§ 2.12 p.m.
§ LORD STOW HILL
My Lords, I beg to move that this Bill be now read a second time. At the outset I should like to make two general comments. First, a Mr. Butt wrote the other day in The Times that this Bill had received inadequate consideration and was badly drafted because it had not been drafted by Parliamentary counsel. As Mr. Leo Abse wrote in reply, this Bill isthe final end thinking of years of consideration by Parliamentarians, Churchmen, academic and practising lawyers.It is based on the recommendations of the Archbishop's Group in Putting Asunder and on the Law Commission's analysis in The Field of Choice. Your Lordships debated both these Reports in November, 1966, and the Bill embodies proposals (with slight changes generally to meet the points raised by critics of the Bill) agreed upon by the Archbishop's Group and the Law Commission, formulated in a joint statement by both bodies in July, 1967.
The Bill and its prototype have passed, once completely and once most of the way, through all their stages in another place. The text now before your Lordships was prepared by Parliamentary counsel on the instructions and with the aid of the Law Commission, whose Chairman, Sir Leslie Scarman, is a distinguished and most experienced Judge of the Divorce Division of the High Court. I should have thought that if ever there was a Private Members' Bill forged, tempered and fashioned in the white heat of years of intense and anxious Parliamentary and private controversy, it is this Bill.
Secondly, this Bill has been described as a "Casanova's charter"—an odd charge to level against the Archbishop's Group ! We could, I believe, proceed so much the less encumbered to the consideration of the real issues in this debate if that 297 type of emotive melodrama were consigned to the realm of fantasy to which it belongs. Casanovas do not bother with charters. If they did, they would be grievously disappointed with the contents of this Bill. This Bill does not open the door to easy divorce. That door is wide open now, under the existing law, and it would be hard to open it wider.
Nine out of ten of all divorce suits are not contested. As things are now, one party commits adultery, and if he has a co-operative partner divorce follows normally after a ten-minute hearing in court. In spite of all the vigilance by counsel and solicitors to protect the court against deception, it is not easy to detect the pre-arranged or collusive act of adultery on which the court will not act; and the existing system has the vice of playing into the hands of the less scrupulous petitioner to the detriment of the petitioner who respects his oath to tell the truth. What in substance is that but unavowed divorce by consent, coupled with a legal ceremonial, sometimes not very edifying, in which I personally think it is not very fair to expect our admirable judges, who take such pains in the administration of this difficult branch of the law, to participate?
I do not believe that such a system conduces to respect either for the law or for the institution of marriage. We are blessed in this country with a Bench of Judges who, besides their absolute integrity and massive independence, which we take so much for granted that we never even think of giving them a "Thank you", bring to whatever impossible task Parliament places upon them an understanding and broad humanity which clothes their proceedings with reason and common sense and makes even the existing system not too wholly unpalatable.
The Archbishop's Group's proposals and the Bill cut away from all this. They are designed to rescue the whole proceeding of divorce from its present want of dignity, to invest it with a humane form which accords more closely with the thinking of ordinary, reasonable men and women and discards the narrow legalistic approach on which the whole conception of a matrimonial offence or semi-crime, as it used to he called, dating right back to the Matrimonial Causes Act, 1857, was based. It is designed to support and 298 strengthen the institution of marriage by ensuring that before divorce is granted the parties have ample time for reflection and reconciliation in all cases where that is possible. It gives the court drastic new powers to prevent the weaker party in the proceedings from being overreached, while preserving the existing powers in the Matrimonial Causes Act 1965 to safeguard the interests of the wife and children. Finally, it brings relief to very many unfortunate and blameless people to whom the existing law denies it.
For example, I believe that it would shock most people to realise that, as is the case under the existing law, if two perfectly decent, sensible people, man and wife, part by mutual consent because they cannot get on together, they can never thereafter during the whole course of their lives become divorced, however ardently both desire it. unless one or other consents to the humiliation of committing some matrimonial offence, such as adultery. The Bill puts an end to all that.
Clause 1 gives effect to the main proposal of the Archbishop's Group that irretrievable breakdown of a marriage should be substituted for the matrimonial offence as the sole ground for divorce. If this change is in principle right, the rest of the Bill follows from it. Our divorce courts are not wholly or mainly peopled by the modern counterpart of the mustachioed villains of Victorian days and sobbing maidens whom they have cruelly deceived. Of course, there are such persons, but if they are so numerous in our 1969 community that we have to fashion our legislation affecting everybody so as exclusively or mainly to fit in with the behaviour of such persons, we may as well put on woad and troop back into the jungle.
In the vast majority of cases the suitors in our divorce courts are decent men and women, neither better nor worse than most of us, who have lived through a personal tragedy. The relationship on which they have built such high hopes, the prospect of happy parenthood, of moving together through life to life's end in the rich experience of the family circle—all that has crashed about their ears and lies wrecked. The tears have long since been shed; the months and years of heartbreak are gone by, and they approach the divorce court dry-eyed to try, with the assistance of the court, to tidy up a situation which is in ruins.
299 Surely in those circumstances the relevant question which a civilised society should put to the petitioner for divorce is: "Can you show that your marriage has irretrievably broken down?" Surely our law should not, as it does at present, stage what is in effect a sham combat between two parties, both of whom, in nine cases out of ten, want divorce, and require one to point an accusing finger at the other and charge the commission of a semi-crime, with all the ugliness and lasting bitterness which such a proceeding engenders, together probably with a hateful and disturbing memory for the unfortunate children, already bereft of the security of the united home, to carry away with them for the rest of their lives, of parents both of whom they still love and want to respect.
Clause 2(1) is the product of joint consultation between the Archbishop's Group and the Law Commission. The Archbishop's Group proposed that, as irretrievable breakdown was to be the test, the court should probe into all the circumstances of the marriage to ascertain whether in a real sense it was at an end. The Law Commission advised that procedurally such a proposal would be hardly workable, and that certain factual situations should be selected, proof of which should suffice prima facie to establish that the marriage had irretrievably broken down: and the Archbishop's Group agreed that this was appropriate.
But, my Lords, the basic objective of the Archbishop's Group, that real breakdown should be the test, is preserved in many provisions of the Bill, notably in the requirement in Clause 2(3), that the court is to grant a decree on such proof only if the evidence viewed as a whole points to the marriage having in a real sense foundered; and in a further provision in Clause 3(2), that if the judge thinks at any stage of the proceedings that there is the hope of reconciliation he may adjourn the proceedings for as long as he thinks right to give that hope a real chance of maturing into a reconciliation between the parties. Further, Clause 3(1) requires the petitioner's solicitor, before any petition for divorce is launched, to discuss—and later to certify to the court that he has discussed—with the petitioner the possibility of a reconciliation, and has given him or her 300 the names of persons, such as marriage guidance advisers, who might be of help.
But the Bill goes further still than this to preserve marriages in danger of wreck. Clause 2(1)(a) provides that the first of the factual situations of which I spoke is adulterous behaviour on the part of the respondent. But such behaviour will be regarded as prima facie evidence of breakdown only if, in addition the, petitioner satisfies the court that he or she in a real sense finds it intolerable to go on living with the respondent. You may have cases (and this is the thinking on which this concept is based) where an act or acts of adultery, though ordinarily they indicate or are a consequence of a fundamental lack of mutual affection, trust and respect of the spouses, nevertheless in the particular case do not mean that all is at an end between them. The adultery, therefore, so the Bill provides, is not in itself to be regarded as demonstrating breakdown unless the petitioner can in addition satisfy the court that the act of adultery is so offensive and deeply wounding to him or her that any further married life with the respondent is unthinkable. This again is an indication of how anxious was the Archbishop's Group, so far from drawing up a "Casanova's charter", to insert in the Bill every possible safeguard to hasty, ill-considered divorce, with a view to strengthening and reinforcing respect for the institution of marriage.
In Clause 2(1) paragraphs (b) and (c) deal with cruel and intolerable conduct by the respondent towards the petitioner and with desertion of the petitioner by the respondent for two successive years, in place of the three-year period at present requisite. Both clearly spell the death knell of the marriage.
There remain the two-year and five-year separation provisions which have given rise to controversy. Before I come to them, may I digress to say a word on what are known as the "discretionary bars". They are preserved in Section 5 of the existing Matrimonial Causes Act 1965, having been largely imported from 1857 thinking. The law now says: "If you prove that your spouse has committed adultery you get your divorce; but if, in addition, you yourself have committed adultery, you will find a divorce refused, however ardently both of you want a 301 divorce, unless the court exercises its discretion in your favour. Worse still, if you do not voluntarily own up to the court that you have committed adultery, you almost certainly will not get a divorce, even though nobody else has the least desire to raise it or complain of it".
I suppose there is a kind of ferocious lawyers' logic in saying in this context to a petitioner for divorce: "You are complaining of another's conduct; have a mind to your own". Your Lordships will often have seen announcements in the Press that, "A decree nisi was granted to Mrs. X on the ground of her husband's adultery. The judge exercised his discretion in favour of Mrs. X in respect of her own adultery". I offer it purely as my opinion, which your Lordships may or may not accept, but I find it difficult to conceive of anything more humiliating and absurd than the discretion statement, with its penitential confession in open court, the routine quasi-rap over the knuckles before the whole class, with its "You naughty boy" or "You naughty girl" rebuke, now almost common form in announcements that a decree nisi has been granted. A remote and crabbed casuistry may lead to the conclusion: "Adultery by one, divorce certain; but adultery by both, divorce uncertain". My guess would be that in the judgment of the man and woman in the street, this, in the context of divorce, just does not make sense.
It is not the judge's fault: they must administer the law as they find it; it is the fault of Parliament for not, long since, removing this blot on the Statute Book. It is almost a dead letter anyhow. In years gone by the exercise of discretion was often refused. To-day only in rare cases do the judges think it their duty to refuse to exercise their discretion in favour of the petitioner, but in each case they must still ask themselves whether they should or should not. Once breakdown is substituted for the matrimonial offence, the discretionary bar clearly no longer has any place. The more deplorable the conduct of both parties towards each other, the more obvious is it that the marriage has irretrievably broken down, and Clause 9 therefore throws all these discretionary bars, lock, stock and barrel, out of the window.
Before I submit to the House my argument with regard to the separation 302 provisions, may I briefly call attention to Clause 3, subsections (3), (4) and (5)? Whether the petition alleges adultery, intolerable behaviour, desertion or separation as the relevant factual situation relied on to establish breakdown, the circumstance that the petitioner has for an; period gone back to live with the respondent to try, in spite of all that has happened, to "make a go" of it again, in no way prejudices the petition, if the parties find it is not possible for them to come together again, provided that the period or periods do not in the aggregate exceed six months. I cite this provision as yet one more effort by the Archbishop's Group to save marriages where there is the least chance of putting the pieces together again. It is a valuable provision, because it means that the petitioner's solicitor can advise him or her with complete safety to go to the extreme limit to see whether, after all, a last-minute reconciliation may not be possible.
What then of the separation provisions? Paragraph (d) provides that when it is proved that the parties have lived apart by mutual consent for not less than two years, that shall be a sufficient prima facie proof of breakdown, provided that the respondent does not object to a decree of divorce being pronounced. If two people, grown up and in their right minds, have lived apart for two years, and then, both desiring divorce, one approaches the court to ask for a decree of divorce without objection by the other, what possible reason, in public policy or otherwise, can there he why they should not be divorced? If they earnestly desire to be divorced, to refuse them divorce after two years of separation which make it obvious that the marriage is at an end, is almost to invite them to stage a simulated act of adultery. They may be sensitive people whose stomach turns against the idea of adultery and who wish to preserve the respect of their children. They have waited two long years, perhaps from time to time coming together to try, without success, to patch things up. If a marriage has to end, is this not the dignified way to end it? Your Lordships may hope that if divorce on this ground is allowed, this is the method which more and more will be used by well-behaved people, and the sordid recitals of adulterous behaviour which now degrade our courts will be 303 increasingly consigned to the dustbin where they belong.
Then comes paragraph (e), which provides that five years' separation shall be sufficient to establish breakdown and lead to divorce, whether or not the respondent to the petition objects. I submit that this is right. A few days ago I received a letter from a lady unknown to me from which I will quote:We have waited twenty years for this Bill, we are now old-age pensioners and we wept for joy when we saw it had been proceeded with … We started life together twenty years ago, after much consideration, having seen each other every day for seven years, we went into it with out eyes open in the hope that one day his wife would realise how futile and hopeless it was and give him his divorce. He is a very sick man and it upsets him dreadfully that he could die without as he puts it. having put things right for me and his son".I submit that a law which enacts that these two people may not be lawfully married and legitimise their son is utterly cruel and evil. Surely in such a situation the fact that looms larger than any other is that husband and wife who have been apart for five long years are not husband and wife at all; and that if one uses what has become a meaningless, sterile, legal noose to condemn the other either to eternal celibacy or to eternal concubinage, fathering or mothering bastard children, with all the stigma and ignominy which an unfair world attributes to such a situation, unless there are the strongest reasons he or she should not receive aid and encouragement from the law.
My Lords, I am sure we shall hear the argument that if the old lady and the old gentleman in the type of situation described in that letter have their way, our law, for the first time, will be allowing wrongdoers to take advantage of their own wrong against innocent wives. So long as we remain wedded to the matrimonial offence, this as a purely legal proposition is no doubt as faultless as a Euclid axiom. It is as perfect and unfeeling as a skyscraper. When I hear it, I always think how wise the Archbishop's Group was in advising us to travel away from 1857 to 1969 and to dump the matrimonial offence and all the antiquated junk that goes with it beneath the waves for ever. Cases differ so 304 much. It may be the husband or the wife who seeks freedom. The sole object in so doing may be to live untied and unvexed with no question of a second union.
My Lords, Satan does not always choose a male bosom for his habitat. Not all husbands are plethoric businessmen in their fifties, who spend their office hours with a blonde typist seated on their knees, pondering how to discard the middle-aged wife who has lost her attractiveness. It is very far from the case that all middle-aged wives have lost their attractiveness. But even if, as is often asserted, there are some middle-aged wives who will be financially worse off if they are divorced than they would be if they remained tied in law to a husband whom they may not have seen for years, that surely is not a sufficient reason why very large numbers of other men and women of all ages, perhaps in every sense meritorious, should have to undergo years of distress which could easily be terminated by a change in the law.
After all, what is the husband's much-trumpeted wrong, or the wife's, for that matter? Probably in many, if not most cases, it is that after the last vestiges of the reality of his marriage have been swept away by years of separation, in utter loneliness he has yielded to the longing, deep in all of us, for a family hearth and the love of a woman and children. In most cases, I would guess that the fault that led to the parting was on both sides. The wife may have been innocent in the legal sense that she has not committed a matrimonial offence, but she may have been impossible in her behaviour—cold, suspicious, heartless, insensitive. Or she may have been a wholly deserving wife and her motive in refusing divorce an understandable reluctance to give up the hold she has on her husband to preserve for herself, and perhaps for her children, some financial or other security. She may even have some lingering affection for him and hope that he may ultimately return—a hope, be it said, very rarely likely to be realised. Or her motives may be simply vindictive, a desire to hurt her husband and perhaps his new family. She may be a saint or a vixen. She may, it is to be hoped will, be able to make a new life for herself with a new career or a new 305 happy union with a second husband. The figures in Appendix C to The Field of Choice seem to show that of women who are divorced the vast majority are divorced when they are under 40.
My Lords, should we not in this situation say to ourselves, "Never mind the lawyers"—including myself—"and the highly organised pressure groups, and ask in this human problem: what would be the verdict of ordinary, kindly, responsible men and women with red blood in their veins and pity in their hearts—the people at large for whom this legislation is designed?". I believe their reasoning would be as follows. If husband and wife have been apart for five years, first let the husband desiring his freedom make fair provision to support his wife and his children if they are with her, or at least do the best he can; if he has done so, then most certainly dissolve the legal bond, unless when the position and behaviour of all the parties is considered—the husband, the lawful wife, their children, the Common Law wife and the illegitimate children—it is manifest that a dissolution of the legal bond would occasion grave hardship in the balance of unhappiness. They would, I believe, add a rider—that only rarely in cases of this type, where really serious hardship is shown, should a divorce be refused.
All this is what the position will in fact be if Clauses 4 and 6 of this Bill pass into law. Surely it is right to provide as these clauses do, that it is not only the interests of the lawful wife that are to be taken into account. The Law Commission estimated that if the law were changed there were no fewer than 180.000 illegimate children who could be legitimated. I find it hard to think of any claim that should be weighted heavier in the scales than theirs. Born without their consent into a heartless world not above throwing their illegitimacy in their teeth, they at least cannot be accused of seeking to profit by their own wrong. Surely it is better for the lawfully-born children also that there should not be that bitterness between their parents which is likely if their mother seeks to hold a halter around her husband's neck which bastardises the issue of his second union.
Your Lordships may wish in Committee, if this Bill receives a Second Reading, to examine more closely the pro- 306 visions of these two clauses. While the existing powers, hitherto thought to be adequate, vested in the courts to safeguard the position of the wife and children of a marriage which is dissolved are preserved, the Bill by Clause 6 confers drastic new powers which go very far beyond them. If divorce is sought on the ground of separation, whether for two or five years, the judge can make it a condition of granting the divorce that the husband shall make whatever provision the judge thinks fair and reasonable, or, in the case of a poor man, at least the best practicable in the circumstances, for the support of the wife, both before anti after the husband's death.
But, when all is said and done, behind Clause 6 stands Clause 4. When every effort has been made to achieve adequate arrangements, and a fortiori if no such arrangements have been found possible, nevertheless if grave hardship, financial or otherwise, will be occasioned to the wife if divorce is granted, the judge is enjoined by Clause 4 to dismiss the petition. While everybody's interest has to be taken into account, it is her interest in the ultimate issue which is to prevail; the scales could be hardly tilted more in her favour.
Legislation broadly on these lines is in operation in some other Commonwealth countries. Analogy with the experience notably of Australia suggests that divorce after five years' separation might result in an extra 5,000 divorces a year in this country, with a consequent increase in the cost of the Legal Aid Scheme, equal to a small fraction of the cost of building the "Queen Elizabeth"—cheap at the price for the relief of the massive suffering involved. There would be an initial backlog of cases, as I believe there was an initial backlog of cases for urgent medical treatment after the National Health Service was introduced. At least I would expect, and hope, there would be such a backlog. The greater it is likely to be, the stronger I submit is the case for enacting this Bill, and the more serious the reproach to be levelled at the existing system. Your Lordships may have many reservations about individual provisions which you may wish to explore more fully in Committee, but I hope that your Lordships may feel able at the end of this debate to conclude that at least the Bill is right in general principle and 307 should receive a Second Reading. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Stow Hill.)
§ 2.47 p.m.
§ BARONESS SUMMERSKILL
My Lords, I have known the noble Lord who has just spoken as a personal friend for many years, and I fully appreciate the depth of feeling he has shown and the sincerity with which he has spoken. I must confess that I did not know that my mention of "Casanova" would rouse him to such Freudian fury. Perhaps afterwards we might discuss that aspect of the Bill. This House has of course discussed divorce on many occasions. Many of us made a contribution to discussions on a Bill similar to this, in certain ways, some years ago. I must say to my noble friend Lord Stow Hill that I cannot agree with what he said about that Bill. He has reminded the House of these other discussions, and I cannot recall the same unanimity as he does.
Frankly, I think it was a little unfair to quote on so many occasions the Archbishop's Committee. What the noble Lord said almost indicated that the Church in this country is wholly behind this Bill. I have had a colossal post on this subject and I must say that the letters I have had from the clergy did not indicate to me that the whole of the Church supports this Bill. And quite understandably. We are not discussing some cut-and-dried question which does not arouse human emotions at all—although of couse it is inclined to arouse the lawyer to legalistic illustrations. Today, we are discussing a matter which concerns every family in the country. Those who rarely read the newspapers will listen to what is said on the radio. They will listen to what their neighbours have said is in the popular newspapers about Parliament's attitude to divorce.
As I have said, we have discussed this question on other occasions, and I would recall this because I think the point is important. It was in 1967 when I raised the whole question in the debate on the Queen's Speech. I did so because the Queen's Speech said that there was to be reform of family law. I had heard in this House that there was talk of a Divorce Bill, and therefore in my speech I anticipated this Bill and asked the Gov- 308 ernment to consider certain aspects of divorce reform, aspects which I shall discuss to-day. I ask your Lordships to forgive me if I am in any sense repetitive, but I believe that on this subject repetition can be forgiven.
It seems to me that the main purpose of the Bill is to make marriage more easily dissoluble without having given proper consideration to the consequences to the wife and children of the important first marriage. I have listened to my noble friend Lord Stow Hill making a plea for the wife and children of the second marriage, or for the partner who played a part in an extra-marital union. My noble friend's plea was very forcible, but I am asking your Lordships' to put in the forefront of your thinking the circumstances and the needs of the first, important, family.
The far-reaching social importance of this Bill has not been recognised. Otherwise, the Government would not have chosen the hours between 10.30 at night and the following day for Members in another place to consider, in the small hours of the morning, a matter of such profound importance to the community. Less than one quarter of the Members in another place, including those for and against this measure, voted on the Third Reading. The Bill did not come to them suddenly. As has been said, we have thought about this and talked about it for years. Quite understandably, a tremendous amount of information was disseminated in another place by the promoters of the Bill, yet after all that propaganda only one quarter of the Members—totalling 600—of another place voted for or against this Bill. This cannot be regarded as representing the will of the British people on divorce, and certainly not the will of the inarticulate women and children who may be the victims of this Bill. I ask the Government to pause now. I ask them to give us time, to give the country and Parliament time, and to reconsider the whole position. Indeed, the choice of to-day for this debate was most surprising. How many Members are away in connection with the Investiture? I ask again: why this unseemly haste?
It will be recalled by all noble Lords that Parliament, in its wisdom, decided that the issues embodied in this Bill were of such far-reaching importance 309 to family life that a Royal Commission on Marriage and Divorce should be appointed. That Commission discussed over the years, not just in the small hours of the morning but over the years, with individuals and organisations, two fundamental changes which are included in this Bill. The Royal Commission on Marriage and Divorce voted against both—namely, divorce by consent, and divorce of the innocent spouse by compulsion. I should like to remind the House of the words of the Royal Commission. They said:To vest in a husband or wife the right to divorce a spouse who, ex hypothesi, had committed no recognised matrimonial offence and who did not want a divorce, would result in grave injustice. It would, for example, allow a man who had committed adultery or had been cruel to his wife to leave her and subsequently to divorce her against her will. This would violate a principle which has been long established in the law, namely, that a man shall not be allowed 'to take advantage of his own wrong'.My Lords, if as a result of this Bill an innocent wife is to be divorced against her will, at least we should ensure that she has financial safeguards. Yet the outstanding omission from this Bill is the failure to make any adequate financial provision for the first family. I remember the noble and learned Lord, Lord Hodson, saying, in a debate on divorce some years ago (and may I say how pleased I am to note that so many noble and learned Lords who represent the law of this country are to take part in this debate?): "The only person who will get paid is the one who is there on Friday night"; and of course that will not be the first wife. Therefore, if this innocent woman is to be divorced against her will, we must make sure that she is adequately provided for.
The noble and learned Lord who sits on the Woolsack has said that the Law Commission is preparing a document on the subject. My Lords, I heard this in 1967; I have heard it time after time through the years. But why must this Bill be rushed through before we have debated the contents of that document which is still not forthcoming; which is still just a promise? To-day we are being asked to support a measure blind-fold. Surely no responsible lawyer would ask a client to do this. As the Bill stands, the financial protection for 310 the wife is set out in Clause 6(2)(b), which says the court must be satisfied:that the financial provision … is reasonable and fair or the best that can be made in the circumstances".Surely this is a contradiction in terms, for "the best that can be made in the circumstances" means that the financial provision need not be fair and reasonable. Most men cannot afford two wives. That, shortly, is why I said that this is "a Casanova's charter." None of the arguments that I am giving now applies to the rich man. Therefore the best provision, according to this Bill, that can be made in the circumstances (because that is what the wife must have) could mean that the first wife might receive a pound a week after the second family had been taken into account. I do not think this is an exaggeration.
Without information on the financial provisions we are being asked to-day to take this Bill on trust. I believe that social justice demands that all the possible consequences of this measure should be made apparent to the public. If this Bill is going right into the homes of the people; if this Bill is going to be held up as a threat to innocent women throughout the country, should we not now say that we should wait for that very important document that may come after this Bill is on the Statute Book—or not necessarily on the Statute Book, because I understand that the Government may not make this Bill operative until the financial measure is introduced. This is another curious procedure. The financial measure should be debated with this Bill because the two are interdependent. A woman who is cast off after many years' service to the family should, I believe, be able to count on her share of the goods accumulated during the marriage.
I feel that the Government are in a difficult position because they are receiving conflicting advice all the time. This is a reason why we should wait. What have the Law Commission said in this regard? The Law Commission recognise the injustice of failing to protect the first wife, and they say, in The Field of Choice:Until the rules relating to family property and financial relief are reformed in a way which will protect the wife against additional hardship resulting from a divorce, it may be necessary to go even further by providing an additional safeguard whereby a divorce can- 311 not be forced on the wife if it is impossible for the husband to make provisions which protect her from disproportionate hardship.As I say, since few husbands can keep two wives, the Law Commission's recommendation should be sufficient to negative the Second Reading of this Bill. In my opinion, a law which is not enforceable is bad law, and a law so drafted that only wealthy men can take advantage of it is bad law.
In considering this Bill, it must be borne in mind that men can earn their incomes and improve their skills as workmen by virtue of the division of labour between themselves and their wives. The wife spends her youth and middle age in bearing and rearing the children and tending the home. This frees the husband for his economic activities. Sir Jocelyn Simon, the President of the Divorce Court, put it in this way. He said:The cock bird can feather his nest precisely because he is not required to spend most of his time sitting on it.All this helps us to focus our attention on that important person, the wife and mother, and I say that changes in our divorce laws of this fundamental nature should not be made in vacuo. An innocent, middle-aged wife divorced against her will, with years of service to the family to her credit, must not be sacrificed. I am not talking about the well-to-do; they can make their own arrangements with regard to property. I have in mind the hundreds of thousands in modest circumstances. Most European countries have recognised the services rendered by the wife and mother and have introduced matrimonial property laws designed to protect the wife on divorce. It will be recalled that the Matrimonial Property Bill recently introduced in another place would have given the innocent divorced wife some measure of justice, but although it received a large majority on Second Reading in another place, I understand that the sponsor was persuaded by the Lord Chancellor to withdraw it.
There is another aspect of the Bill before us to-day which I thought would have raised an outcry in the Church, and from my letters it certainly has. That is the provision which allows divorce after two years' desertion by the petitioner, provided the other spouse does not object—divorce by consent. By the way, I re- 312 mind your Lordships that this proposal was fully examined for years by the Royal Commission and they came down against it. And, if I may say so with due respect to the most reverend Primate the Archbishop of Canterbury, this may have been the reason why he repudiated the Bill when it was first published.
Divorce by consent sounds very attractive, but let us just look at the ordinary family. The facts are that with the age of majority reduced to 18 we could have very early marriages of very immature young people who, after a few quarrels, will be responsive to suggestions to end the marriage by consent after two years' separation. My noble friend has conjured up pictures. I ask your Lordships to conjure up the picture of these two young people: the girl is 17 and the boy 18. They probably met at school, and very often such young people are at school together till the age of 16. They get together and look for a bed-sitting room, which saves getting furniture to start with. Life in a bed-sitting room for two young things accustomed to being looked after by mother often leads to quarrels. "In-laws" and other people can bring easy pressure to bear upon them and say, "You have to be apart for two years and this is all over. Why not do that?". Should we say that a marriage between two teenagers like that, after two years' separation, has broken down irretrievably, without allowing them to get over their teething troubles? I think this clause is dangerous. The institution of marriage may have lost some of its flavour in this permissive society, but it has served us well for so long that, while it needs to be reviewed from time to time, any attempts to modify it should proceed with extreme caution.
I come to the part that so many people have made so much of. Great emphasis has been placed upon the irretrievable breakdown of marriage as marking the reforming nature of this Bill. I have listened to promoters of this Bill and for the last three years I have listened to speakers in every part of the country. All the time they talk about the irretrievable breakdown of marriage, of how this Bill will bring this novel concept of marriage, and argue that that is why it must be supported. I have discussed it with eminent lawyers 313 who have had vast experience of the administration of the divorce laws, and many of them regard this as playing with words. In Clause 2 the matrimonial offences are set out as the guidelines; but the judge—and I am very sorry for him—would be almost in the position of a coroner; he would have to conduct an inquest into each case. There has been such a plethora of words on this aspect of the Bill dealing with the irretrievable breakdown that I believe that it has been used as a stalking horse for the profound changes in the Bill which I have mentioned.
I want to say this finally. There are those here to-day who believe that they should support the Second Reading of the Bill because of the clause dealing with the irretrievable breakdown of marriage, and then strive in Committee to amend the Bill regarding fundamental changes. I believe that this approach is not based on logic. I was always taught as a young Parliamentarian that on the Second Reading of a Bill we consider matters of principle, and the basic changes set out in this Bill, in my opinion, are questions of such far-reaching principle that I would ask your Lordships to vote against the Second Reading.
§ 3.8 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, this branch of the law falls within my departmental responsibility, and accordingly there are a number of things that I think I ought to say to your Lordships about this Bill. May I deal first with the position of the Government? It has been said, and more than once, that the Government are trying to push this Bill through; that it ought to be a Government Bill; that the Government are to be blamed for not having provided Parliamentary draftsmen when they ought to have done; that the Government are to be blamed for having provided Parliamentary draftsmen when they ought not to have done, and that the Government certainly ought not to have given it Government time. The answer to that attack is that there are two classes of cases which are never Government Bills. One class are cases where there are many people in every Party who think one way and many people in every Party who think the other way.
The second class—and sometimes they co-exist, as here—is where the subject 314 matter raises questions of great social interest, and particularly if it raises questions of conscience and of religious conviction. I do not pretend to have gone hack to the Reformation, but I do not know of any Government Bill which has ever dealt with the grounds of divorce. The 1857 Matrimonial Causes Act was an Act which provided that if you wanted to have a dissolution of your marriage it was no longer necessary to go to the Ecclesiastical Court, or to start an action of criminal conversation or sponsor a Private Member's Bill in your Lordships' House. The object was not to alter the grounds of divorce. Since then we have had numerous Bills to alter the grounds of divorce: by Mr. Asquith and others in 1892, Lord Gorell in 1914, Lord Buckmaster in 1918, Lord Buckmaster in 1920, Lord Gorell in 1921, and then a successful one which started in the other place but which was really Lord Buckmaster's Bill again. That successful Bill was in 1923. Then, after an interval of eleven years, Mr. Halford Knight introduced a Bill which was really the precursor of the Herbert Bill, and Sir Alan Herbert's Bill, as it became, was brought before Parliament in 1936. There was then a further interval until Mrs. Eirene White's Bill in 1951, which had in it a breakdown clause of seven years. That was withdrawn only on the Government's undertaking to appoint another Royal Commission. Then we had Mr. Deedes's Bill in 1958, Mr. Abse's Bill in 1963, and Mr. Wilson's Bill in 1967.
All I want respectfully to point out is that I do not know that we have ever had any Bill to alter the grounds of divorce which has been a Government Bill; they have always been Private Members' Bills; and, of course, where, as here, questions of conscience are involved, one can well understand the reason for that. I do not know—he will speak for himself—but I imagine my noble friend Lord Longford would have resigned from the Government long before he did if the Government had sponsored an abortion law reform Bill or a divorce law reform Bill. We all recognise that some people have strong religious convictions on this subject.
§ THE EARL or LONGFORD
My Lords, as the noble and learned Lord the Lord Chancellor has mentioned me, 315 I should like to confirm what he has just said.
§ THE LORD CHANCELLOR
Well, my Lords, we still have one or more Catholics in the Cabinet, and no doubt many in the Government and, of course, in the Party. Obviously, that is one of the reasons why no Government ever make this particular subject a Government Bill.
I will not spend time on the question of the draftsmen. I think it is generally agreed now that if an important Private Member's Bill looks like reaching the Statute Book the Government ought to provide the draftsmen to see that it is properly drafted. It is the last thing that any Government want to do, as your Lordships would realise if you knew the time that Ministers have to wait to get their Bills drafted. It is really rather maddening when one is told, "He has left your Bill and is drafting a Private Member's Bill." But I think everybody agrees that in this case it was right. All we regret are the misrepresentations like the article in The Times ten days ago, which blamed the Government for not having provided Parliamentary draftsmen when in fact they had done so throughout.
Then, as to Government time, I confess that, before I became a Member of your Lordships' House I had always thought that our Parliamentary procedure was defective, in that there were a number of most important social questions, which I quite understood could not be in a Government Bill but which never seemed to get decided because it was so difficult to get a major Private Member's Bill through. I thought that every Government ought to choose one or two of those Bills every year and, if necessary, give them Government time. Well, I have rather changed my mind, partly because I did not then realise how little Government time there is and how naturally jealous Governments are about Government time. The other place meets for only 160 days a year; we meet for less. Six days are taken up with the debate on the Address, 32 are Opposition days, 16 Budget and Finance Bill days, 22 days are spent on Private Members' Bills and Motions, four on Adjournments and Recesses, and in addition it is found necessary to keep 25 days for 316 Orders, regulations, opposed private business, debates and contingencies. So, apart from the Finance Bill, the unfortunate Government to-day have only 55 days in the whole year in which to get their own legislation through.
But what I also did not know was the extent to which Governments have in fact given Government time to Bills, and particularly to Private Members' Bills of this kind. I find that in the 17 years from the 1948–49 Session down to the 1965–66 Session Governments gave Government time to Private Members' Bills on no fewer than 58 separate occasions—that is, more than three times a year—obviously picking out those upon which they thought Parliament ought to be enabled to come to a conclusion. While I certainly will not go through this list, I observe that it included in 1955–56 the Marriage (Scotland) Bill; in 1957–58 the Divorce (Insanity and Desertion) Bill; in 1958 the Legitimacy Bill, and in 1959–60 the Adoption Bill. The immediately preceding Conservative Government, in 1962–63, gave Government time to Mr. Abse's Matrimonial Causes Bill and in 1963–64 to the Divorce (Scotland) Bill.
Bearing those facts in mind, I submit to your Lordships that this Government are in no way to blame in this matter. We are in fact entirely neutral, for the very good reason that some of us strongly support the Bill and some of us strongly oppose it. There has never been a Government view; the Government are quite right not to make it a Government Bill, and they were quite right to provide Parliamentary draftsmen. Thus, starting with Miss Eirene White's Bill, followed by Mr. Abse's Bill, and from the time that Mr. Wilson's Bill received a two to one majority on Second Reading and concluded its Committee Stage but failed for want of time, if ever there was an obvious candidate to be given Government time it was the new Bill, which again got a two to one majority on Second Reading in another place.
May I come next to the position of the Law Commission. There is no such thing as lawyers' law reform. We all know that some property Bills are quite technical, but you cannot divide up the subject in that way. There are but few law reform Bills, or, I suppose, any Bills, which do not raise questions on which laymen may disagree. I respectfully defy 317 anyone to write down on paper any precise, workable definition of what you mean by "lawyers' law reform"; and if the Law Commission were confined to highly technical property subjects we might as well not have it.
On the other hand, I said, I remember, in the debates on the Law Commission Bill that it would be fatal if the Law Commission were to get involved in any question of Party politics. The same remark, I think, applies to matters which raise big social questions, particularly, of course, religious questions. The Law Commission, I think, recognise this very well themselves. We had an example only this month wherein they drew attention to the wide demand among those who care for the liberties of the people for a review of the old question of administrative law. They at once added:This raises social questions which are not for us to decide and, indeed, we do not think for lawyers to decide",and they suggested a Royal Commission.
On this subject, in the field of choice they said:It is not, of course, for us but for Parliament to settle such controversial social issues as the advisability of extending the present grounds of divorce. Our function in advising you must be to assist the Legislature and the general public in considering these questions, by pointing out the implications of various possible courses of action. Perhaps the most useful service that we can perform at this stage is to mark out the boundaries of the field of choice.All that is quite right, and your Lordships will remember that it was as a result of the debate in your Lordships' House and, I think, by general agreement that after reducing the field of choice the Law Commission entered into further discussions with the most reverend Primate's Committee.
I imagine that your Lordships will wish me to say something about the historical setting in which this Bill comes before us, and I shall do so quickly. There was first the Matrimonial Causes Act, 1857. Then we had a Royal Commission. I have already dealt with the intervening Bills until we reached the Herbert Bill, which passed its Second Reading by 78 votes to 12. My noble friend Lady Summerskill has pointed out the small numbers. That is always a feature of Private Members' Bills, which are usually taken on Fridays, and anybody who does not want to be there tries to find a pair, 318 but there being no Government Whips nobody ever knows how many are paired. Sir Alan Herbert had the services of the Law Officers to advise, and of Parliamentary draftsmen. The Bill came to your Lordships' House (where the vote on Second Reading was 79 to 28), and later received the Royal Assent. Then in 1950 we had the first Bill containing a clause based not on the principle of the matrimonial fault but on the principle of a marriage having irretrievably broken down, and a Royal Commission was appointed in consequence.
The next thing that happened was that in 1953 New Zealand brought in a new ground: that the petitioner and respondent are living apart and are unlikely to be reconciled, and have been living apart for not less than seven years. In 1956 the Royal Commission reported, and my noble friend Lady Summerskill has already dealt with that. In 1959 there were two new grounds in Australia: one, wilful desertion for two years; two, that the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition and there is no reasonable likelihood of cohabitation being resumed.
It was in January, 1964, that the most reverend Primate appointed his Committee, and two and a half years later, in July, 1966, they reported in Putting Asunder. The Field of Choice has already been mentioned. Your Lordships will remember that on November 23, 1966, Your Lordships' House discussed both those documents, and there was expressed the general view of the desirability of the Law Commission assisting the most reverend Primate's Committee to see whether their general proposals could be put forward in a practicable form.
It was on February 16, 1967, that the general principle of breakdown was affirmed by the Church Assembly of the Church of England by a large majority. On March 17, the Scottish Law Commission made a very interesting Report. If time permitted I would read the conclusions of that Report, but it is available in the Printed Paper Office. In July, 1967, the Methodist Conference affirmed the general principle of breakdown as against matrimonial fault. In July, 1967, the most reverend Primate's Committee 319 with one abstainer, a lawyer, who abstained on the technical ground that the Committee was functus officio, unanimously agreed what has since been called the "consensus" which, in the view of the Law Commission would be practicable. There again I had intended to read that Report, because it is a very short document and would enable the House to see how far the present Bill differs from the consensus, but the consensus is available, published in the last Annual Report of the Law Commission.
On November 29, 1967, Mr. Wilson's Bill was introduced and was later given a Second Reading by 159 to 63, more than a two to one majority. Out of the women members who voted, 11 voted for the Bill and 4 against. My right honourable friend the Solicitor General, who represented me, explained that he was himself against the Bill. The Bill occupied 37 hours in 13 Sittings of the Committee before it finished its Committee stage. The effect of the 37 hours on my right honourable friend was to make him change his mind, but I suppose that is the object of discussing things together.
On January 1, 1968, there came into force the Matrimonial Homes Act, which my noble friend Lady Summerskill piloted with such skill through this House. On February 1, 1968, Canada introduced a new divorce law including a five-year breakdown clause. Then of course the 1967 Bill, having foundered for lack of time, was reintroduced in November, 1968, by Mr. Jones in another place and was carried on Second Reading by 183 to 106. That Bill occupied 27 hours in Committee, and 16 on Report and Third Reading. These two Bills have been discussed in the other place for a total of 80 hours, which I believe to be somewhat exceptional. Mr. Wilson's Bill was finally carried on Third Reading by 109 to 53. I do not know how many pairs there were; I am told by the promoters that they had 364 supporters, but I cannot say. In December, 1968, New Zealand reduced the seven-year clause to a four-year clause. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board which suggested substituting breakdown for matrimonial offences.
320 It may be that if we are to change our law here, we ought perhaps to look not only at the extent to which those countries most like us have changed their laws already, but at what looks like being the future pattern. I do not know, of course, whether the most reverend Primate has read that Report. I found it of fascinating interest, because it covers the whole of the history of Scottish divorce law from the time of the Reformation. The basic proposals of the Board are:The Committee remains, as in its report to the General Assembly of 1968, unanimously agreed that divorce should now be granted on the ground of breakdown of marriage as over against the need to prove certain matrimonial offences. Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is aleady there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown.The Board go on to explain why they consider two years quite long enough and why they think longer than two years would be too long. Then they deal with conciliation. Then they say:Divorce on the grounds specified above could be sought by either party or both. This would relieve a great deal of human misery and help to remove a stigma from many children born of illicit unions.They go on:The court shall not grant a decree of divorce unless and until it is satisfied that the financial provisions relating to the spouses and children and the provisions for the welfare of the children are reasonable in all the circumstances of the case.I found the whole Report to be of considerable interest.
Finally, I should, I suppose, say something about the relevant facts, or the basic facts. I have looked at last year's figures. I think I am the only person in your Lordships' House who is aware of them at the moment because they are usually published in July in the Civil Judicial Statistics. Having read them, I can say that I do not detect anything of any kind exceptional in them or other than continuing trends. As your Lordships know, if you file a petition for divorce you have to say what the ground of divorce is, and by far the most common ground is adultery alone. This constitutes about half the cases. Following 321 rather a long way behind are desertion and cruelty, and then of course there are a certain number in which a petition is presented on more than one ground.
There is another fact which seems material, though it is not generally known. I do not know why it is not generally known, because it is in the Civil Judicial Statistics every year. I mentioned this fact two or three months ago in conversation with a High Court divorce judge and he said, "Oh, you must be wrong about that. That is contrary to the whole of my experience." Some weeks later I mentioned it to another High Court divorce judge and he said, "That cannot be so." One has to bear in mind that for twenty years it is the county court judges who have seen the thing as a whole. The county courts now deal with 93 per cent. of the cases. The High Court judges with only 7 per cent., and also, perhaps, with a fairly specialised number of defended cases where there will be a long fight on cruelty—which we all know are really entirely questions of money: who has to maintain whom.
As I say, I do not know why there is so much surprise, because it has been stated in the annual Civil Judicial Statistics for years. But it is a simple fact that if you take this, the most common case, based on adultery alone, the number of petitions by wives against adulterous husbands is always just about the same as the number of petitions by husbands against adulterous wives. I do not know why that should have caused surprise. I think that in 1966 there were more adulterous wives than husbands; in 1967, cases of adultery by wives numbered 11,061, by husbands 11,016—it is always a fairly close thing, as your Lordships will see, and last year, 1968, by wives, 13,171; by husbands, 12,800. So there is a difference of a few hundreds each year, one way or the other.
The question of age has been raised and is no doubt material. The Registrar General illustrates this in five-year age ranges, so the question is: if you take all the women who in a year have their marriages dissolved, in which five-year age range would you expect to find more than in any other–51 to 56, for example or 53 to 58? The answer is 24 to 29. Over one-third of all the 322 women whose marriages are determined in a year are 29 or younger; over half are 34 or younger; 70 per cent. are 39 or younger; 82 per cent. are 44 or younger.
Since people speak of possible loss of a pension, the re-marriage rate is of course relevant. How many of these women re-marry? The answer to that question is that I do not know. It was said in the other place that 64 per cent. of the men and 62 per cent. of the women re-marry, but I have been unable to find the basis of those figures, and the best I can do to assist your Lordships is to say this. In 1967, there were 42,378 divorces, and in the same year, among all the marriages, there were 26,546 women whose previous marriages had been dissolved. Of course they are not necessarily the same. But that seems to be the pattern: that women whose marriages have been dissolved appear, in a slight majority of cases, to re-marry. At all events, re-marriages amount to more than half the number of divorces. Of course, I thought, "These will he the younger women". But apparently not, because the same Registrar-General's 1967 figures disclose that in that year there were 4,267 women over 50 whose marriages were dissolved, and 2,642 women over 50 whose marriages had been dissolved and who re-married. So the position looks about the same at different ages.
The whole question of finance is not an easy one. Broadly speaking, of course, there is no difficulty now when the man has money, because you can go through his passbooks, you know what investments he has, and the court can order any amount of maintenance it likes. It can order all, or as much of it as it thinks fit, to be secured; that is to say, that certain assets or shares shall be attached so that the payments are guaranteed. It can order a husband to nay his wife any lump sum that it likes. But most of our people are not in that position. Most of them have a house. The house may have been bought; it may be in the course of being bought; it may be a council house; it may be a tenancy. Then there is what is in the house; and half the people have a secondhand car.
Now that my noble friend Lady Summerskill has protected the position of the matrimonial home, what is of most importance is maintenance. In the event 323 of breakdown of marriage, a great many—nobody knows how many—make their own arrangements. But I think it right to point out that, at the opposite end of the scale, there is great hardship being borne by the deserted wives of the low wage-earners. The Graham Hall Report reminded us that on January 1, 1966, there were 118,000 maintenance orders in force, and my noble friend is quite right in saying that in those cases where there is a second family it is the woman who is there on Friday night who is going to get the money. I am stressing this because I do not want anybody to suppose, from whatever anybody who supports the Bill says, that the Law Commission or Parliament or the law can, by waving some magic wand, relieve the positions of these women.
The Graham Hall Report revealed the fact that in 87 per cent. of these maintenance orders the man was earning less than £16 per week, and in 43 per cent. he was earning less than £10 a week. I think, if I may say so, that we get so used to reading in the papers about the high wages of people who have gone on strike for more, because they are in a privileged position where they can hold the community up to ransom, that we tend to forget what a large number of very low weekly wage earners we still have. I must say that I was surprised at the figure quoted, of 43 per cent. of maintenance orders being against men with less than £10 a week. Of course, with a wage of £12 a week it is no good ordering a man to pay his wife £6 a week, because he will not do it. He will end up by going to prison, which does not help anybody
A court can make an order for £2 a week, which may be paid; but it does no good, because in such cases the wives are all living on supplementary benefit, and if the £2 is paid it simply means that the supplementary benefit is reduced by £2 a week. What really matters is the supplementary benefits. I am not saying that some of the wives of these very low wage earners may not be better off financially than they were when they had their husbands living with them, and had to depend on whatever money they could get from him when he was in work. I also appreciate that there are difficulties once supplementary benefits get to be more than the sort of money 324 that would be coming into the house if people were working.
The House may remember that my right honourable friend the Secretary of State for Social Services said in his recent White Paper that he was making a study of the three groups of one-parent families—and when I say, "the three groups", I mean the deserted wives about whom we all know, the fatherless families; the mothers who have never been married; and the cases, of which there are large numbers (I never know why nobody ever mentions them), where a woman walks out of the house with another man, leaving two or three small children in the house—the motherless families. I always think this is difficult. I happen to know a number in quite different social classes, and I know one or two low wage earners who have stopped work and live on supplementary benefits because they think it is their duty to bring up the children. They do not lose much if they were on a very low wage. The alternative is to get a woman to bring up the children in the daytime. But where do they find such a woman? And is she to sleep in the house? My right honourable friend is looking at all these three groups to see where the shoe most pinches.
May I add this? I am sure that none of your Lordships will think that the fact that I have drawn attention to the very difficult position of these 118,000 deserted wives means that I think this has anything whatever to do with divorce. It has nothing to do with divorce. As a matter of fact, 14,000 of them have been divorced, and 104,000 have not. The position of those who have been divorced is exactly the same as the position of those who have not. The difficulties are not due to divorce. The difficulties are due to the fact that their marriages have broken down and the man who used to earn the money has left. Divorce makes no difference at all except prospectively in three rather minor ways.
First of all, it is said—I do not know whether this is true—that if there has been a divorce the wife is probably being a bit better treated financially, because she will certainly have had legal aid and legal advice. I do not know what truth there is in that. Then it is said that the wife is prospectively better off with regard to her retirement pension if there has been a divorce, because in any 325 case the wife does not get a retirement pension at the age of 60; she has to wait until her husband gets it at 65; whereas, if there has been a divorce she is treated as a single woman and gets it at once. So it is said that, from that point of view, if and when it happens, the divorced woman is better off.
Lastly, there is the pension. This is a slightly complicated subject but, broadly speaking, the position is this. In the case of a civil servant, of a member of the Armed Forces or of somebody who has a company pension, some of the pensions are discretionary, in which case the trustees can do what they like, and in other cases the man can say to whom the pension is to be paid. The great change made by this Bill, of course, is that for the first time the judge in court will be able to say to such a man: "I am not going to give you a divorce unless you take out a policy which will provide for your wife the pension which she would have had, or would probably have had, if there had been no divorce". The Chairman of the Law Commission and I have throughout made it quite clear that our view, rightly or wrongly, is that to the extent that the pension position, and a woman's financial position generally, can be protected, those provisions are already in this Bill; that you cannot provide for better than the best; that this new and very powerful armoury which is given to the court, and which has never been given before, can protect those cases; and that the only case that remains is the State widow's pension, about which nothing can be done.
There are two qualifications, perhaps, that I should make here. Of course, if a person is living on supplementary benefits it probably will not matter anyhow, because if such a person had the pension the supplementary benefit would be reduced; but where that is not so, then there is nothing to preserve the State widow's pension. Perhaps I have rather over-stated the matter. If you ask a careful lawyer, "In the average case, if there is a divorce will the first wife lose her State widow's pension?", he will say, "Of course, I have got to bear in mind that most of these women are 34 or less, and that you are asking me about an event which is not going to arise in the ordinary way for another 35 years. Bearing that in mind, my reply must be that 326 if she does not marry again, which she probably will, and if she and her husband live a normal length of life and he predeceases her, then whether she will lose her widow's pension will depend on what our social security laws are in the year 2009. Of course, if you are asking me about the exceptional case, if you are asking me about a woman who is now 60, who has something to live on so that she is not dependent on social security and whose husband appears to be dying of pneumonia, then the answer is 'Yes'".
My Lords, I have to say a word about Mr. Bishop's Bill and the Law Commission's proposals. The Bill was a Bill dealing with community of property, which is a conception that I have always favoured, if we could find a practicable kind. This was a Bill which no Government could possibly allow to reach the Statute Book, because, if I may respectfully say so, the sponsors had not begun to think it out. There is no country where there is community of property that seems to work except those countries where you can contract out, and everybody contracts out. I saw Mr. Bishop and his colleagues, and I told him that there was no prospect of the Law Commission introducing anything in the nature of a Report on Community of Property, but that the provisions relating to financial relief needed an overhaul and. in the view of the Law Commission, needed it whether the Divorce Reform Bill was passed or not. And I said that I expected to receive that Report in July. When I saw him the next clay, having told him roughly what that Report was likely to cover, we drafted a letter together to record this, which I told him he could publish. That said:Matrimonial Property Bill. I am writing to confirm what was agreed at the meeting yesterday which you, Mr. Gordon Oakes, Mr. Eric Lubbock and Mr. Awdry had with the Attorney General, the Solicitor General, Sir Leslie Scarman, Professor Gower and other members of the Law Commission staff and me. Sir Leslie Scarman agreed that the Law Commission would be able to report before the end of July on their proposals for matrimonial financial relief. The Divorce Reform Bill contains a provision that it will not come into effect until an order is made by the Lord Chancellor. Without of course committing the Government on its programme for legislation, which I know you would not expect me to do at this stage, I agreed that if you withdrew the Matrimonial Property Bill I would undertake not to make such an order until legislation based on the Law Commission's proposals had been introduced next Session.327 My Lords, there are one or two things about that letter that I want to make plain. The statement that the Bill would come into force only on an order made by me had of course nothing whatever to do with Mr. Bishop's Bill. It was in the Bill in the first place; it was in Mr. Wilson's Bill. It is a very usual provision, as your Lordships know, to have in a Bill when a Bill cannot be brought into effect until rules have been made; and this is certainly so in relation to the Bill we are discussing this afternoon. When I have had, as I have had, many letters from people wanting to know when I thought this Bill might become law, I have told them, "If it becomes law at all, and does so by the end of July, it certainly cannot come into force until January 1, because we always need six months to make the Rules. If it becomes law by November, it may be Easter before it comes into force." On Wednesday of this week I have a meeting of the High Court Rule Committee to make the Rules which will enable a part, at least, of the Civil Evidence Act to be brought into effect. That Act received the Royal Assent in October, so in that case it has taken nine months. This is because all the legal services are so heavily overworked; it is necessary to consult other Government Departments interested, and because there are on the Rule Committee representatives of the Bar Council and the Law Society. All these consultations inevitably take time, and the interval before an Act requiring Rules comes into force will be at least six months.
So, relying as I did on what the Law Commission had told me, that they would produce their proposals in July, I think it is obvious (although one must observe the convention that no Government ever say what is going to be in their next year's legislation) that I should not have agreed to this if I had not thought I should be introducing such a Bill relatively early in the Session. So in fact it will not in any way affect the time when this Bill comes into force. Indeed, I should not myself think it right, without the express authority of Parliament, to defer for some wholly extraneous purpose the making of an order to bring into effect some Act which had received the Royal Assent.
Your Lordships will want to know the position about the Law Commission. They have kept their word. Next month 328 they will be publishing their Report on financial relief. I asked the Chairman whether he would be good enough to summarise it for me in a form which I could read to your Lordships, and with your Lordships' permission I shall now do that. He says:You asked whether we could briefly summarise what matters of relevance to the debate on the Divorce Reform Bill will be dealt with in the Law Commission's forthcoming report on Financial Provision. May I say first that in our view none of these is in fact of much direct relevance since Clause 6 of the Divorce Reform Bill will enable the court to protect those who, despite the fact that they have not committed any matrimonial offence and do not want a divorce, may be divorced after five years' separation. It is to these 'innocent respondents' that Clause 6 gives the maximum protection possible. All we can do in our promised Report is to extend the powers of the court to make financial orders, thereby affording greater protection than at present to other deserving parties, whether petitioners or respondents. Accordingly those who will principally benefit are those who might be divorced under the present law rather than those who, for the first time, may be divorced as a result of the Bill and whose protection will still depend largely on the draconian powers conferred by Clause 6 (supplemented by Clause 4) of the Bill.Our recommendations will attempt to rationalise the present position by:—
- (1) Ensuring that the court's powers to award financial provision apply generally and do not, as at present, differ according to the sex of the applicant or according to whether he or she is the petitioner or respondent.
- (2) Providing that all forms of periodical provision should be capable of being secured and, if secured, of lasting for the life of the payee or until he or she remarries, whichever is the shorter.
- (3) Extending the power to order lump sums and interim awards.
- (4) Re-defining the children of the family in whose favour financial orders may be made and the ages to which orders can be made.
- (5) Improving the formulation of the court's duty to ensure that proper arrangements have been made in respect of children.
- (6) Generalising the court's powers to order settlements and transfers of property and to vary ante-nuptial or post-nuptial settlements so as to enable the court to make provision for the spouses and children by the adjustment of the spouses' property in the light of breakdown of the marriage.
- (7) Defining the principles on which the court should operate when ordering financial provision whether by way of periodical payments, lump sum awards or property adjustments. This will make it explicit that the contribution of the wife in looking after the home and children should be
329 regarded as a factor to be taken into consideration as also should the loss of any pension expectancy resulting from the divorce.
- (8) Extending the powers to vary or discharge orders and to set aside voluntary transactions designed to defeat claims for financial provision.We also intend to make some recommendations regarding the determination of disputed rights in property to the acquisition or improvement of which both spouses have contributed and regarding the actions for enticement and damages for adultery.I hope that this advance information, which can certainly be quoted if you wish to, may be of assistance.My Lords, I have only this to add. First, that I am sorry to have been so long; secondly, that this document is perhaps a little difficult to follow and I have therefore already arranged for copies of it to be available in my office, if any noble Lord would like to have one. There is one more fact which I forgot to mention. In New Zealand they have now had 14 years' experience of the working of this principle of breakdown and I am told that of those who take advantage of this clause, "the Casanova's charter," over 40 per cent. are women.