§ 4.0 p.m.
§ Second Reading debate resumed.
§ LORD SANDFORD
My Lords, back to divorce! I feel ill-cast in this divorce debate, being much more at home at the launching of marriages than in the "breakers yard". But my job is simplified by the speech of the noble and learned Lord, Lord Stow Hill, who has, as I believe all your Lordships will agree, outlined the purpose and the content of the Bill with feeling, force and with great thoroughness. We are also grateful to the noble and learned Lord the Lord Chancellor for his view of the law; his exposition of the attitude of Her Majesty's Government, and particularly for his history of the whole matter. And, of course, we are also grateful to the noble Baroness, Lady Summerskill, who at least made her position clear.
My Lords, I should like to put my remarks briefly under five broad questions. First, is the present divorce law all that bad? The people to judge in this matter, it would seem, are the judges and the lawyers who practise in this field; and all those who gave evidence to the Archbishop's Group, including the President and two Judges of the Probate, Divorce and Admiralty Division of the High Court, considered that the present law was unsatisfactory. No doubt there are some other judges and some other lawyers of great eminence and experience in this field who think otherwise. Let us hope that we shall hear from some of them to-day. But at least there are not a few whose views are worthy to be 333 considered and who believe that all is not well.
My second question is: is it practicable to change our divorce law for the better? At the moment, not being a lawyer and wanting very much to hear the views of the 30 noble Lords who are to speak to-day, I confess that I am not sure. How can we be until we have tried? But I do know that if there is any place where a change can be made, and if there are any people who can do it and do it thoroughly, it is your Lordships on the Floor of your Lordships' House; that is to say, if your Lordships are given time for the consideration that a subject of this importance deserves.
My Lords, there is no reason to suppose that a Second Reading to-day will limit in any way the improvements that we might make in Committee. On the last occasion when the noble and learned Lord, Lord Stow Hill, and I spoke on a Private Member's Bill, every single word, including the Title, had been changed before it was ready for Report; and we can do that again. The third question, then, is: is this the right moment for reform? Would it not be better to wait, as the noble Baroness, Lady Summerskill, suggested; to conduct more research, assemble more evidence and more statistics, appoint a further committee and wait for further legislation? I had prepared a schedule of all the antecedents of this Bill, but the noble and learned Lord the Lord Chancellor had prepared a much better one and I can skip the entire thing.
After listening to the noble and learned Lord, my conclusion is that there is indeed an ancestry to this Bill; not, of course, one which guarantees a perfect or even a good Bill, but it means that this Bill can hardly be described as the product of a pressure group, the brain child of its individual sponsors, inexpertly drafted, hasty or rushed. My Lords, the conclusion to which I come is that the time is ripe for Parliament to come to a decision on this legislation, and, as is implied in Clause 11(3) and as the noble and learned Lord the Lord Chancellor has confirmed, more is needed before the time is ripe to bring the legislation, if it is enacted, into operation. But that is a different thing.
In that connection, I believe that your Lordships will want to probe very 334 carefully and more fully into the intentions of Her Majesty's Government in the fields of national insurance, family property legislation, financial provision and the increased cost of legal aid. As the noble Baroness said so clearly, all these things need to be scrutinised most carefully. It has been a great help to have that long statement with which the noble and learned Lord the Lord Chancellor ended his speech, and we shall all want to study it before the next stage. All that must be studied most carefully before Parliament is asked to pass this Bill; and still more carefully before it is asked to approve the Statutory Instrument under which the legislation, if enacted, will be brought into force.
My Lords, I should like most of all assurances about the independence, the growth and the development of the whole marriage guidance movement and to hear about sustained support from Her Majesty's Government for that growth. I would be the first to admit that the Government may be warmly congratulated on what they have done so far in support of the marriage guidance movement; but the fact remains that 3 per cent. of what is spent on marriages in the "breakers yard" is more than all that is spent on their construction and repair. When the £30 million or so spent on children in care (most of whom come from broken families) and the £30 million spent on supplementary benefit in supporting unmarried mothers and deserted and divorced wives is compared with the one-tenth of £1 million that is shared between all the agencies engaged across the whole field of marriage guidance, preparation for marriage and education for family life and rehabilitation, our priorities in this matter look more absurd. I am quite sure that this has to be looked into very thoroughly.
My Lords, the fourth point I come to is this. Is this a good Bill and how do we judge it? I think there are two main tests which should be applied at this stage. There are many more which will be called for when we go into Committee. The first is: does the Bill tend to undermine the stability of the holy estate of life-long matrimony? The answer to that question is that of course it does. The only law that perfectly witnesses to the permanence of marriage is no divorce law at all, and so the question for us is rather: does this 335 law, based upon the breakdown, do more or less damage to marriage than the present law based on the offence? I am not sure. I like to think that marriage rests on firmer foundations than the divorce law. I know that the whole question, the whole purpose of the Arch. bishop's Group, chaired by the right reverend Prelate the Bishop of Exeter, was to find, if they could, a system which in that respect was better; and had they felt that they had not succeeded I doubt whether they would have made the proposals that they have. I know that this system will allow reconciliation to be attempted where at present it is precluded. I know that the new system rests on truth, honesty and frankness in court, and that the present system encourages adultery, deceit, dishonesty and even perjury.
The second test as to whether it is a good Bill or a bad one seems to me to be this. Does the new system as a whole protect hatter the interests of those, particularly of the wives and children of the first marriage, whose interests it is the function of marriage to protect, but which are nut in jeopardy when marriage breaks down? It is, I submit, the joint responsibility of the sponsors of this Bill and of Her Majesty's Government—the onus is firmly on them—to give the fullest assurances to Parliament on these two points. If the Bill fails to get a Third Reading from your Lordships, or if the Statutory Instrument bringing it into force after its enactment is not carried, it will be, I hope, because your Lordships have not been satisfied on these two points.
This is no Party matter. It is more than usually a matter for individual conscience and individual judgment. I have not been speaking in any sense as a Conservative Whip. I speak, however, as one who sets great store on our traditional doctrines of behaviour and on the inherited wisdom of the past; as one who is not readily won over to the latest forms of social reform or to the delights of our permissive society. I speak also as one who is ordinated to uphold the sanctity and stability of marriage and its solemnisation as a sacrament of the Christian Church. Nevertheless, I speak as one who, though still open to persuasion, when the Question is put in six 336 or seven hours' time, That this Bill be read a second time, will vote "Content".
§ 4.13 p.m.
My Lords, I am glad to hear that the noble Lord, Lord Sandford, is going to vote "Content" because, listening to his speech, I was not quite sure which side he was going to take. I was afraid that he was going to forget that marriage was made for man and not man for marriage. But I think that he has borne that in mind.
The opposition to this Bill by the noble Baroness, Lady Summerskill, is based on her deep concern for the first family. I have no quarrel with her here nor, I am sure, has any of your Lordships, because it must be the first family who must be considered first. Of course, all being well there should never be a second family. Some of us often feel that the contract of marriage is not so much between a man and a woman but between parents and their children and no marriage should be ended until the last child has grown up. But that may be a counsel of perfection.
The noble Baroness feels that this Bill makes it easier for a man to divorce his first wife and her family. I am not sure that that is altogether the case, because in certain respects I think that the Bill makes it more difficult. But it seems to me that this argument is an irrelevant one. This Bill has no effect either way on the condition of her marriage. Divorce is a device for settling a state of affairs which has become intolerable, and by the time it becomes a question of divorce this Bill has no effect on her marriage at all. The noble Baroness is worried about the fact that the ordinary man cannot support two wives. That is quite true. She feels that we are being asked to take the financial provisions of the Bill blindly and that those aspects of the Bill about "or the best that can be made in the circumstances", are doubtful. But this is irrelevant. A deserted woman is already in difficulties and the Bill cannot make them worse.
The noble Baroness and her supporters are upset by what they feel is the imposition of divorce against the will of one party. It seems to me that whether there is an imposition of divorce or not it is in the public interest that a marriage which has completely broken down should 337 be terminated. The National Council of Women has said that where an irretrievable breakdown can be proved, so long as there is no disproportionate hardship divorce should be available. This means that it should be available not only by mutual consent. This Bill gives no automatic right of divorce without consent. It has safeguards, some of which are very substantial, in certain circumstances amounting to making it more difficult get a divorce than it is now. The damage that is done is not by divorce but by desertion. Divorce only recognises that the damage has already been done and seeks to remedy it. We all know that deserted women are in a difficult position, and that the majority of maintenance orders are simply not met.
Under this Bill, the position of women who have been deserted and then divorced, even if against their will, is better than at present; the conditions under Clauses 4 and 6 make the position considerably better—or at least we can accept that they are marginally better. But as the noble and learned Lord who sits on the Woolsack has said, these difficulties have nothing to do with divorce reform, and if all these things have nothing to do with divorce, then I suggest that nothing is served by keeping up a form of pretence when in fact a marriage is dead.
The noble Baroness is also worried that 10 per cent. of divorced women are over 50 years of age. As has been pointed out, the bulk of divorces involve younger women who feel that they have made a mistake and who want to be able to get married again and have another family. If there is a clash here between the hardships which might be suffered by these two classes of women, and in so far as there is a disproportionate hardship between the younger women and those who to some extent have had their lives, I think it rests with the younger women.
It has been suggested that we might get over the difficulty of unilateral divorce by having, as was suggested in another place, a provision such as operates in the law of property—that is to say, a clause providing that divorce should not be unreasonably withheld. At first sight this may seem attractive, but this proposal has always been refused by 338 the promoters of the Bill—I think rightly—because the reason for having unilateral divorce is that in the last resort divorce is so often unreasonably withheld. I cannot believe that generous minded persons, either on their own behalf or on behalf of their children—or, indeed, as I have attempted to show and the noble and learned Lord the Lord Chancellor has shown, for financial reasons—could possibly refuse divorce if the marriage has completely broken down. It seems to me—and I do not myself want to be ungenerous here—that it can be only out of spite, or by a mistaken serve of religious duty, a confusion between the form of religion and its reality, that this happens. It seems to me that the safeguards which have been put into this Bill amount almost to the same thing as saying, "shall not be unreasonably withheld". It seems to me, in those circumstances, with the kind of safeguards that are built into the Bill, that no one should reasonably object to unilateral divorce. I do not believe that anybody will be hurt by it and, if they are, it seems to me that they are the sort of persons who probably should be.
§ 4.21 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, as your Lordships will expect, I approach the subject we are discussing this afternoon from the starting point of the Church's belief that marriage is the lifelong union of a man and woman, and that when we recall the familiar words of the marriage service, "those whom God has joined together", the very idea of divorce is something which should evoke horror. While, therefore, I share the feelings of compassion so widely felt for those whose marriages have broken down in misery, and for children who are illegitimate, I also feel bound to bring to bear upon proposals for reforming the divorce law the question: Does the proposal tend to weaken the institution of marriage in the eyes of those who are approaching marriage, or does it encourage those who are approaching marriage to have a lower view of its lifelong obligation? This aspect of the matter—let me call it the educative effect of the law—of the approach to marriage, has been very little emphasised in the discussion this afternoon, and I make no apology for recalling it.
339 It was such considerations which led me to oppose the proposal in a Bill brought to your Lordships' House six years ago to add as a ground for divorce five years' separation at the instance of either party. At the same time, I felt then, as I do now, that the existing law of divorce is very unsatisfactory indeed. When I listened to the noble and learned Lord, Lord Stow Hill, describing the bad features of the existing law, I could not find a word that seemed to me exaggerated or a word with which I thought I disagreed. A law based on the doctrine of matrimonial offences so often leads to acrimonious disputes between the parties as to which of them is in the wrong, so hinders reconciliation in cases where reconciliation might still be possible, and encourages a degree of collusion in such a way that divorce by consent is virtually what happens in the present system.
It was both my dislike of the present system and my uneasiness with the proposals before us in the Bill of 1963 which caused me, with the encouragement of the Lord Chancellor at the time, to invite the Group, under the chairmanship of the right reverend Prelate the Bishop of Exeter, to inquire into the possibility of a totally new kind of divorce law. The proposal of that Group, in the Report entitled Putting Asunder, that a law based on breakdown should totally replace the present law based on matrimonial offences quickly won a great deal of sympathy.
I was, and I still am, hopeful that a sound law based on breakdown might be formulated to replace totally the present law. But there was, and there still is, the difficulty of so framing a law based on breakdown as to avoid injustice towards a man or woman who has been the victim of really scandalous conduct, contrary to the public interest, in the institution of marriage. The authors of Putting Asunder, for all their wish to pass over completely to a law of breakdown, were acutely conscious of this difficulty, and they devoted a good many pages of their Report to it. I quote their conclusion, on pages 52 and 53 of the Report, where they say:Nevertheless, when all has been said, we have to recognise that there would be cases where our sense of justice and propriety would rightly be offended if a decree were granted against the will of a respondent— 340 cases where a petitioner had not only been blatantly responsible for ending the common life but had blatantly flouted the obligations of marriage and treated the other party abominably…. In such cases—to put it crudely—it just would not do to let the petitioner get away with it. To grant a decree would be against the public interest; for it would shake confidence in the administration of Justice and cast doubt on the reality of the State's concern for marriage…. Therefore … we believe a safeguard to be necessary; and what we recommend is that the court should have a duty to refuse a decree, even though breakdown had been proved, if to grant it would be contrary to the public interest in justice and in protecting the institution of marriage.Of course, to say that produces a big qualification into a proposal for a law of breakdown; for a breakdown of marriage is a fact, and I recognise that one of the values of a law of breakdown is to avoid discussion as to whose fault the breakdown has been. But it is because the sense of justice dies hard that that paragraph which I have just quoted had its place within that Report recommending breakdown to be the law. And I think it is fair to say that at the time of the publication of Putting Asunder a good many people, including myself, gave general support to the proposals in virtue of this particular qualifying proposal, and in the hope that this qualifying proposal might somehow find a place within legislation on the subject.
So, my Lords, I ask: Does the present law achieve a law of breakdown which would be sufficient to protect the institute of marriage and avoid flagrant injustices? My anxiety is about three points in the present Bill. First, there is the two-year clause. Is it axiomatic that separation for two years proves irretrievable breakdown? I think it is unfair to criticise this clause, as it has been criticised, as introducing divorce by consent. I think it is an unfair criticism because, in effect, it may be neither more nor less consensual than is a vast amount of practice under the present law. But is not the alteration of the period of three years to a period of two years something of an encouragement to a light approach to the undertaking of marriage as a contract "until death us do part"? The noble and learned Lord, in introducing the Bill, put the onus on the critics, and asked why a decree should not be possible after two years. I feel that the onus is the other way. To my mind, we have not had 341 any really effective evidence for making the change from three years to two years.
Secondly, I view the treatment of financial provision under the Bill with real anxiety, which I am afraid the very helpful statement made by the noble and learned Lord on the Woolsack has not removed from my mind. The words in Clause 6(2)(b) do stick for me, as they stick for the noble Baroness:The court shall not make absolute the decree of divorce unless it is satisfied … that the financial provision made by the petitioner for the respondent is reasonable and fair, or the best that can be made in the circumstancesI think there is something rather repulsive in a law so formulated that the "best that can be made in the circumstances" is a kind of equivalent to "reasonable and fair". If those two things are equivalent, then it makes nonsense of "reasonable and fair"; and "reasonable and fair" might be better omitted, with a frank acknowledgement that "the best that can be made in the circumstances" may, quite often, be neither reasonable nor fair.
My third point goes back to the quotation from Putting Asunder which I made earlier. I ask not only whether the Bill safeguards efficiently the financial provisions, but also whether it safeguards the public interest in the institution of marriage in the case of a petitioner who has treated the spouse in a manner which is appalling and which flouts the public's respect for the institution of marriage. Clause 4 defines the court's power to refuse a decree. The words of Clause 4 do not disclose very much about the probable exercise of those powers, and we have had very little exposition or discussion on them this afternoon. I ask: do the words,It would be wrong in all the circumstances to dissolve the marriagecorrespond effectively to the safeguard of justice for which the authors of Putting Asunder pleaded in the passage which I have quoted?
The sponsors of the Bill, quite rightly, make considerable appeal to that document, and I believe that Putting Asunder is a very fine document for the conceptions of the reform of the law which they are trying to introduce. But I feel that there is in that Report an element which has been somewhat by-passed, 342 both in the presentation of the Bill and in the discussion this afternoon. Some of us from time to time have large postbags on matters of public concern. I am not prepared to dismiss the postbag that I have had on this matter as just a set of letters in common form, using the same cliché. We know how to dismiss postbags of that kind. Nor are they merely letters obviously inspired by some organisation. We all know how to dismiss postbags of that kind. In my experience I am moved by personal letters whose writers are apprehensive about justice to themselves, or to people whom they know intimately.
So, my Lords, I wish that the Bill could be rid of what I believe to be blemishes. The existing law is bad, and I would gladly see it replaced; and there is evidence that many of my fellow-Churchmen with me would be glad to see it replaced by a law based upon breakdown. It goes without saying that I welcome wholeheartedly the provisions about reconciliation which this Bill contains. I hope that many noble Lords. like myself, not wanting to be hostile to the Bill, will be with me in trying to get these specific blemishes corrected. I cannot vote for the Bill as it stands, as the things which I have criticised are, for me, matters of justice and principle.
§ 4.36 p.m.
§ BARONESS GAITSKELL
My Lords, I feel very privileged to follow the most reverend Primate, although I do not share all his doubts. This Bill was introduced by my noble friend Lord Stow Hill with erudition, moderation and grace, and I really welcome the Bill in the way he introduced it. I did not understand the comment of my noble friend Lady Summerskill when she said that he had introduced it with such "Freudian fury". I think it is the kind of phrase that can rebound on the person who makes it.
§ BARONESS SUMMERSKILL
My Lords, may I interrupt? I would say to my noble friend that I mentioned Casanova. If my noble friend will look in Hansard to-morrow she will see I was rather struck by the fact that the name "Casanova" left such an impression on my noble friend. I wondered why he kept repeating it with such Freudian fury. I should have thought that was obvious.
§ BARONESS GAITSKELL
My Lords, I think this Bill could easily have had another Title, as was said by the noble Lord, Lord Sandford, who pointed out that one could amend any Bill, even the Title. I would suggest the Title, "In Place of Strife". I suggest this because this Bill seeks to rationalise and put our grounds for divorce on a more honest and less artificial basis than is adopted at present. In an ideally civilised society divorce could be a private matter, and only its social and financial consequences sorted out with equity, I suggest, by a council of marriage guidance judges of superlative wisdom.
I will comment only on some of the social aspects of this Bill, central to which is the irretrievable breakdown of the marriage. These are academic words, but what they hide is the end of a state of extreme unhappiness between a man and a woman—the end of endurance. Often marriage is still tolerable, even when all passion is spent, so long as there remains a deep fondness, and mutual care and responsibility for the children. When we come to the dregs of unhappiness, and one or both partners in the marriage cannot bear it any longer, I believe that legislation in 1969 should begin to take this into account, and I do not believe that marriage is undermined by this proposed legislation. I am astonished that many people defend our present divorce proceedings, which are such monuments of hypocrisy and contrivance, just because, they say, they work. They recoil from the idea of divorce by consent, yet, as my noble friend Lord Stow Hill has intimated, 93 per cent. of divorce cases are undefended. Surely this is an under-the-counter divorce by consent.
Views on divorce are based on many primitive and old-fashioned myths and beliefs. Despite the great strides we have made towards sex equality, the idea that men more easily tire of women than women of men is still prevalent. Even emancipated women believe this. But the figures tell quite a different story. I take my figures from the brilliant speech of Dame Joan Vickers in another place: that out of 21,000 divorces for adultery, roughly half were for the men and half for the women. I believe that the noble and learned Lord the Lord Chancellor pointed this out in his speech. From the many critics of this Bill one would 344 assume that the vulnerable age for a marriage to break up is about 50. In fact, as has been said, it is 23 or 24. We have heard a great deal about the innocent woman who, if this Bill becomes law, will be in great danger of being jettisoned for a younger rival. I am sure that many speeches will show an excessive interest in these women. Surely, if a marriage has lasted until the woman is 50, there is a pretty good chance of its lasting until death do them part.
I share the concern of my noble friend Lady Summerskill for the ageing female partner of 50 who has committed no technical marital offence; and clearly there must be legislation to deal with the circumstances in which she may be left. But I do not agree with my noble friend about this Bill being, as many noble Lords have said, "a Casanova's charter" because I do not believe that Casanovas are marrying men. I do not believe that every man of 60 is just waiting to walk out on his wife. Incidentally, I looked up "Casanova" in the Encyclopædia Britannica and found that there is no record of his having married at all.
§ BARONESS SUMMERSKILL
My Lords, I think that if my noble friend looks again she will find that he did: in Vienna, once.
§ BARONESS GAITSKELL
Once. The noble Baroness has conceded my point. I should think that the Casanovas, the compulsive womanisers in this world, are rather reluctant marriers. As I have said, I share the general concern for the plight of an ageing wife who could be divorced after five years desertion by her husband and left in great financial misery, as well as psychologically distressed. I do not believe, however, that any judge would grant a divorce in such a case; I cannot believe it of the judges of this country. It seems to me that for those who fear this consequence of the Bill polygamy is the only answer, because it is only in a polygamous society that the abandoned wife is kept in the household and looked after.
Here I should like to comment on what my noble friend Lady Summerskill has said about young marriages: that the partners in them need time to get over their teething troubles. I agree with this in some way. But divorce in young marriages is far less dangerous than in older 345 marriages, because the younger ones nearly all re-marry. This is just one of the facts of life. I do not quite know what my noble friend would like them to do. Would she like to chain them together for many years before they separate? Surely, in some ways it is much better that the young ones separate early. Or would my noble friend prefer young people to live together and produce a lot of illegitimate children? There are 200,000 already.
§ BARONESS SUMMERSKILL
My Lords, my noble friend has directed two questions to me. Of course I want these children—they are children to us—to be happy. But if there is a practice of easy divorce after two years before the age of 21, it may become a habit. The very fact that one marries again does not mean that the next marriage is going to be successful.
§ BARONESS GAITSKELL
No, my Lords, it certainly does not. This is a chance that everybody has to take. No two people can promise that their marriage will be happy. Of course they cannot. Again, this is one of the facts of life. I do not think that by keeping divorce as it is at present, hypocritical and not honest, we are making the situation any better.
However, the promise by the Lord Chancellor was, I understand (I am not quite sure about this) that the new Divorce Bill, should it reach the Statute Book, would not come into effect until Government legislation on the financial provisions of women's rights had been enacted. I am not quite sure whether this is so. I had thought it was so, and I think that this would remove all anxiety on this score. Incidentally, I am told that four-fifths of all legal aid is for marital problems, which shows that a good many poor people seek a divorce.
Then there is an argument that this Bill makes divorce too easy and that an avalanche of divorce cases would follow if it became law. As has been pointed out, the experience of New Zealand and Australia, which have similar legislation to that which is being proposed, belies this. Perhaps the least attractive. but very prevalent, attitude about the whole question of divorce is the punitive, and punishing, attitude. It is as if we said to the people who wanted to separate, "You've made your bed. Now you jolly 346 well lie in it! Now you have to lie in it!" These unhappy people are simply committed to a compulsory marriage state.
For most people, divorce is not contemplated or entered into at all lightly. It is usually a very painful decision, fraught with mixed emotions of guilt, conflict between responsibilities and desire; and it is here that good legislation can help resolve many of the difficulties and the complications with regard to children and finance which follow. This Bill bases the ground for divorce on the irretrievable breakdown of the marriage. There is nothing, my Lords, so dead as dead love. This reality is recognised by this Bill, and although no Bill is perfect and can satisfy everyone's idea on divorce, I warmly support it and shall vote for its Second Reading.
§ 4.48 p.m.
§ LORD REID
My Lords, I should like to consider this Bill from two points of view; and I am afraid that it will be necessary for me, in so doing, to look at the detailed provisions of the Bill a little more closely than has been done already this afternoon. I hesitate to take up so much of your Lordships' time, and I hope that I can be reasonably brief; but I feel that it is necessary, if one is going to reach a balanced view on the Bill, to go into these provisions in a little more detail than has yet been done.
The first point of view is this. It seems to me that the most important aspect of the Bill is: what alteration will it make in the present law; how will its provisions work; what kind of people will get divorces who do not get them at present, and what kind will be refused who do get them at present? I must say that I am not enamoured with this idea of finding a high-sounding principle and then pursuing it to its logical conclusion. I think that leads to many difficulties, and has led to many difficulties in this Bill.
The second point of view from which I want to observe the Bill is this. While I do not underestimate the importance of sociological arguments, it seems to me that justice to individuals must come first. I have never been one to support the extreme view that "Justice must be done though the heavens fall". We all saw, for example, during the war instances of cases where it was necessary to relax 347 the ordinary standards of justice in order to preserve the national safety. But surely it cannot be necessary, in this chapter of the law, to relax the ordinary standards of justice in order to benefit the man who has run away with another woman and his children? Therefore it seems to me that we ought to examine this Bill from the point of view of where and how it may do injustice.
I am always suspicious—and I am suspicious here—of any proposal in any sphere to advance the public good at the cost of doing injustice to individuals. That, I think, is broadly what parts of this Bill are trying to do. I do not say that the whole Bill is bad. There are some parts of it, as I shall try to explain as briefly as I can, that I think are disitnct improvements. There are some parts of it on which I do not have any strong view either way: I am willing to accept them; I do not think they will do much good or harm, either way. But there is one part of the Bill, to which I shall come later, to which I am most strongly opposed and which I hope, if your Lordships give this Bill a Second Reading to-night, you will leave out at the Committee stage. That can easily be done without in any way injuring the rest of the Bill.
Before I come to these matters I would start by saying this: unfortunately this Bill is drafted in such a way that it has led to a great deal of misconception. You look at the Bill and you find in Clause 1 that the sole ground on which divorce is to be granted is to be irretrievable breakdown. That looks revolutionary, but it is simply not so when you come to the detailed provisions of the Bill. Clause 2 is the operative clause, and Clause 2 contradicts that because it sets out five quite independent grounds of divorce, one of which has to be proved. So the practical result is that it is not the slightest good setting out to prove that the marriage has irretrievably broken down. That will get you nowhere at all. What you have to do is to start proving, and prove, one or other of these five grounds; and if you do that, in nine cases out of ten nobody will hear a word said about "irretrievable breakdown". That is because the only way in which irretrievable breakdown comes in is under Clause 2(3), that unless the court is satisfied on all 348 the evidence that the marriage has not broken down irretrievably it is to give a decree if one of these grounds is proved. So it does not seem to me that the question of irretrievable breakdown will ever arise, except in the very rarest case, in an undefended action. It may be that in a defended case the respondent will seek to argue to the judge that the evidence shows that the marriage has not irretrievably broken down; and sometime he may succeed. But I do not think it is likely that he will succeed very often, even in a defended case. I regard Clause 2 as saying, in effect, that there shall be five grounds of divorce, with the qualification that if it can be shown that the marriage has not irretrievably broken down the petitioner will not get a decree. That is the substance of the Bill.
I say that the question of irretrievable breakdown will not crop up very often for this reason. The Bill, very properly, emphasises the need for reconciliation in Clause 3, but I do not think it goes far enough. I welcome what it does say in Clause 3, but I am afraid that it will have very little effect. I will not go into the matter, but it seems to me that it will be difficult, after Clause 3 has been operated, for anyone to say that the marriage has been operating unsuccessfully or for anyone to say that the marriage has not broken down irretrievably. I say that for this reason: whether or not the marriage has broken down irretrievably depends primarily—indeed, solely—on the state of mind of the petitioner. If the petitioner says, and is believed, "In no circumstances will I return to the respondent" (and the petitioner may be masculine or feminine), then the marriage has irretrievably broken down unless the court holds that the petitioner is telling a deliberate lie.
It is quite obvious that if one party says, "I will not return to the other in any circumstances", and is believed, then there has been an irretrievable breakdown, and it does not matter at all how willing the other party may be to resume cohabitation. I do not see that the court has any possible alternative. It may adjourn, very properly, if it thinks that is going to do any good, but when it comes to the end the judge in court must decide either "I accept what the petitioner says, that he"—or she—"will not resume cohabitation, and therefore the marriage has 349 broken down", or "The petitioner is telling lies and I do not think the marriage has broken down." That seems to me to be very far removed from the view which is so prevalent, that some new principle has been introduced into the law and that we are going to start talking about "irretrievable breakdown". We are not. The court will hear about it only on rare occasions.
I must now consider these five grounds and see what they do. The first three merely continue the existing law, subject to certain amendments, most of which I would accept. The fourth one looks quite new but is not, and the fifth one is both new and highly objectionable. The noble Lord, Lord Stow Hill, said that this Bill would get rid of pointing the accusing finger. But we were told by the noble and learned Lord on the Woolsack that half the cases at present are cases of adultery, and that it will still be possible to bring cases alleging adultery and that evidence of adultery will have to be adduced; and if alleging and proving adultery is not pointing the accusing finger, I do not know what is. So it is quite wrong to say that this Bill removes the need for proving matrimonial offences. You may call adultery something else, but it is an offence; and in half the cases that come up it has to be proved. Therefore this idea that we are getting rid of matrimonial offences and putting something else in their place is quite wrong, and it will be seen to be quite wrong on the very day that this Bill starts operating in court, if it is put on to the Statute Book.
Under the first ground you have to prove two things. You have to prove, first, the adultery, and then you have to prove that the wife—or husband, as the case may be—finds it: intolerable to live with the other party. That gets rid of discretion, and I wholly agree with the noble Lord that discretion statements are an abomination and ought to have been got rid of long ago. It also gets rid of connivance and condonation and a number of other things. I am a little more doubtful about that, but on the whole I think it is a good thing, and I am prepared to accept—although not with any great enthusiasm—the amendments to the existing law which are introduced under paragraph (a) of Clause 2(1). But make no mistake about it, my Lords, paragraph (a) simply continues the exist- 350 ing law with amendments. It makes no fundamental change whatever.
I come now to the question which is said to save the situation: that the petitioner finds it intolerable to live with the respondent. Observe, the petitioner does not need to find it intolerable because of the adultery; it may be intolerable for some quite other reason. Therefore that does not tie up, as I rather thought the noble Lord suggested it did—perhaps I misheard him. Secondly, it is not that a reasonable man or woman would find it intolerable; it is a subjective test that the petitioner would find it intolerable. If the petitioner comes along and says, "I should find it intolerable", and gives a reason, whether adultery or some other reason, how is he or she going to be disbelieved, unless again the judge is prepared to take the unusual step, fortunately seldom required in our courts, of saying that the petitioner is a liar? Otherwise this question of finding it intolerable is no safeguard at all; it will not operate except in a handful of cases. It looks nice, but it has very little in it. Besides, I doubt very much whether many people at present do bring petitions for divorce unless they find the idea of going back to live with the other partner intolerable.
I turn to paragraph (b). Here, again, the existing law is changed. There is no suggestion of a new basis for a new kind of law altogether. It simply continues the present law of cruelty with one exception; it is no longer necessary to prove injury to health or apprehend injury to health. I am very glad to hear it, because I think that was getting to be rather a farce. Therefore, I think paragraph (b) is an improvement on the existing law. But, there again, it is the existing law, and you have to prove a matrimonial offence before you can succeed under paragraph (b). It is the same thing with paragraph (c). Paragraph (c) reduces the period of desertion from three years to two years. I have no objection to that at all, because it seems to me that if the case is not clear after two years it is not likely to be much clearer after three; therefore I take no exception at all to the reduction of the period. But again I emphasise that this is simply in accordance with the existing law with that one single amendment, and there is no question there of introducing any new idea of breakdown.
351 Then I come to divorce by consent, which is dealt with in paragraph (d). I say "divorce by consent" because that is what it is in the great majority of cases. It is true that the Bill goes rather further than divorce by consent, and I will say a word about that in a moment, but fundamentally it is divorce by consent, and there is the two years' delay presumably in order to make sure that the two parties who are consenting really intend that there shall be a divorce. I have no objection to that two years. It looks new to have divorce by consent, but it is not; as has been pointed out already this afternoon, if the two agree and are both equipped with an elastic conscience, they get the divorce to-day. It is only the scrupulous people who fail, and that seems to me to be highly unsatisfactory. Therefore I welcome paragraph (d). I have not welcomed any of the others up to date, but I welcome paragraph (d) because it regularises what is, to my mind, a discreditable position, and I consider that paragraph (d) alone is worth having for its own sake.
But I do not like the extension of paragraph (d). It says that it applies where "the respondent does not object". I think it ought to be "where the respondent consents", and for this reason. if you are going to let a petition through merely because the respondent does not object, then surely you must make quite sure that the respondent really does not object and has been made acquainted with what the position will be if she is divorced; because normally it is the wife who will suffer in this matter, and a good many women still do not really understandstand the legal consequences, or perhaps even the financial consequences, of affairs of this kind.
I regret to say that the Bill only provides in Clause 2(6) that there is to be given such informationas will enable him to understand the consequences.It is no use sending a legal document of that kind. I think this House ought to insist that there should be free legal aid and that the respondent should be told that there is free legal aid. Instead of being sent a document containing information the respondent ought to be 352 told, "Go and see a solicitor, if you want to, free of charge, and he will advise you as to what the consequences will be, financial and otherwise". It may be that it is not in order, because it is doing something which would put a charge on the Revenue, and if it is not in order then the proper course, I think, is to limit this clause to actual consent and to strike out "not objecting", on the ground that without putting expense on the Legal Aid Fund we cannot properly ensure that the woman is fully advised about the consequences. I would therefore strongly submit that paragraph (d) ought to be altered by substituting "consents" instead of "does not object".
There is a curious point in Clause 2(5). For some reason that I am wholly unable to understand, although I read the proceedings in another place, the two years' period runs not from the date when the parties quarrel, not from the date when one decides not to go back to the other, but from the date they last lived in the same household. One may have had to go off to hospital, or have had to take a job abroad where he could not take his wife, and the time begins to run against them although they are still perfectly happy and writing to each other in loving terms. That is a most astonishing position and I very much hope something will be done to put it right.
Now I come to what many people regard as the most important element in the Bill: that if you live apart for five years justice can be thrown out of the window; it does not matter there is to be a divorce because, I suppose, public policy requires it. Up to date I have expressed, it may be a tepid approval, but still approval, of the provisions of the Bill, and I quite see that if one approves of the principle of a Bill one ought to vote for the Second Reading and hope for the best on the Committee stage, and if necessary vote against the Third Reading. But a vote for the Second Reading here means that you approve of this principle in Clause 1, and I do not approve of it. In so far as it means anything, it seems to me to be objectionable; but really it does not mean anything at all in a great majority of cases. Therefore I do not feel that I can vote for the Bill and I do not feel that I can vote against the Bill, because I recognise that it contains a certain amount of good material.
353 Therefore, although one does not like to do it, on this occasion I must take the alternative of abstaining and then hoping that in the Committee stage I may be in the Lobby with the majority for an Amendment to leave out paragraph (e) altogether. I say that that is the proper Amendment to make, because we can easily drop paragraph (e) without doing any harm at all to the rest of the Bill. The provisions of paragraphs (a), (b), (c) and (d) are not correlated with that of paragraph (e) at all; they stand on their own feet. They can equally well be put in operation with the same result, whether paragraph (e) becomes law or not. The line which I would take would be to stand neutral on the rest of the Bill but to oppose paragraph (e) very strongly indeed. I oppose it because of its injustice.
It has been said—I think it was said by one noble Lord this afternoon—that most wives who are left in the lurch like this have themselves to blame to some extent. I do not believe that for a single moment. There are (I do not know how many) countless cases of men who are either infatuated or induced away by another woman when the wife is not in the least bit blameworthy; and if we could discriminate, if we could say: "Now the woman who has brought this on herself shall be treated in one way, but the woman who is completely blameless shall be treated in another way" then I should be prepared to consider something on the lines of paragraph (e). But the sponsors of the Bill have not attempted to do that, and I doubt whether it would be practicable to do it.
Therefore we have to consider the discarded wife who is completely blameless. It will not do to say that because a number, it may be even the majority, of wives are to some extent to blame, therefore the blameless ones must suffer. That is precisely the doctrine which I shall always fight to the full strength of my capacity. It simply will not do to say that you can do injustice to certain individuals because other people deserve it. That is what the promoters are saying in this case, and I hope that the House will not accept that strange argument. Does public policy really require that we shall make the deserted, discarded wife and her children suffer in order that we may 354 improve the lot of the man who has run away and of the woman who has chosen to set up an illicit establishment with him? Does public policy really require that? I am not going to argue that question; others can do that, and I am taking too long, anyway. But arguing against myself that public policy does require that, then surely we must ensure that the innocent, blameless wife who is discarded shall have a fair deal financially; and that the Bill admittedly fails to do.
Something was said about Australia, and I think something was also said about New Zealand. I am ignorant of the position in New Zealand, but I think I am right in saying (I speak purely from memory) that in Australia provision has been made so that discarded wives shall not suffer financially in this way. I am not sure about the details, but I think I am right in saying that in Australia this problem does not arise because of the way in which their legislation has been carried out; and I think the Government give some financial assistance in the matter. It may be that New Zealand gives that assistance, too.
The problem is this. It is perfectly true that the man of ample means has no problem because he has enough money to support two households. It is equally perfectly true that the ordinary wage earner has not. The question the House has to answer is: who has to suffer? Is it to be the first wife, the real wife with her family, or is it to be the second woman and her family? And when I say, "Who is to suffer?", I mean who is to go on public assistance. If we were able to do so, the just solution would be that the first wife and her family should have a first charge on the wages of the man. At present, the best she can hope to get is what is left over after the man and his second family have enough to live on. But if justice were to be done it would be the first wife and her family who would have the first charge, and the man and his second family would go on public assistance. But I suppose that is impracticable.
The other thing that would have to be done would be to request the employer to deduct from the man's wages the amount which the court had ordered should be paid to the discarded wife. If that were done—the man might occasionally go off to another employer—and if the Ministry 355 of Social Security were required, as they should be, to inform the discarded wife of the last known employer of the man, then we should catch up with him. I venture to suggest to the noble and learned Lord on the Woolsack that if he is considering legislation it ought to be made quite clear that where there is a magistrates' order the Ministry will inform the wife of the last employer known to them to be employing the man.
I should also greatly like to see in the new legislation provision requiring the employer to deduct from the wages at source the amount of any maintenance order. If we could do that it would have another quite beneficial effect. If the man knew that the first wife and his family were going to have the first charge on his income, fewer men would run away with another woman; and, over and above that, a good many women would not run away with a man if they knew they were going to be left in that position. Therefore, from the sociological point of view it would be highly desirable to bring in an Amendment on those lines. But I suppose it is too much to hope that our sociologically inclined friends would support that Amendment, although it would do a great deal of good. If it is not practicable—and I do not think it is practicable in present circumstances to go as far as I should like—then the answer is that we must not do injustice, and we must not put this into operation.
Let us see what the Bill says about it. The most reverend Primate has been—and I am not surprised—troubled about Clause 4. I think he has rather misapprehended the effect of Clause 4; and, as I say, I am not surprised, because it is by no means a creditable example of draftsmanship. It says two things. It says, first, that you must prove grave financial hardship. Apparently, mere financial hardship is regarded as no injustice at all; it must be "grave", although why it suddenly becomes an injustice when it is grave I have great difficulty in understanding.
But let that be. Suppose that you prove grave financial hardship?—and it is not going to be easy to prove it because, as my noble and learned friend Lord Denning knows well, when dealing 356 with grave financial hardship the court takes a quite narrow view of the question, and it is only in most extreme cases that the court will admit of grave financial hardship and I think that that will save but few cases. But that is not enough; even grave financial hardship is not enough to prevent a decree. The clause reads "and" not "or" that it would be wrong to dissolve the marriage. I suggest that one Amendment which should be made to this clause is to change the word "and" to "or". As the clause stands, in addition to proving grave financial hardship the respondent must prove that in all the circumstances it would be wrong to dissolve the marriage. Well, if it is not wrong to cause grave financial hardship, I do not know where wrong begins. But apparently it begins somewhere beyond that, and then you have got to find some kind of wrong which is more wrong than inflicting grave financial hardship. I thought that the most reverend Primate was inclined to take some comfort out of this. I can assure him that he will get very little comfort out of it when it is put in practical operation. Clause 4 will be the nearest thing to a dead letter if it is put into operation in its present form—I have very little doubt about that.
Then reference was also made to Clause 6(2)(b). This really is astonishing. Clause 6(2)(b) says that the financial provision to be made is to be "reasonable and fair". That is all right, but it goes on:or the best that can be made in the circumstances.So admittedly there will be many cases where the discarded innocent wife will not be given reasonable and fair provision. Again I am afraid that the most reverend Primate is extremely optimistic if he thinks that the expressions "reasonable and fair" or "the best that can be made in the circumstances" have any relation to each other. They are poles apart. "The best that can be made in the circumstance" comes into operation only—
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, if the noble and learned Lord will forgive me for interrupting, my point was that they are poles apart, and it was the attempt to identify practically together those two things that I was objecting to.
§ LORD REID
I am afraid that I perhaps misheard the most reverend Primate. If that is so, then I am in complete agreement with him that they are poles apart, and it is rather disgraceful for the sponsors of the Bill to come along and say to Parliament, "Although, admittedly, we cannot do justice to the innocent woman, still we want our theories put into operation at her expense and she is only to get 'the best that can be made in the circumstances'", which in most circumstances will he nothing at all, or as good as nothing as not to matter.
§ BARONESS GAITSKELL
My Lords, may I interrupt the noble and learned Lord? Surely the position is exactly the same now. We do not do justice to the discarded wife now. We are trying to improve the divorce laws; surely we can do that, even if we cannot do the other as much as we should like to.
§ LORD REID
My Lords, I am surprised that the noble Baroness should think that two blacks make a white, because they do not. I quite agree that at present the position of the discarded wife is most unsatisfactory, and I am glad to hear that something is going to he done about it, although I gravely fear that when we see this vaunted Government Bill it will not turn out to be anything like as effective as it ought to be. I have a grave fear to that effect. I hope I shall be shown to be wrong, but I do not expect it. I think that the Government will shy away because there are all sorts of interests that they have to pacify one way and another, and they will shy away from making a really just scheme. I hope I am wrong, and if the noble and learned Lord, the Lord Chancellor, who I am sure would like to make a just scheme, can carry others with him, then nobody will rejoice more than I do.
We are left with this: here is a patently unjust scheme, admittedly unjust by the provision which I have just read out, and admittedly unjust for another reason. Much play was made in another place of the undertaking by the noble and learned Lord on the Woolsack that he would not bring this Bill into operation until a new and better Bill had been introduced for the protection of women who have been deserted. That was supposed to mollify the opposition, because it is said, "Of course, the Bill is unjust at present, but it will not 358 be so unjust when this new Bill comes into operation. You can trust the Government to see that injustice is reduced to a minimum." Well, I hope that is right; but why should we take it on trust? Surely the right thing to do is to postpone the operation of paragraph (e) until the new Bill has been passed. Parliament ought not to lose control. The proper course, I submit, is that Parliament should retain control and then, when the new Bill has been passed, we should have an Affirmative Resolution, if Parliament is so minded. I would certainly submit that an Amendment ought to be made altering the provision that the Lord Chancellor is to bring the Bill into operation to, so far as paragraph (e) is concerned: "It shall not come into operation without an Affirmative Resolution of both Houses after this remedial legislation has been passed." I hope that the House will throw out paragraph (e) altogether, but, failing that, it seems to be almost unanswerable that Parliament must retain control and we ought to substitute for the Lord Chancellor's order an Affirmative Resolution of both Houses.
§ 5.26 p.m.
§ LORD ILFORD
My Lords, this Bill has been presented to the House as a complete transformation of our law of divorce and, indeed, of marriage. There is, in future, to be a sole ground for divorce. Divorce is to be granted only where the marriage has irretrievably broken down. The matrimonial offence is no longer to be a ground for divorce. One might have expected, if that were so, that in these circumstances the matrimonial offence, with all its disagreeable associations, bitterness, distress and all the rest of it, would have disappeared altogether from our law of divorce. One might have expected that the promoters of this Bill would have taken the opportunity to get rid of it. That has not been done. In fact, the matrimonial offence must be proved in every case, although the judges' decision is not bound to follow it. Unless this view of Clause 1 of the Bill is accepted, what is claimed for the Bill is really an empty shell and without meaning.
It is a little difficult to see how the matrimonial offence is to be got rid of. The Archbishop's Group, who condemned the retention of the matrimonial 359 offence, recognise that the determination of certain questions, such as financial questions, must be left in the hands of some body, I suppose the court. My noble and learned friend Lord Reid analysed the whole of Clause 2 where are set out the matters which the court must take into account in the future.
He showed that in each of those cases the issue was simply a revival of a matrimonial offence. Indeed, when one looks at the Bill as a whole it is quite clear that there is no reality in this claim that any new ground upon which marriage can be dissolved will be established. There is in fact no substance in this view that there is to be a new principle, and that the divorce will depend solely upon whether or not the marriage has broken down.
I turn now to the other grounds for divorce which are contained in the Bill, and which are new to our law. Living apart is now made a ground for divorce. May I remind your Lordships of the two new principles which are contained in subsection (1) of Clause 2? My noble and learned friend Lord Reid has analysed both of these provisions very fully, and I do not propose to follow him in doing so. But I am going to make the forecast that women will be the most numerous respondents under these two principles. The provisions of subsection (1) of Clause 2 exactly suit the man who is growing tired of his wife and desires to abandon her. I had better not say anything about Casanova.
The wife is left in middle life, having spent the greater part of her time in bringing up her husband's children and looking after her husband's home, and then, later on, she is suddenly confronted with this proposal that she should be divorced. She herself has done nothing wrong and is a completely innocent party. In my judgment, it is gravely and grossly unjust that a man or woman should have a divorce forced upon them against their wish, when they themselves have been guilty of no misconduct or error of any kind. But that is what this Bill does and for that reason alone, if there is a Division to-night, I intend to vote against the Second Reading.
May I say a few words about the financial provisions of the Bill?—because 360 financial provisions are essential in judging the merits of the new proposals for divorce. I think the promoters of the Bill have done their best to ensure that such funds as are available for the support of the wife and of the husband and of the new family, if there is a new family, will be equally or fairly distributed between them. But they do not produce a result which is in any sense satisfactory. The real difficulty, in dealing with the financial situation of these broken marriages, is that very few men have the means of supporting two families. It is really the lack of means of support which, in the majority of cases, will produce the gravest financial hardship among women who are divorced under the provisions of the Bill.
What is there to be done about it? The income of the husband and, perhaps, such earnings as the former wife and the new wife are able to secure, will go towards the maintenance of both families. It will be supplemented by supplementary benefit as, almost certainly, the needs of the two households will fall within the ambit of supplementary benefit. But what is to happen then? Is the supplementary benefit to be paid to the wife or to the woman to whom the husband has gone? I include the woman to whom the husband has gone because although the husband is probably in full-time employment and will not be entitled to supplementary benefit, it may be paid to the woman with whom he is living. The problem of which of the two women should receive the benefit is one which arouses most bitter feelings among deserted women. They feel that they have the first claim on the husband's resources, and that they ought not to be required to accept supplementary benefit in place of the contribution to their upkeep which the husband ought to make.
May I say a word or two about this question of supplementary benefit? What usually happens, where a claim is made to deduct from a man's wages a sum of money in respect of the maintenance of his wife, is that he gives up his job and disappears. In our society to-day it is quite surprising how difficult it is to find a man who disappears, in spite of all our administrative resources. It is often impossible for months and years, sometimes for ever, to trace a husband who has abandoned his wife and who is being 361 chased for maintenance money, But, surely, one has to ensure, so far as one can, that the available funds are fairly distributed.
Clause 4 lays down that, in the case of grave financial hardship, a divorce decree may be withdrawn, but I doubt whether that clause will prove of much value. It will mean that a man who is otherwise entitled to a divorce will be refused one because he does not have the means to support his family. It may be right that this should be so, but it begins to look very much like one law for the rich and another law for the poor. I think it would be very strongly resented if any distinctions of that sort were made. Very much the same argument applies to paragraph (b) of subsection (2) of Clause 6. There the provision for the wife has to be what isreasonable and fair or the best that can be made in the circumstances.But if the payment is not reasonable and not fair, it may still have to be presented to the wife, and it may well be that she will be supported in circumstances that are neither reasonable nor fair, but the best that can be made in the circumstances.
What is, "the best that can be made in the circumstances" to mean? That, of course, is what it will come down to. It is no good saying that the settlement should be reasonable and fair if in fact it comes down to what is reasonable in the circumstances. How are we going to get over this? It is quite obvious that no provision which can be put into this Bill will do more, in the case of the class of persons of whom I am speaking at the moment, than to divide between them a sum which is inadequate for the maintenance of both. My own view is that we ought to make it clear in the Bill that the interests of the first wife should be paramount to those of the husband and the second wife. Whether it will be possible to insert a term of that nature into the Bill in order to ensure that the wife gets the best share of what is available I should not like to say.
My Lords, it is the case, of course, that this Bill, if your Lordships give it a Second Reading to-night, can go to Committee and that some at least of the errors which I think this debate has disclosed can be made good. For myself, 362 I think it better that this Bill should be refused a Second Reading to-night.
§ LORD STOW HILL
My Lords, would the noble Lord forgive my intervening? I do so because he has such very great experience of these matters as a former Chairman of the National Assistance Board. Am I correct in understanding him to say that, in his experience, where there was a man who had a second family, the wife being a wife to whom he was not lawfully married, and children from that marriage, and where there was a former lawful wife from whom he had not been divorced, whether she had children or not, the factual situation in his experience was that the lawful wife received National Assistance and that it was impossible in practice to see that the wages of the man, if he were in work, were made available to the lawful wife? In other words, that it was the unlawful wife who was always kept by the man's wages and the lawful wife who was always kept by assistance from the National Assistance Board when the noble Lord presided over it? Am I right in thinking that that was the personal experience which the noble Lord had, about which he is telling the House.
§ LORD ILFORD
My Lords, sometimes we paid it in one way and sometimes in another. It depended very largely on convenience. But the husband was usually working; and if he was working in full-time employment then, of course, he was not entitled to supplementary benefit. I do not know whether that answers the noble Lord's question.
§ LORD STOW HILL
My Lords, what I am wanting to know is this. When the noble Lord was Chairman of the National Assistance Board, who in fact supported the lawful family? Was it the National Assistance Board or the husband? Am I not right in thinking that the noble Lord was saying that in his experience it was generally the National Assistance Board?
§ LORD ILFORD
As I say, my Lords, sometimes it was done in one way and sometimes in another. Sometimes we paid the wife, sometimes we paid the other woman. It rather depended on circumstances. We sometimes had to pay the allowance to the—I will not say the second wife, but to the woman with whom he was living. We tried to pay the 363 allowance to her if we could. We could not pay it to the man. But it caused considerable resentment if payment was made to the other woman. The wife considered, and I think not unnaturally considered, that she, as his lawful wife, was entitled to the first choice.
§ 5.44 p.m.
§ VISCOUNT DILHORNE
My Lords, I should like to try to bring the debate back from a discussion of the practices, interesting though they may be, of the National Assistance Board to the question that we have to decide at the end of the day. I do not want on this occasion to get engaged in a controversy with the noble and learned Lord the Lord Chancellor or with the Government; nor, indeed, with the most reverend Primate on anything he said; nor, indeed, with anyone else. But I differ in some respects from what the most reverend Primate has said, and in one respect in particular. I agree with him a very great deal, but I hope he will reconsider the conclusion which he reached. That conclusion was that he could not vote for this Bill. My Lords, we are not to-day having to decide whether this Bill becomes law. If that were the case, he and I might find ourselves in the same Lobby. What we have to do to-day is to consider whether or not this Bill should be given a Second Reading.
I say straight away that if there is a Division I shall vote for a Second Reading because I personally think that it certainly would be wrong for us to slam the door on divorce reform and look as if we were not going to make an attempt to get the law relating to divorce in a safe and proper form. The House has listened with the greatest interest to the speech of my noble and learned friend Lord Reid. There are many things he said with which I agreed. He is not going to vote against the Bill: he is going to abstain. I suggest, with the greatest respect to him, that the majority of points that he raised, important points as they are, are really points to be dealt with, and which should be dealt with, in Committee, and are not grounds for not giving this Bill a Second Reading.
I suppose that one's approach to this Bill largely depends upon one's attitude with regard to the existing law. I cannot 364 claim to have had the experience of many in this House, and in particular of my noble and learned friend Lord Hodson, who I know takes a view different from that which I take and who was for many years a distinguished Judge in the Probate, Divorce and Admiralty Division. I recollect having appeared before him and having argued cases before him in the years (which are now some time ago) when I was a member of the Bar. But it is not because of my experience before him that I venture to express the view which the most reverend Primate also expressed: that our present law on divorce is in a wholly unsatisfactory state. That is my reaction to it, too.
The noble Lord, Lord Stow Hill, whom I think I can without breach of tradition call from these Benches "my noble friend"—we have been friends for many years—put in the forefront of his case the existing state of our law. He talked about discretion; and there has been a great deal of talk to-day about injustice, and all that. It is the case now that a petitioner is seldom refused the exercise of discretion on the ground that he or she has committed adultery. That petitioner can still get a divorce on the ground of the other party's adultery. Can there be any real confidence that justice is done by condemning one adulterer at the instance of the other? I doubt it. But why is it that the courts now take that attitude in granting a divorce so freely where a complete discretion statement—and it must be complete—is filed? Surely it is this, my Lords: it is because the courts have been forced to the realisation that in those circumstances, where both parties are committing adultery, there really is a breakdown of the marriage and there is no point in treating that marriage as subsisting.
One of my main criticisms of the existing system—and I think the most reverend Primate touched on it—is that it seems to foster hostility between the spouses. I have seen cases—I have had experience of them—where the battle is fought between the spouses after the decree has been granted; and if there are any children (it does not matter so much if there are not) the sufferers in that battle are the children of the marriage. It is because of that that I have for long wondered whether one 365 could not get away from this trial of who was at fault for the breakdown of the marriage. All through this debate—as in the speech of my noble friend Lord Ilford—the question is asked: "Is it just?" or "Is it unjust?" Cannot we get away from that? I do not know whether the courts can ever satisfactorily determine which of the two spouses is really responsible for the breakdown; it may be "six of one and half-a-dozen of the other". Can we not go to the determination of the state of fact that the marriage has really come to an end?
I have held these views for some considerable time. It was because I held these views when I was Lord Chancellor that I asked the most reverend Primate to see me and to discuss the matter with me. We found—and I think he will not mind my saying so—that we were in substantial agreement. We both doubted very much whether a system based on breakdown would be workable. As we know, he appointed his Group which had not only some very distinguished Prelates on it but also my noble and learned friend Lord Devlin, Lord Colville of Culross and Mr. Justice Phillimore. I welcomed their Report. It is a radical approach; but I do not think it is any the worse for that. But it is very interesting to listen to the criticisms made of it because it seems to me that so much of that criticism is a sort of reversion to the test, "Who is the guilty party? Where does the justice lie? Who has done wrong?" It is a going back to the determination of which of the two was more to blame for the marriage ceasing. That is what I wanted to get away from. I wanted to go to the state of fact: could it be proved that the marriage had really come to an end?
That principle, if it can be called a principle, is enshrined in Clause 1 of the Bill. As my noble and learned friend Lord Reid has said, Clause 2 detracts from that principle. I know that Clause 2 is a compromise; but Clause 2 brings in—and I here agree with him—again the proof of misconduct under paragraphs (a), (b) and (c) for the purpose of proving that a breakdown has in fact occurred. I am sorry about that. It disappoints me. But this is a branch of the law where I am inclined to think that possibly the balance lies in favour of reform rather than in no reform at all. I think we cannot have the last word 366 in this; but I should like to see this step forward made.
The two controversial provisions are in paragraphs (d) and (e) of Clause 2(1): the two years' separation without objection and the five years' separation whether or not there is an objection. I certainly think that the wording of this clause, the whole of it, requires most careful attention in Committee. I am not at all happy about it. For instance, I do not see why in subsection (1)(b) there has to be what I might call cruelty "since the celebration of the marriage". Why the words "since the celebration of the marriage" are in, unless it is to signify that it must start immediately after the marriage, I do not know. But this was drafted by Parliamentary counsel and no doubt we shall have the opportunity of taking it up. When one comes to subsection (1)(d), I agree with my noble and learned friend Lord Reid, that it should not be "the respondent does not object". I would put the burden on the petitioner of proving that the respondent consented. You may say that divorce by consent is something that we should not look at, even after two years. But, in a sense, is not every undefended petition a divorce by consent, in the same sense as a divorce under Clause 2(1)(d) would be? I do not object to paragraph (d). With my noble and learned friend, I think that it brings more reality into the situation.
With regard to subsection (1)(e) which is the main controversial provision and which was attacked by the noble Baroness, may I say that I did not agree with her at all, as I think what I have said has made clear, in her statement that the main purpose of the Bill was to make marriages more easily dissolved. If I thought that, I would vote against the Bill on Second Reading without the slightest hesitation. But that is not its intention. Its intention is to try to make things better—better for the unfortunate people who get involved in these proceedings. With regard to subsection (1)(e), if one is looking at the facts and is not trying to determine who is responsible for the end of the marriage, one could say, as I read Clause 2 (which is the approach), that if the parties have really been apart for five years that is very strong evidence that the marriage has come to an end. But it is one thing to say that that should be very strong 367 evidence that the marriage has come to an end; it is another thing to say that the courts should grant a decree on that account. That is where I draw the distinction. I am not at the moment convinced that we ought to take paragraph (e) out of Clause 2(1); but I think that, again in subsection (3) of this clause, the onus is put the wrong way round. It says there,… then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably …I would rather put it, "If the court is satisfied that the marriage has broken down irretrievably" it shall grant a decree. I think that would fit in better with the reconciliation provisions.
I come back to my main point. If by virtue of Clause 2, subsection (1)(e) is to be proof (subject to other considerations) that the marriage has really broken down, I do not think it necessarily follows there that the decree should be granted. I join in the criticisms which have been made of what I regard as the extremely unsatisfactory provisions of Clause 4 and Clause 6. I would say that even where there has been a separation of five years (or it may be ten years or however long) if one party to the marriage objects to the decree, that decree should not be given against him or against her if it is going to lead to any financial detriment to him or her. My noble and learned friend Lord Reid said that the blameless ones would suffer. No one wants to see that happen. Surely it would not be going too far if we moved an Amendment, and had it carried, to ensure that such decrees based on evidence brought under paragraph (e) should not be granted if it would result, not in grave financial hardship or because of other circumstances, but in loss of income, means of support, to the person concerned. But views on that will no doubt differ.
Views on many parts of this Bill will be different, but the question to-night that each of us has to face is: How do I vote? I agree with a great many of the criticisms made by my noble and learned friend, Lord Reid. I agree in particular that we must have a provision in this Bill that it shall not come into force, if enacted, until it is approved by a Resolution of both Houses. With great respect to the 368 noble and learned Lord on the Woolsack, it is really not enough to say that it will not be brought into force until some other Bill has been introduced into Parliament. The introduction of a Bill, as we know from the history of this Bill, does not mean that it will get very far or proceed very quickly. We ought to retain control. I hope that the noble and learned Lord the Lord Chancellor will think, on reconsideration, that that clause should be amended by saying, as we so often have said, that the Act will be brought into force on approval of an Affirmative Resolution passed by both Houses.
There is much more that I should like to say but there are many people who wish to speak. I am not happy about a great many aspects of this Bill. We ought to have a very careful, very thorough and perhaps long (although I hope it would not be) Committee stage. I hope that we shall not be pressed to consider this as a matter of great urgency; to get it through before the end of this Session. What matters in a change of this importance—this is one of the biggest social questions that this House could tackle—is to get it as right as we can. Speaking for myself—I am not one of the promoters of the Bill—I would rather see us take time in trying to get it right, even if it meant that the Bill was lost in this Session. It could be reintroduced again by the noble and learned Lord, Lord Stow Hill, and passed through this House, or the work completed on it, in the next Session; and it could then go back to the other House. But what would be a mistake—and we are getting on in point of time—would be to try to rush it. There is a great deal of work still to be done on this Bill. Those of us who would like to see the law on divorce reformed would, I know, welcome the opportunity to bring some of cur ideas forward for public consideration.
It is, perhaps, an unusual role for me to speak in support of a Private Member's Bill—I usually oppose them, as the noble Lord, Lord Silkin, will know. I hope that will comfort the noble and learned Lord, Lord Stow Hill. But I would say to him, in conclusion, that whatever line I have taken on Private Members' Bills has been, so far, extremely unsuccessful. I hope that it will not be to-night.
§ 6.2 p.m.
§ THE EARL OF LONGFORD
My Lords, it is always a pleasure to follow the noble and learned Viscount, Lord Dilhorne. I do so on this occasion with even more diffidence than usual in view of his new and so richly earned eminence, on which I congratulate him (as I know everyone here will) most heartily. The noble and learned Viscount had many criticisms to make of the Bill but he convinced himself, for reasons which he explained, or indicated roughly, and said that he proposes to support the Bill. I am not going to argue with him about tactics: I think that he is a better judge of moral values than tactical values. I cannot remember his ever succeeding particularly on the tactical front in this House, although I think that his morals have always been beyond criticism. I would therefore venture to suggest that those who will be most delighted with the line he is proposing to take in the Division are the promoters of the Bill who, I think, have very little intention of making any amendments, and will be hoping that there will not be much of a vote against the Bill. But, my Lords, I am not concerned primarily with tactics now.
So far as I can judge, I am the first Roman Catholic speaker in this debate, and I realise that a Roman Catholic speaker in a debate on divorce is always slightly suspect. He is rather like a pacifist in a debate on defence: people wonder whether he is quite genuine in trying to make a success of the plans under discussion. I am not really a bad-tempered man—or at any rate I like to think so—but I became very irritated to-day when a great friend of mine greeted me in the House with the words, "Oh well, of course you are going to vote against the Bill on religious grounds."—in other words, I had had some instruction from somewhere to vote against it. I would say to any noble Lord that I challenge anybody when it comes to promoting a large number of divorces. I was the election agent of Mr. A. P. Herbert in 1935, and he has explained in his book my share in certain events that followed and my reasons were suspect at the time, but I need not go into that now; it was the last independent thing I did before becoming a Socialist and a Catholic. But that is all years ago. At any rate, 370 I did persuade Mr. Herbert to stand for Parliament, and he won; and, of course, many thousands of divorces have resulted. When I think of all the years in purgatory that await me I am full of disquiet. Therefore, I am ready to challenge anybody who says he has done something for the cause of divorce law reform.
My Lords, like everyone else here, I look upon this matter as one who is interested in social questions. Before coming on to a very brief statement of the Catholic point of view, I must say that from any point of view you like, whether it is the religious point of view or the social point of view, or whatever you like to call it, I regard certain provisions in this Bill, certain essential features, as utterly evil. I hope that people will realise that I mean that. People are almost too indulgent towards a Catholic in matters of this kind. They think that one is a good fellow but not to be taken very seriously. So let me repeat that I regard these provisions as utterly evil, and I hope that that will be fully understood by those who support the Bill. I do not mean that individuals are utterly evil—not at all: they are just deluded. But these proposals are evil.
Let me say a few words, briefly, about the Catholic point of view. Though I call it "the Catholic point of view" I realise of course that it is a view which is widely held by many millions of Christians of all denominations. We look upon marriage (and when I say "we" I do not mean only Catholic Christians, but also many people who would hesitate to ascribe a denomination for themselves, but who would say the same) as a Divine institution. It was instituted by God as a permanent union between one man and one woman. A marriage contract is not a purely secular contract; it is one that is inherently sacred: it is governed by the laws of God which no civil law can change. These laws may be stated very elaborately, or they may be stated very simply. Putting them in simple form, I would only repeat what has been said so often, but in my view cannot be said too often:Those whom God hath joined together let no man put asunder.If anyone wishes to know what is the Roman Catholic point of view, and a view 371 which is shared by so many other millions of Christians, that is the heart of it.
It follows that true marriage involves an irrevocable personal consent. The one thing that makes marriage different from any other sexual union is the irrevocable will of one man and one woman to make a community of destiny and love. This soands—it is meant to sound—solemn and abstract; but no one, surely, can describe it as an impossible ideal. Whether you phase it grandiloquently, or whatever words you like to use, this is the ideal which is lived up to by the vast majority of people in this country to-day, in spite of the advance of divorce and the number of broken homes. Therefore I cannot have this set aside as something which is quite irrelevant to 1969.
If I am asked why I am so sure that what I call the Catholic ideal, or what your Lordships might like to call the traditional Christian ideal, is right, I certainly, in the few moments that I shall speak, cannot seek to convince somebody of a proposition which he had not previously studied. I would only report that in my view the arguments are overwhelming from revelation—that is, the teaching of Christ interpreted by the Church—but also from reason, and by that I mean the human mind working over the experience of the ages. As regards revelation, one cannot, of course, expect everybody to accept what one describes as a revelation available to oneself, and I am indicating only the Catholic point of view; I am not asking anyone to come over to that in a flash. But I would say that from the point of view of reason, of ordinary human sociological study, the very possibility of divorce impairs the whole conception of the indissoluble union and the total commitment.
I cannot say that it destroys the conditions for a happy marriage: I know of too many happy marriages among my friends who have been divorced and have remarried. That is part of one's life experience. But I would say that the possibility of divorce diminishes very much the prospect of the fullest life, and of fidelity. We who take this view would therefore expect the coming of divorce to weaken family life; and to weaken it the more the easier divorce becomes. We would expect this to be so in the case 372 of what I have called true marriage, and we would expect it to be so in the case of all marriages since we of course, like everybody else in this House, I presume, are concerned not just with the welfare or the family life of our community but with the welfare of all our people, all within the community. We would expect this result from our reasoning, an a priori reasoning, and from the lessons of history. We would expect this result, this damage to family life, to follow, and in our own reading of events we are convinced that it has indeed come about. Therefore, the House will have gathered that we are vehemently against divorce.
What, then, should we say or do? I am speaking for the Catholic minority, whether in this House or elsewhere, though no one has deputed me: I am not speaking on instructions, but I am the first Roman Catholic speaker in this debate. What then should we seek to do when proposals are introduced to reform the divorce law of the country, bearing in mind that we are not more than 10 per cent. of the whole country? On this point the Roman Catholic must not expect direct guidance. I do not think that it is any good for him to go to church and ask what he is to do about this particular law. He is a citizen and has to make up his mind like others in public life. Speaking entirely for myself. I cannot become very enthusiastic about one principle of divorce more than about another, whether it is the principle of the matrimonial offence or the principle of the breakdown of marriage—or about what seems to me to be, as in this Bill, a very uneasy amalgamation of the two.
I would just say this. If leaders of the Church of England, with all their tremendous sense of tradition of inherited Christianity, came to us to-day and told us that in all the circumstances this Bill was the best that could be produced; if they told us that this was the united proposal of the Church of England, and if, so far as I could see, it did not offend against natural justice and profession, I could not see myself voting against it. But, of course, that is not the position to-day. We have not yet heard how many leaders of the Church of England support the Bill, but I gather that they are not agreed on this matter. Certainly one could not say that this measure has the Church of England behind it. I gather 373 from the most reverend Primate the Archbishop of Canterbury that he will not be able to support it. Therefore, I certainly do not feel that we are in the position of having to pay very great attention to what might be called an agreed Church of England view.
Left to myself and leaving out my general antipathy to divorce, I have to make up my own mind about the Bill in front of us. I will mention only one provision, which is the most horrible provision that has come forward in any measure brought before Parliament since the War that has had any chance of success. I need hardly say that I am referring to the permission that will be given to the man who has left his wife to kick her out after five years. I regard that with total disgust. Much has been rightly said about the iniquity of this clause and I will not try to improve on the words used. About six years ago, the right reverend Prelate the Bishop of Exeter, for whom my admiration is unbounded, as he knows, and who I think may be following me, spoke sharply against this. I do not know what he is going to say this afternoon, but I have an uneasy suspicion that he has "ratted" on his first magnificent view, expressed about six years ago. In those days, he said:We believe that once it is established by law that marriage can be brought to an end either by the mutual consent of both parties or even by a single unilateral act of will of one, you strike a grave blow at the stability of marriage and thereby run the risk of creating far more unhappiness than this clause would cure".He went on to speak about women ageing more rapidly than men, and at that point he came into conflict with the noble Baroness, Lady Summerskill. But that, of course, was a sort of side issue in the course of the debate. At any rate, those were the views then expressed by the right reverend Prelate. I hope that he will return to that earlier wisdom when he follows me in a few moments from now.
Among all the words that have been used to denounce this clause, I do not think anything has been said better than what was said by the noble Baroness, Lady Summerskill, at an earlier point in the Bill, when she said: "The Bill violates the well-established principle that a man should not be allowed to take advantage of his own wrong-doing." 374 That puts it about as succinctly as it can be put and nothing can be plainer or truer than that. May I repeat with emphasis the word "wrong-doing". I realise that the promoters of the Bill and even the noble Viscount, Lord Dilhorne, and others, are anxious to dispose of the idea that any wrong has occurred when a man leaves his woman and sets up house with somebody else or maybe with a whole succession of other women. I am glad that the noble Baroness refuses to let them get away with that. I do not think they can get away with it. Anybody who has studied, or even dabbled in, modern psychology or criminology is well aware of the difficulties of assessing guilt or innocence, or of judging as God would judge. It is clearly a blasphemy when we say that somebody is guilty and God is writing the same verdict in Heaven.
I submit strongly to the noble Lord. Lord Stow Hill, and others, who are so anxious to dispose of this idea that any wrong could ever be done by anybody in the course of the break-up of a marriage, that if we are really going to exclude altogether this idea of blaming no one or praising no one, we should undermine the whole influence of the moral factor affecting the conduct of the people of this country. I think it was the most reverend Primate who dwelt on what I would call the dynamic features of the situation. It is not just a question of trying to do the right thing (though that is difficult enough at the moment), but of looking to the future and to the effect on conduct of these measures. If we are going to exclude the idea of rightness and wrongness in the behaviour between husbands and wives, it means good-bye to any hope of moral conduct in married life in this country.
We read a good deal about the permissive society. In some ways I favour that and in some ways I do not. Personally, I feel that all that is most valuable in that idea is contained under another heading—that of the compassionate society. Taking the test of compassion, which of course is not the only test because there is also justice, I acknowledge that in a few cases—I do not want to seem so fanatical that I do not recognise that there are a few cases; I concede this to the noble Lord, Lord Stow Hill—these provisions for getting 375 rid of an unwanted wife after a few years may on balance increase rather than diminish the total happiness. But I would say with absolute conviction that in the vast majority of cases these provisions will have a very cruel impact, and for that reason I am totally against this Bill and I hope to Heaven that it will be defeated.
§ 6.19 p.m.
THE LORD BISHOP OF EXETER
My Lords, my noble friend Lord Longford seems a little surprised or puzzled at what he suspects to be the line I am about to take. I confess that I am a little surprised and puzzled myself. He has just reminded me of something I said on a former occasion. But I would point out to him that the former occasion was the former occasion, and not this occasion, and that the occasions are quite different. When I was speaking last time, the words which the noble Earl quoted referred to a Bill which, in my judgment, included a proposal for divorce by consent. This Bill does not include a proposal for divorce by consent. There is a proposal for divorce with consent upon which a judgment has to follow. It is not a divorce qua consent, as there is under the present law, where if one party commits adultery the other party brings an action, proves the adultery, and the adulterer does not bother to defend but consents to letting it go through and the judge has to issue a decree.
But I share the noble Earl's puzzlement and surprise that a person like myself, who some twenty or thirty years ago spent so much time in writing and speaking in defence of the principle of the indissolubility of marriage, in favour of the proposition that strict monogamy is a precept of the natural law, should now support this or indeed any other divorce reform Bill. I still believe, however, that the best ordered society is that one of which all the members observe a strict rule of monogamy; and I still believe, if not in the metaphysical doctrine of the indissolubility of marriage, at least that the obligations of a marriage, duly contracted, are lifelong, and that it is wrong and cynical for either party to ignore or evade them or seek by means of a civil divorce to be totally rid of them.
I think the noble Earl, Lord Longford, and I are practically in identical agree- 376 ment so far. And, indeed, I can scarcely take any other view when I consider the plain, direct teaching which is contained in the Scripture:Whosoever shall put away his wife and marry another committeth adultery against her.In that case, it may be said, would it not be more logical for me to join my many Roman Catholic friends and oppose any and every divorce Bill, urge the State to repeal the present divorce laws and make no provision at all for the civil dissolution of marriage? Then I reflect that the law by itself cannot ensure strict monogamy in society. In countries where, because of the strong influence of the Roman Catholic Church, there is no provision for divorce—countries such as Eire, Spain or Italy—marriages still break down, husbands and wives are deserted and irregular second unions are formed. For members of a society universally to obey the strict rule of monogamy when things go badly wrong in a marriage, or begin to go badly wrong, requires the outside buttress and support of a really powerful public opinion. That we have not got. Apart from that, it demands also a degree of loyalty, self-sacrifice, self-discipline, tolerance and forgivingness which does not come easily to man and which needs the inspiration and strength of deeply held conviction.
I remember, also, that when the Jews objected to our Lord's teaching:Why did Moses then command to give a writing of divorcement and to put her away?our Lord replied:Moses, because of the hardness of your hearts, suffered you to put away your wives.It seems to me that the modern pluralist State must, like Moses, also make some provision for the hardness of men's hearts. But it is important that the provision which it chooses to make should be the least damaging to the fabric of society. This, I think, was the opinion of the reformers in 1857 when divorce, or the right to re-marry, was first written in to the Statute Law of England. Provision, it was felt, must be made for the relief of a deeply wronged partner to a marriage; and the wrong which they considered demanded this relief was adultery on the part of the wife, and adultery, plus cruelty, on the part of the husband. At that time, the principle of the martrimonial offence as a ground for divorce 377 was undoubtedly right, against the background of a strong public opinion in favour of strict monogamy. No one had recourse to the Divorce Court except with a great deal of reluctance and a deep and justified sense of injury; and to the respondent there attached a grave social stigma.
But that is not the state of affairs now. With the additional grounds of divorce since 1937, one of which, at least—. insanity—is not an offence at all, in nine cases out of ten there is little sense of personal injury, little desire to put the whole of the blame on the other party; rather, it is the recognition by one of the parties, or very often by both, that their marriage relationship has reached an impossible and intolerable position and that it must be, and should be, ended. But because the only legal ground for divorce is the matrimonial offence, one of the parties must appear to be the offender and the sole cause of the default. Hence all the hypocrisy, the pretence, the unnecessary bitterness and the shame which are so unpleasant and discreditable a feature of our present divorce system. In other words, in nine cases out of ten the matrimonial offence is no longer the appropriate basis for divorce. The true ground for divorce is the breakdown of the marriage, and the great merit of this Bill lies in its first clause, which clearly establishes this principle.
But there is, of course, always a test case, where there is a genuine and justified sense of injury. The marriage has broken down all right, but the cause is clear enough and lies in the behaviour of one of the parties. What should be done in this test case? Clause 2(1), paragraphs (a) to (c) enable the aggrieved partner to prove the breakdown of the marriage primarily on the ground of the matrimonial offence. So that seems to be all right.
Controversy arises, and understandably enough, on paragraph (e). Where the parties have lived apart for five years or more it is reasonably certain that the marriage has broken down. But where the cause of the breakdown is manifestly the behaviour of one of the partners, should that partner be allowed to take advantage of his or her own behaviour, plead the breakdown and rid himself or herself of the last shreds of legal obligation which attach to his or her marriage? 378 It is a difficult question. Logic demands the answer "Yes", for the marriage has indubitably broken down. Justice, and even a sense of decency, would seem to demand the answer "No".
Much, I think, must depend on the financial safeguards provided for the injured partner. The Bill goes some way to meet this where there is sufficient capital or income to provide for two or more establishments. But where there is no such capital or income, the issue is much more difficult. The noble and learned Lord the Lord Chancellor earlier to-day explained, with great lucidity, some of the difficulties and some of the proposals which the Royal Commission next month are to bring forward, and I look forward with interest to reading the Paper which was mooted earlier.
A great deal has been said this afternoon about the hardship suffered by the deserted and innocent wife. I find it is always difficult, when talking about this subject, to separate clearly in one's mind the hardship which the deserted wife has indeed suffered, and which has been a serious hardship, because of the desertion, and the hardship which is caused to the wife because the desertion is followed by an unwanted divorce. So far as I can see, the actual financial hardship which the divorce, as opposed to the desertion, actually causes the wife is almost minimal. I think it concerns these things: equitable division of the family chattels; the protection of any possible widow's pension rights; and, above all, the enforcement of maintenance orders. The noble Lord, Lord Reid, has been explaining to us how immensely difficult it is to ensure the enforcement of these orders. Every deserted wife is at the mercy of her husband who, tired of having so much taken out of his weekly wages, leaves the country and becomes out of the wife's reach. These are very difficult problems; their solution is remote. The actual degree of hardship caused by the divorce, not by desertion, is not so great as is sometimes thought.
Also in connection with this paragraph we need to know what is meant by the phrase:it would be wrong in all the circumstances to dissolve the marriage".The corresponding phrase in the Australian and New Zealand legislation is, I think, "contrary to the public interest", 379 and in those legislations by that phrase I understand it to be meant a case of exceptionally grave public scandal, likely to do grave danger to the popular estimation of marriage. I do not know whether that is intended to be the meaning of the phrase "wrong in all the circumstances" here or not. It may be argued—and has been argued here in this House to-day—that if the matrimonial offence is firmly shown the door in Clause 1, it comes back through the window of Clause 2. If that is not indeed to be the case, the courts must take seriously their duty to inquire into all the facts alleged and to be quite sure that they are satisfied that the marriage has irretrievably broken down. In other words, the evidence of the matrimonial offence as proof of the irretrievable breakdown of the marriage must be treated as rebuttable, and not as conclusive, evidence.
I personally deeply regret that the Bill includes Clause 2(1)(a) which specifies adultery. That is the most dangerous way of bringing back the matrimonial offence, and I wish that it could be excluded. I have not read the report which the noble and learned Lord the Lord Chancellor read to us earlier, of the Committee of the General Assembly of the Church of Scotland. If I understood him correctly, that document specified the breakdown of marriage as the sole ground of divorce, and the evidence for the breakdown of the marriage was two years' continuous separation. There was no mention of any offence at all as supporting evidence. I should have thought that that would be a much more satisfactory form for our English law to take.
When all is said and done, the great question is this: will this Bill weaken the institution of marriage and thereby damage society? I do not think it will. With or without the Bill, there will be desertions and irregular unions. With or without the Bill there will be arranged divorces, by or with the consent of both parties. With this Bill there will be, first, a greater emphasis on the duty of both parties to seek outside help for the purpose of reconciliation before they admit defeat. Secondly, there will be a strengthened power of the court to protect the interests of children and wives. Thirdly, there will be a greater freedom for the 380 parties to agree between themselves on an equitable sharing of the family assets. Fourthly, and most important of all, there will be a greater possibility of signalling the end of a marriage, if that is what it has to come to, with dignity, mutual respect and honesty. For these reasons I shall vote for the Second Reading of this Bill.
§ 6.35 p.m.
§ BARONESS EMMET OF AMBERLEY
My Lords, I find myself very much in the same state of mind as my noble and learned friend Lord Reid. I have asked myself the questions which the right reverend Prelate has put to himself, and to which he has found satisfactory answers, but I am afraid that I have not found the answers quite so satisfactory.
In the old tribal days when a person offended against the custom or law of his time, or her time, he or she paid the personal penalty and that seemed quite satisfactory all round. In the case of matrimonial offences, if you cannot afford to pay the penalty it is paid for you by your neighbour. I say "by your neighbour" and not the State, because people always think that the State has inexhaustible resources, whereas it is really your neighbour who is paying for what you cannot afford to pay for yourself. I do not say this to imply that there is anything wrong with legal aid—indeed, we cannot do as much as we should like. I think we ought to bear in mind the cost of all these things. This year the cost of legal aid was £6,850,852, over £6¾ million, of which 83 per cent. was spent on matrimonial cases, which, out of the money that is allotted to us, left us very little for other matters that are just as urgent. We are hoping that when the county courts take undefended cases we shall be able to save a portion of this amount. We have to expect that if this Bill goes through there will be another great increase in matrimonial cases, which at the present moment is roughly, against that, £400,000—almost half a million pounds more.
If I could be certain that this Bill was going to strengthen the attitude towards matrimony among the young I should vote for it, because obviously the present divorce laws do need revision. But I cannot as yet persuade myself—and I have listened to most of the speeches this afternoon—that these new proposals 381 will give the young who enter matrimony an increased respect and solidity in their decisions at that time. If we look around at the cost of matrimonial offences, we see that the bill is really very formidable; and it is a bill that has two sides to it. One is the financial side—I have already mentioned what matrimonial cases cost us. Then there are the new abortion laws; undoubtedly we must foresee that we shall have to support most of the deserted wives in a certain income group. Probably we shall have to recover children who lose their homes; we shall have to look forward to looking after them when they become delinquent.
The total bill of matrimonial offences is thus a very much larger one than one normally envisages. Heavy as it is, however, that is not, to me, the most important bill which we may have to pay. I am going to speak for only a very few minutes, because these are the only two points I want to make. One, the heavy cost of matrimonial offences; and the other, in our permissive society, the bill we may have to pay in the effect that it will have ultimately on the character of our British people.
I was talking to a Communist delegate only last week, who told me that they had had to revise entirely their abortion law, which was very free and easy, because it was having such a deleterious effect among their young. I heard from another Communist country that they had to revise their divorce laws. I was told (I am not sure how accurate this is) that one of the ways in which they have done it is by making the first divorce relatively easy and cheap, the second divorce very much more expensive, and the third prohibitive. I do not know whether that is a good system to work on. But it shows that in both these countries, where they have had very full permissive rules in all these matters, they have had to go back because the freedom was having such a deleterious effect on the character of their people. This is what I fear about our present situation and the way we are going. If our British character is allowed to break down and slip away, then our own place in the world will go also.
§ 6.41 p.m.
§ BARONESS BIRK
My Lords, I should like to support this Bill which was so ably introduced by my noble friend Lord 382 Stow Hill. What I think it does is to provide a real reform, perhaps not going as far as some of us would like it to go, but treating adults as adults—which is expressed in Clause 2(1)(d)—and recognising that people should not be trapped for life in a marriage that is dead, even if one party to that marriage, for any reason, either refuses to or cannot believe that this is so. I listened very carefully to what the noble and learned Lord, Lord Reid, said about the irretrievable breakdown of marriage; that Clause 1 was contradicted by Clause 2. I think we are all aware that a certain amount of compromise had to be reached in order to get this measure through at all, and I think we have to be politically realistic about this. But I do not see the contradiction in the way the noble and learned Lord does, because I think Clause 2(1)(d)—if the parties "have lived apart for a continuous period of at least two years"—indicates on that ground a breakdown in the marriage. I would hope, and I think we can foresee, that in the future the majority of divorces will in fact: be or. this particular ground.
If I may take up a point made by the noble Baroness, Lady Emmet, when she said, "Bear the costs in mind", I think first of all that if we are discussing an area, which we are, which creates such a tremendous amount of human misery, this is an area where we should decide that we can bear the cost and the cost should be found. But, secondly, it is very likely that in many cases the cost will be very much less than in the very hard fought out divorce cases that take place to-day. So I do not think that that argument is very viable.
I think that the noble and learned Lord. Lord Reid, and other noble Lords, including my noble friend Lord Longford, who were very much against Clause 2(1)(e) should consider the position if this provision were dropped. My noble friend Lord Longford actually said, "To kick her out after five years". That is not what the clause says. The parties have to be separated for five years before one party can even apply for a divorce. If this provision were taken from the Bill it seems to me that one of the most important clauses of the Bill would disappear.
Our society is monogamous, but it is hypocritical to pretend that behaviour 383 is always monogamous. In fact, in many cases it is even seriomonogamous. if we really take to its end product the point about widows' pensions made by my noble friend Lady Summerskill, it is quite impossible for one man to have two widows unless we move from monogamy to polygamy; and I do not think the opponents of the Bill have so far suggested this. It is perfectly true that certain hardships must arise. Hardships arise from any reform we make; it throws up the need for more. There is inequality in forms of justice, in health, in every way. Is it fair that some people should be widowed before others? Is it fair that some people should lose their children while others do not? Is it fair that some people should be disabled? This is all part of our existence and part of our lives, and it does not seem to me to be an argument on which to turn down a reform which is going to relieve the misery of a far greater number of people that unfortunately there will be a small number of people who, whatever one does to help, even in the material sense (and I will come to that point in a moment), will still feel that they have been badly treated.
So far as the matrimonial property legislation is concerned—I think we were all very pleased to hear the statement from the noble and learned Lord on the Woolsack—there is one point I would make. That is that I think it is doubtful whether this would have been expedited in the foreseeable future without this Bill's making its progress through the Houses of Parliament as it is at the present time. Turning it down on this basis, because, as some noble Lords feel—and they perhaps have reason to feel this way—this is rather putting the cart before the horse, will in my opinion only delay the things we want. We had a rather similar analogy last week when several of us here spoke on the Second Reading of the Children and Young Persons Bill. Many of us felt that we would rather have had the Seebohm Committee recommendations implemented first, but not one of us thought it a good reason to turn down one reform because we could not get another reform placed in front of it. I think that this is the way we ought to approach divorce law reform.
384 But beneath a great many of these rationalisations, both on behaviour and on finance, I think there lies something which is very much uglier and which has not been mentioned so far, and this is the incidence of revenge and ill-feeling. "Vengeance is mine, sayeth the Lord"; but for this mantle to be assumed by those deserted by their spouses is not only unethical and un-Christian, but self-destructive. I feel that, even with the best will in the world, those opponents of the Bill who are encouraging women to oppose it are really seducing them into a dedication of their lives to grievance, to thrive on bitterness, and actually preventing them from the opportunity of perhaps taking up a new life and the chance of remarriage. We have heard figures from the noble and learned Lord on the Woolsack, so I will not repeat those.
The plight of the deserted wife can be a very grave one. No one is trying to minimise this. But it is not at the point of divorce that it is so bad; it is, as other noble Lords have said, at the point of desertion and separation. It is also wrong to pretend, even with the improvement in conditions, the greater extent of equality in our society, that many women are not in a far more fragile position, both biologically and economically, than men. But, at the same time, as we have also heard from the figures, it is not just the "little woman" who is always left at home with the children; there are almost an equal number of women, as again I know from what my noble and learned friend on the Woolsack cited, who commit adultery, leave their husbands, and very often leave their children as well.
However, this question of finance for the deserted wife is something which cannot really be solved by any kind of divorce law we have. In the matrimonial court where I sit about 80 per cent. of the men against whom maintenance orders are made default. What can we do? We give them suspended sentences. Some of them go to prison. We have them in front of us, and a man will say he is earning so much, he is doing this or that job, and his wife will say he can earn more; he can do a different sort of job. We have far less power to find out what a man really can do. We cannot force him to take up a better-paid job. But 385 under Clause 4 or Clause 6 in this Bill, if the wife is able to divorce a man and he is capable of earning more, then the chances are that that wife will get more. In any case, if I may repeat one figure given by the noble and learned Lord on the Woolsack, receiving supplementary benefit last year were 114,000 separated women compared with 36,000 divorced women.
So whatever is done cannot be done through any form of Divorce Bill. It means looking at the whole situation in a quite different way, and it is for that reason that I am not so sure, as some noble Lords appear to be, that it is such a bad phrase to have at the end of Clause 6(2)(b)—"or the best that can be made in the circumstances". It may not be fair, it may not be reasonable, but if the money is not there you have to do the best that can be done in the circumstances. What one really needs—and this has nothing at all to do with the Divorce Bill, and I know that my noble friend Lady Summerskill will be with me—is to see the principle of equal pay implemented, because to-day more and more women are working and the pattern of women's lives (and this to some extent affects the Divorce Bill) is changing. The working lives of women are divided into two parts: before they have children and after. This does not apply only to young women—there are middle-aged women who are doing training and re-training courses and going out to work as their children grow up. Women should not feel—and the younger ones do not—that marriage means a meal ticket for life; they do not want to be an appendage of a man. There must be a far greater and broader basis for the continuation of the marriage and the security of the family.
I should certainly like to see, as set out in the White Paper on National Insurance, that a wife who is working will be in a better position than she is to-day. I should also like to see housewives in the insurance scheme because of the work they do in their homes, which should be counted as work and not as doing nothing. In that way we should get away from this dependence on the man's pension, and the wife would have a pension in her own right. This would alter the whole climate of this particular problem. It would mean separate legislation and different thinking, but I still 386 stress that it has nothing to do with turning down a Divorce Bill which will help so many people.
Then there is the idea which has also somehow got around that thousands of men are only waiting for the Bill to be passed in order to leave their wives. This is, as we know, absolute nonsense. So far as I have been able to gather from my researches, most men are absolutely terrified that their wives will find out, even if they are having the mildest flirtation. They go to great lengths in order to keep their wives and families secure, even while they indulge in a little extra-marital activity. In fact, the passing of this Bill will make it more difficult for the man who plays around, because whereas now he can say to the girl friend, "Darling, of course I would marry you if only my wife would divorce me", in future he will be stuck with it and he will have to be a great deal more careful about the promises he makes.
I think we should be much more frank and perhaps less romantic about marriage. Possibly it would help young people as well if we were more frank about it. Marriage may be made in Heaven but it requires very hard work to make it survive on earth. It is really amazing—and it is something to which I think we should pay some credit—that the majority of marriages in fact do survive, and survive reasonably well. The majority are reasonably happy, or reasonably unhappy, according to whether you think your cup is half filled or half empty. Thousands survive what we now know as a "matrimonial offence" and will continue to do so, but when it comes to the end of the line then it is both inhuman and immoral to keep two people tied together. One can have all the compassion in the world for a person, but one must remember the other partner as well, even if the first one wants to hang on.
Here I would reiterate what the noble and learned Lord the Lord Chancellor said, that there are thousands of women who are also anxious to be divorced, who are involved in a second family and with a second group of children, It is not only the other way round. I think we should look at the example of New Zealand, where since 1965 they have been operating a law similar to this, and where 387 the divorce rate has risen something like 10 per cent., which I understand is the figure estimated by the Law Commission that will obtain in this country if this Bill is passed.
This Bill will be setting the pattern for marriage and divorce in this country for years ahead, and in this context we should consider the attitude of young people, to whom reference has been made by the most reverend Primate and also by the noble Baroness, Lady Emmet of Amberley. When she said that the reason she was concerned was because she did not think this Bill would strengthen the attitude of the young to marriage, I would point out that Divorce Bills are not meant to strengthen the attitude towards marriage. By the time you get to divorce you are shutting the stable door by withholding a divorce, but you will not prevent the marital horse from bolting. What we need to do is to start much further back (which we have not done) and one of the recommendations of the Royal Commission—and on behalf of the Fabian Society I gave evidence to that Commission—was that there should be far more and far better systems of education for marriage. I do not think we have yet gone very far along that road.
I do not believe that young people enter marriage with the cynical view that has been suggested, or that if this Bill becomes law they will say, "Oh well, in two years' time we can get a divorce". Incidentally, it is not in two years: it is two years' separation but people will have to be married for three years, except in extraordinary circumstances, before they can get a divorce. I do not think one can have it both ways. People talk about a permissive society and the behaviour of the young, but if you accept that the social mores have altered then there is less need for young people who want a temporary or just a sexual relationship to marry at all. In fact, on the whole I believe that those who marry do so with the intention that it shall last. As many people are marrying younger than ever before, since we have brought down the age of majority, it stands to mathematical reason that there will be some who will certainly make an error of judgment. It is really only a part of humanity, of being alive, to make mistakes. Is it not better that those who do make mis- 388 takes should have the opportunity to start again, to marry again and to make a new life? To create a family and to be able to settle down in society as a married couple without having to spend their lives in misery, as we have heard from the very sad letters quoted by noble Lords?
This is a moderate Bill. It is not something which is so way out that it could not possibly be accepted by this House, which, after all, has a reputation for putting through contemporary social reform. It makes a real attempt to accept that marriage must be a living relationship if it has any claim to viability, and in passing it I believe that we shall be adopting a more civilised and less hypocritical attitude to both marriage and divorce which will be far more in keeping with contemporary society.
§ 7.0 p.m.
My Lords, I have pleasure in supporting this Bill, and I hope that your Lordships will feel able to give it a Second Reading. In my view there are two aspects of marriage. The first is the religious aspect, which is the dominant one, and in a perfect world should be the only one. However, we live in an imperfect world and there is another aspect of marriage; namely, the factual aspect. By this I mean that if two parties have gone through a religious ceremony and later part, and in fact remain apart and have no intention of ever coming together again, how can one possibly say that a marriage exists between the parties?
Let us look at this from the practical point of view. It sometimes happens—indeed, it often happens—that where a husband and wife part, and live apart, the husband lives with another women by whom he has illegitimate children and the wife, for her part, lives with another man by whom she has illegitimate children. That is, to me, a deplorable state of affairs, and perfectly dreadful for the children concerned. In my view, illegitimacy is one of the most distressing things in the whole world. This Bill will not cure illegitimacy, but if it goes some way in that direction it deserves support from all sides.
As for Clauses 1 and 2 of the Bill, they are the basis of the new approach to the problem and, in my view, deserve 389 support. Clause 2(1)(b) makes me think rather seriously. The judges will require to be armed with the wisdom of Solomon to decide what is behaving in such a way that the petitioner should not be expected to live with the other party. However, as the learned judges already possess that wisdom no difficulty is likely to happen in the future. As for Clause 2(1)(d), it appears to me that if people have lived apart for two years they should be able to decide, if they so wish, that a mistake has been made and that the sooner it is rectified the better. As for Clause 2(1)(e)—the provision which enables one of the parties to obtain dissolution of the marriage without the consent of the other—everyone must have to think hard whether this is desirable. However, the passage of that paragraph may have the paramount effect of reducing illegitimacy, and on that ground alone it deserves a measure of support.
Clause 3, which deals with reconciliation, is highly to be commended. It seems to me an excellent idea that the petitioner for the divorce should certify that he has discussed with the respondent the possibility of reconciliation and has taken such steps as he can in the matter. I do not wish to be a pessimist—pessimists never get anywhere; but allow me to tell your Lordships that reconciliation, although it can save some marriages will save only a very few. I am sorry to make that statement, but I cannot help it: I am dealing with the factual aspect and not the theoretical aspect of the matter.
Then we come to Clause 4, which deals with financial matters. I myself think—in fact we all think—that the wife and children should always be financially considered and if possible supported. At the same time, I regret that this question of finance should come into the question of whether or not there should be divorce on other grounds. Because if it does, we get the absolutely ridiculous situation that a wealthy man will be able to get a divorce in exactly the same circumstances as those in which a man in poor circumstances will be unable to obtain a decree. I think that this matter should be reconsidered—indeed, there are many other matters one can talk about. But as there are many of your Lordships desirous of speaking, I will only say, in con- 390 clusion, let us support the Bill and give it a Second Reading.
§ 7.4 p.m.
§ LORD HODSON
My Lords, I oppose this Bill to-day, as I have in the past when the idea of compulsory divorce has been raised, on the ground that it is an injustice to women, and I do not think that can be controverted. It is, as my noble and learned friend Lord Reid said, completely wrong that women should be put in this position, and I cannot believe that it is in the public weal, for which we pray day by day in connection with our legislation, that this particular feature of the Bill, which is really the main new provision, should be accepted. I know that it is said that a comparatively few Members in another place voted for this Bill—on Second Reading 150, on Third Reading, I think, 100—because it was a Friday and no doubt many Members were paired. But, from reading the letters I get, reading what I read in the public Press and hearing the speeches to-day, all of which, with their different points of view, have been most interesting to me, I am not persuaded that it is in the public interest that this infliction of an injustice on women—and I speak advisedly of women—should be perpetrated.
I am aware that that is not the only new provision in this Bill. There is the provision for consensual divorce. I will not go over again the ground which has been covered so many times, but my noble friend, Lord Silkin, who spoke on the last occasion that I remember this matter being raised and who is a man of long experience and great wisdom and a professional man, a lawyer, pointed out that as things are at present 75 per cent. of divorce cases are consensual: consensual in the sense, as he made quite clear, that both parties want the divorce. Therefore the introduction of consensual divorce, whether with consent or by consent, whichever way you describe it, is not really anything very novel. I am, of course, aware that there is another objection to the consensual divorce which is a valid objection; that is to say, that there is a grave risk that the will of the weaker party may be overborne. For that reason I do not myself particularly like the idea of consensual divorce, but I have not the same feeling about it as I have about compulsory divorce.
391 The word "breakdown" is used as though it were a substitute for the matrimonial offence. Of course it is not that at all. Your Lordships and I, when we are talking about our friends who have been unfortunate enough to go through the divorce court, will say, "Poor old so-and-so; his marriage has broken down". We do not go round saying, "This is all the fault of his horrible wife", or, "It is his fault". We do not go into it, and that is the civilised way of behaviour, I suppose. Similarly, in the divorce court the judges are not really concerned with guilt. There has been a good deal of rhetorical talk about blame and guilt, but we are not talking about blame and guilt. All the judges are talking about is what has to be proved, not who is at fault. Nobody in this world is blameless, and I suppose few spouses who separate are blameless. But people who lose civil actions do not go round with a placard saying that they are guilty of, say. not paying the grocer's bill or of committing some offence which enables some remedy to be obtained against them.
I think a great deal of this talk about "breakdown" is rhetorical and has little relation to reality. My noble and learned friend Lord Reid made the point that the word "breakdown" is used but when you come to what has to be proved by the petitioner you find that the petitioner has to prove the same old things as before. It is true that the word "cruelty" is omitted and another form of words is used which comes to very much the same thing, excepting that one does not have to prove injury to health. The word "guilt", although it appears in the Statute, no longer operates so far as cruelty is concerned because of recent decisions of this House which my noble and learned friend Lord Denning (whom I am pleased to see here) will remember.
I know that the word "guilt" is associated with the word "adultery", but I do not myself attach any importance at all to this question of blame, except in one respect, and that, I think, is highly relevant and one cannot get away from it. The law of this country is that a man's duty is to support his wife, and in order to escape from that duty he has in most cases to impute blame to her, and to that extent blame will be relevant. For myself, I do not see any 392 escape from that, nor does this Bill provide any escape from it. Similarly, so far as children are concerned, when the parents separate one cannot act on a sort of rule of thumb basis, saying that all the little children should go to their mother and all the older children should be divided between the parents. That would not do. And in deciding what is to happen to the children, in their interest—because it is the interest of the children that judges have to consider—one is bound in many cases to inpute blame. If one finds that a mother is living the life of a prostitute, or that either spouse is an alcoholic or a drug addict or is suffering in some other way which makes it unsuitable or impossible for that parent to have control of the children, one is driven into the position of imputing blame; and in this unhappy world one cannot avoid sometimes imputing blame when one is trying cases.
As your Lordships have heard already—and my noble and learned friend Lord Denning will support this, as will also my noble friend Lord Silkin—I have had some experience from one angle of these cases, because at the Bar and for several years on the Bench, until I went to the Court of Appeal, I had spent a great deal of time dealing with divorce cases—that is to say, disputes between husband and wife about all sorts of things, including the actual divorce case—and from that experience my respect and admiration for my fellow countrymen increased. I saw many examples of true devotion and service given by one spouse to the other, often in the most heartrending circumstances. May I give just one example? When the Herbert Bill brought in divorce on the ground of insanity, one had a string of cases in which it was related that the spouse who was left visited the ailing spouse month by month, year after year, doing what they could to comfort and help that spouse. That is an illustration of what marriage is as an institution; and that is why I venture to make the point that marriage is something to be respected and admired, something which the noble Baroness, Lady Emmet, spoke about just now; something quite different from what a newspaper man called the other day, though not giving his own opinion, something of a frolic in the bushes preceded by a ceremony where the girl was enabled 393 to wear a long white dress. Marriage is something which we prize and which we want to preserve, and, for myself, I do not think that this compulsory divorce is going to help to preserve that position.
I listened with interest to what the noble Baroness, Lady Birk, said just now. She made some quite shrewd observations, and we were all amused at the thought of the man who might find himself stuck with his mistress after this Bill went through, much to his surprise and against his will. But there are great difficulties in considering circumstances in which one should enlarge the area in which divorce should be granted. When I was at the Bar I had a case of a Russian marriage. A Russian lawyer gave evidence (again I think this was mentioned by the noble Baroness, Lady Emmet) to the effect that the Communists in their prime—if that is the right word—regarded marriage like birth and death, as a fact of life: either you were married or you were not, much like birds and beasts were mated or they were not. But they found, as time went on, that it did not work, and great confusion was created in society. I do not think it will do for the noble Baroness, Lady Birk, to say, as in effect she says, that, after all, it does not much matter what happens when you go to the divorce court, because by that time the marriage is finished anyway, so let the rules be what they may, let the people have a divorce. I hope I have not misrepresented what she had in mind.
May I refer again to my experience for one moment more? I tried as best I could to listen sympathetically to the people who came before me and not to censure them, or their morals, in any way. I remember this most clearly, because on one occasion I was foolish enough to say to a petitioning wife that I thought her case had no merits. About a fortnight later I sat next to her at lunch, and she turned to me with a charming smile and said, "You are the man who said that I had no merits". That put me in my place. I hope I did not err in that way again. But I hope that, whether in this House or anywhere else, people will not run away with the idea that judges spend their time censuring married people and imputing blame to one or the other. They know as well as anybody else that there are no blameless people about—and prob- 394 ably blameless people would be most difficult to live with anyway.
Even the kindliest and most humane people, like my noble friend Lord Silkin, use severe language about some of the spouses who take up the position that they do not want to be divorced. He described them—and he was careful to say "some of them"—in language one would hardly expect to hear from him, as "spiteful", "dog in a manger", "wanting to get their own back", "vindictive". That is mild language compared to what we hear outside this Chamber about women. Some 250 years ago Congreave had something to say about the discarded wife:Heaven has no rage like love to hatred turned,Nor Hell a fury like a woman scorned".For myself, I am not prepared to hold up my hands in sanctimonious horror at the attitude taken by discarded wives in our country. If they bare their teeth, I am not going to blame them.
In that connection perhaps I may be permitted to read just one letter, because I think it must be like many of the letters that your Lordships will have received, and it is not long. It says:Many people like myself feel that the present divorce law reform Bill now in debate will not only undermine the stability of marriage but will also undermine the financial resources of the country. We cannot understand, when the economy is at its lowest ebb, why the Divorce Bill is considered for further debate in Parliament. If it is passed it will give freedom from marriage to every deserting husband in the country. As M.P.s Mr. Abse and Mr. Jones have pointed out, each case will have to be thoroughly investigated and there will be trials of reconciliation and the deciding of who is to be given what. This will mean long-drawn-out cases in divorce court. Many tens of thousands of men will be applying for this new-found freedom. This will incur huge masses of money needed from Legal Aid funds. This Bill will not only mean more divorces, but will mean many more desertions, and when men know that freedom can be gained so easily, thus involving much more Government expenditure baying to be found in demands on the national assistance funds which is bound to follow these desertions. Very many people are discussing this outrageous Bill. They have asked me to write to someone who can help them. The marriages which exist will have no protection and they should be considered of more consequence than the legalising of the few living in sin. Desertion will come more easily to a partner's mind if this Bill becomes law. I trust you will help in preventing such an unjust Bill now becoming law.395 I am not defending the language of this letter—no doubt it is not very sacrificial language—but these women are to be divorced, whether they like it or not, unless they can justify their refusal, and I do not, for myself, see why they should be asked to submit to an inquisition of this kind. I realise that the character who submits himself or herself on the television screen to be cross-examined by professional interrogators has to put up with a lot of what I should call very impertinent questions. They are asked whether they believe in God—things of that kind. Are these women to be hauled up and asked why they are unwilling to give their husbands their freedom? For my part, I do not think it is fair that they should be. Why is the onus to be put upon them to say that the marriage tie should be preserved, even though it is, as the supporters of this Bill say, an empty one?
There is, of course, the financial aspect, which I think I should mention, though I realise that I must not go on much longer. Before I come to that I should like to refer to one instance of the unpleasant situation which this proposal produces. My noble friend Lord Longford and I saw a woman the other day who came to see us with her child. She was a woman with a grown-up child, a daughter of about 20, and her story was that her husband's paramour had been to see her and threatened, "You had better divorce your husband quick. I want him. If you don't, there will be a Bill coming in soon which will enable him to get rid of you." That seems to be a horrible situation, that a woman should be threatened in that way. As the law now stands, of course, she cannot be effectively threatened.
From my own experience, I have known of cases where a woman has been prepared to hold her husband (I am talking always of the woman, but I realise that there is another side to this) when he has been playing about with another woman, flattered by the devotion and adoration which the other woman displayed towards him. The wife has been able to say to her husband, "Don't be a fool. Be your age. We have lived together for years. Why can't we stay together now?" And sometimes, as matters stand to-day, the woman has been able to hold him. Will she be able to 396 hold him if this Bill becomes law? It will be more difficult, I should have thought; and those of us who are anxious to do all we can to preserve the institution of marriage are, I think, right in opposing this.
One word about the financial aspect. When this Bill, or this proposal, came up before, the noble Baroness, Lady Summerskill, and I, and many others, laid great emphasis on the impracticability of providing means for the support of these wives who have been left, since the average man in this country cannot afford to pay. We know that because the wage is not enough to keep two homes. Rich men are all right; they can keep half a dozen wives, deducted from surtax and so on, and it is all quite splendid. But the poor people cannot do it, and nobody seemed to be prepared to deal with this. All the speakers in your Lordships' House shook their heads sadly and said, "We are very sorry; we will think about it. Something must be done." But, of course, nothing can be done except by national assistance, which means, as the noble Baroness, Lady Emmet of Amberley, has said, that their neighbours pay.
It was not until my noble friend Lord Kennet, in a previous debate, rose to his feet that the position was really faced that there was nothing that could be done; the only defence (and I think it is the only defence which is open on this) is that things are bad enough as they are: the poor will always be with us, and if you have got a deserted wife the position will be just the same. But, of course, it is not quite the same, because when the man marries the paramour (if he does) he will be under an obligation to that woman which will come first before the obligation to this first wife; and not only will she get the money on Friday night but she will have the right to it. So the taxpayer will have to pay. I do not like the selective employment tax very much, but I do not want my card to have on it another stamp for the discarded wives' tax, to cover the expense of keeping these unfortunate women who have been discarded by their husbands.
As I have already indicated, I am substantially in agreement with all that my noble and learned friend Lord Reid said about this Bill, and I have avoided dealing with the detail because I do not want to take up time doing that. Nor do 397 I think it suitable, in a Second Reading debate, to try to deal with matters which could be dealt with on Amendment. I ought to acknowledge that what my noble and learned friend on the Woolsack said—that, so far as pension rights were concerned, that matter could he put right by insurance policy—was a comfort to me. I accept that. But I do not accept that it is a satisfactory substitute for the husband's obligation to maintain his wife that national assistance would do it for him.
It is a strange fact that women, who exercise the most profound influence on our lives, for good or ill, are treated in this country as inferior creatures. They are left behind in the. "rat race". They do not get the best jobs; they do not get equal pay, unless they are Ministers of the Crown or, apparently, lavatory attendants: in between they do not get the best of the things which this world has to offer. I think that this Bill is another slap in the face for them. In my own occupation we have an enlightened Lord Chancellor on whose recommendation Her Majesty has appointed a woman judge—something that has never happened before. There is one woman county court judge; and there is at least one woman Queen's Counsel. There may be more than one woman magistrate, and certainly there are a great many women lay magistrates—indeed, we have shining examples in this House of women who perform service as magistrates. But, as I say, in the main, women do not get the opportunities that men have in this country in all spheres of life.
I will not take up the time of the House much longer, but I must mention that I am not impressed by the argument—one that I am sure has influenced some persons in favour of this Bill—in favour of the unfortunate bastards. I believe that that argument is very much overworked. I suppose that most of us in this country went to school and were taught history, which probably began with William the Conqueror, who was a bastard, and ever since then bastards have done perfectly well. Nobody, so far as I know, has treated them in any way with any disrespect. We do not know which of our friends are bastards. We are not asked, when we apply for employment, whether we are illegitimate or not; we do not have to produce our parents' marriage certificates. I believe that clerks in Holy 398 Orders used to be required to do that, but that is in the past. Bastardy seems to me to bear no stigma at all, and I cannot believe it is an argument in favour of this Bill that, for the sake of illegitimate children, such stigma as there may be attached to them should be removed.
If this Bill is passed and either party is able to end the marriage whether or not the other spouse agrees, it will, I think it is accepted, bring about a major change in the nature of marriage. And the Christian concept of marriage as a voluntary union for life, already weakened by successive moves towards easier divorce, will be given a further, perhaps final, blow.
§ 7.29 p.m.
§ LORD DENNING
My Lords, I would support this Bill on this simple ground: that the divorce law at present is based on a wrong theory; it is based on the principle, so called, of the matrimonial offence. That is out of date and inapplicable, as I will show. It should be replaced by a better principle, which has been well stated by the Archbishop's Commission, presided over by the right reverend Prelate the Bishop of Exeter; it should be based on the irretrievable breakdown of marriage. I say this, first, with a short excursus on our history of marriage. Until 1857 the law said, as the Church said, that marriage is the union of one man with one woman for better or for worse, to the exclusion of all others on either side, so long as both shall live. That was too great an ideal for our society in those days, or for ordinary mortals to live up to. So in 1857—and the Lord Chancellor at the time thought it was a terrible monster that we were creating—we introduced divorce on the ground of a matrimonial offence, and in the first year there were only 200 divorces in England.
That developed over the years from adultery to cruelty, to desertion for three years and the like, and that remained the principle. Right up till 1943 you had to find one side innocent, the other side guilty. Then in 1943 in this House, affirming, I believe, a decision of my noble and learned friend Lord Hodson, the discretion of the court was allowed to be exercised in favour of the guilty; and ever since that has been done in favour of the guilty, wherever the marriage has irretrievably broken down.
399 We have many such cases in the courts. The petitioner may be far the most guilty. He may have had three or more adulterous associations while the wife has had only one offence, whatever it may be. But if the court sees that the marriage has irretrievably broken down, discretion is always exercised. So in point of practice the judges have introduced the principle of the irretrievable breakdown of marriage into our law, and we all know that there is no real inquiry into guilt or innocence. If one side wants a divorce and the other does not object, you can always find the grounds. You need not go so far as adultery—cruelty we have extended far enough—and there can be constructive desertion and the like. It can always be done when the other side does not object.
So there we have introduced the irretrievable breakdown of marriage, and this Bill, in paragraphs (a), (b) and (c) of Clause 2(1), and indeed in paragraph (e), substantially states the existing practice whereby the courts do grant a divorce when there has been an irretrievable breakdown. I say therefore: Get away from the old fiction, from the out-of-date theory of the matrimonial offence. Bring into our law the true principle of the irretrievable breakdown of marriage. That, surely, is sufficient to satisfy the first part of this Bill. I do not mind paragraphs (a), (b) and (c), but I much prefer paragraph (d) where husband and wife have lived apart and been separated. Then you know that there has been an irretrievable breakdown. Do not go into guilt or innocence; when there has been an irretrievable breakdown let the divorce come about.
What about paragraph (e)? There is the crux of the whole debate. If there has been a separation for five years, is one to get a divorce contrary to the will of the other? The opponents of the Bill suggest that there is an innocent person being cruelly divorced against her will. In how many of these cases can you really decide between the innocent and the guilty? Even when the wife is, in theory, guilty of no legal offence, who knows what trials may have ensued in the past which led to the breakdown? So often in these cases the so-called innocent one has been, at least in part, at fault herself or himself, as the case may be. Very 400 rarely do you have complete innocence. But, even if you do, I would ask—and I think those who look further would ask—that you look to the new union which has been made, with, maybe, quite an innocent woman bringing up children with the man. Are they to be condemned? Is she never to have her position regularised when in truth the initial marriage may have broken down for 15, 20 or 25 years? What is the use of keeping that marriage alive? Surely there should be the same principle. Let the principle be applied. Let the marriage be dissolved so long as you can do it without injustice.
There comes the third point. Can we not secure that it is done without injustice? My Lords, we can. We have the principle, which I hope the Law Commission will recommend, of securing the wife in the matrimonial home in proper cases; of seeing that she is secured with her maintenance and the like; of seeing that she is secured with her pension. But even if that cannot be done, then, in the last resort, the judges can say, "It would be wrong to have a divorce. We will not have it". And can you not trust the judges to do that; to see that, if it is a case of grave injustice to an innocent person, the divorce should be refused?
As I understand it, that is the principle running through this Bill. There could be some criticisms of detail—my noble and learned friend Lord Reid went through many of them—but let them be discussed in Committee if need be. At the moment, your Lordships are concerned with principle, and the right principle for our society of to-day—I am very glad to feel that it conforms with the views of many people on the Episcopal Bench—is the irretrievable breakdown of marriage. It is for the enshrining of that principle in the law that I would plead to-day, and I would therefore support the Second Reading of this Bill.
§ 7.38 p.m.
§ LORD PLATT
My Lords, I should also like to say something in favour of this Bill. So many of the objections to-day have already been answered that I think I can be quite brief. But there seem to me to be two very important points which have had somewhat inadequate consideration. One is the really regrettable state of the present laws. The 401 noble Baroness, Lady Gaitskell, referred to the divorce courts as monuments of hypocrisy and contrivance, and I think the right reverend Prelate the Bishop of Exeter referred to the present laws as being unpleasant and discreditable. I ask your Lordships to bear in mind that a vote against this Bill is in fact a vote in favour of the status quo.
The second point I would make is that we are all human beings. We are the products of our personalities, our emotions and our biology. The law and biology do not mix very readily, and no laws can take into account every circumstance. Most human problems are basically insoluble, and a compromise is all that we can seek. With this in mind, I would ask your Lordships to reject objections if, first of all, they could be raised against any possible Bill, as some of them obviously could. Obviously, the financial provisions can never be perfect. I think that the objections raised to the wording in Clause 6(2)(b) were really particularly puerile. Surely we understand what is meant by:that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances".Of course it cannot be reasonable and fair, if a man has no money, to make any financial provision; and, therefore, it must merely be "the best that can be made in the circumstances". I think that to use this as an argument against voting in favour of the Second Reading is really the worst of all arguments.
Secondly, I would ask your Lordships to reject objections which are really not objections to this Bill at all but are objections to divorce, full stop. Greatly as I respect the views, sentiments and beliefs of the noble Earl, Lord Longford, I think that what he has said, and said with his usual eloquence, is really an objection to divorce. Does he not realise that there already are divorce laws? What we are considering to-day, so far as I know, is not that those laws should now be abolished and that there should be no divorce: we are discussing as to whether this Bill is substantially better than the present state of affairs.
Thirdly, I suggest that your Lordships reject objections which, although they point to certain imperfections in the Bill, do not take into account that the provisions of this Bill, especially the financial 402 provisions and those for the protection of the deserted wife, are far better than they are under existing legislation. With all these points in mind I myself find that the objections which have been raised seem to have very much less substance than some of their promoters seem to think.
§ 7.43 p.m.
THE LORD BISHOP OF LEICESTER
My Lords, I am going to speak as an uninhibited supporter of the noble Baroness, Lady Summerskill—and I am sorry that she is not here to receive my blandishments. She does not often have episcopal supporters. but on this occasion she is going to have at least one. The fact that I am going to speak entirely in opposition to the Second Reading does not, of course, mean that I am blind to the various advantages that this Bill may eventually confer. But so much has been said on the other side that I do not think it is necessary for every speaker to repeat all the positive points.
I begin my opposition by guarding myself from the propaganda that is implied in its very title. "Divorce Reform Bill" is a title which in itself makes it difficult for anyone to oppose it, because one is immediately put into the position of appearing to oppose something that is quite obviously good. Whereas, while change is inevitable, not all change is For the better all change is not reform, in the sense of improvement. One could hardly have expected it to be described as the "Easier Divorce Bill". We are told that it does not provide for easier divorce, but we were also told, I think by the noble Lord who moved the Second Reading, that there are 5,000 cases known to be awaiting the passage of this Bill in order that they may obtain their divorce. So it would seem that at any rate the gates are being opened more widely in that particular direction.
Then, I am not myself entirely converted to this idea of the breakdown of marriage as the principal ground for divorce. This idea has swept through the thoughtful world almost like an epidemic. I think it began in what we used to call the Dominions, and it has won very great support in this country. One can see the attraction of it as an alternative to all the sordid arguments about matrimonial offences. But the fact remains that the word "breakdown" is a word 403 which we usually apply to mechanical objects, and we have the idea that if a car, for instance, breaks down that is not our fault. I am not at all sure whether we are helping the cause of marriage, in the best sense, by suggesting that it is just a lucky chance whether or not it breaks down. We surely have to do everything to keep before people's minds the fact that it is a matter of personal behaviour, attitudes, loyalty and self-discipline: and these are not things that are necessarily conveyed by the words "breakdown of marriage".
It is not easy, in the light of all that has been said and written, to defend the use of the phrase "matrimonial offence", and I am far from thinking that we have the ideal situation there. But there is a danger here. If there is no such thing as a matrimonial offence, is there not the implication that there is no such thing as a matrimonial standard? If you cannot do anything wrong, how can you know what is right? While I think that these changes are probably now inevitable, there is no harm in our noticing the price we are paying for these particular changes.
My difficulties about the Bill concentrate on the two points that have been mentioned so often during this long debate: what may be described as divorce with consent after a two-year separation, and divorce without consent after five years of separation. I am assuming that the generality of cases to be considered will be those of the discarded women. The noble and learned Lord who sits on the Woolsack has a habit—a very disconcerting one—of confronting us all with objective facts to which there seems to be no apparent, or even possible, answer, and I must say that I was myself surprised when he told us that divorces granted on grounds of adultery by women were almost exactly equal in number to similar cases by men. That surprised me very much, and I should like to meditate at leisure on the significance of those figures.
I suppose that if one reflects for a minute it becomes obvious that an act of adultery needs the co-operation of at least one man and one woman; presumably, by the law of averages, perhaps half of these parties—third parties, so to speak—are married; and if there is an 404 equal number on either side of the sex line it produces the statistics which the Lord Chancellor gave us. But I do not think that carries with it the implication that responsibility lies equally with men and with women. I think it is a fact of nature that man's biological background leads him in the direction of polygamy and woman's biological background leads her in the direction of monogamy, if one can use that slightly inaccurate word to describe the situation that I have in mind.
We have already had a reference this afternoon to the cockerel feathering his nest while the hen sits on the eggs. Curiously enough, this picture was in my mind yesterday when I was driving round Leicestershire and saw the not too common sight nowadays of a fine strutting cockerel with about ten hens following him. This reminded me that man on the animal side has the temptations, if we can call them so, arising from his animal ancestry. It is just a fact that man is usually the seeker, the hunter, and woman is the one who is sought, and sometimes found. That being the case, one has to ask oneself whether these new proposed conditions for divorce, and particularly the ones that I have mentioned, are really going to be fair to the woman in the new situation.
With regard to the two years' separation, with divorce by consent at the end of it, the difficulty in my mind is not what happens at the end of the two years. I should be the first to admit that probably after two years' separation and a consent to divorce, the likelihood of any other, happier solution is extremely remote. But when you look at it from the other end, from the beginning of the two-year period, it is an entirely different matter. Very often part of the first year will be spent in weighing up the situation, in wondering what is really to happen, whether the man or woman is going to come back. But when one year has gone by, and only one year is left, there is a most tremendous bias, it seems to me, to lead either partner, or both partners, to think: "In one year's time it will all be over, anyway". I think that that will create in the minds of those who are beginning to feel that their marriage is under a strain a tendency to think very much more positively about divorce than they might otherwise have done.
405 Then one comes to the more difficult question of the divorce without consent at the end of five years' separation. Here I think I must say that I personally feel that a marriage that has been dormant or in decay for five years is, humanly speaking, past resuscitation. I do not think it is in the least likely that, except by some miracle, such a marriage will revive. That does not carry with it the implication that everything ought to be made easy for the partner who is technically (shall we say?) in the wrong. Martin Luther had a phrase, "Pecca fortiter!" which means "Sin vigorously!" When he said that, it was not that he wanted people to sin but that he wanted them to be quite sure they could not be justified by moderating their sin but only by something entirely different; namely, forgiveness.
It seems to me that we are saying here to people, "Sin long enough! After two years of separation, however faulty your behaviour, you cannot have your divorce without the consent of the other partner. But go on long enough; do it for twice as long and one year more; and then you can have everything you want." That seems to me an extremely difficult thing for Parliament to take on its shoulders. There is surely some kind of obligation between the partners entering upon a marriage and society, which for our purposes is represented by the authority of Parliament and the State. I cannot at the moment vote for a Bill which simply ignores whatever remaining rights there may be on the side of the deserted partner.
A great deal has been said about the financial side. I am not going to touch upon that; the question is whether there is anything else to which the aggrieved partner has a right. When we have left out all the cases of vindictiveness, or spite, or sheer obstinacy and stubbornness, and everything that can be laid against the aggrieved partner, is there still something in the actual condition of being the married wife or married husband of a spouse which must not lightly be taken away by Parliament or by the State? The noble Lord who moved the Second Reading tried to make our hearts bleed—in fact, he did almost make our hearts bleed—with the story of the elderly couple who craved above everything else to be put into the right state by the 406 possibility of divorce and re-marriage. But if the purely sentimental thoughts of people in that position are to sway Parliament, is it right on our part to turn our minds and hearts away from those who have the same sentimental and perhaps irrational feeling about the link that they still have?
I personally support very strongly what the most reverend Primate called "the educative force of law". It is very easy to work up a great sense of pity for those who have somehow found themselves in these difficult and embarrassing situations; and we are told about the children who might be legitimated. But do not let us consider these to the exclusion of all those who may have the prospect of a long and happy family life together but who will be exposed to risk if legislation in the Houses of Parliament conveys in a subtle way to the people that, after all, marriage is not so very permanent and indissoluble.
I fully accept that we have gone so far that it may almost be thought unnecessary to worry about going a little further. Nevertheless, I cannot myself vote for this particular Bill. I expect that it will get its Second Reading. If it does, this will in no sense prevent us from trying to do the best we can with it in Committee. But I feel that there are points of principle. The noble Baroness, Lady Birk, said that Clause 2(1)(e) was absolutely fundamental to the Bill and that it would be intolerable to think of its being taken out of the Bill at the Committee stage. That being so, I feel that the matter of principle is raised by the Bill itself, and I cannot square my conscience with voting in favour of it. I shall vote against it and hope that my vote will contribute some slight indication of our hesitations and doubts about its general principles.
§ 8.0 p.m.
§ LORD SILKIN
My Lords, I have listened to every one of the 19 speeches which have preceded mine and it will not be surprising if there is very little that I can add to what has already been said. But the right reverend Prelate the Bishop of Leicester has given me fresh wind and provided one or two points upon which I can, I hope, enlighten the House. Like a number of other noble Lords who oppose the Second 407 Reading, the right reverend Prelate limited his opposition to two provisions in the Bill, the two-year desertion period and the five-year separation. Before dealing with the merits of those provisions I would say that, important as they are, they are Committee points. If the Committee so decides they may be left out and the Bill could still go on. I admit that it would be a very much emasculated Bill and I hope that most noble Lords would regret the absence of those provisions. The fact remains, however, that they are not absolutely vital provisions in the Bill; and I do not understand why the right reverend Prelate and the noble and learned Lord, Lord Hodson, are going to vote against the Second Reading simply because there are provisions in it which they do not like but which could be eliminated without interfering with the Bill in principle.
What we have really to decide is whether we are in favour of continuing the present system, which has been described as out of date, hypocritical, as encouraging perjury; and which was referred to by the most reverend Primate the Archbishop of Canterbury in even stronger terms. Are we going to accept that, and go on accepting it, as the law; or are we going to take advantage of this Bill and see what improvements we can make? That is the issue before us. The right reverend Prelate does not like the term "Divorce Reform Bill". If he looks at the dictionary definition of "reform" he will find that the Bill represents a reform of the divorce law. I would not even say that necessarily a reform would be for the better. A reform is an alteration of the law, although it is generally associated with an improvement, and most of us would recognise this as an improvement.
I listened with particular interest to the speech of the noble and learned Lord, Lord Reid. He put forward a great many objections to details in the Bill and I thought that every one of those objections might have been dealt with in Committee; in fact, I think the noble and learned Lord said so. One amendment he suggested was the substitution of the word "or" for "and", or vice vèersa. But he made the point that this Bill proposes nothing which is different from the existing law. It does not make any basic 408 change. You would still need to establish adultery or desertion or some other grounds on which previously a divorce might have been obtained.
That is not strictly true, because the Bill would widen the provisions and bring them more into line with present-day conceptions. For instance, let me read Clause 2(1)(b):That since the celebration of the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.That would cover not only cruelty, which admittedly is covered already, but also the action of a man who left his wife because she was an habitual drunkard and he found it intolerable to go on living with her; or because the wife was taking drugs. That is not covered by the existing law. A man is forced to go on living with a woman who is a confirmed drunkard, and there is nothing he can do about it unless she admits adultery or some other conduct—
§ LORD SILKIN
Yes, my Lords. cruelty. I submit that the proposal in the Bill is an improvement on the existing law. The period of desertion would always be substantially more than five years, because it would take a year before the case came up for trial, so it would be six years by the time the case was actually considered by a judge. There will be cases where a husband has deserted his wife or vice versa, not because of any existing misconduct but because they found it intolerable to live together on the grounds that one or other was a confirmed drunkard or drugtaker or because one or other had some trouble which made it impossible for the two people to go on living together.
In a case, where, say, a husband has left his wife, is it reasonable—would the right reverend Prelate say that it was still reasonable?—that in those circumstances the wife should have a veto on divorce? It seems to me utterly unreasonable. Everyone who is opposing Clause 2(1)(e) is assuming, I think, that the husband—it is always the husband—has unjustifiably left his wife and that the parties are separated because of the wrongdoing of the husband. It may be 409 nothing of the kind. In many cases—I will not go so far as to say in most cases; but in a great many cases—the parties will have found living together to be intolerable and therefore the marriage has broken down. I submit that that is a much more human test and a much more reasonable test than the existing tests which have been described in such uncomplimentary terms.
My Lords, there are, I think, eight or nine more speakers and I do not know what on earth they are going to find to say. I hope that we have really made up our minds that this Bill ought to get a Second Reading, even though we recognise that it has defects. I should like myself to improve some of those defects and no doubt others will wish to consider them. Let us have a good, long, uncrowded, unhasty Committee stage. Let us not be pressed to come to conclusions just because otherwise we shall lose the Bill. I hope we shall go through the Bill with a fine toothcomb and try to produce the best Bill we possibly can.
§ 9.9 p.m.
§ LORD WELLS-PESTELL
My Lords, it is my intention to resist the temptation to join in the controversy over this Bill because I feel (and the noble Lord, Lord Silkin, was quite right when he implied it) that everything that can be said about this Bill has been said—with the exception of one thing. I am a little disappointed that more noble Lords have not dealt with Clause 3 of the Bill, which deals with reconciliation. Perhaps I ought to say that matrimonial conciliation has been my concern for something like thirty years. As reference has been made to the Marriage Guidance Council, perhaps I ought to declare to your Lordships that I am not only one of its founders, but its present Vice-Chairman. In view of some of the things that have been said in the Press in recent weeks, stemming from the Bill we are discussing to-day, I should like to emphasise that the National Marriage Guidance Council has no policy whatever in respect of divorce. That does not mean that it is not interested in what happens in the field of divorce, because of necessity divorce must affect the whole of family life and the stability of the family, but as it is the Council's concern to provide a skilled and comprehensive network whereby husbands and wives who are ex- 410 periencing difficulties in their marriage can get skilled and expert help, it does not seem to be right that, as a national organisation, it should have a policy with regard to divorce.
I want to deal for a moment or two with Clause 3. I am indebted to the noble Lord, Lord Sandford, for drawing the attention of your Lordships to this clause and to what is being done in the field of conciliation. I should like to sum up what the noble Lord said in these words. While no doubt we must provide facilities for divorce, we ought to keep in the forefront of our minds that in a progressive society what we want is not a mortuary for dead marriages, for that is what the divorce court is, but a progressive hospital service for sick marriages.
The Explanatory Memorandum, dealing with Clause 3(1), refers to solicitors giving clients the names and addresses of persons experienced in reconciliation work. If this Bill gets a Second Reading, I hope that somebody will think out carefully who these counsellors are to be. It is important that they should be competent persons and really know what is involved in dealing with marital disharmony. Many people in the community think that they are qualified to do this work of conciliation, without realising how dangerous it is to use well-meaning, well-intentioned but untrained people to do it. When two people find that they cannot go on living together and there is no common ground between them, if a sincere and sustained attempt is to be made to help them to overcome the difficulties threatening the security of their marriage, it needs somebody who not only understands the husband and wife relationship but also the reaction of one partner upon another.
There is no relationship quite like marriage. We all know that it can lift people to the heights and it can dash them to the depths below. To end a marriage by separation or divorce affects people in different ways, but it is bound to affect them. People invest too much feeling in marriage to be able to shrug off calmly the effects of its breakdown. It is bound to come as a shock to most people and they need skilled and expert help to enable them to come to terms with the traumatic effect that a breakdown in their marriage has upon them 411 and, what is more, to enable them to make the consequent readjustments. It is one thing to want, work for, and plan a divorce, but for most people it is difficult to accept it without shock when it has taken place.
The ending of a relationship so far reaching as marriage is a form of amputation and the convalescent period can be difficult and profoundly shocking. When we are thinking in terms of divorce, we have to realise that a great deal of personal and social disorder stems from the breakdown of marriage. It affects the children as well as the couple involved. It is the children whose wants and needs should be taken into account, but these are not always known or understood.
The various conciliation agencies, as I do, welcome Clause 3(2), which reads:If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation.It is my submission that subsection (2) does not go far enough, and I would ask my noble friend Lord Stow Hill whether anything can be done about this. Conciliation is often of value even though it cannot bring about a complete reconciliation. It is desirable that it should continue in an effort to resolve or narrow the areas of conflict between the parties and so enable more co-operative arrangements to be made about children, their custody or their care and control, their maintenance and what is going to happen to them with regard to access of the parents.
Generally speaking, divorcing couples are in a state of conflict and one cannot expect them to take either a fair or a reasonable view of each other. Conciliation can and does help. Although in the majority of instances it may not save the marriage, it helps the husband and wife to disgorge their pent-up emotions and to release feelings of anger and hostility and make them perhaps more understanding, not only of the contribution which they themselves have made to creating the disharmony, but perhaps to see the other person's point of view, and become much more reasonable in dealing with the various ancillary matters 412 that stem from divorce—and I have given one example, that of the children. To make this possible it may be necessary at the appropriate time slightly to amend Clause 3(2), and I would suggest that wording should read something like this:If at any stage of proceedings for divorce or any proceedings ancilliary thereto it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage or of a narrowing of the areas of conflict the court may adjourn the proceedings for such period as it thinks fit to enable such attempts to be made.I want at this stage to express no opinion about the Bill other than to say that when we are thinking in terms of divorce, let us strengthen to the utmost both subsections (1) and (2) of Clause 3, so that we can offer to people who are going through this traumatic experience not only an opportunity of re-examining the situation, but perhaps, if that cannot be resolved, of re-examining themselves in relation to the other partner, so that their areas of conflict can be narrowed and they can be better able to understand what is required of them, particularly in relation to the children.
§ 8.22 p.m.
THE EARL OF GOWRIE
My Lords, the noble Lord, Lord Wells-Pestell, told us that everything had already been said in this debate except one thing. Now he has said that, which rather cuts the wind from under the sails of the rest of us. But the experience expressed in that metaphor is to me a very pleasurable and moving one, because I agree with everything that he has said at an intellectual level, and on the emotional level. I have myself undergone marriage counselling, and so can speak with experience as to the truth of almost everything the noble Lord said about it.
To leave the noble Lord for a moment, I should like respectfully to join with what can be called the Dilhorne-Silkin syndrome, and to urge your Lordships to give this Bill a Second Reading; follow us "Contents" into the bar, in every sense, and let us decide to work long and hard at the Bill in Committee. I am a little puzzled, not to say disappointed, at the attitude of the right reverend Prelate vis-à-vis this Bill. Like many others, I vested a lot of hope in his support for it. It seems to me (and 413 I think the noble Lord, Lord Wells-Pestell, will agree with me here) that the right reverend Prelate had a disproportionate concern for justice, which is perhaps an appropriate word to use in connection with marriage. I was also puzzled by his suggestion that the punishment of flagrant misconduct in marriage should be to go on being married. This view seemed to me to have a hole in it somewhere.
However, as a professional teacher, I share his concern at what he called the educative effect of the Bill. But I do not altogether share his worry that this need necessarily be adverse. I feel that he was ably answered by the noble Baroness, Lady Birk, when she said that frankness helps young people, especially vis-à-vis marriage. Young people are, in my experience, Geiger counters of any form of humbug, and I do not think that our existing arrangements are free from humbug. But even the critical young, I think, would have enjoyed with me Lord Longford's jocular and metaphysical approach. The noble Earl might be interested to note (I am sorry he is not here) that the ablest book I know about marriage counselling, about marital breakdown, under that title, is by Dr. Jack Dominion. Dr. Dominion is a Roman Catholic, as well as being a practising psychologist. The noble Earl, Lord Longford said—and the right reverend Prelate the Bishop of Leicester agreed with him—that you underline the moral influence of marriage by excluding ideas of rightness and wrongness. I, of course, believe that this is a useful caveat, but that one needs a great deal of knowledge to make any form of truly moral decision, and knowledge is what we have to go after in this connection.
I liked the remark of the noble Baroness, Lady Birk, that we have to start much further back. There is talk at the moment of sex education. There has been, I suppose, always talk of sex education, but not much talk about education for marriage, and this is something on which we should place emphasis. There are obvious difficulties in educating young people for marriage. They may start applying the theoretical knowledge they get in the classroom to the actual situations in their homes, with devastating effect. But I believe that there are ways out of this. One encouraging way is that 414 as a teacher one finds that most students are deeply involved in the new and semi-science of sociology, and that a thoroughly professional and slightly distant approach to a subject like marriage finds favour, oddly enough, with them; and you can counteract this distant approach by using literature. Perhaps our greatest experience of marriage outside our own marriages, or the marriages of our parents or immediate friends, is to be obtained from books. I always feel that the greatest work on marriage written in this century is Joyce's Ulysses; in the last century Middlemarch; and we can go back to Othello and Macbeth, and so on for ideas about this.
The noble Lord, Lord Wells-Pestell, did not mention one of the great difficulties that I feel in connection with marriage counselling, which is to get people to take advantage of it before it is too late. A possible way to do this is to use the media. There is something relatively embarrassing about being told, or telling someone else, to consult, a marriage counsellor. It sometimes stiffens resistance. But if you see some discussion on television, or hear it on the radio, about marriage it can open up one's attitudes a great deal. People are interested in marriage. Obviously it is a stock, stable theme of most fiction. I notice that recently a Sunday paper has hired a new woman columnist whose total subject is her marriage in almost every detail—her sexual life, her problems with cooking and so on—and this seems to be very popular. Whatever one's views about the propriety of revelation, or whatever it may be, I think that the long-term effect is a good one.
As always, money is needed for this. I was impressed by my noble friend Lady Emmet's command of figures, pointing out that we spend £6¾ million on legal aid, 83 per cent. of which is in connection with matrimonial cases. And I was delighted that from our Front Bench the noble Lord, Lord Sandford, noted that the priorities were absurd, and that in spending only one-tenth of £1 million on the whole marriage guidance movement we were involving ourselves in bad housekeeping principles. The noble Lord, Lord Sandford, said that he was speaking for himself, but I think he was telling only half the truth, and that he was speaking in a way indicative of our 415 Party's attitude when we come back into power.
I hope your Lordships will follow us "Contents" to-night, not as Casanovas but as caring men, agreed on the principle of the need for reform and intent on committing yourselves to soldiering on in Committee. It is only by caring, by careful scrutiny and hard work, that we can further the cause, not of divorce, but of marriage itself. And behind this, if I may borrow Lord Longford's beautiful quotation, is "a community and destiny of love".
§ 8.29 p.m.
§ LADY KINLOSS
My Lords, I am speaking to-night because I have been begged to do so by many friends, both Anglican and Roman Catholic. I am myself a Roman Catholic, but I have in common with many of my Anglican friends—and indeed other friends—a belief in the permanence of marriage, in the sacred nature of the marriage bond, and in the Holy Family at Nazareth as the true image and ideal of Christian marriage. I believe, too, that the great majority of women, and of men also, whether they are Christian or not, desire in marriage a life-long and permanent union, even if their philosophy—or sometimes the lack of it—enables them to regard marriage as something which can be experimental or which, in certain circumstances, can be dissolved.
Having so said, I accept the inevitability of the divorce law for those who wish for one. For them the function of the civil power is to devise a divorce law which will be honourable, fair and just to all the parties concerned. I say "all the parties concerned" because, however one defines the marriage bond, both parties have equal rights within it: and because where there are children, they too have their own rights. Indeed they merit an altogether special consideration because, when a marriage breaks down, they are likely to be the greatest sufferers, both in the short and the long term, for a situation for which they are in no way responsible.
When this Bill and its abortive predecessor were introduced I was greatly disappointed that the sponsors did not see fit to include detailed legislation on matrimonial property. I am glad that 416 the Government are preparing legislation in this matter, and that, should the present Bill pass into law in some form, it will be suspended until that legislation has been introduced. I would only comment that it would seem to me more logical if legislation on both matters were to come into operation at the same time. Perhaps I may be given an explanation if I am wrong.
Although I agree with much that the noble Baroness, Lady Summerskill, has said, I cannot go all the way with her. The noble Baroness described the Bill as a "Casanova's charter". Myself, I was reminded of a notice said to have been put up outside a church: "Next Sunday; Sermon: 'The Church and Divorce'; Anthem: 'I saw another Angel'". It seemed to me that the noble Baroness had forgotten "other angels" and, in particular, a by-no-means unrepresentative lady named Circe. Perhaps I should invite your Lordships to recollect that Homer depicts her as something rather more than a mere fast woman. She was a goddess, an enchantress who lured men to her temple: and when she had had her will with them, she turned them into pigs. I think, my Lords, that all of us in our experience can recollect just as many Circes as we can recollect Casanovas; and that in marriage, when it breaks down, there are always faults of one kind and another on both sides.
So far from making it easier either for Casanova or for Circe, this Bill would require either of them to satisfy the court that there has been some attempt at reconciliation. It may be that many attempts at reconciliation will fail, but at least it will be something if some attempts prove successful. At least some attempt will have been made to defend the marriage bond. To that extent I can welcome the new concept which this Bill proposes, that there should be an attempt to bring about a reconciliation, and also the new concept of the irretrievable breakdown of marriage.
There are, however, my Lords, certain highly unsatisfactory features in this Bill. Some of these have already been discussed by previous speakers. I wish to concentrate simply upon two of them. One is that by bringing children into the world married people incur new obligations which did not in fact exist at all 417 at the time that their marriage took place. These obligations are not simply financial. The overriding obligation is to bring the children up properly. I have known of couples who have felt this so strongly that, in spite of the breakdown of their marriage, they stayed together until the children were of full age. It would seem not unreasonable not to free either party until the child, or, where there are more than one, the youngest child, has reached the age of 16. At first hearing this may sound Draconian, but, if it is, it is not one wit less Draconian than saying that, because of the irretrievable breakdown of the marriage, one party of the other should be enabled to contract a second union, to the inevitable detriment, both financial and otherwise, of the interests of the children of the original marriage.
The other matter to which I wish to draw attention is to me the wholly immoral provision of Clause 2(1)(e). My Lords, twice lately in this House we have been reminded by the noble Earl, Lord Iddesleigh, and by the noble Lord the Leader of the House, that noble Lords speak on their honour. But, my Lords, it is not just noble Lords who speak on their honour: it is likewise the two partners in marriage who make an honourable promise, whether it is in a church or anywhere else. In any other contractual relationship where there are promises exchanged by two or more parties an action is available for explicit performance if one party should attempt to evade the contract against the will of the other. It is indeed only natural justice that where a man or a woman has made a promise he or she must adhere to it unless or until he or she obtains release from that promise by the other party. This clause is wholly contrary to all of what one might call the moral teaching of our civil law: and I need hardly say that this concept of the sacred and binding nature of promises is fundamental in Christian—and indeed in other—moral systems.
Clause 2(1)(e) is open also to all kinds of practical objections and all kinds of abuses. I shall cite one only. I have in my hands a letter in which a woman is losing the use of her hands and her legs from arithritis. She is having very painful treatment, periodically in hospital. She says that because her husband has 418 always been an athlete he cannot tolerate an infirm wife. He has therefore left her and has asked her for a divorce. She asks whether her arithritis is any reason why she should be divorced. My Lords, this is a woman who exchanged promises with her husband in the same words that many of us in this House have done: "For better, for worse; for richer for poorer; in sickness and in health …". If Clause 2(1)(e) should pass into law, this woman will be able to be divorced against her own will after five years, for no better reason than that she is arthritic. In short, a divorce will be available to the healthy spouse of every arthritic, or of every other person suffering from a painful or incurable disease in this country.
But what will be worse will be that one bastion on which the social fabric of this country depends—that the freely given word is sacred unless due release is given—will have been breached. I am obliged to say, therefore, that I regard this clause as so objectionable, so contrary to fundamental morals, so contrary to the public interest, that, should there be a Division, I will vote against this Bill without hesitation—even while conceding that there is some good in the rest of it.
§ 8.37 p.m.
§ LORD CHORLEY
My Lords, having been engaged in this movement for probably as long or even longer than any Member of your Lordships' House, I feel that even at this late hour I should, to use a term which is common in the religious organisations in which some Members of your Lordships' House who have spoken to-day move, like to testify to my beliefs that this is a very moderate Bill from many points of view, and certainly does not go so far as at one time, at any rate, I hoped. Still, it is a substantial step forward; I do not think there can be any question about that. I therefore find it difficult to believe that your Lordships, who, over these past few years, have won a reputation throughout the country as being at least as forward as the other place in social legislation, will fail to give it a Second Reading to-night.
I found myself, for once, strongly in sympathy with the noble and learned Viscount, Lord Dilhorne, who said that it was only right that we should deal 419 with the detailed points in Committee and endorse the general principles on which this Bill is based. I hope that that will be so, because sooner or later this Bill—or quite possibly a more radical measure—will inevitably be placed on the Statute Book. Any attempt to stop it will be rather like the action of the famous old lady who tried to sweep back with her broom the breakers from the Atlantic in a famous episode recounted, I think, by Sydney Smith, 150 years ago. So it would be only sensible of those who feel conservative about this to accept this particular measure because, as I think the noble Baroness, Lady Birk, said in her admirable speech, this is certainly going to govern the law relating to divorce for quite a number of years.
By this time, of course, almost all the arguments in favour of tile Bill, more than the arguments against the Bill, have been put forward and canvassed, and it is very difficult to make a speech without repeating a great deal that has already been said, which I certainly do not want to do. But having mentioned that I have been concerned with this movement for a very long time, I should like to refer to just one or two of the pioneers on whose work this Bill, and indeed the earlier Bills, have been to a large extent built up. On an occasion like this, it is only right and proper that those who have to a large extent borne the burden and heat of the day should be remembered. Sir Alan Herbert has been referred to in passing more than once. As to how much we owe to him, well, if one were to descant upon that it would take quite a time; but it is only right that we should remember the tremendous services which he has made to this cause while we are discussing this measure to-night which in a sense stems from the work which he did in the 1930s.
But long before that, the Divorce Law Reform Society (I think it was called) had been formed and run by a Mrs. Seaton Tiedeman, who was a woman of tremendous dynamism and drive. At a time when the interest in divorce law reform was very lukewarm through the country she did work which I think we should all look back upon, although I do not suppose there are many of your Lordships who remember her, or even possibly have heard of her, and the work 420 which she was doing in the early 1920s and even earlier still. Mrs. Seaton Tiedeman was a woman who gave up the whole of her spare time and energies and carried the banner of this movement up and down the country in the most selfless and tireless way. I like to look back upon the very short association I had with her with a good deal of pride.
I do not want to comment too much in detail on what has been said in the debate this evening—it has been an interesting debate from both points of view—but I should like to refer to one or two of the speeches which have been made. The noble Lady who has just resumed her seat seemed to suggest that in cases where there was a family with children divorce should not be allowed until the children were more or less grown up; and she instanced a case which she knew where that had happened. I myself have known of certainly one case where that has happened, too. If the parents have the self-control and will power to do that, I think it is a splendid thing. In one, at any rate, of the cases I knew it was not altogether successful, although they made a valiant effort to carry it through. I do not myself think that the children really benefited because the tension was very obvious to anybody who knew them. I think that if the noble Lady will think about it she will realise that you just cannot make people behave in this way by Act of Parliament; it is not possible to do so.
I thought that that was an observation which to a large extent applied to some of the other parts of the noble Lady's speech. She seemed to think that one can in fact make people behave in a way of which no doubt most of us would approve by Act of Parliament directed to that end. But it just is not possible. Anyone who has had much experience of trying to administer other Acts of Parliament on these lines, or Acts of Parliament in connection with other branches of human activity, must realise that this is so.
I should like to mention also for a moment or two the speech of the most reverend Primate. I am not sure that he did not say he was going to vote against the Second Reading of this Bill. He had three reasons, none of which seemed to me to be reasons of principle at all. They seemed to be typical points which, if the 421 Bill is wrong about them, could be put right in the Committee stage. One of them was that the period of separation under Clause 2(1)(d), which is now two years, in his view ought to be three. If there is anything which is clearly a Committee point, I should have said that that was it. Obviously one puts down an Amendment, "Delete 'two' and insert 'three'", and that is the proper way of dealing with it. This is obviously not a question of principle at all.
The most reverend Primate's other points were very much on the same lines. One was in relation to that part of Clause 6 which, I agree in a way, is not particularly good drafting. It deals with the question of how maintenance is to be assessed, and says (I am speaking from recollection) it has to be reasonable and proper or such as in the circumstances is possible, or words to that effect. Obviously, I should have thought this meant that where the respondent, being a well-to-do man, is able to pay the alimony which is reasonable in the circumstances, then that would be the order made against him. But that will obviously not be possible, as has been pointed out in a number of the speeches, in a very large number of the cases because you are dealing with people who are earning weekly wages, and often not very large weekly wages, and the order must be for such sum as is reasonable and possible in the circumstances. Surely, that again is not a reason for voting against the Second Reading of this Bill. If that particular clause is not as clear as it ought to be, and if the most reverend Primate has that view of the matter, then surely it is up to him to put words down at the Committee stage which will make what he wants perfectly clear and will give your Lordships an opportunity of voting upon it.
He had a third reason dealing with the type of case which evokes, so to speak, a public reaction because a divorce in such circumstances would appear to be so very unjust to the general public that it would have a bad effect on public opinion. This point had been advocated in, as it were, an addendum to the Report of the Archbishop's Committee but has now disappeared and is not in the Bill. But here again, surely, is something that could be put into the Bill, or which your Lordships could be asked to put into the Bill, 422 at the Committee stage. Therefore, this again is not a reason for refusing the Bill a Second Reading at all. I should have thought that on the basis of his speech the most reverend Primate ought to have gone into the Division Lobby in support of the Bill when the time comes for the Division later on this evening.
Very much the same, I thought, applied to the speech of the noble and learned Lord, Lord Reid. Not only he, but the noble and learned Lord, Lord Hodson, and other speakers to-night, raised a point about which lawyers tend to be very sentimental. Lord Hodson himself realised during the course of his speech that he kept on talking about the wife as being the wronged person, although the statistics which have been given by the noble and learned Lord, and by other speakers, make it quite clear that the wife is just as likely to be the guilty party, going back to that outlook on the law, as is the husband.
Neither the noble and learned Lord, Lord Reid, nor the noble and learned Lord, Lord Hodson, could look at it from that point of view, and it seemed to me that to a large extent this coloured their speeches. So much so that the noble and learned Lord, Lord Reid, for whom I have the highest respect as a Law Lord, seemed to me to give a very inadequate analysis of Clause 4, stressing far too much the expression. "grave financial or other hardships". His whole stress was on grave financial hardships, but there can be other hardships which are not financial at all and which could be equally, or even more, important. To omit reference to that seems to me to be a very one-sided reading of the clause. It leaves out one of the main objectives of the draftsmen. The clause goes on, of course, to deal with the possibility of the judge who tries the case rejecting the petition altogether in a case where it would be wrong to make a decree. That is left open to the judge and it certainly should have been mentioned. I think that is also an answer to the point made by the most reverend Primate.
There is one other matter to which I should like to refer briefly before I resume my seat. This again arose on the position of the deserted wife. The noble Baroness, Lady Emmet of Amberley—and I am afraid that all the speakers to whom I have referred are no longer in 423 their places—said she supposed that we would have to support most of these deserted wives. Why should the fund of which the noble Baroness spoke have to support these deserted wives? Most of these deserted wives, like the widows who unfortunately lose their husbands at the hands of death, take up work and do a jolly good job. I agree very much with what my noble friend Lady Birk said about this. In many cases it would be a good thing for some of these women who, in the way described by my noble friend Lord Silkin in an earlier debate, behave in a very spiteful and revengeful sort of way, not to be allowed to get into this frame of mind which, under the law as it stands at present, they are only too likely to do. In the end, as my noble friend Lady Birk suggested, it might be very much to their advantage to be forced to stand up to this situation.
As Lady Birk said, most appositely, in this life we are all to a greater or lesser extent at the mercy of fortune. Some of us are fortunate, others are unfortunate. Some of us have to put up with a great deal of suffering, others with much less. We cannot really legislate against "the slings and arrows of outrageous fortune", and I think it would be altogether wrong to concentrate purely on the problem of what one might call the "good" deserted wife. No doubt here and there among the deserted wives there are people who are completely free from blame; but, as has been pointed out by more than one speaker, it is fairly obvious that in many of these cases the blame lay just as much on the deserted wife. In a way it was a technicality: she happened to he the one who was deserted, rather than the husband. In many of these cases, on the long view of the matter, it would be much to the advantage of the woman if, by means of this new proposal, she was forced to stand up to "the slings and arrows of outrageous fortune" and to take up the struggle which life thrusts upon all of us at one time or another.
I think we ought not to allow ourselves to be influenced too much by the rather sentimental views which have been put before us in relation to Clause 2(6). We should look at this matter in a common sense light and decide that even if, at the end of the day, we feel there is a good deal to be said from the point of 424 view of the position of the deserted wife, that is no reason for rejecting this Bill, but that it is a matter which we should attempt to put right at Committee stage. Therefore I hope that when the time comes your Lordships will give this Bill its Second Reading.
§ 8.56 p.m.
§ LORD SUDELEY
My Lords, I will make no technical comments on points of law; but my reading of history has given me an insight into the kind of institution that marriage has been, and it is mainly in the light of this that I should like to say a few things about the Bill. First, it is the aim of the Bill to ensure that marriages that do subsist are happy ones. I anticipate that this will become less important than it seems now. The notion that a marriage should he a happy one is founded in our belief in romantic love, and that is passing out. The peculiar conditions in which it may arise are disappearing. It is an ingredient of romantic love that there shall be a frustration of our appetites. When romantic love arose in the early Middle Ages, marriages were arranged dynastically by parents, often between children, and it was not easy to gratify any of the involuntary feelings one might have had for a woman, as this was to commit adultery.
About the time of the Reformation, child marriages ceased to be customary and under Puritan influence parents became slightly less inclined to arrange the marriages of their children. But men and women still felt romantic towards each other because of the rules about chastity. Now, with an astonishing speed, the immorality that used to be known to just a few of us is being discovered by most people. I think that we shall soon have once more the matter-of-fact attitude towards sex that the Greeks and the Romans had; that we shall take it as a matter of course, like eating.
My second observation concerns the weakening of marriage under the Bill. If the present basis for divorce encourages hypocrisy at law, at least it implies that marriage is a moral obligation, whereas under the new notion of irretrievable breakdown marriage need not have anything to do with morality. It is said that with the passing of the Bill there will be an increase in the rate of divorce. We must consider how much these things 425 will foster the feeling, which is quite common now, that there is no point in marrying at all. My reading of history persuades me that marriage will be left with some degree of vitality.
No other English novelist has explored the old implications of marriage so deeply as Samuel Richardson. As a member of the trading kingdom who nearly took Holy Orders, he said nearly everything that could be said about its moral value. Yet it is impossible to read his novels, or to think about the attitude of our predecessors to the question at all, without feeling that theirs was a very coarse brand of morality, if it could be described as morality at all. Richardson's heroines, like most women of the past, were placed at a financial disadvantage. Upon any division of the family money, they would receive less than the men. They could seldom earn money, and if they did it was less than was earned by the men, and so they ensured, literally, that their virtue should be rewarded. They were chaste because, even if it subordinated them to their husbands, marriage represented a vast improvement in their condition. It was the price these women named to satisfy the concupiscence and desire for paternity of the superior sex.
Now old standards of virtue to which our ancestors paid lip service may be overthrown, inasmuch as we relieve our concupiscence quite freely. Yet the matter of money, which in so many ways the old injunctions of virtue were about, remains important. Clauses 4 and 6 should ensure a less lenient attitude towards procreation. So long as the financial inequality of the two sexes continues these provisions should ensure that women still refuse to have children without naming the wedding ring as their price.
My third observation is that, while this may be a Private Member's Bill, whether we are inclined towards the Right or the Left politically should help to guide us in deciding about it. Some of us may believe that we should be educated to power and responsibility from the womb upwards and that our position is a kind of social birthright. Others think that each individual in every generation should undergo a test and have his place in the community assigned to him accordingly. Which of those two systems is to prevail is deeply interwoven 426 with the durability of marriage. Where divorces are infrequent the family is revered and the hereditary system is likely to prevail. Where divorce is frequent the family is discredited and a meritocracy is more likely to come into being. Thus in the United States there is a vast degree of movement through social space, as, depending on their individual qualities, certain individuals fail and others make their way. I would not pretend that of themselves these observations should weigh for or against the Bill. I would merely proffer them as fresh angles of vision on the question.
§ 9.2 p.m.
§ VISCOUNT ADDISON
My Lords, we have heard a number of most interesting speeches, and the hour is very late, so I will not detain your Lordships many moments. I think the speaker who most nearly expressed my own views was, perhaps rather surprisingly, the noble and learned Viscount, Lord Dilhorne. He described it, I think, as a somewhat radical approach. I think my own views might be a little more radical perhaps than that. I am in favour of the Bill because it seems to me that it seeks to legalise divorce, I should say with consent, in view of what the right reverend Prelate said—I was going to say by consent.
It seems to me that it is not necessarily true that to make divorce difficult is to make marriage more agreeable. Perhaps the reverse is the case. If one were in danger of losing one's spouse, perhaps one would be more careful to refrain from giving offence, and I think that this view of the situation of marriage ought to be carefully borne in mind in any expression of opinion as to whether or not we are going to vote for the Second Reading of the Bill. To my mind, divorce has little to do with the law and lawyers. It is a matter for families, perhaps for the Church, though this would be of course an individual decision. It is a matter for children, wives and husbands—and I place them in that order deliberately, because I think that that is the order of priority in which they should be regarded when divorce is contemplated and when settlements are agreed. It seems to me that hitherto the divorce laws have been observed very much in the breach, in the giving to each other of the necessary 427 evidence, phoney acts of adultery, evidence by chambermaids who may even perhaps have been recruited for the purpose, and collusion. Let us not blink the facts. It seems evident that a good many learned lawyers have thus been a party to it. It is inconceivable that learned judges did not know that it went on.
I repeat that, in my view, divorce has little or nothing much to do with the law. The law is necessary only to arrive at a settlement. And even this might perhaps be better made by some specialist arbitrator, who might even not be a lawyer. If a contract of settlement is broken, then of course recourse would have to be had to the appropriate court; but that would be a last resort. The question then is: do we need a divorce court? That I do not really know. I doubt whether we do.
Criticism has been levelled at the Bill on the ground that it gives inadequate protection to the innocent party, perhaps the first wife. When a marriage has broken down beyond repair it is best to face the facts and to provide the best settlement available, taking all the considerations into account. It seems to me that the Bill is good because it is realistic. It is better to face the facts of life, however unpleasant they may be. Just to keep the record straight, I may say that I have myself been married to the same woman for more than 40 years, but I have been one of the lucky ones. Many people, many children, many wives, and not a few husbands, have been sentenced by a marriage ceremony to a lifetime of continuing unhappiness. Not everybody is well enough off to be able to provide the necessary evidence. The Bill seeks to recognise broken marriage and to provide relief for the attendant suffering. In my view it does not go far enough, but I hope that your Lordships will give it a Second Reading.
§ 9.6 p.m.
§ LORD GOODMAN
My Lords, I have rarely been greeted—nor has any other speaker for that matter—by this House with so much satisfaction in the knowledge that we are coming very near the end of this enormously long and protracted debate. My contribution will be relatively brief, but there are one or two observa- 428 tions that I should like to make, even at this late hour, and I hope I shall have your Lordships' forbearance. First, I would apologise that, because of other public duties, I was unable to hear some of the opening speeches. It may be that some of the things I want to say have already been said. I have had a good deal of experience over the years as a lawyer who occasionally practised in the field of divorce. It is a disagreeable field, and as one became relatively more successful one readily discarded it. It is not a field in which many lawyers are very anxious to practise, if they can avoid it.
My enthusiasm about this Bill, about which I have many criticisms, is that it makes the divorce law more seemly and more respectable and it takes some of the disagreeable and unsavoury elements out of the existing law. It is for that reason that I commend it to your Lordships. I should not wish to presume to impose on anyone my own view on matters of conscience. People who conscientiously believe, as many of your Lordships will, that it is wrong to increase the amount of divorce now in existence, or to make divorce easier, will forbear to vote for the Bill. I would urge upon your Lordships who feel like this, however, to consider whether it is right in those circumstances to impose your conscientious views to the detriment of a number of people who are now suffering a great deal of misery and unhappiness on account of the prevailing conditions in this country under the existing matrimonial law. By all means abstain. It seems to me, however, that this Bill will bring a great deal of relief in many cases of unhappiness. Nor do I believe that it will inflict any of the hardships that have been apprehended by a number of speakers to whom I have listened this evening. I have listened to them with the greatest of respect, and they have made cases of great sincerity; but I think that they are based on sentiment and that the fervour of their views has rather influenced their judgment.
One of my experiences is that a great many women who have been deserted by husbands for a period of five years or longer do not feel strongly about preserving the matrimonial bonds, yet feel a considerable repugnance at taking active steps to dissolve the marriage. Quite often in my office I have had women who have 429 been deserted for a long time by their husbands, and who say, "What do I have to do?". You say, "You would have to file a petition and you would have to go into the witness box and give evidence". They say, "That I could not do. That is too distasteful. I should be touching on immensely sensitive areas. I think I will leave matters as they are".
Many of these marriages are preserved solely on account of inertia; they are not preserved because the prospective petitioner in such a case believes that she is retaining anything of any real value. This Bill will bring relief and assistance in these cases. Many of these women will be quite happy to find that steps are being taken for them which they have an instinctive reluctance and unwillingness to take on their own behalf. I do not suggest that that is the case in relation to every such marriage; nor do I wholly agree with one of the observations made in what I regarded otherwise (I do not wish to sound patronising) as a wholly admirable speech from Lord Denning. I do not agree that one can say that in all cases it is "six of one and half a dozen of the other."
Of course there are many women who late in life are deserted by husbands who ought to know better. There are many cases of women who have made admirable wives and whose husbands discover later in life that a prettier face is more acceptable and who then rationalise themselves into the belief that they are no longer in love with their wife. This is a fact that one must face. But I do not think this is a ground for rejecting the Bill, because the question one has to ask oneself is simply this: what is such a woman retaining? What of value is such a wife retaining after a separation of five years? When a husband has absented himself from the matrimonial home for five years, what is there left of the slightest value, even if it is a case of the gravest injustice and hardship; even if, as is often the case, the woman has been an admirable wife and a great matrimonial wrong has been done to her? What are you depriving her of if you deprive her of the benefit of such a husband?
The noble Lady, Lady Kinloss, made a most moving speech and touched on what was a horrible case. It was a case 430 about which she had received a letter from a wife who was becoming afflicted, or had been afflicted, with arthritis, and whose husband had come to her and said, "I can no longer remain burdened with an arthritic wife. I want to leave you." If, in those circumstances, the husband was so callous and so brutal and so devoid of ordinary human sentiment that he would leave his wife, and if he abandoned her for a period of five years, what conceivable hardship would there be to that woman in dissolving that matrimonial union? Nothing but sentiment can remotely pretend that she was in any way damnified by being no longer able to retain the appearance of a marriage in a case as hideous and intolerant as that one. I do not think that is a case that represents any argument against this Bill. With the greatest respect to the noble Lady, I think it represents a most formidable argument in favour of the Bill.
There is another point that I should like to make. We have been told that the greatest area of suffering and unhappiness that needs to be relieved by this Bill is in the case of people who are living apart, because of desertion, normally by a husband, who cannot remarry but has contracted another union that has every appearance of permanence, and who is anxious to make a home and marriage with a new wife and is prevented from doing so and perhaps has children that he is not able to legitimise. I think that this is a case that needs to be dealt with. It is by no means the only case, however. Under our existing law the most fatal step that a couple can take is to agree to have a separation. Under our present law if a couple agree between themselves, in a civilised and honourable fashion, that the marriage has broken down; that it is intolerable that they should continue to live together, and that it is not in the interests of the children that they should live together, then from that moment onwards it is impossible for them to get a divorce unless one of them is prepared to commit adultery, something which they may have no wish to do. It occurs to me that that is an intolerable situation which will be put right by this Bill, because there is a civilised provision in this Bill which will enable people who have recognised that the marriage has broken down, who have arrived at a civilised arrangement 431 in respect of it, to terminate the marriage by an honourable agreement.
As to the financial provisions, I believe that much has been said that arises from an insufficiently close reading of the Bill by learned lawyers. I think the financial provisions of this Bill, as one might expect from a Bill which has been prepared with every assistance from the Law Commission, are wholly admirable. The financial provisions go as far as it is possible to go. They are to be found in Clause 4 and Clause 6, and I would venture to remind your Lordships of what those clauses contain. Clause 6 is relatively simple. It says that in respect of the two new cases of a right to dissolve a marriage—that is to say, where there has been a five-year separation and perhaps what at present we call the "guilty party" in the marriage takes action: and secondly in a case where there is agreement to dissolve a marriage after a separation of two years (an unlikely case, I may say, for Clause 6 to be invoked, because in such a case the parties would ordinarily have made a part of their agreement the financial arrangements, so that normally Clause 6 will relate to the five-year or longer desertion period where the guilty party can now petition)—no decree nisi is to be made absolute until the court is satisfied that fair, proper and reasonable provisions have been made for the respondent or that the best possible provisions have been made for her.
The suggestion has been aired that we ought to see what further legislation is to emerge before we give this Bill a Second Reading. I can think of no further legislation that can emerge that will add in principle, or even very much in detail, to the provisions of this Bill or will improve it. The judge is given the widest possible discretion: he can make any arrangement he likes under Clause 6 to ensure that a deserted wife is looked after. He can make provision by way of an annual payment; he can make provision by way of a cash settlement; he can make provision by way of a transfer of capital assets. There is no restriction on the type of financial provision that is now available to the judge in relation to these cases. Of course, rules of court will have to be made. There will have to be enlarged 432 indications of the detailed provisions that have been made, but in general terms this Bill says everything that needs to be said.
Clause 4 covers the hardship cases, which it is hypocritical to pretend will not, in certain circumstances, arise. Of course there will be cases where a woman may find herself deprived of a benefit because she has been divorced. A man may provide in a will, or there may be provision in a will where a man's wife is to receive certain benefits on his death. That cannot be duplicated; it cannot be made to read "his second wife". You cannot introduce two wives into the one will, and that is a case where obviously a benefit will be lost. Equally, there may be cases of pension benefits being lost, but I understand the noble and learned Lord the Lord Chancellor has indicated that that might be dealt with by insurance. At any rate, Clause 4 provides for this. It says that where grave financial hardship is likely to accrue as a result of a decree being granted, then the court is entitled to take the most drastic step of refusing a decree altogether. If I may say so, I hope that this will not be regarded by the courts in any sense as a formality. I hope that the courts will regard this as a real provision with teeth, and that they will refuse decrees in those circumstances. Where it is quite clear that some innocent party is to be deprived of a benefit, I hope that a judge will not be argued out of refusing to make a decree on those grounds. I think the financial provisions in this Bill are unarguably sound.
My Lords, I have kept you too long, it is late at night, and the issue is about to be resolved. All I would say is that I have for many years practised in this country under a divorce law that I have regarded as inadequate and often unseemly. I hope you will participate with me this evening in what I regard as an historic moment of making it more adequate and more seemly.
§ 9.18 p.m.
§ LORD CRAIGMYLE
My Lords, my wife has been deserted all afternoon and my children have been deprived of a father to tuck them up in bed to-night, but at any rate I have the pleasure of rising at least an hour earlier than I thought at one time was going to be likely. I find myself in this position: 433 that I welcome the principle which is said to be underlying this Bill, the principle of putting the breakdown of marriage in place of the traditional matrimonial offence. It has been shown by many speakers—and I think most of us realised it before the debate started—how in practice the idea of the matrimonial offence is very often bogus. Offences are known to be staged, staged quite deliberately so that a divorce can be obtained, legally on the ground of that offence but in fact for some quite different reason. This sort of proceeding obviously brings the law into contempt, and if legislation can eradicate it, it should be welcomed.
Nor is the artificiality of the legal proceedings the only flaw in the concept of the matrimonial offence. The whole concept supposes that in a marriage which has foundered there is one guilty party and one innocent party. We all know that that simply is not so. It takes two to make a marriage, and—perhaps not always, but very nearly always—it takes two to mar a marriage. The eminent psychiatrist, who has already been mentioned by my noble friend Lord Gowrie, said in his book Marital Breakdown:The branding of one party as the offender has indisputable legal advantages…. Unfortunately in the overwhelming number of cases this view is an utter denial of the truth. The man or woman who commits adultery has certainly offended against the other party But who is to assess the offence of the so-called innocent party and their failure or incapacity to meet the minimum needs of the offending partner? By condemning the overt behaviour of one … the grave risk is run of ignoring the failure, deliberate or otherwise, of the partner who provoked the offence.He then goes on to show that the power of the courts to consider provocation inevitably falls far short of the almost unbelievable intricacies of human behaviour, and he concludes:No court can be expected to evaluate such minutiae of human conduct but no society should delude itself that the discovery of legal guilt exonerates the innocent party from responsibility.This point was, of course, made by the noble and learned Lord, Lord Denning.
However, to applaud a proposal to substitute the principle of breakdown for the principle of the matrimonial offence is not by any means to say that we must all rush at once to support any Bill which purports to give legislative body to that reform. For my part, I am convinced 434 that this Bill, so far from achieving the desired result, would in fact make the present situation worse. The factors that lead to the breakdown of marriage—and, indeed, the factors that lead to success in marriage—are legion and are highly intricate. They are certainly not comprised in the five points mentioned in Clause 2(1). I would go so far as to say that not one of those five points is a genuine, adequate touchstone of the irretrievable breakdown of marriage. So on that principle, the main principle involved—allegedly in Clause 1 but actually in both Clauses 1 and 2—I find the Bill acutely disappointing.
The next principle of the Bill is the principle of reconciliation, but I find the same disappointment in Clause 3. I should join with all of your Lordships in rejoicing if a sound reconciliation procedure could be built into the divorce law. But what do we find here? The unfortunate solicitor who is handling the matter—and I noticed that the noble Lord, Lord Goodman, said that he seldom now has to practise in this field of law—is landed with the job of discussing with the petitioner the possibility of reconciliation. He has to give the petitioner the name and address of, presumably, a marriage counsellor, or someone with that sort of qualification; but that is all. The solicitor is really wasting his time—and that means his client's money—going through a procedure which is written into the Bill and going through it simply and solely because it is written into the Bill. There is nothing in the Bill which obliges the solicitor or the petitioner, let alone the respondent who is an interested party, actually to seek out positive means of discovering what has really gone wrong with the marriage and taking positive steps to put it right. For this reason I consider that the procedure outlined in Clause 3 makes the whole Bill a laughing stock before it is even on the Statute Book.
And what about the tail end of Clause 3, subsections (3) to (5)? They introduce, with the best will in the world (I can see what they are all about), almost arithmetical calculations of dates to prove the comparative degree of villainy, and whether or not a chap is coming back to his wife or attempting a reconciliation—a most extraordinary piece of legislation. It seems to me to prove only that 435 adultery and desertion are still, as they have been for donkey's years, matrimonial offences.
It is upon the basis of those matrimonial offences, and not upon the basis of breakdown, that the divorce will in fact be granted. My Lords, reconciliation should lead to forgiveness. If there is any mathematical formula to be built into a reconciliation clause in a Divorce Reform Bill, it must not be to do with the counting up of days and months and weeks. Pity the poor litigant who worked it out on last year's calendar, forgetting that it was a Leap Year! It must be built on one mathematical formula, and one only: the simple formula of "seventy times seven". I think this was really the point which the noble and learned Lord, Lord Reid, was making.
There is a point which has occurred to me and which seems to have been missed by some of the supporters of the Bill. Will this Bill encourage people whose marriage is in the process of running on to the rocks to seek to overcome their difficulties, or will it merely suggest to them that the easy way out is divorce? It takes so much more effort to work out your salvation with diligence than it does to take the primrose path. I cannot escape the conclusion, my Lords, that this Bill, seriously and honourably intended to improve an untidy and unlovely branch of the law—to make it more tidy; more seemly, as the noble Lord, Lord Goodman, said—miserably fails in its purpose.
Yet I am convinced that, because this area of the law is untidy and unseemly, there must be reform. It may be that supporters of the Bill will wonder what sort of positive proposals can be put up by its opponents if they reject this present Bill. One can speak only with the greatest hesitation, but I would say that before we can proceed to put into legislative form the concept of marital breakdown, before we can proceed to make proper provision for reconciliation, we must vastly increase our knowledge of the true causes of breakdown, and we must vastly improve our counselling services, as the noble Earl, Lord Cowrie, was himself insisting. In reading the book to which the noble Earl referred, and from which I quoted just now, I was deeply impressed at the number of times 436 the author felt obliged to conclude his consideration of a point with some such phrase as, "Further research is needed here". There is so much in this area of social life which we simply do not know and which we ought to know, and must know, before we can frame laws to cope with the difficulties.
This, I suppose, is mainly a task for the universities and other learned bodies to pursue; but on the counselling side, to which the noble Lord, Lord Wells-Pestell, referred, I know that your Lordships will all join with him in paying tribute to the valiant work being done by the National Marriage Guidance Council, the Catholic Marriage Advisory Council and other bodies. But the work that those bodies are able to do is constantly restricted and hampered by lack of funds. Their workers are almost all volunteers, with experience certainly, and great understanding, but with comparatively little specific technical training, and in some cases, I believe, none. As your Lordships know, these bodies are supported to some extent by public funds, but also to a large extent by voluntary contributions. If we are to reduce, or even avoid an increase in, the cost to the public purse of the present rate of divorce, we must face the necessity to finance marriage counselling on a scale that will enable the work to grow to the measure of the need.
Even if both these aspects of the difficulty—that is to say, the research and the improvement in the counselling services—are taken in hand energetically, it will still be some years, I fear, before a sound Divorce Reform Bill can be framed. Such a Bill, when it comes, will have to be far more radical than the document before the House this evening. Indeed, I think it will have to cover much more than divorce, properly so-called, taking a fresh look at things which do not appear in this Bill—nullity, for example. I think that nullity was scarcely mentioned throughout the debate; and yet it is closely connected. I seem to recall reading in the papers some years ago of an English judge saying in a divorce court that he considered that a large number of matters which came before him as petitions for divorce would have been better brought as petitions for nullity. I am not quite sure of the 437 grounds on which he said that. But if that could be said some years ago, it must be just as true now.
One of the factors that emerges clearly from the available statistics and has been referred to by a number of speakers to-day is the hazardous nature of marriage for people under 20 years of age. It seems to me quite possible that many teenage marriages which come to nothing may have been no marriage in the first place, because the young bride and bridegroom simply were not mature enough to understand properly the nature of what they were undertaking. This problem will certainly be aggravated when young people can marry at 18 without parental consent. If these marriages, or some of them, are not fully valid—and this is going to be a very difficult point—we must work out some procedure to prevent or discourage such marriages. Here again I think I am with my noble friend Lord Gowrie. In the meantime, until we have a fuller understanding of the problems involved and an adequate counselling service, I fear that we have no practical alternative but to put up with the present system. To proceed by attempting to change the law first and then to arrive later at an understanding of what ought to be done is to put the cart before the horse. In the case of this Bill, it would be putting a pretty dilapidated cart before a blind horse.
§ 9.33 p.m.
§ LORD STOW HILL
My Lords, at the outset of this debate your Lordships listened with great patience to a very long speech from me. It is late in the evening. I do not think I should be assisting your Lordships' deliberations if I did any more than take a short time for the purpose of resuming what I think are the principal points of controversy that emerged from this debate. It would certainly not be helping your Lordships if I sought to re-argue the general principles or the main issues that underly them. What is the question before your Lordships? The question is whether this measure, this Bill, should be given a Second Reading; whether it should go forward so that the particular points that have emerged in the course of this evening's discussion can be further investigated on Committee.
438 The Bill has had a long history. Your Lordships listened to the speech of my noble and learned friend who sits on the Woolsack. He reminded the House of the very many stages through which the thinking passed which ultimately emerged in the form of this Bill. Your Lordships may consider that it is perhaps not altogether irrelevant in deciding whether this Bill should have a Second Reading that this Bill and what I described as its prototype have, in effect, been nearly twice through all its stages in another place—not quite twice, because the prototype did not get past Report, there being a lack of time to give it consideration on Report. This House is, of course, completely and absolutely independent and must come to its own decision; but your Lordships may think that in considering whether it should go forward one should weigh in the balance the fact that it has had such prolonged discussion, as I said before, not only outside Parliament by expert and very learned bodies who considered it, but also in another place.
My Lords, when I consider the many extremely interesting speeches, delivered with very great feeling in the course of this afternoon, based in a number of cases on great experience, it seems to me that one can sum un the main features of the debate in a few sentences. We started off, and most noble Lords started off in their speeches, by considering the existing system under which the law of divorce is operated. I cannot remember a single noble Lord who had a good word for it. When I ventured to open the debate I carefully moderated the language in which I sought to point out what seemed to me the deficiencies of the existing system. The language which I chose was very far exceeded by a number of noble Lords who spoke with great experience and much authority on this principle. The present system is a bad system.
One starts from that, my Lords, and I should, I think, be correctly representing the debate if I said that there was general agreement in your Lordships' House that that was the case. Prima facie, that is a very good reason for reform. One looks to see what is the reform suggested by the Archbishop's Group which underlines the whole of this Bill: that we should discard the matrimonial offence and instead ask, "Has the individual marriage before the court irretrievably broken down or not?" I heard little criticism of 439 that as a general principle. There were some noble Lords who were not prepared to contemplate it because they thought that, in spite of that change, as to which they were lukewarm, the Bill contained some features which they could not possibly accept. But I think I should be fairly representing the effect of the debate if I said that most noble Lords were agreed that to substitute the principle of breakdown for the principle of the matrimonial offence was desirable, on balance. Many noble Lords felt it was not only desirable but necessary, and that it should have been done long ago, because that corresponded far more to reality and led to a much more seemly conduct of divorce cases and the administration of the divorce law in general.
My Lords, if that principle is accepted, most of the rest of the Bill follows. When one thinks back on what has been said if that principle is accepted. a number of individual points at once present themselves, as they emerged from your Lordships' speeches, for far more intensified inquiry in the course of the Committee stage. Most of your Lordships, in terms, welcomed the conciliation provisions, but I think that three noble Lords felt that they should have gone much further. Surely that is a matter which could be further explored in Committee.
I think I should be right in saying that, on balance, most of your Lordships were not averse at all to the two-year separation provision contained in Clause 2(1)(d). Some noble Lords would have preferred three years. Surely that again is a matter which is eminently suitable for further investigation in Committee. If this Bill receives a Second Reading, obviously one must envisage a very intense debate in Committee on paragraph (e) and the five-year separation. If your Lordships decided in Committee to put a pen through that paragraph you could do so and the rest of the Bill could survive. Certainly it is a most important and fundamental provision, in my judgment at any rate, but the Bill without it would nevertheless be what I would describe as a viable Bill: it would operate and would bring into operation the change from the matrimonial offence to the principle of breakdown.
As many noble Lords have said, you cannot simply allow divorce after five 440 years against the wish of the divorced party unless you incorporate in the Bill provisions which adequately safeguard the divorced party in the event of that party being likely to suffer seriously, financially or otherwise, as a result of the decree being pronounced. Clauses 4 and 6, as your Lordships know, are designed to provide just that provision. I have ventured to submit to your Lordships that they are adequate. In his racy and interesting speech with which the debate almost concluded, the noble Lord, Lord Goodman, took the same view. Other noble Lords thought that they were quite inadequate; but those, again, are matters which obviously cry out for further discussion in Committee.
In saying that, I think I have probably résuméd, I hope in a reasonably short context, what I believe are the issues that have emerged while the Bill passed through its consideration in your Lordships' House this afternoon. I beg your Lordships to say that it would he a great pity, after this tremendous labour by devoted people, inside and outside Parliament, if the Bill did not at least proceed so far as the detailed and minute examination to which it should be subjected, which nobody would deny, if it gets its Committee stage before your Lordships' House. That, I would respectfully submit, is the question your Lordships have now to answer. Should this Bill have its throat cut now, or should your Lordships examine it further? I earnestly ask your Lordships to say that the answer to that question is undoubtedly that it should go through its Second Reading and go to Committee.
I should like to conclude my observations by thanking your Lordships most earnestly, not only for the patience with which you received my argument, but also for the very careful, thorough and sincere examination to which your Lordships subjected the general principles of the Bill during the course of the debate. I am profoundly grateful to your Lordships and I hope that your Lordships will agree that the Motion I now propose, that the Bill be now read a second time, is acceptable to the House.
§ 9.42 p.m.
§ On Question, Whether the said Bill shall now be read 2a?441
§ Their Lordships divided: Contents, 122; Not-contents, 34.
|Addison, V.||Gardiner, L. (L. Chancellor.)||Rathcavan, L.|
|Airedale, L.||Geddes of Epsom, L.||Reay, L.|
|Amherst, E.||Gifford, L.||Redesdale, L.|
|Amulree, L.||Goodman, L.||Ritchie-Calder, L.|
|Annan, L.||Gowrie, E.||Robbins, L.|
|Archibald, L.||Grenfell, L.||Royle, L.|
|Balogh, L.||Grimston of Westbury, L.||Sainsbury, L.|
|Beatty, E.||Harvey of Tasburgh, L.||St. Davids, V.|
|Belstead, L.||Henley, L.||Sandford, L.|
|Birdwood, L.||Hill of Wivenhoe, L.||Segal, L.|
|Birk, Bs.||Hilton of Upton, L.||Selkirk, E.|
|Blackett, L.||Holford, L.||Serota, Bs.|
|Boothby, L.||Huntingdon, E.||Shackleton, L. (L. Privy Seal.)|
|Bridgeman, V.||Hylton-Foster, Bs.||Shepherd, L.|
|Brockway, L.||Jacques, L.||Silkin, L.|
|Brown, L.||Kahn, L.||Snow, L.|
|Buckinghamshire, E.||Kennet, L.||Sorensen, L.|
|Burden, L.||Kilbracken, L.||Southwark, L. Bp.|
|Burton of Coventry, Bs.||Kings Norton, L.||Stamp, L.|
|Campbell of Eskan, L.||Kinnoull, E.||Stocks, Bs.|
|Chester, L. Bp.||Kirkwood, L.||Stonham, L.|
|Chorley, L.||Lindgren, L.||Stow Hill, L. [Teller.]|
|Clwyd, L.||Listowel, E.||Strabolgi, L.|
|Cole, L.||Llewelyn-Davies of Hastoe, Bs.||Strang, L.|
|Colville of Culross, V.||Lloyd of Hampstead, L.||Strange of Knokin, Bs.|
|Coventry, L. Bp.||London, L. Bp.||Strathcarron, L.|
|Cranbrook, E.||Lucas of Chilworth. L.||Swanborough, Bs.|
|Crook, L.||McCorquodale of Newton, L.||Taylor of Mansfield, L.|
|Delacourt-Smith, L.||Marks of Broughton, L.||Thurlow, L.|
|Denham, L.||Merrivale, L.||Trevelyan, L.|
|Denning, L.||Milner of Leeds, L.||Vivian. L.|
|Dilhorne, V.||Mitchison, L.||Wells-Pestell, L.|
|Donaldson of Kingsbridge, L.||Morrison, L.||Wigg, L.|
|Drumalbyn, L.||Noel-Buxton, L.||Wilberforce, L.|
|Dunrossil, V.||Nunburnholme, L.||Williamson, L.|
|Effingham, E.||O'Hagan, L.||Wilson of Langside, L.|
|Exeter, L. Bp. [Teller.]||Pearson, L.||Windlesham, L.|
|Falkland, V.||Platt, L.||Wolverton, L.|
|Faringdon, L.||Plummer, Bs.||Wootton of Abinger, Bs.|
|Foot. L.||Ponsonby of Shulbrede, L.||Wrottesley, L.|
|Gaitskell, Bs.||Raglan, L.|
|Abinger, L.||Grantchester, L.||MacLeod of Fuinary, L.|
|Ailwyn, L.||Gray, L.||Mansfield, E.|
|Audley, Bs.||Greenway, L.||Mowbray and Stourton, L.|
|Barrington, V.||Hodson, L. [Teller.]||Rankeillour, L.|
|Blackburn, L. Bp.||Ilford, L.||St. Oswald, L.|
|Carnock, L.||Kinloss, Ly.||Sandys, L.|
|Chichester, L. Bp.||Lauderdale, E.||Sempill, Ly.|
|Craigavon, V.||Leatherland, L.||Somers, L.|
|Craigmyle, L.||Leicester, L. Bp.||Stamford, E.|
|Daventry, V.||Longford, E.||Stradbroke, E.|
|Emmet of Amberley, Bs.||Lothian, M.||Summerskill, Bs. [Teller.]|
§ Resolved in the Affirmative: Bill read 2a accordingly, and committed to a Committee of the Whole House.