totally dead and that he refuses to live with this woman. Simply because of this decision—which, perhaps, he came to only two weeks ago or, say, three years ago—there is no difficulty in obtaining the divorce because in fact the partner has been away for five years. So Clause 2 (3) provides no safeguard at all.

The second argument that the noble Lord adduced was based on Clause 3 (2) which provides that if the court feels that "there is a reasonable possibility of a reconciliation" the court may adjourn the proceedings for that reason. Here, again, it may be plain to the court that there is no chance of reconciliation whatever. It does not need five years to establish the fact that there is no chance of reconciliation. Any petitioner can say, "I will not hear of a reconciliation". If he says that, then the court is bound to accept his word that there is no possibility of reconciliation and the divorce must be granted simply on the evidence that they have not lived together for five years—for no matter what cause. So there is no protection, no safeguard under that subsection. The third safeguard that the noble Lord claimed to exist was in Clause 4, which deals with the financial or other hardships. Clearly, it is not reasonable to suppose that in any particular case there will be hardship of any kind. Divorces can come about between persons who are exceedingly affluent and entirely prosperous. There need be no hardship whatever to the respondent in the divorce; and, in fact, the question of hardship need not enter into the case at all.

My Lords, here we have three alleged safeguards, none of which can be expected to operate in any particular case—and probably not in the majority of cases. I submit that those three safeguards are totally disposed of by these arguments. There is no safeguard whatsoever in the Bill to prevent a divorce being secured under the five-year rule even though the marriage has not broken down for as long as five years. The words in the Amendment as introduced, "matrimonial difficulties" I have already referred to. I submit that with those words in the Amendment we have a safeguard against precisely the difficulty that it is intended to meet.

I will put this difficulty in a slightly different way. It is this. The Bill—and I repeat it again—is devised explicitly to allow divorce only after proof of total breakdown of the marriage. Despite that express intention, it provides divorce on the demand of any one person who may apply for it after living away from the husband or the wife, for no matter what reason, for five years. I believe that this Amendment, or something like it, will effectively reduce the danger of a total breakdown of the law of divorce—a law which is required not only to provide divorces in certain circumstances but also to prevent divorces in circumstances in which they are not required or just. We should not merely make divorce easy but also make marriage more secure. In my submission, this clause undermines the institution of marriage. I therefore commend this Amendment to your Lordships, and I beg to move.

BARONESS SUMMERSKILL

My Lords, we have debated this aspect of the Bill before; but on reading Hansard I was very disturbed at the expressions used by my noble friend behind me. I am quite sure that he has not given enough thought to this aspect of the Bill. If I may remind him, the noble Lord, Lord Stow Hill, said on Committee stage: 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."—[Official Report, 11/7/69, col. 1345.] Then he said, in reference to a noble Lord: 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."—[col. 1346.] I want to bring to the attention of the House the position of the women prisoners. Holloway, I believe is only half full; and I am given to understand most of the women there are first offenders. If a woman has been convicted of a certain number of petty larceny offences, she might perhaps be sentenced to a year or two; an abortionist might get a five-year sentence; a woman who has forged a signature could, I suppose, get two, three or four years. May I remind the House that we are not talking about hardened prisoners, because I am told that there are few recidivists among women. Here we are telling a woman, when she is sentenced, not only that she is not only going to be given the period of imprisonment which has been thought appropriate by those people who consider what is the appropriate sentence for a certain crime but also that the time spent in prison will count if her husband decides to divorce her.

Your Lordships will forgive me if I again put the position of the woman. We cannot equate the position of a woman in prison with that of a man in prison. The woman has left her family. She may have committed some crime, but no one can deny that the woman may be an affectionate wife and a devoted mother. One has only to go to the maternity ward in Holloway Prison to be convinced of that. If this matter is left as it is, a woman will have another sentence. Not only will she be sentenced as decreed by the law, but she will have to endure a sentence which stems from this Divorce Bill. Surely, my Lords that is not our province. A woman will be told that if she is in prison for five years her husband can divorce her although she has not been guilty of a matrimonial offence.

LORD HAWKE

My Lords, may I interrupt the noble Baroness? Cannot such a woman just claim that the marriage has not broken down? According to Clause 2 (3) she has only to say that and the other party has to prove that the marriage has broken down.

BARONESS SUMMERSKILL

My Lords, I am coming to that. The noble Lord must not think I am so simple as all that; I have been involved in these matters for many years. I want to explain that very often when a woman is convicted her husband, quite understandably, has to find another woman to look after the home and the children; that is the norm. A woman, perhaps from up the street, may come to look after the home. She knows when the wife is coming back from prison. We are now introducing a provision which the woman from up the street will know all about; and she may say to herself, "If I make myself of such great use to this husband that he feels that everything is happy, he will not want to get rid of me." If the woman responds to the husband's invitation to sleep with him, of course the marriage will break down and we are enabling this to happen. The wife has not the slightest chance of effecting a reconciliation. She is in her cell and it is no good for her to say, "When I get out I am going to start again anyhow, and in my home I will try to be a bit better"—if she has had trouble with her husband. Here we are helping to establish not only the breakdown of the marriage (because the newcomer will know that a divorce can be automatic); we are encouraging the husband to divorce his wife.

It is not a question of the wife's having to serve a long sentence. All the small sentences are going to add up. This is utterly cruel. I plead with your Lordships that, for a woman, a home is a different place than a home as seen by a man who is in prison. It is her life. Her maternal instincts are bound up with her home; and we are saying that she is not only to spend a number of years in prison but that this may involve her in a divorce which she is quite helpless to avoid because it will be impossible for her to effect a reconciliation. My Lords, I ask my noble friend, Lord Stow Hill, whether it is our province to put a provision into the Bill which would not only make a sentence imposed upon a woman doubly hard but which would threaten to undermine the whole of the kind of life to which she attaches so much importance. Therefore I ask my noble friend once more to take back the Bill and think what he can do to alter its provisions in order to avert what I consider would be a grave injustice.