§ 6.7 p.m.
§ LORD STOW HILLMy Lords, I beg to move that this Bill be now read a second time. This is a Bill which comes from the other place and is designed to implement recommendations contained in Reports Nos. 25 and 26 of the Law Com-mission, published last year. I used the word "recommendations" but perhaps I ought more accurately to describe them as "proposals", because the Law Commissioners point out that the topics with which the Bill deals are really issues of social policy, about which it is not strictly within their purview to make recommendations.
997 What the Bill does is to bring to an end certain forms of action which lie under the existing law and in which damages can be claimed: forms of action which are, broadly speaking, I would submit, out of accord with modern thinking and which, when they are brought, are generally brought from motives that should not commend themselves, and are unseemly, in that they involve a parade before the public of details of what was said and done between a man and a woman, which modern thinking would regard as private between them and unfit to be paraded before the public gaze. That is not all the Bill does. There are in it one or two provisions which I would describe as resulting from the changes which it makes in abolishing these actions, and I will in due course say a word of explanation of them to your Lordships.
Clauses 1, 2 and 3 deal with the action for damages for breach of promise. That action is, by Clause 1, finally abolished for all purposes. The case for that change is the broad case which I have sought to deploy before your Lordships. It is: an action which is rarely brought; it is; an action which, I should have thought, is nearly always brought for motives that do not commend themselves. If an engagement to marry terminates, that is an occasion of great sadness. It may cause acute and lasting distress to one or both of the parties. Circumstances differ so enormously that it is very difficult to say who is to blame, if either party is to blame. Probably in the great majority of cases both of the two parties to the engagement realise, in their heart of hearts, that a mistake has been made, and it is indeed in the interests of both of them that they should not proceed to a marriage which, because of a fundamental difference between them, is unlikely to be a happy marriage.
Under the existing law the man, or the girl, can go to the court, as readers of Pickwick Papers will remember only too clearly from the case of Bardell v. Pickwick, and claim damages on a broad basis to include injury to their feelings, humiliation, loss, loss of advantages which they would have acquired through entry into the marital status—a whole variety of topics which ought to be private and intimate. The issue before the court is: was there a promise and, if so, was it broken by the defendant? 998 I submit to your Lordships that the time has now come when those of us—and I think that that is 100 per cent., even in this permissive society—who deeply respect and cherish the relationship between man and woman which we call marriage, and who regard it as something of a sacred companionship productive of enormous happiness, the disruption of which can cause great unhappiness, will surely say that if an engagement to marry comes to an end it should not be made worse in the rare case in which there is that unseemly parade before the public of the details which led up to the rupture, and of the loss which is said to ensue from that rupture. That is the case for the abolition by Clause 1 of that first form of action.
It cannot be abolished without some provision for the sort of property changes which may have been made by the parties when they were contemplating marriage, and that situation is dealt with in Clause 2 of the Bill. To take an example, the young man and the young woman may have jointly bought a house which they intend to be their family home. Either he or she may have expended a great deal of labour or money, or both, in get-ting it ready; and when the marriage does not take place what is to happen with regard to that house? I submit that the law would be left bare and unsatisfactory if some provision were not made for that sort of situation, and that is the provision which Clause 2 makes.
It precludes the discussion of who was to blame. It provides a summary procedure for ascertaining what are their respective rights under the principles which are partly existing under present law, and are partly those now embodied in our law by Clause 28 of the Matrimonial Proceedings and Property Bill 1970 (I call it Clause 28, because that Bill has not yet finally passed through all its stages in another place) which I shall explain in a moment. Clause 28 of that Bill provides as follows. If there is property and both parties have ex-pended money in its acquisition, and have expended labour or money upon its improvement to a substantial amount, then both are regarded as having a beneficial interest in that property. That is the situation as Clause 28 enacts it as between man and wife. Clause 2 of this Bill extends that situation to a young man 999 and a young girl who are engaged to marry but have not actually married. Therefore, if the marriage does not take place, in the sort of situation which I have described—that is, where there is a house which both have acquired and have worked upon with a view to fitting it as a family home—then both are regarded as having rights in it in accordance with the contribution which each of them has made.
Clause 2 provides, as I have said, a summary way of ascertaining those rights. It is the summary method which is pro-vided by Section 17 of the Married Women's Property Act 1882 to decide disputes as to property as between man and wife. That summary procedure is now made available, as between a young man and a young girl who were engaged to be married, when the engagement has been broken off. The object is to try to do justice between them in that sort of situation, and to try to do it in a summary way which will avoid publicity, avoid bitterness and avoid a recital of distressing details. The actual procedure is before a Master in Chambers or a Registrar in the Divorce Division, and an appeal lies to the Judge in Chambers— proceedings which take place without the glare of publicity. I commend that principle in the first place, and that method of applying it in the second place, as being suitable to the sort of situation which may emerge when a marriage does not take place and an engagement is broken.
I now come to Clause 3. Clause 3(1) is also designed to remove bitterness. If one party has given property to the other when engaged to that other person, upon the understanding that the property shall be returned if the marriage does not actually take place—it may be shares; it may be anything—then he or she is not precluded from getting it back from the donee by virtue of the fact that he or she was responsible for the engagement being broken off. That is no longer a bar. Therefore, the courts are relieved of the disagreeable necessity, in a situation of that sort, of trying to ascertain blame and who was responsible for the fact that the wedding did not take place.
Clause 3(2) deals with a special situation; namely that of the engagement 1000 ring. The law at the moment is that if an ardent young man says to his blushing young woman, "Kindly extend the third finger of your left hand in order that I may encircle it with this engagement ring", he is deemed to say to her at the same time, so the law says—this is the kind of make-believe that some of us lawyers sometimes engage upon—"and I hereby donate you with this ring, subject, nevertheless, to this: that it is a clear understanding between us that, should the marriage for any reason not take place, you have to return the ring to me and the property in it re-vests in me."
Clause 3(2), I should have thought, reduces that somewhat unreal situation to common sense. Under the terms of Clause 3(2), the engagement ring will now be regarded, if your Lordships decide to pass this measure, as an absolute gift. That is, however, subject to the rare sort of exception where there may be a young man who presents his young woman with what is, in effect, an heir-loom. He may encircle her finger with a ring with which his father encircled the finger of his mother in a similar situation, and with which his grandfather perhaps encircled the finger of his grandmother. That is the sort of case where an heir-loom is used for the purpose of an engagement ring; and I should have thought it would be the ordinary thinking of everybody that no young girl would wish, should the engagement un-happily be broken off, to retain that ring in those circumstances, but would be glad to return it. That is achieved by Clause 3.
I take Clause 6 together with the first three clauses, because it is really the result of the abolition—if your Lordships so decide—of the action for breach of promise of marriage. In 1948 a case was decided in the courts; it is not necessary to mention the names, and I shall call the lady involved "Mrs. X". Mrs. X, years before, had entered into what she thought was a lawful marriage with a gentleman whom I shall call Mr. X. She lived with him for many years, and he then died. It turned out on his death, though she had never known it and he had always deceived her, that the marriage was no marriage at all because it was bigamous, Mr. X having been previously married to another lady.
1001 My Lords, by what I would, I hope correctly, describe as a somewhat extended application of the existing law of breach of promise of marriage, in 1948 the courts found it possible to grant some support from the estate of Mr. X in favour of Mrs. X. They did that upon this basis. They held that it was established that in fact Mr. X had broken a promise to marry Mrs. X, and had also broken a warranty which he gave to Mrs. X that he was in a position to marry her. I would describe that, I hope fairly, as a somewhat extended application of the existing law of breach of promise. If the action of breach of promise goes, people in the unhappy situation of Mrs. X will have no remedy against the estate of the man to whom they thought they were married.
The effect of Clause 6 is to help their situation in the following way. Your Lordships will know that in 1938 an Act of Parliament was passed called the In-heritance (Family Provisions) Act. That was an Act which enacted that if a testator dies and leaves dependants (in effect, a surviving wife; or son or daughter, subject to certain qualifications) and in his will makes no reasonable provision for their support, the courts are given a discretion to order that there shall be taken from his estate what is necessary to afford them support, broadly speaking not in excess of two-thirds of the income from the estate. Clause 6 seeks to remedy the situation of people in the position of Mrs. X by saying that henceforth, provided that they have acted bona fide and genuinely thought that they were lawfully married, and provided that the court thinks it reasonable so to do, they shall be entitled to recover from the estate of the man to whom they thought they were married such provision as the 1938 Act allows to be awarded to dependants. I hope your Lordships will think that that is an elementary measure of social justice.
I come now to Clause 4. Clause 4 puts an end to the action which, before 1857, used to be called the action of "criminal conversation". It is hardly "conversation", and we do not now regard the conduct which gave rise to the action—namely, adultery—deplorable as it may be, as criminal. But from 1857 onwards the old action of criminal conversation was administered by the 1002 divorce courts, and it was an action which enabled a husband to ask for damages against a person who had committed adultery with his wife for that adultery. Be it noted that there was no corresponding right given to the un-fortunate wife to ask for damages against an adulteress with her husband; but this, as I have said, dated from ages long passed by.
That, surely, is an extremely unseemly action. It is an action which is brought by petition in the divorce courts; and it can be joined with a prayer for divorce or judicial separation, or it can be brought without any such prayer. It can, in effect, be brought by a husband who says, "I do not seek to put this woman from me; on the contrary, I propose to keep and use her. But you have used her without my permission, just as you might have milked my cow without asking me. Therefore, I propose to ask for damages against you—damages at large, solace for feelings, and all the rest of it". I would submit to your Lordships that such a claim for damages, particularly when it is not joined with a claim for divorce or judicial separation, is really repulsive. For a husband to say to the adulterer with his wife, "You, in effect, pay me a fee for what you have done", was, I should have thought, wholly repugnant to decent thinking, to what people think appropriate to-day. That action is finally abolished by Clause 4, and I hope your Lordships will approve of that change.
That brings me to Clause 5. Clause 5 abolishes three forms of action of very ancient standing. The first is the action for persuading a spouse to leave his or her home. I suppose that in the days of early Victorian melodrama the gullible, wide-eyed spouse who was an easy prey to the blandishments of an over-rich philanderer or philanderess drifts through the pages of early novels. The spouse deserted is, under the existing law, given the right to claim damages. If the spouse deserted is able to say that the philanderer or philanderess is rich, the damages are larger. Could anything be more unseemly? Could anything be more unseemly than a spouse coming to the courts and saying, "Look, I have lost my wife or my husband to a rich seducer —may the courts give me damages in return"? That is ended. Your Lord-ships may well think that, as is the case, 1003 very rarely do these actions come before the court: still more rarely do they succeed. If they do come before the court, they are wholly unsavoury in their details; they are not promoted by motives of which anybody would approve —blackmail, pressure, revenge and all the rest of it may well enter into it. I hope your Lordships will say that that sort of action should go once and for all.
Then, my Lords, one comes to the action for loss of service of a female child owing to her having been enticed, raped or seduced. Again, in the pages of Victorian melodrama I suppose one has read about the dutiful daughter who, because she becomes round-bellied, can no longer go about her daily household duties. The existing law says that, should that happen, her parent may sue for damages for loss of her services. The parent has to prove loss of service. Under the decided cases, I gather it is even enough if he proves that she used to bring him up his morning tea. He can go to the courts and say, "My daughter is pregnant. She was an obedient daughter; she used to bring me up my tea; she does that no longer; I there-fore want damages". Again, my Lords, can anyhing more unseemly be conceived?
The third head of action is the action for harbouring a runaway wife or child. A hundred or 150 years ago, if a child or wife left a cruel household, perhaps driven out by the conduct of an imperious father or tyrannical husband, so economically dependent were they that they would have to come back in due course in order to avoid starvation. They would have to crawl back and beg forgiveness and ask, as a matter of mercy, to be re-introduced into the home from which they had fled. Anybody who harboured them and prevented them coming back in those circumstances could be sued by the husband or the parent for damages. My Lords, all that belongs to a bygone age, and I hope your Lordships will say with-out difficulty that you come to the conclusion that that sort of action should be ended.
That concludes the whole Bill, and I have no more to say to your Lordships about it than that it is designed to come into operation on January 1, 1971, which is the date when the Divorce Reform Act 1004 also will come into operation; and it is also the date when the Matrimonial Proceedings and Property Bill, as to the major part of it, will come into operation. I present this Bill to your Lordships as, in effect, rounding off the changes in our matrimonial law which were introduced by those two major Acts, and rounding off the thinking which inspired them. I hope that your Lordships will think it right to give this Bill a Second Reading as introducing decency and right-thinking in an area in which there are very ugly happenings, on rare occasions, before the courts under the existing law. I beg to move.
§ Moved, That the Bill be now read 2a. —(Lord Stow Hill.)
§ 6.30 p.m.
VISCOUNT COLVILLE OF CULROSSMy Lords, the House has had the benefit of a crystal-clear description from the noble Lord, Lord Stow Hill, of the reasons lying behind this Bill. The Explanatory Memorandum identifies the sources of the material which it con-tains—at least I think all the material except the subsection about the engagement ring, which was inserted in another place—and the Working Paper set out at the back of Law Commission Paper No. 25 dealt in some detail with the arguments for and against the retention of damages for adultery or enticement. Paper No. 26 deals with the breach of promise of marriage. In both those cases, for reasons which I very well understand, the Government have not thought that they wish to introduce legislation themselves; but, at any rate to judge by what was said in another place, the attitude of the noble and learned Lord the Lord Chancellor is, I think, likely to be one of benevolent neutrality.
I do not know what the right reverend Prelate is going to say but I certainly support the principles underlying this Bill. This is not a Party matter and each person must speak for himself. But I think it is right on Second Reading to draw attention to a few things which the noble Lord, Lord Stow Hill, did not point out. I do not in any way criticise him for this; he was explaining what is in the Bill and was not apologising for what is not in it. I think that on reading the proceedings in another place one can derive a certain principle from what 1005 went on there. The Law Commission have said, expressly in the cases of Clauses 4 and 5 and I think implicitly in relation to breach of promise of marriage, that the decision whether or not those forms of action should be abolished, and if so what is to be put in their places, is really a social and a moral one and it is necessary for Members of both Houses to consider whether there is any good at all left in those actions.
It occurred to me, as I read the proceedings in another place, that although the origins of all those actions which are abolished by this Bill are now wholly outdated and based on concepts, particularly about the status of a wife, which have been described in the Law Com-mission's Paper as "barbarous", the interesting thing is that the courts have managed to use them on occasions (and probably, as the noble Lord, Lord Stow Hill, has said, as an extension of the original intentions of the action) to do good. And I looked very carefully and with great interest at the Amendments moved both in Committee and on Report stage by the honourable Member for Pontypool, Mr. Abse, who always seems to me to be the epitome of learning in this subject of the law. If there is any-thing good to be derived from any action he knows about it and he knows how you may properly use it.
He put forward two suggestions which I think are interesting. One of them is dealt with by the Law Commission in their Paper; the other, I think, is not. The first that he put forward related to another extension of the breach of promise case. That was where the girl who was engaged had become pregnant; but then the marriage did not occur and she wished to get some recompense, not possibly so much for herself as for the child. If she had gone under affiliation proceedings she could only get periodical payments; but the breach of promise action has been used by the courts as an occasion on which to award her a lump sum payment, once and for all, a capital sum, probably settled, but perhaps in some cases not. This was certainly not the intention of the breach of promise actions; but it remedied a defect in the law which otherwise applies to these cases.
Then, when we deal with the damages for adultery, it appears to be the case 1006 that although everybody disapproves of the revelations that come out, the possibility of blackmail, the collusion, and so on, there may nevertheless be cases in which the courts find that it is suitable, proper and just to require the co-respondent to pay, again probably a lump sum, not probably to be used to recompense the aggrieved husband for his hurt feelings and all the other things for which the action was originally intended, but in fact to provide some sort of financial sup-port for the wife and particularly for the children—again a by-product of the original action, but one which is used to good effect by the courts. Since Parliament has been invited to see whether it approves of the abolition of these actions, I thought it right to tell the House that those two matters had been raised which are not directly on the subject; but which will, of course, go, too, if this Bill is passed in this form.
The one by-product specifically dealt with is in Clause 6 which, as the noble Lord explained, is something which obviously had to be coped with. But the Bill does not deal with the two matters that I have mentioned. When I read this I thought that there was some merit in what the courts had achieved; but I thought equally that it was a very poor way of doing it. If one wishes to abolish these forms of action because they are really untenable in concept, one does not wish to keep relics of them simply for some specialised by-product not connected with the original form of the action. It may be that one needs some alteration in other legislation to provide protection where there would be none if these forms of action went; but the one thing that I feel one should avoid is to hold on to these outdated relics in order to provide some marginal remedy which cannot otherwise be provided by the law. When these two by-products of these actions were examined it was found that, however carefully one tried to draft the clause for the retention of what was thought to be good, one always came back to all the distasteful and thoroughly unpleasant, aspects of the major actions as we know them. One came back to recrimination, to collusion, to blackmail, to all the nasty words that you find peppering these Law Commission Reports. There was no way, it appears, even with the most expert draftsman's help, of avoiding this.
1007 If that is the case, then certainly I would suggest to your Lordships that what we should do is not to try to amend this Bill so as to keep these little bits and pieces that we might think useful, but rather to think whether we should not amend other legislation, more modern legislation, so as, for instance, to enable a lump sum payment to be provided in affiliation proceedings instead of only periodical payments. I believe that the Fyner Committee are to be allowed to consider this in the course of the much wider remit into which they are now inquiring.
The same I think cannot be said of the question of the co-respondent having to pay damages in some form for the benefit perhaps of the children. I do not see that there is anything here other than a straight choice: either the man or the woman (because I think that what-ever is done it would have to be equal as between the sexes) is required in suit-able cases to make contributions which would assist the children of the deprived family or he or she is not. That is the only area of judgment I have identified that remains where the House will have to make a decision. Everything in this Bill on the face of it seems to be right.
There is just that one underlying matter left which has not been resolved; at any rate, there it is for the consideration of your Lordships, in case anyone should wish to put down an Amendment on it. I would not myself do so. I have read the working paper at the back of the Law Commission's book, in which the arguments are very carefully set out and various solutions are suggested. But at the end they come to what seems to me an overwhelming condemnation of the course because it resurrects all the old difficulties. Above all, it brings back the one thing that the Divorce Reform Act abolished. It brings back recriminations and questions of guilt into an area which will otherwise now be entirely free of them. It also discriminates so that it would be only an adulterer who would be required to pay, whereas anybody else who in any other circumstances had contributed to the breakdown of the marriage would get off and would no longer be caught. In my view that discrimination cannot be justified after January 1 next year. That is another very strong reason, 1008 and I think there are more in the Law Commission's Report.
My Lords, those are the matters that were dealt with in another place. They were dealt with quite thoroughly by, I think, a representative cross-section of the House on Report stage and on Third Reading, and it was the final judgment of another place that the Bill was right in its present form. I think so, too, my Lords, and I hope that it will receive a Second Reading to-day.
§ 6.42 p.m.
THE LORD BISHOP OF LICHFIELDMy Lords, at this hour I propose to speak only very briefly, but I should like at the outset to associate myself with the tribute paid by the noble Viscount, Lord Colville of Culross, to the noble Lord, Lord Stow Hill, for the extraordinarily clear and interesting manner in which he introduced this Bill this evening. I am proposing to address myself only to one aspect of the Bill but I do so because, as this is a matter that affects marriage, I think per-haps a word ought to be said from one who sits on this particular Bench; though I hasten to explain that I am not speaking in any representative capacity but am speaking purely personally.
It is still the case that the established Church takes in its places of worship about half the marriages that are celebrated in this country every year; and in my time I have officiated at a good many. I think it is becoming increasingly the practice for clergy to do everything they can in the way of preparation of these couples for marriage, so that they may come to their marriage in the right frame of mind and so that every possible chance is given for the marriage to be successful. Clearly, however, the all-important thing is the approach of the two persons them-selves—and this is where I welcome this Bill—because those two persons must come to their marriage with a real desire to marry one another. There must be no holding back mentally, there must be a real desire on the part of both to give themselves to each other for life.
I think it would be a very serious matter if one of those parties went to that marriage ceremony not really wanting, in his heart of hearts, to go through with it, but afraid that if he broke off the engagement he might be liable to a breach-of-promise action. I have mentioned this as 1009 relating to a man; but, as we know, it might apply the other way round. While the noble Lord, Lord Stow Hill, spoke, I thought very movingly, of the unpleasant character of an action such as this, when private matters are dragged out into the open, I felt that we should remember also those cases where possibly an engagement might have been broken off, and it might have been for the good if it had been, but where it was not broken off because of this fear of what might happen in regard to a breach-of-promise action. Nothing, my Lords, is more important for this country than that we should have happy families with a stable marriage bond; and obviously, if we are to have that, people must enter into marriage because they want to, and with no holding back at all. It is because I believe that this Bill will help towards such a situation that I support it.
I should like to mention one other matter with regard to the breach-of-promise action which was mentioned by the noble Viscount, Lord Colville of Culross: the possibility of a lump-sum payment. The plea for a lump sum for the unmarried pregnant woman who has allegedly agreed to sexual intercourse because there was an engagement has, I think, certain ethical objections, as well as being retrograde; also I should have thought it is objectionable on the ground that hard cases make bad law. Further, I would urge that a law which put an engaged woman in a special position as regards the unfortunate result of sexual intercourse outside marriage would risk fostering the idea that an engagement was legally permissible as a trial marriage. In this House this afternoon there has been a good deal of talk about sexual inter-course outside marriage, and about its unfortunate results, but in regard to this Bill brought forward by the noble Lord, Lord Stow Hill, I find myself in whole-hearted agreement with it and I am very glad to support it.
§ 6.47 p.m.
§ THE LORD CHANCELLORMy Lords, the noble Lord, Lord Stow Hill, has explained this Bill to us with his customary lucidity, and I have very little to say. It is a Private Member's Bill; it has nothing whatever to do with Party politics, and the Government are neutral. 1010 There is not today, and there will not be at any stage of this Bill, any Government Whip on it. In these circumstances, my sole function is to assist the House, at this stage and at Committee stage, in any way I can. In view of the hour, I think the less I say tonight the better. Indeed, all I will say is that this is a Private Member's Bill. It was given a long Committee stage in the other place, when a number of Amendments were put down, and it also had a substantial Report stage. At the end of all that the Bill comes to your Lordships' House exactly as it began, with two exceptions only.
The first is that, whereas under the Bill as introduced it would have come into force a month after Royal Assent, it will now, for the reasons explained by the noble Lord who introduced the Bill, come into force on January 1, 1971. Secondly, with regard to the engagement, I imagine that quite a number of people were surprised to hear that under our present law gifts given during an engagement are assumed to be conditional, and that that includes even the engagement ring. The honourable Member for Pontypool, Mr. Abse, was insistent that that was not at all what the girls in South Wales understood. If I may say so, speaking personally, I should have thought that the other place, in making the Amendments they did, expressed an honest intention, in thinking that, prima facie at least, the ring is intended as a gift. I spoke to a member of my office staff whose mother is one of those sprightly ladies of un-certain age who always knows her own mind. He had asked his mother what she thought about this, and she said that no decent man would ask for the ring back and no decent girl would fail to offer it back. But these are interesting questions which we can discuss further when we come to the Committee stage. For the moment, I join with other noble Lords in hoping that your Lordships will give it a Second Reading.
§ LORD STOW HILLMy Lords, in winding up the debate may I simply say that I am very grateful for the way in which the House has received this Bill and for what noble Lords have said? May I thank them particularly for their very kind references to myself—wholly undeserved but much enjoyed.
§ On Question, Bill read 2a and com-mitted to a Committee of the Whole House.