§ 4.29 p.m.
§ Report stage resumed.
My Lords, I hope I am not out of order in asking to make a brief comment on the Report stage of this Bill. I wish to do so as I have not yet spoken, and I did speak during the Committee stage. I want only to refer to two remarks made by the noble Baroness, Lady Gaitskell, and the noble Baroness, Lady Birk, with both of which I agree—with qualifications. The noble Baroness, Lady Gaitskell, particularly mentioned criminals; the noble Baroness, Lady Birk, said that the object of this Bill was to clean up divorce. I entirely agree with her, if that means to clarify i:, and I suspect that in this Report stage the purpose of the Amendment is to clarify what this particular clause means. That is why I supported an Amendment of this kind at the Committee stage, and nothing I have yet heard makes me disinclined to support it now.
The noble Baroness, Lady Gaitskell, put forward a point of view with which I entirely agree, although I am no: sure how practical it is: that criminals would be well advised to give up crime as a profession before they marry. Would she apply that also to actors and artists? I feel there is a good case to be made out for both those professions, and for saying that an actor should be wedded to his art and not to a wife. But we have to face the fact that criminals do not always give up crime before they marry and that actors and actresses do marry. Sometimes they change their marriages with unpleasant frequency; sometimes, as in the case of Dame Sybil Thorndyke, the marriage goes on.
I think that one point raised by Lord Cork and Orrery's Amendment is this. If an actor married to an actress, or even to somebody in some other profession, goes off, quite with the permission of his wife, on some not disreputable mission, say, representing the British theatre in some advanced play or unadvanced play, Shakespeare even, I do not say for five years—let us suppose it is for only one year—does that year count, even though the actor and his wife had been on the best possible terms before? I do not 1111 want to make this a question of sex war, or to attack actors or criminals as guilty parties, as the noble Baroness seemed in danger of doing, but I do feel we need to be quite clear on this point. As I was accused by the noble Earl, Lord Cork and Orrery, of raising only frivolous examples of astronauts or traffic blocks on the motorway, I would seriously put this for the House to consider as an example of what the result of the Bill will be with or without the Amendment.
§ BARONESS GAITSKELL
My Lords, I do not wish to make another speech. I simply wish to say to the noble Lord who has just sat down—
§ SEVERAL NOBLE LORDS: Order, order!
§ BARONESS GAITSKELL
My Lords, I apologise. With the permission of the House, I simply wish to say that the noble Lord accused me of saying something I did not say. That is all.
My Lords, may I apologise to the noble Baroness if I did that. I certainly did not mean to accuse her of anything. I thought she was implying that criminals should think twice before they marry.
§ LORD SILKIN
My Lords, the real issue between us is a fairly simple one. It is, are we to treat an involuntary separation as being such a separation as to justify the assumption, as it does under paragraph (e) of Clause 2 (1), that the marriage has broken down, whether in fact it has or not. What we are saying is that once two people have been separated quite involuntarily, it is at the discretion of either party to say, "The marriage has broken down and I want a divorce." I think that is utterly wrong, and it is not what most of us intended when we supported this Bill and the particular provision in paragraph (e). While I am not sure whether the Amendment of the noble Earl is satisfactory—I should be surprised if it were—nevertheless I do think that something of that sort ought to be written into the Bill, to make it quite clear that when we talk of separation for five years we do not mean an involuntary separation brought about by imprisonment or serving abroad or any other circumstances of that kind. I 1112 would only say to the noble Baroness, Lady Summerskill, who made a very good speech, as usual, that this does apply to husbands as well as to wives; husbands sometimes are sent to prison for more than five years as well as wives, and the same would apply to them.
§ LORD CHORLEY
My Lords, I am afraid that I cannot agree with my noble friend, Lord Silkin. Obviously, unless the marriage has completely broken down on one side there will not be a petition for divorce, and therefore it is quite clear that on one side it has broken down. On the other side, of course, the problem in cases of this sort has always been the fact that the prospective respondent, either for reasons of revengeful feelings or in other cases for reasons of religious conviction, is standing out against the idea of a divorce. The fact that there has been a long period of separation is perfectly clear in all these cases, and what we are really trying to do is to deal with the case where, either for the purposes of revenge, which the noble Lord, Lord Silkin, has frequently underlined in this type of argument, or for reasons of religious conviction, the other party—the prospective respondent—is not prepared to agree to the divorce.
It seems to me that we are not getting anywhere at all by just adding an extra year, or whatever it may be; it is simply going back to this idea of the matrimonial offence, which keeps breaking out in unexpected places during these discussions. In effect, you are saying that, although it is perfectly clear that one of these parties is so satisfied that the marriage has gone that he or she is bringing a petition you are going to keep them together, in theory—because quite obviously you are not going to do it in practice—for another extra period simply to satisfy revengeful feeling or because of religious conviction. It seems to me it boils down to this, and it is really just sentimental nonsense to insist on having an Amendment of this kind.
The sort of argument one gets into is well exemplified by the speech of the noble Lord, Lord Sandford. Are we going to waste all this money that we spend on social workers in attempting to keep a marriage going while somebody is in prison? Of course not. It is right and proper that it should be done; and in many cases the effort will succeed and 1113 it will be money well spent. But surely in cases of the kind we are discussing the money will have been lost, because the petitioner whom the social workers have been trying to keep in touch with the other spouse would not bring the petition. In a case like this you write off the money that has been spent and the effort that has been made and recognise that it is one of the cases where the attempt at reconciliation, a very proper and praiseworthy attempt, has failed. I cannot myself see that any real case has been made out for this Amendment.
§ LORD DONALDSON OF KINGSBRIDGE
My Lords, I think this Amendment may be a bad thing for prisoners, and I am particularly interested in this aspect. The marriages of men sent to prison for any length of time are at very high risk anyway. I think the noble Lord, Lord Sandford, painted a rosy picture of society's frantic action to help them. A little is done here and there, but I think it is a great deal less than should be done. What I am worried about here is that if a marriage is pretty rocky anyway, and the man gets seven years, though the probation officer and everyone else do their best to keep the parties together, the wife's friend is going to say to her, "Look here, you had better give notice straight away. Otherwise, if you pack up after two years you will have lost two years of your five-year period, and you will have him hanging around for two years after he comes out." This is a difficult situation. I do not think it applies to a man in the Services but it applies strongly to a man—or a woman—in prison. I am inclined to agree with the noble Lord, Lord Chorley. This is the kind of Amendment which is not necessary, although one can see a possible reason for it. But in this particular case I think it will have sufficient bad effect for me to be inclined to oppose it.
§ LORD DENNING
My Lords, may I ask for some perspective in this Statute? The fundamental point is that for a divorce to be granted the marriage must have irretrievably broken down. The five-year separation is only evidence of it, and the case which has been put before us, of the person in prison, is a very special case. It can be met perfectly well when it is remembered that the five-year separation is only evidence and that 1114 the judge, when he comes to consider the whole case, will decide whether or not the marriage has irretrievably broken down. If it has, let the principle of this Act apply. I would be against the Amendment.
§ LORD DENHAM
My Lords, may I ask one very short question, purely for guidance? Are the five indications of breakdown of marriage referred to in this subsection intended to be taken as indications in that they are causes which one may assume would lead to the breakdown of marriage; or are they to be taken as indications in that they are results from which one may assume the marriage had already broken down? If they are indications in that they are results of breakdown, this Amendment is obviously necessary, because the five years living apart as a result of breakdown must begin at the time of the breakdown.
§ 4.40 p.m.
§ LORD STOW HILL
My Lords may I in the first place express the hope that your Lordships will believe that I did my best to comply with the undertaking which I gave on the Committee stage of this Bill, that I would most carefully re-examine the problems which had been thrown up in our discussions at that stage. I most carefully re-examined the whole subject, together with the expert advisers whose assistance I have previously had and I was thoroughly convinced that the Bill as presented is in the right form and that the Amendments suggested, including the noble Earl's Amendment, ought not to be accepted. I hope that your Lordships will accept that assurance.
May I now answer the question just put? What the Bill does is to pose certain factual situations upon proof of which it shall be assumed, unless the evidence as a whole points to a contrary conclusion, that the marriage has broken down. That is what the Bill does. May I make one or two general observations? First, supposing somebody comes and says that A and B have been apart for five years—not for one, or two, or three years, but for five years—and that A has approached the divorce court to ask for a decree of divorce, I should have thought that any reasonable person would say: "Well, if there is one thing 1115 which is patently obvious it is that the marriage between A and B has broken down." He will not start asking why they were apart for five years. He will say that once two people live apart for five years it is not at all unlikely that one will fall out of love with the other and want to be free from that other person. That is, unfortunately, the ordinary case. I should have thought that most people would rarely bother in the slightest as to why they were apart for five years; the thing that matters is that they were apart for that five years. That is the situation which the Bill acknowledges and recognises.
May I add this? It really is a fundamental misconception for the noble Earl who moved this Amendment to put the matter in this way: aye or nay, does five years' separation spell breakdown? With respect, that is not the question. The question is: does living apart for five years, followed by an application by one of the parties to the divorce court for a decree of divorce—do those two things conjoined together—spell the breakdown of a marriage? I should have thought that in the ordinary course of affairs it is almost impossible to say that when these two situations are conjoined marriage has not come to an end. Even when they are conjoined, there is still the provision in Clause 2 (3) requiring the judge nevertheless to look at all the circumstances; and if those circumstances convince him that, in spite of the conjunction of those two most telling situations, the marriage has not broken down, he has still to refuse a divorce. That is the issue. I should have thought that one has only to state the question in that form to make it fairly obvious that it does not really matter why the spouses were apart; the question is whether or not they were apart, and whether their separation led one of the two to approach the divorce court and ask for a decree.
I make this further comment. What does the pronouncement of a decree do? It does not break up the marriage. All it does is to recognise, formally and officially by the decree of the court, that the marriage has obviously broken down. What happens, unfortunately, is that there is a separation, one party gradually comes to the conclusion that he or she wishes for a divorce and then, after five years, asks for it; and all the court does 1116 when it pronounces a decree is to recognise that that is the pre-existing situation which has led to the breakdown of the marriage.
May I make this further observation? When one is legislating, one can pass only legislation which fits most cases. Cases differ so infinitely in their circumstances that it is quite impossible, without unreasonable complication, to devise a form of words that will cater for each and every separate unusual case. The ordinary case is that in which the separation takes place because the two parties cannot get on together. It is impossible numerically to compute cases of compulsory separation but I should have thought it was the rare case. It is not the ordinary case. The ordinary case is the one that is reflected in the letters which I am sure noble Lords must all have received, of people who have been apart for years and want the court formally to recognise the fact that their marriage has long since terminated.
But may I ask your Lordships to look at the situation of compulsory separation? My noble friend Lady Gaitskell dealt with the situation of the Services. It is only in the rarest case that a soldier or sailor has to be away for five years. That is a tremendously long time. A situation of that sort befalls people in the rarest of circumstances. I cannot follow the argument of the noble and learned Viscount, who says that we should disregard that because the Army or Service authorities may at some time abandon that most human system which they at present operate in curtailing the separation of the husband and wife, and adopt a much less human system; or that there may be another world war which may involve separation for five years. I say that we should not adjust our judgment by reference to that sort of situation.
I have taken some trouble to ascertain what the position is in all possible spheres of separation. At the Foreign Office service abroad is up to four years, but the man usually has his family with him. At frequent intervals of time, which differ according to the circumstances, he has home leave. Then I had inquiries made from one or two of the great companies, which I need not mention by name, having employees overseas. The general tour of duty abroad is for a maximum of two years, and they do their level best to 1117 get their employees back within that time to visit their families if the families are not with them. I should have thought that anybody who has had any experience of the Services knows perfectly well that a commanding officer who has reason to think that the marriage of another rank or an officer under his command is going astray, does his level best to see that that other rank or officer gets compassionate leave to try to straighten things out.
I respectfully submit that in this matter it cannot be too strongly emphasised that what happens is not that the marriage is broken up by the making of the decree, but that the marriage breaks up because of the two parties; they themselves fall out of love with each other. That is a situation no doubt eventuating as a result of the separation. I do not wish to repeat myself, but the divorce court does nothing to bring that separation about; it simply recognises it when it has taken place. Some noble Lords have expressed considerable dislike of the idea that compulsory separation should count. It has been part of our law ever since 1937. Those noble Lords seem to forget that since Sir Alan Herbert introduced the measure which became the Matrimonial Causes Act 1937, insanity and the requirement of care and treatment for a period of five years has been by itself a ground for divorce. That applies in the case of compulsory separation where either the unfortunate husband or wife is stricken by insanity and is compulsorily put away from their spouse. It is a most clear and obvious case.
So this is no change in principle. It is following a principle that we have recognised, without any complaint, for years. I may say that such complaint as there has been of that provision, which is now to be found in Section 1 of the Matrimonial Causes Act 1965, is in a contrary direction. It is that the existing provision is too restrictive. For example, the case has arisen where it could not be proved that the spouse was incurably insane because medical evidence showed that he was rather subnormal and could not be said to be insane. Or it has been criticised on the ground that it cannot always be proved that the individual has needed care and treatment for five years. Sometimes the process to which he has been subjected is a process of training rather than of care and treatment, so the peti- 1118 tion has failed on that ground. What has been said over and over again is that that existing provision of thirty years' standing is not wide enough. There is nothing new in this; we are simply following an existing path which has been trodden over and over again and which is thought now to be too narrowly bounded.
I ask your Lordships to say that it would be very unfortunate if this Amendment were accepted. It would go far to wrecking this provision. Many noble Lords have spoken of the prisoner. I have had some experience and have talked with and tried to understand the thinking of dozens and dozens of prisoners up and down the country in personal contact with them. What is the position? To begin with, you normally get one-third off your sentence for good conduct; and, since the Act we passed in 1967, in addition to that normal good conduct remission of one-third, i: you behave yourself you now qualify for a further one-third off your sentence, at the discretion of the Parole Board. So if you are a well-conducted prisoner, with any luck you will serve one-third of your sentence. The only prisoner who runs a risk of being separated from his family for five years is the prisoner who is serving a very long sentence indeed. If he gets two-thirds off, I suppose he has to be sentenced to 15 years imprisonment, which is a very rare sentence. Therefore, they are very rare cases one is dealing with.
I hate to talk about my own experience, but I must do so for a moment. If you have a man who has, unhappily, been sentenced to 12 months' imprisonment, he can get one-third off, and now one hopes that he may get another third off. For a man to be away from his family for four months is a terrible thing. It is a tragedy for him, and one's heart goes out to him. Anybody who has had anything to do with that sort of situation knows that the one way of enabling a man like that to pull himself together, to get on the right lines again, is to have the hope of coming out to a wife and family. That is the ordinary case.
What is the way to deal with that kind of case? The way the noble Lord, Lord Sandford, described: do everything you conceivably can through the prison administration, who are most helpful 1119 and eager to co-operate in this matter, to keep him in touch with his family. That is the right approach in a civilised society. You should have better interview rooms; get away from the old grill system; the conversations out of earshot; circumstances in which it will not be frightening for the children to come; home leave in due course when the prisoner qualifies for that; ample facilities for correspondence; and the best possible welfare services. That is the right answer for a civilised community to give to the problem of the unfortunate man in prison who is anxious because he is separated from his family.
I should have thought it was common experience that the person who is really anxious is the man who has to be away for four months, six months, or nine months. When a man gets into the sort of state in which he is liable to get 15 years' imprisonment, very often his mode of life has not been such as to fit into a normal family existence. It would be grossly unfair to say that the people who receive those sentences are not concerned with their families, but it is not unfair to say that they are less frequent when you are talking about that sort of prisoner than if you are talking about a prisoner doing 12 months, or even up to three years.
That is the right approach; do your level best to keep them in touch. But in spite of every possible endeavour, and whatever the divorce courts say, when the two people are apart, especially when there is all the indignity and stigma of a prison sentence, marriages are under strain. It is up to the prison administration to do their best to alleviate that strain, but the divorce court cannot affect it one way or the other. Therefore, I should have thought that the argument based on the prisoners' situation cannot carry much weight.
I do not wish to make an invidious remark, but when one talks about compulsory situations, it really is not obligatory on anybody to commit a crime in this country—far less obligatory upon him to commit, or to go on committing crimes which will result in his being sent to prison for 15 years, or that sort of sentence. He need not be sent to prison for 12 months if he behaves himself, as the vast majority of his fellow citizens do. 1120 So it is really compulsory only in an indirect sense. Equally, if you accept an appointment overseas for five years you are not bound to serve it. If for reasons of promotion or reward, you think it appropriate your wife may agree to your doing so. So it is really a misnomer to call these separations in any real, factual sense compulsory.
Suppose one did accept the Amendment. I thought, if I may respectfully say so, that the right reverend Prelate the Bishop of Exeter put his finger directly on the point: that one is anxious to keep marriages together and not to let them collapse. Take two wives—if I may take wives instead of husbands. The separation takes place; they have been on bad terms and for one reason or another they part. She may go to stay with her mother for a holiday and not come back, or whatever the situation may be in different cases. One wife will say to herself, "I hope that nevertheless we shall be able to patch this up and build this relationship up again." There may be children involved, and she will fight hard to try to keep that marriage in being. She will not give up hope perhaps for months, perhaps for years, and perhaps for many years, and only at the end, after the lapse of many years, will she decide that the matter is hopeless.
If this Amendment is accepted the time will run only after those many years, when that unfortunate, conscientious woman has given up hope. Another woman, when a rift comes, perhaps no more severe than the rift in the former case which I mentioned, will just throw her hands up and say, "The whole thing is over; I am not going to bother". In her case she is at a great advantage. She can get her decree, if she wants it, five years from that moment. Therefore, I should have thought that those who propose this Amendment would be achieving a result precisely the opposite of the sort of result we all have in mind; they are making marriage more brittle, not less, and they are invalidating it.
I go further. I say that if the Amendment is carried, one is playing right into the hands of the less scrupulous wife, or the less scrupulous husband, whichever is the petitioner. If a wife goes to a solicitor, and the solicitor says, "Your five years dates from the time when you decided you would separate" the less 1121 scrupulous petitioner—I believe she is sometimes called the more sophisticated—would say, "I made up my mind as soon as we parted". The more honest wife would try to really think when it was she made up her mind. So it would be playing into the hands of the less honest petitioner, and would disadvantage the more honest.
Then there is another and I should have thought a fundamental objection. As has been pointed out, this Bill is plastered over with machinery to try to promote reconciliation. If one looks at Clause 3 (5), in calculating the five years you disregard any six months that they have been together during that five years. A solicitor can say to a woman when five years have really gone, "Why do you not make one more attempt to join up with your husband?" and she can join up with her husband, say for a week or a fortnight, to see whether they can come together again. It may be unsuccessful. As the Bill is at present drafted that joinder, if it is not for over six months, will not count. If this Amendment is carried, I suppose the five years dates from the time when the wife has unsuccessfully tried to reintegrate the marriage by going back to her husband for a limited time. So the whole of Clause 3, I suppose, would have to be jettisoned. The whole of the system of reconciliation on which this Bill is founded would be completely aborted and would have to be cancelled.
For all those reasons, I greatly hope that your Lordships will not accept this Amendment. It would mean that heaps and heaps of people, who have been waiting and waiting, would have to wait for another five years. How on earth can you tell when people make up their minds? Do they have to make up their minds and never change? Supposing they make up their minds after three years of separation—have they got to stay of the same mind? Supposing they change and then again make up their minds? I suppose the five years has to run from the second period. For all those reasons, I very greatly hope that your Lordships will not accept this Amendment.
§ 5.0 p.m.
§ LORD HODSON
My Lords, as one would expect of him, the noble Lord, Lord Stow Hill, has given a fair and 1122 accurate statement of the problem, which is simply this. Does anything else matter except the desire of "A" for a divorce, and the fact of separation? The noble Lord says that nothing matters, and that is the issue between us. I know from my conversations with him, and from what he has said in this House, that he and those behind him who are helping him in this matter have given the most anxious consideration to some form of definition of "living apart".
It was pointed out, on one of the occasions when this matter was debated in the House, by some of those such as the noble Lord, Lord Goodman, who supports my noble friend Lord Stow Hill, that it really is no good at all trying to define "living apart "—I think the noble Lord, Lord Conesford, took the same view—and that any attempt to define "living apart" is almost impossible. I shall not read out the relevant provision in the Bill, but I think your Lordships will agree that it is a pretty hopeless definition. It says that a husband and wife are living apart if they are not living in the same household. But of course they can live apart in the same household. I know of one couple who have lived apart in the same household for over ten years. I believe they have never spoken to one another all that time, although they drive about in the same car and live in the same household. But according to this Bill they would not be living apart. However, that is rather by the way.
I should like to mention what the right reverend Prelate the Bishop of Exeter said, about the difficulty of starting the period of five years. I agree with him that, if one had to look at the matter from the same point of view as he does, and one started off by saying, "I am never going to live with that man again", it would be a most futile situation. But the judges look at this question of living apart without definition, and I think my noble and learned friend Lord Denning will agree with me—he has already made remarks to this effect—that you can leave the matter to the judges without definition. Over the years, the judges have had to deal with this question of living apart not only in connection with matrimonial disputes, but also in revenue case;. The question of whether a man is living with his wife is irrelevant. It does not mean 1123 living with his wife factually; I might almost say it means living with his wife emotionally. They are living together in law if they are separated by circumstances, whether a person is serving abroad and whether a person is insane.
I do not understand the illustration which my noble friend Lord Stow Hill gave about insanity. What has that to do with this problem at all? Some of us may be sincerely shocked that insanity is a ground for divorce. Why should mental illness be a ground for divorce any more than any other illness? Ideally I should have thought insanity would not be a good ground for divorce, but, as the right reverend Prelate pointed out, with the hardness of our hearts these cases have to be decided and relief has to be given by law to people who are in difficult positions.
I sincerely wish to emphasise the cleavage which exists between those who take opposite views on this matter. There are those who take the factual view, like the noble Baroness, Lady Birk, who said, "If they are apart, then they are apart. What does it matter why they are apart? If you say that you want a divorce, then you want a divorce. Of course the marriage has broken down, and there is no means of denying it."
Some of us sought to support an Amendment to Clause 2 (3), which puts the burden on the one who opposes the divorce to say that the marriage has not broken down. We sought to say that it should be proved that the marriage had broken down. But the noble Lord, Lord Henley, and others, pointed out that this only brings back the wretched idea of an inquest, which would be quite intolerable. So the position now is that you do not have to prove breakdown at all. "Breakdown" is only one of those words which are tossed about. You have to prove that you have had five years' separation, and you have to say that you want a divorce. But of course it has broken down, if you want a divorce. That is all you have to do. In my submission, it is really essential that this question of living apart should be decided on the basis that the living apart means that there is a real division, a real cleavage, between husband and wife; not a factual separation, whether voluntary or involuntary.
1124 I am quite sure that the noble Earl, Lord Cork and Orrery, is not particularly wedded to this form of words. I, for my part, think that he has been exceedingly clever in producing a form of words which will get on its legs at all. I should prefer to leave the matter without the present definition, and to ask—I hope not in vain—my noble friend. Lord Stow Hill, who has been so good in trying to meet problems of this kind which have been put before him, to find a definition which is less harsh than leaving the matter as if the intention is quite irrelevant; because I am quite sure he takes the view that the intention behind the separation is quite relevant. I support this Amendment.
§ 5.6 p.m.
§ THE EARL OF CORK AND ORRERY
My Lords, may I begin by attempting to deal with one or two misapprehensions? I begin with one which was voiced by one or two noble Lords, who mentioned the length of what I choose to call period X—the preliminary voluntary or involuntary separation which has nothing to do with the breakdown of marriage. The noble Lord, Lord Stow Hill, is still wedded to the case of the long-term prisoner. In attempting to advance the case for this Amendment, I think I made no reference to the length of service, the length of imprisonment or anything else, and the principle which animates this Amendment applies equally, whether the length of preliminary separation is 15 years or 15 days.
My contention is simply that it ought not to count in the running period of five years which would qualify for divorce. Therefore, when the noble Baroness, Lady Gaitskell, supported by the noble Lord, Lord Stow Hill, quotes figures from the Ministry of Defence as to what is likely to be the length of overseas service for a soldier, sailor or airman, then my answer, as politely as I can, is to say that I simply do not care. All I am interested in is whether they are taken away by one means or another, or whether they are separated because they are fed up with the company of each other. That is all.
Several noble Lords have referred to the speech of the right reverend Prelate the Bishop of Exeter, who made almost the only cogent argument in opposition 1125 to the Amendment, although it is something of an argument in a corner, a rather private field, which is not a very widely represented one in this situation. I refer to the possibility that, if the Amendment came into force, a wife who was otherwise devoted to her husband—loyal, attending to him, visiting him and writing to him—might be discouraged from doing that by her solicitor. He might say, "Look here, if you go on doing this you will find it very difficult to prove—if you want to prove it—that you have been living apart all this time, and that the marriage has broken down."
I do not think the right reverend Prelate really meant that that would alter the evidence of living apart. The noble and learned Viscount, Lord Dilhorne, took him up on that, so I think we can drop that one. But such an event might scotch the idea that the marriage had broken down, if we brought in the Amendment. However, I think it is very unlikely to be a very important factor because, after all, as the noble Lord, Lord Sandford, and others have pointed out, there are very large and powerful factors which are operating the other way. If it is possible for a solicitor to convince a wife, who is still trying to do the right thing by her husband, that she would do much better to give up and reconcile herself to the idea of getting a divorce in five years' time, then I can say that that combination of solicitor and wife would be a pretty rare one and ought not to weigh too heavily in this argument.
May I say straight away that of course I accept without the slightest reservation the assurance of the noble Lord, 'Lord Stow Hill—and, indeed, I accepted it almost in advance—that he has done everything he can to reconsider this matter and, if possible, to come up with a new form of clause; and I quite understand that he has been unable to do so. But, if I may turn to the noble Lord's own remarks, I venture to say, with the greatest diffidence and respect, that he has introduced one or two irrelevancies into these arguments. I have already referred to one which is irrelevant to me, at least, and that is the length of service—such matters as he took up from the noble Baroness, Lady Gaitskell.
But he has also said that a period of attempted reconciliation will invalidate 1126 the preceding five years—that is bow I wrote it down. I am not quite sure whether I got it right, but I thins the argument is this. Suppose at the end of a period of five years, or whatever it may be, the potential respondent is suddenly persuaded to take the other party back again for bed and board for a period of six months, and then finds it is a failure, that attempt would in itself invalidate or cancel all the preceding 4½ years, or whatever it might be, and the period would have to start again. But that is not so. If your Lordships look at the Amendment, you will see that it says that in calculating the period of at least five yearsregard shall not be had to any period during which the parties to the marriage lived apart prior to the time when one party decked on account of matrimonial difficulties to live separately from the other".If they should decide later to come together again for a short time, and that should fail, it makes no difference, because that clearly it is not a time prior to the time when they decided to live apart. So that has nothing whatever to dc with the argument. Once the time starts 10 run it runs on and nothing can stop it.
Then the noble Lord said—and I paraphrase him again—"Does not a five-year separation followed by a petition for divorce spell breakdown?". That, I think, is the key to the noble Lord's argument.
§ LORD STOW HILL
My Lords, it is not customary in your Lordships' House for anybody to speak twice, but the noble Lord will not perhaps mind my intervening to correct a misapprehension as to what I said. The kind of case I was taking was that of a wife who is undecided for five years but she is very much inclined to think that the marriage is at an end. She goes to her solicitor at the end of five years. Under the existing Bill he can say, "Go and try. Go and live with him for a fortnight and try to reconcile yourself". If the Amendment is carried, then if she does that the five years has to start from then.
§ THE EARL OF CORK AND ORRERY
My Lords, I thought I had made it clear—I tried hard to do so—that that is exactly what would not happen. The only period that is left out of account is the period earlier than that. I shall be exceedingly brief now; I am sure noble 1127 Lords want to press on. I will continue with the quotation that I was making from the noble Lord when he asked, "Does not a five-year separation followed by a petition for divorce spell breakdown?". He considers that it does. I say, "No, it may or it may not". That is the whole point of this Amendment: it is about nothing else. It may spell breakdown or it may not. If it spells breakdown, the marriage may have been broken down for a year or it may have been broken down for five years; but there is no knowing whatever that it has broken down within the terms of Clause 2 (1) (e), which is perfectly plain. That says that the marriage shall be said to have broken down—which is what this Bill is about—if the partieshave lived apart for a continuous period of five years".That is what we are trying to change by putting in this qualification—and I think it makes a great deal of difference. They must have lived apart on purpose. It is perfectly simple.
Several noble Lords—I will not identify them particularly—have said that there is a safeguard in Clause 2 (3) against this matter going wrong. I was at some pains to try, at any rate, to dispose of this safeguard in my earlier speech, but I must come back to it now, because I do not see that there is any discretion at all left to the judge. This subsection is perfectly plain. It says that unless the court—that is, the judge—is satisfied on all the evidence that the marriage has not broken down, it shall grant a decree. There is no discretion left to the judge to say, "The marriage has not broken down, and
§ therefore I will not grant a decree". If we had carried the Amendment which was proposed during the Committee stage, that would have been so, but it was not carried. Therefore, the judge has no discretion, and the Bill as it stands now says that if people live apart for five yeas and the judge is not satisfied that the marriage has not broken down then he shall give a decree. I and those of my noble and my noble and learned friends who support me in this matter say that that is wrong.
§ We do not say that this Amendment is necessarily the total answer, but it is a step towards it, and I think it is better than what we already have. The noble and learned Lord, Lord Hodson, is quite likely to be right in saying that we should do much better to take the definition out altogether. Let us, I suggest, take this first step of trying to insert this Amendment, and then if, for one reason or another, it is not entirely successful—if, that is to say, either your Lordships do not choose to accept it or, on the other hand, the noble Lord, Lord Stow Hill, has a better idea which he brings up at a later stage—then let us fall back on the big guns remaining in the background, in the shape of Amendment No. 5 in the names of the noble Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Hodson, and blow the whole thing to pieces on Third Reading. But in the meantime I think that I must insist upon this Amendment.
§ 5.20 p.m.
§ On Question, Whether the said Amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 67; Not-Contents, 91.1129
|Aberdare, L.||Daventry, V.||Hodson, L.|
|Abinger, L.||Denham, L.||Ilford, L.|
|Ailwyn, L.||Derwent, L.||Lauderdale, E.|
|Auckland, L.||Devonport, V.||Leatherland, L.|
|Audley, Bs.||Dilhorne, V.||Longford, E.|
|Balerno, L.||Drumalbyn, L.||Lothian, M.|
|Barnby, L.||Dudley, L.||Mancroft, L.|
|Barrington, V.||Dundee, E.||Massereene and Ferrard, V.|
|Belstead, L.||Ebbisham, L.||Mersey, V.|
|Boston, L.||Effingham, E.||Milverton, L.|
|Bourne, L.||Emmet of Amberley, Bs.||Mowbray and Stourton, L.|
|Brooke of Cumnor, L.||Erroll of Hale, L.||Moyne, L.|
|Brooke of Ystradfellte, Bs.||Fortescue, E.||Nugent of Guildford, L.|
|Carnock, L.||Goschen, V.||Pearson, L.|
|Chester, L. Bp.||Gray, L.||Phillips, Bs.|
|Conesford, L.||Grenfell, L.||Rankeillour, L.|
|Cork and Orrery, E. [Teller.]||Gridley, L.||St. Albans, L. Bp.|
|St. Helens, L.||Silkin, L.||Swinton, E.|
|St. Oswald, L.||Stamp, L.||Terrington, L.|
|Sandford, L.||Strange of Knokin, Bs.||Wakefield of Kendal, L.|
|Sandys, L.||Strathclyde, L.||Winchester, L. Bp.|
|Selkirk, E.||Summerskill, Bs. [Teller.]||Wolverton, L.|
|Addison, V.||Gaitskell, Bs.||Moyle, L.|
|Amulree, L.||Gardiner, L. (L. Chancellor)||Noel-Buxton, L.|
|Archibald, L.||Garnsworthy, L.||Platt, L.|
|Arwyn, L.||Geddes of Epsom, L.||Plummer, Bs.|
|Atholl, D.||Gifford, L.||Popplewell, L.|
|Aylestone, L.||Goodman, L.||Rathcavan, L.|
|Balogh, L.||Gowrie, E.||Robbins, L.|
|Beaumont of Whitley, L.||Greenway, L.||Royle, L.|
|Beswick, L.||Hawke, L.||Ruthven of Freeland, L. [Teller.]|
|Birk, Bs.||Henley, L.|
|Blyton, L.||Hill of Wivenhoe, L.||Sainsbury, L.|
|Bowles, L.||Hilton of Upton, L.||St. Davids, V.|
|Brockway, L.||Holford, L.||Shackleton, L. (L. Privy Seal)|
|Buckinghamshire, E.||Hughes, L.||Shepherd, L.|
|Burden, L.||Jackson of Burnley, L.||Snow, L.|
|Byers, L.||Jacques, L.||Sorensen, L.|
|Champion, L.||Jessel, L.||Stocks, Bs.|
|Chorley, L.||Kilbracken, L.||Stow Hill, L. [Teller.]|
|Citrine, L.||Killearn, L.||Strabolgi, L.|
|Cole, L.||Kings Norton, L.||Strang, L.|
|Crook, L.||Kirkwood, L.||Swanborough, Bs.|
|Crowther, L.||Lindgren, L.||Taylor of Mansfield, L.|
|Denning, L.||Llewelyn-Davies of Hastoe, Bs.||Thorneycroft, L.|
|Donaldson of Kingsbridge, L.||Lucas of Chilworth, L.||Truro, L. Bp.|
|Douglass of Cleveland, L.||Mais, L.||Wade, L.|
|Eccles, V.||Merrivale, L.||Walston, L.|
|Evans of Hungershall, L.||Meston, L.||Williamson, L.|
|Exeter, L. Bp.||Mitchison, L.||Willis, L.|
|Falkland, V.||Molson, L.||Wise, L.|
|Faringdon, L.||Morris of Borfh-y-Gest, L.||Wright of Ashton-under-Lyne, L.|
|Foot, L.||Morrison, L.|
On Question, Motion agreed to