§ 3.37 p.m.
§ Report stage resumed.
§ BARONESS STOCKSMy Lords, may I ask my noble friend Lady Summerskill to clear up one point in her speech which I did not follow? She seemed to suggest that it would be possible in regard to a woman who has received a number of short sentences for them to be added up, whereas presumably the clause relates to a continuous separation. A woman may be sentenced to six-months' imprisonment and go home after serving that sentence; and she may be sentenced to another six months and then go home again. That is not a continuous separation, and very few women get a continuous sentence of five years.
§ BARONESS SUMMERSKILLMy Lords, if I said that, it was a verbal slip. I was talking about short sentences and describing sentences given to women. If short sentences as well as long—
§ BARONESS STOCKSIf they are short sentences they are not continuous—
§ SEVERAL NOBLE LORDS: Order!
§ THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (LORD SHEPHERD)My Lords, I see that my noble friend Lord Silkin is in the Chamber and he reminded me the other day about the procedure on Report stage. It might therefore be in order for me to remind the House that on Report the only person who has the right to speak twice on an Amendment is the noble Lord who moves the Amendment. In view of the large number of Amendments which we have on the Marshalled List I hope that the House will feel that we should strictly obey that particular rule.
§ BARONESS SUMMERSKILLMy Lords, may I ask my noble friend whether it is in order for me to answer a question?
§ LORD SHEPHERDMy Lords, I gathered that the noble Baroness, Lady Stocks, asked my noble friend whether she would answer a question and I thought she did it in the context that my noble friend Lady Summerskill had not resumed her seat; but I think it would 1092 be going a little too far if my noble friend Lady Stocks were to ask a second question.
THE LORD BISHOP OF EXETERMy Lords, I think that we are all agreed that this is a very difficult matter and the arguments advanced in favour of the Amendment have a certain force. There is, however, another side to it which is equally difficult. What this Amendment really requires is that when a separation occurs, whether it be voluntary or involuntary, one of the two parties must decide at once that it is going to be a separation because of a matrimonial difficulty; that is, that the five-year period shall start to run. I think it would be most unfortunate if any pressure whatsoever were put on the parties to a marriage to declare at that early stage that the parting was to be for ever, but this in fact is what the Amendment would do. If one of the parties came to a solicitor about a maintenance order, or whatever it might be, the solicitor would say, "Yes, certainly; but, you know, if you want your five-year period to run you had better say now that it is for ever." I think that most people who get into this kind of matrimonial difficulty do not want to do that. They may not yet have made up their minds that it is forever. Probably they hope—it may be even hope against hope—that somehow or other matters will come right. And then they do not come right. This Amendment says that in two years' or in three years' time a person must go and say, "Because of matrimonial difficulties, I can never go back to my husband "—or wife, as the case may be—and then the five-year period starts. I cannot see much sense in that.
There is a further difficulty—about prisoners. We see the amount of injustice where the separation has been quite involuntary. Consider this case. A man is sent to prison for five or seven years, and although the wife, for the sake of the children, may be determined at the end never to have him back, she feels a duty towards him while he is in prison to visit him and write to him, and she does this. Then her solicitor may say to her that she had better be careful, because the judge may say that because she has visited her husband and written to him, and he has written to her, there has not been this continuous separation 1093 and therefore the marriage has not broken down. The solicitor might add, "So, if I were you, I would keep away. Have nothing to do with him." My Lords, this is monstrous. And I believe that this is what would happen if this Amendment were carried. Therefore, though I perfectly understand and sympathise with the arguments in favour of the Amendment, I feel that I must vote against it.
§ BARONESS GAITSKELLMy Lords, I oppose this Amendment because it seeks to qualify the definition of living apart and to make exceptions. The very fact of trying to make exceptions only leads to confusion. And let us not forget—and here I speak to my noble friend Lady Summerskill—the court has the final power of discretion, and in the cases she quoted I do not believe that the court would grant divorce. To qualify this definition is to remove the scaffolding which supports the major feature of this Bill: that is, that separation, and not just a marital offence, is the fact from which breakdown of a marriage is inferred. Separation is both the symptom and the cause of breakdown. In this Bill we accept that separation, voluntary or involuntary, can lead to breakdown of marriage. That is a very sad but a very true fact.
When we discussed during the Committee stage of the Bill the Amendment which incorporated this idea, the noble Lord, Lord Sandford, accused me of being very unrealistic about the position of the Forces in war and in peace. It is about the Forces that we are mainly or mostly concerned. I must confess that I was very ignorant, but I have sought out the facts about the Forces and here they are, straight from the mouth of the Ministry of Defence. The maximum unaccompanied tour abroad to which we commit Servicemen at present is 15 months. This would be in the case of the Royal Navy only and it applies equally to shore or afloat service. The R.A.F., for their part, have some unaccompanied tours of a maximum duration of one year. These are in such places as Goose Bay, Gan, Meshad and Shahabad. The normal tour abroad for unaccompanied Army personnel would be nine months. In the Gulf, however, a 13-month tour of duty is standard, although this carries an entitlement to a 1094 free return flight home to the United Kingdom for a month's leave during the period of foreign service. There will, of course, be occasions when men on an unaccompanied posting experience some delay, due to accommodation difficulties, before their wives and families are able to join them. I myself am greatly reassured by these figures and I hope that your Lordships are, too, when it comes to the Divorce Reform Bill.
If we analyse the kind of jobs that have built-in dangers to marriage, because they involve periods of separation, we must include the Forces and the Diplomatic Service—and even jobs with nightwork, if you like. So I oppose this Amendment strongly, despite the fact that the clause as it is has anomalies, including anomalies for prisoners. When a man or woman commits a crime, there is the danger that it may result in the breakdown of his or her marriage. So I would say that this Amendment should not be accepted.
§ VISCOUNT DILHORNEMy Lords, I have listened with interest to the noble Baroness, Lady Gaitskell. She has made her point of view clear. I regret, though, that it appears to be based on a complete misunderstanding of the effect of subsection (3) of Clause 2. If the Amendments which were moved to that provision had been carried, there would have been great force in her observation that the courts would always have a discretion to refuse to grant a divorce and that the final power of discretion would rest with the court. If she will read that subsection again, she will see that it is expressed in the following terms.
unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, …the courtshall … grant a.. divorce.So the court has no discretion unless it is satisfied on all the evidence that the marriage has not broken down. If the issue is in doubt, subsection (3) will not operate.The noble Baroness gave us some reassuring information about the length of absence due to Service duties now, but the situation may change, and I would ask the noble Lady to consider not only the situation in peace time but also the situation in war time. There may well 1095 be very prolonged absence during a time of war, and, as the Bill now stands, that period of absence will count and is bound to count towards the five years. There can be no doubt about that. And I assume that this Bill is meant to operate in times of peace and in times of war.
Many of us had qualms about supporting Clause 2 (1) (e). I supported it for this reason: that if the parties have been living apart voluntarily for five years then, even though one of the parties may not agree to the divorce, it is clearly established that the marriage has irretrievably broken down. I voted for that because I do not think that recognition of that fact should be held up because one of the parties to the marriage refuses his or her consent to a divorce. But the more we narrow that period of separation because of matrimonial difficulties, lack of harmony in the home and all that, the less does the inference arise that the marriage has irretrievably broken down. The noble Lord, Lord Stow Hill, has made quite clear that, whatever the cause of the initial separation, be it voluntary or due to the husband having to work abroad in climates which the wife could not stand or because the wife remained in this country to bring up young children—no matter how long the period of separation by agreement for any of those reasons may be, nevertheless that period will count towards the five-year period for the purposes of subsection (1) (e) if, say within six months of the end of the five-year period, one of the parties says that he or she is not prepared to resume living with the other.
So if your Lordships accept this subsection as it stands, to my mind you will be completely destroying the inference that arises from subsection (1)(e). You will be making divorce obtainable against the consent of the other party, when the separation, though in fact for five years, is only for a very short part of that time, possibly due to matrimonial difficulties, by one saying that she or he will not live with the other. So I think there is great force in what the noble Earl, Lord Cork, has said.
I disagree with the right reverend Prelate the Bishop of Exeter when he says that this would mean that the petitioner would have to make up her mind at 1096 once directly the separation occurred. I do not see it happening in that way. It may be, as the noble Baroness, Lady Gaitskell, said, that because of the long separation the marriage gets on the rocks, and one party will reach the conclusion that he or she cannot or will not again live with the other. The time should run from then. That need not be at the commencement of the separation. In the case of a prisoner, it may come after he has been in prison for some time. When the right reverend Prelate says that the sending of letters by the wife to the husband in prison, or by the husband in prison to the wife, or a visit by the wife to the prison would amount to living together in the same household, I can only say that I completely disagree with him. Within the terms of subsection (5) it is clear that they would be living apart.
I think there is here a vital issue between the promoters of the Bill and those of us who have supported paragraph (e) in the belief that the period of five years would be a period of separation due to one party not being able to live with the other through his or her own desire; that is to say, five years after the marriage has gone on the rocks. On the last occasion, the noble Lord, Lord Stow Hill, if I understood him correctly, said: "Oh no; not at all, so long as there has in fact been five years' separation, no matter what the initial cause, and no matter how long that initial cause has operated, that five years will count, and on that you will get a decree against the will of the other party."
I certainly did not appreciate that the Bill went to that extent when we had it before us on Second Reading, and I very much hope that, if this form of words is not entirely satisfactory, a form of words will be found to make it clear that the only period that should count is the period after rifts have occurred in the marriage.
§ 3.53 p.m.
§ LORD LEATHERLANDMy Lords, there are, I believe, many of us in your Lordships' House who see much that is good in several of the provisions of this Bill, but at the same time we see one or two things which we think are very bad indeed. I have been very much impressed by the noble Earl, Lord Cork 1097 and Orrery, in his effort to draw a distinction between that portion of the five years during which the people are friendly and that portion of the five years after an open declaration of war has been delivered.
One of the delightful things about debates in your Lordships' House is that we find so many noble Lords who have had experience of different facets of life. My mind goes back more than fifty years to the day when I was a company sergeant major in France. One of the men in my unit was a Polish Jew who had lived in London for three or four years. He was able to understand the spoken English word and was able to speak the English language; he was able to obey orders that were given to him. But he could not read or write English. So I was called in to act as the letter writer between him and his wife, who was in London. Week by week he would come to me and say: "Sergeant major, I want to write another letter to my wife." I would say to him: "How shall we start it?", and he would say, "Dear Wife "—and with such literary ability as I possessed I was able to keep up this loving correspondence between the Pole and his English wife for over 12 months. I also had to read back her letters to him. When the final letter came, after about 12 months, I noticed that the warmth of her affection seemed to have cooled a little. I read the letter to him, and he said: "Sergeant major, I want you to write back straight away." I said: "Very well. Shall I start off 'Dear Wife '?", and he said: "No. You start off, 'You old Cow'." At that moment I would apply the interpretation that the marriage had broken down. But it certainly had not broken down during the 12 preceding months. They were then corresponding and on perfectly friendly terms. I think it is right that we should draw a line of distinction between any absence which was quite voluntary and friendly, during which, indeed, the heart may have been growing fonder, and any absence which subsequently was on a hostile basis.
We now come to the text of the Bill, which says in subsection (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.1098 We have to realise that there are many husbands and wives who have to live physically apart, because of work, soldiering, prison or for other considerations. I feel that, so long as friendly relations have subsisted between them, it is not right that that period should be included in the five years so-called separation.
§ 3.57 p.m.
§ BARONESS BIRKMy Lords, what I object to about this subSection is that it is treating human beings as digits without any opinions or emotions of their own; as though, if somebody goes abroad for five years for some reason, automatically the chances are that the husband or wife will divorce the other spouse. On the point made by my noble friend Lord Leatherland, possibly the quality of the letters failed in the end to keep the couple together.
§ LORD LEATHERLANDI am a pretty good love-letter writer.
§ BARONESS BIRKAs we have heard my noble friend Lady Gaitskell point out, so far as service abroad is concerned, this is not very relevant. The point made by the noble Viscount, Lord Dilhorne, that we should have a divorce law which really covers the extremities of wet, does not seem to me to be the way in which one should create Statutes.
So far as the question of prisoners is concerned, I was a prison visitor and lecturer at Holloway Prison, and from my close contact with prisoners at that time I would say that where the marriage was stable and on-going, it did not break down, but where the marriage was adrift, then it usually did break down. To argue that this is an extra punishment, seems to me to be absolute nonsense. This is a question between husband and wife, if a man or a woman is in prison for that length of time. But I think I should point out that the sentence has to be a quite considerable one—I should have thought more than 15 years, counting the time off for good behaviour, and other time off—for anyone to serve a five-year sentence to-day. I cannot remember the number offhand, but I think there are about 3, 000 women prisoners in the country, and the number of long-term sentences served is very small. It seems to me that if a man or woman feels that 1099 his or her marriage has broken down because of the absence of the other partner in prison, then it is a matter for them. In fact, the courts have bent over backwards in order to give divorce on the grounds of cruelty when a woman has petitioned because her husband has been in prison. In one case the premarriage record was taken into account by the court, and the court decided that there was cruelty because the woman did not know about it.
It is for this reason that up to now we have not had imprisonment as a separate ground for divorce in this country. Every example that has been brought up is dealt with completely in this Bill. The court has power under several different clauses to turn down the petitioner's decree if it thinks that the marriage has not irretrievably broken down. Taking the cases cited by the noble Earl, Lord Cork and Orrery, and others, if the husband or wife tries to "clock up" the five years of separation (as the noble Earl called it, involuntary separation) then it is up to the respondent to prove that during a great deal of that period the marriage was in existence. It would be quite easy for the respondent to prove that. There are all the opportunities for this to be done in court.
What worries me is that if this proviso is passed it is going to detract enormously from the Reform Bill—I use the word "Reform" specifically. What this Bill is doing is cleaning up our divorce law, taking away a lot of the hypocrisy, the collusion and many of the things which create sensational news but are very undignified to human beings. If this proviso is carried it will lay open the opportunity for people to try to trick the courts and for those far more clever or who perhaps have rather more cunning lawyers to get an advantage over the more honest, ignorant and poorer people. I go back to my first point in saying that it is an insult and humiliating to men and women not to accept that human beings should make up their own minds whether they want to stay married to their spouses. They should not be treated in this spoon-feeding and quite unpleasant way.
§ 4.2 p.m.
§ LORD SANDFORDMy Lords, the reform that this Bill seeks to introduce is 1100 divorce on the ground of breakdown of marriage rather than divorce on the ground of a matrimonial offence. Clause 2 specifies five indications of breakdown by which the court is to be guided. This is not, we all agree, the ideal way to establish breakdown, and it is not the way that the Archbishop's Group has recommended. It is agreed, however, to be the only practicable way, and the Bill has been drafted accordingly. These are crude, rough-and-ready indicators. A single act of adultery is certainly a crude indication of breakdown. It may not lead to breakdown, but certainly in every case it is a sign of something badly amiss. I submit that a period of apartness does not necessarily have any bearing whatever on the fundamental state of the marriage. It can only serve to breakdown or matrimonial trouble if it arises from the free choice of the partners to live apart.
I listened to and have since re-read our extensive debate on this point at Committee stage. I have listened with great attention to this debate, and particularly to the words of the right reverend Prelate the Bishop of Exeter, whose arguments I must admit have considerable force. But I am not convinced that it is impossible to distinguish in law between living apart by personal choice and living apart for other external reasons, such as service abroad, prolonged illness in hospital, or custodial sentence, none of which has anything to do with matrimonial trouble. A failure to make this distinction in this law will result in quite absurd anomalies.
Take, for example, the prison case. A long sentence to prison may virtually amount to a death sentence on the marriage as well. Our policy behind our penal system up to now and, in my view, an enlightened, correct and merciful policy, though not enjoying particularly large popular support, is that immediately on sentence the Probation Service, both outside and inside prison, with the help of volunteers if they can be had, visit both the prisoner and his wife and children, and come into action immediately in order to help the prisoner and the wife to bear the strain of separation, to mitigate the hardship of the sentence upon the family, and to pave the way for the offender's rehabilitation into his family and into society. What on earth is the sense of all this effort if after a 1101 prisoner is released that period in which all that sustained, skilled case work, all that care and patience by friends and neighbours, all the hope that has rested in his children while he has been in prison, can suddenly be stood on its head and called in evidence, as it can be under Clause 2 (1) (e) and Clause 2 (1) (f) as breakdown of marriage? A law that can have that effect surely must be an ass and we ought not to enact it. We ought rather to support the noble Earl, Lord Cork and Orrery, if he decides to press his Amendment, or adopt something better if anything can be devised.