§ 4.13 p.m.
§ LORD GARDINER
My Lords, I beg to move that this Bill be now read a second time. The Bill is a further chapter in the Law Commission's task of codifying our matrimonial law. Parliament has dealt with divorce reform and with property and financial provisions. There is an outstanding Report of the Law Commission on polygamous marriages, with a draft Bill, but Parliamentary time has not yet been found for that. If I understand the position rightly, there will be only one more subject matter, the rather difficult one of conflict of laws where it may be necessary to decide a case according to the laws of some other country, on which the Law Commission are still at work and on which there is not yet a Report.
My Lords, our law on the nullity or marriage is partly statutory and partly case law; that is to say, so far there is no place where it has all been written down. The object of this Bill is to put it all in one place. There is just one other preliminary observation that I should like to make before coming to the clauses. As your Lordships know, I have an idiosyncracy, which is that I am anxious to see that Members of Parliament, and particularly those of the other place, should be given rather more help than they are given to consider legislation which comes before them. For example, where the main object of a Bill is to alter an existing Act it is helpful to have 799 a Keeling Schedule setting out in large type the alterations which are proposed and, I would think, setting out in italics the parts which are to be left out. Members of Parliament can see, by looking at this Schedule, exactly what the Bill before them proposes without having constantly to look from the Bill to the Act and from the Act back to the Bill. I have never been able to persuade Parliamentary draftsmen to do that. The noble and learned Lord the Lord Chancellor has been kind enough to consider that question recently and has also come to the conclusion that it cannot be done in a Schedule to the Bill.
I do not mind whether it is done in a Schedule to the Bill or on a piece of paper. But our procedural methods for putting pieces of paper before Members of Parliament are themselves to me extremely obscure. I mention this point on the Second Reading of this Bill for this reason. This is a Bill which, being a Law Commission Bill, I suppose might be expected in the ordinary way to be a Government Bill; but we all know the difficulties over Government time, and such Bills are sometimes handed to private Members. Mr. Alexander Lyon, the honourable Member for York, introduced the present Bill. As usual with a Law Commission Bill, there was a Report which argued the reasons for any change made in the law when codified in this way followed by an Appendix containing a draft Bill, and then some notes on the clauses which helpfully summarise the substance of the Report for those Members who have not the time to read the whole Report; and there are references back to the paragraphs concerned. In their Report the clauses are printed on the left-hand page and the relevant notes on the clauses are printed on the right-hand page. This is an obvious convenience.
In these circumstances, with this Bill Mr. Lyon submitted to the Public Bill Office of another place a Bill containing the clauses of the Bill on the left-hand page and the Law Commission's notes on the clauses on the right-hand page. He was told that as this had never been done before, it could not be done. I do not want anyone to think that I am in any way criticising the Public Bill Office of the other place—that would be quite 800 wrong. I assume that it would not have been their orders to accept it in that form. What the honourable Member did, as your Lordships will see from the Bill, was to make the Explanatory Memorandum much longer than usual. It is, in fact, the Law Commission's notes on the clauses. He got them before the Members of Parliament, but in a much less convenient form; because you have to look backwards and forwards all the time from the clause to the Explanatory Memorandum and from the Explanatory Memorandum to the clause. I was glad to note that the honourable Member for York said that he hoped that the Procedure Committee of the other place would consider this matter, and I was still more gratified to find that the Solicitor General also expressed the hope that this question would be considered by the Procedure Committee of another place. If so, your Lordships may think that it would be convenient to have it considered by our own Procedure Committee as well.
Clause 1 deals with the grounds on which a marriage may be void; that is to say, there has been no marriage at all. Clause 1 applies only to marriages taking place after the commencement of the Act. There is no retrospection about it. It sets out three grounds under paragraph (a) because they are all present grounds under the Marriage Act 1949: first, in subparagraph (i) prohibited degrees of relationship. These were considered by the Royal Commission on Marriage and Divorce who suggested one alteration which was made in the Marriage Enabling Act 1960. There has been no other suggestion that these grounds should be altered. They are the existing law. Secondly, in sub-paragraph (ii) that one of the parties was under 16 at the date of the marriage. The Latey Committee on the Age of Majority considered whether there should be a change in the minimum age of marriage and they unanimously recommended that the age should remain at 16; and so it does in the Bill. The third paragraph deals with formal requirements. These are being reviewed by a Working Party set up by the Registrar General and the Law Commission, but the Bill preserves the existing law. Then there is paragraph (b), 801 that one of the parties was already married. This curiosity is not statutory, it is common law. Then there is a new ground introduced in the Commons. This is in paragraph (c) which reads:That the parties are not respectively male and female".That is new, but the Commission were unanimous about it. The Law Commission considered it, but it has arisen only quite recently and I think in only one or two cases. The Law Commission did not include this in the Bill for two reasons: first, because the question really only arose after they had concluded all their consultations on the Bill and on their Report with the bodies that they normally consult. They did not think that it would have been right to start their consultations all over again. They said that the question involved an issue of social policy on which Parliament will be the judge. They said:We appreciate, however, that there may he the rare case in which one party has some of the sexual characteristics of both male and female and in which there may be a genuine doubt which characteristics predominate, or, indeed, in which one party believed at the time of the marriage that he or she was of the opposite sex. It may be thought that in these tragic cases the court should be empowered to grant the normal range of financial provision and that the courts can be relied upon to distinguish cases of this sort, where such relief is appropriate, from those in which it is not. If this view is taken by Parliament Clause 1 of the draft Bill appended to this Report will require amendment.My Lords, this matter was carefully considered in the other place and there was a unanimous decision to include this additional ground. So much for Clause 1, although in one sense there is a further change: it is that the consequence of absence of consent by one of the parties is at the moment in some doubt, as to whether the case is one of void or voidability. I think the better view is that it is probably void. The Law Commission, for reasons they gave, thought that it ought to be voidable; the Bill accepts that and therefore I can deal with the point under Clause 2.
Clause 2 deals with the grounds on which the marriage is voidable. Here again, it applies only to marriages celebrated after the passing of the Act. Paragraph (a) that one of the parties was 802 incapable of consummating the marriage, is at present a ground in common law; paragraph (b), that one party has wilfully refused to consummate the marriage, is at present in Section 9 (1) (a) of the Matrimonial Causes Act 1965; and paragraph (c), lack of consent, will make a marriage voidable, whereas it is at present probably void on this ground. In paragraphs 11 to 15 of their Report the Law Commission explain that this ground differs in several ways from the other grounds upon which a marriage is void and logically fits more readily in the category of voidable marriages. The Commission present arguments for the change in the law which they recommend.
Paragraph (d) of Clause 2 reformulates the test of mental disorder which is to be a ground of voidability, and will be welcomed by the courts which have to decide such cases. The difficulties of the present provisions are explained in paragraphs 69 and 74 of the Law Commission's Report. Epilepsy is removed from the ground of nullity, because medical opinion to-day does not regard it as mental illness and because it can be kept under control by treatment. Paragraph (e), that one of the parties was suffering from a communicable form of venereal disease at the time of the marriage, is at present Section 9(1)(c) of the Matrimonial Causes Act 1965; and paragraph (f), that the wife was pregnant by another man at the time of the marriage, is Section 9(2)(d) of the same Act. There is one other question which arose on this clause in the other place; it is whether wilful refusal to consummate the marriage should be, as it is now, a ground on which a marriage is voidable, or whether it should be a ground for divorce. I will say something about that later on.
Clause 3 deals with the bars to relief in the case of voidable marriages. There is, of course, no bar if the marriage is void, and this clause will apply also only to marriages celebrated after the date of the Act. It really codifies the bars in these cases. Subsection (1) deals with approbation cases in which the petitioner has approbated the marriage after knowledge of all the relevant facts, and in which it would be unjust to the respondent to void the marriage. There is a new formulation which avoids reference to public policy which, as we all know, is 803 an unruly horse; and it should also remove fears that if, under the existing law, there is an attempt at reconciliation, such an attempt might be held to amount to approbation and thus constitute a bar.
Subsection (2) says that the petition must be filed within three years of the marriage and applies an additional bar on grounds other than incapacity or wilful refusal, and replaces Section 9(2) of the Matrimonial Causes Act 1965. In the case of the communicable form of venereal disease and the pregnancy of the wife, these will apply only if the petitioner was ignorant of the facts at the time of the marriage. It replaces Section 2(a) of the Matrimonial Causes Act 1965 and there is also provision in relation to knowledge in the case of mental disorder. Subsection (4) otherwise abolishes existing bars of approbation and ratification, and what we used to call lack of sincerity. Subsection (5) alters the definition of "the court" from the form of the Bill as put forward by the Law Commission because the county court now has a nullity jurisdiction.
My Lords, Clause 4 deals withMarriages governed by foreign law or celebrated abroad under English lawand is, I think, sufficiently explained in the Explanatory Note attached to the Bill. Clause 5 deals with theEffect of decree of nullity in cases of voidable marriage.In paragraphs 21 to 28 of their Report the Commission considered fully the question whether all or some types of voidable marriage should be regarded as valid and be terminated only by divorce. They concluded that there was a real distinction between grounds of voidability and grounds for divorce, and they recommended that the category of voidable marriages should be retained. However, they further recommended that a voidable marriage should be treated as valid until the decree absolute was made.
Clause 6 provides that collusion shall be no bar to nullity or to a declaration of dissolution of marriage on presumption of death. The Law Commission pointed out in their Report that collusion had been removed as a bar in cases of divorce, and for the same reason as they did that, it should be removed in relation to nullity. Clause 7 deals with the Short 804 Title, consequential amendments and repeals, and savings, and I think that those are sufficiently dealt with in the Explanatory Memorandum.
I will now come back to a matter which caused some controversy in the other place and to which I said I would return. It is the question dealt with in paragraph 26 onwards in the Report as to whether wilful refusal to consummate the marriage ought to remain a ground of nullity or whether it ought to be a ground for divorce. For reasons which I will explain later, I think that I should shortly summarise the arguments, even at this stage of the Bill. What is said for making the change is simply this: that in the case of voidable marriages the grounds, all or nearly all of them, relate to something which was in existence at the date of the marriage; whereas of course wilful refusal to consummate the marriage takes place after the marriage. Therefore, it is said, it would be more logical to make this a ground for divorce. That is the only argument for the change. It is a perfectly sensible argument, it is a logical argument.
The Law Commission carefully considered this, and for four reasons they were against it. Their first reason was:Wilful refusal to consummate is in most cases the alternative allegation to impotence as it is often uncertain whether the respondent's failure to consummate is due to one cause or the other the petitioner may not know whether the respondent refused to consummate the marriage because he is unable to have sexual intercourse or because, though able to have sexual intercourse, he does not want to have it in such cases the court must draw an inference from the evidence before it and it seems unreal that the relief granted to the petitioner—nullity or divorce—should depend in any given case on the court's view as to which of the two reasons prevented the consummation of the marriage.If I may pause here, the Law Commission, in their usual careful way, have got out the statistics in an Appendix, giving the average figures for the last ten years. When we talk about nullity this is (if your Lordships will forgive the expression) the guts of nullity in real life, because something like 90 per cent. of the 966 petitions and 780 nullity decrees are granted on the ground that the marriage has not been consumated. Out of the 780 decrees, 69 were for void marriages; and 13 of the voidable marriages were on the ground of unsound mind or epilepsy; 14 on the 805 ground of pregnancy; 2 on the ground of venereal disease; 349 on the ground of incapacity, and 333 on the ground of wilful refusal. These may be said to be joined hand in hand.
The Law Commission's second reason is this:Failure to consummate, whether it be because the respondent is unable or because he is unwilling to have sexual intercourse, deprives a marriage of what is normally regarded as one of its essential purposes, Parties would think it strange that the nature of the relief should depend on the court's decision whether non-consummation was due to the respondent's inability or whether it was due to his unwillingness. From the parties' point of view the relevant fact would be that the marriage had never become a complete one. To tell them that, in the eyes of the law, failure to complete it due to one cause results in the marriage being annulled, whereas such failure due to another cause results in their marriage being dissolved, would seem to them to be a strange result.As your Lordships will appreciate, while there can be physical incapacity, determined by the medical inspectors in a nullity case, perhaps more often, if there is an incapacity, it is a mental incapacity, a psychological aversion either to sexual intercourse altogether or—which seems strange perhaps to members of the public—an impotence qua the very woman the man has chosen to marry, though he can have intercourse with other women. Of course, to determine whether there is an invincible repugnance to intercourse either by the man or by the woman, or whether it is simply that they do not want it, whether it is something they can overcome or something they cannot overcome, is obviously extremely difficult. That is why in all these cases the pleading is in the alternative, that either he, or she, is incapable or refuses.
Thirdly, the Law Commission say:The circumstances in which the court can entertain suits for nullity and divorce at present are not the same: for instance, the court has jurisdiction to hear a suit for nullity where, irrespective of domicile, both parties are, or the respondent alone is, resident in England, but there is no jurisdiction (except under the provisions of the Matrimonial Causes Act 1965, Section 40) to hear a suit for divorce unless both parties are domiciled in England; therefore, if wilful refusal to consummate were to become a ground for divorce while impotence remained a ground for nullity, a petitioner might find himself unable to allege the two grounds in the alternative Although he himself might not know which of these was the effective cause preventing consummation of his marriage.806 Then there is the fourth ground, which I think probably had rather more weight with another place than any of the others.
The Commission say:A petition for divorce may not be presented until three years have elapsed from the date of marriage unless the court gives leave to present an earlier petition on the ground of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent; …The need to wait three years before being able to start proceedings to terminate the marriage would be a substantial hardship on a man or woman whose partner is unable or unwilling to consummate the marriage …May I add this? Of course we have many blows in life which are none of our making, but there is one situation I always think is very sad. It is when a normal girl is in love with a man whom she naturally supposed to be an ordinary man; they get married, and then on the wedding night he makes no attempt to consummate the marriage; and so it goes on, night after night. It is a very difficult position for her because, if she loves him, the last thing she wants to do is to upset him. She is in a very unhappy position. The question is ought we merely to make the law theoretically tidier and for the first time say that a woman in that position, who at the moment can petition for nullity at any time, will not know where she is for three years because, simply to make the law tidier, we think that refusal to consummate ought to be a ground for divorce.
My Lords, if I have said rather more than usual on the Second Reading of this Bill, on what on the face of it is a Committee point, I do so for this reason. If any noble Lord is thinking of putting down an Amendment to keep incapacity for nullity and make wilful refusal a ground for divorce, I would point out the possible effect, at this stage in the Session, of making a change on a point which the Commons decided only by a very small majority, on a point on which the Law Commission said would be a mistake and which the Government consider would be a mistake. I see that the Solicitor General said in another place:It is …an argument which does not commend itself to any other common law country which accepts this ground for getting rid of marriage. In all other common law countries where it is a ground, except Australia where they have a hybrid system, they all go along with us and leave it to the ground of nullity. Beyond this clamour for logic, 807 what is the reason? Now we have a situation for which we have been working for 34 years to everyone's satisfaction and convenience, and I see no reason why we should disturb this situation, unless we were disturbing it for something which was so blindingly right and compellingly more simple that there was no alternative; but the arguments do not seem such to me."—[OFFICIAL REPORT, Commons Standing Committee C, 17/2/71, cols. 22–23.]After saying a good deal more, he ended his speech by saying:…I am persuaded that this is a case for leaving well alone and saying, 'Why, why, why should we be compelled to make this change in this simple matter?'.So the position is that the opposite view does not commend itself to me, to the Law Commission, to another place or to the Government, and I very much hope therefore that on this point we may be able to leave the law as it is. With those observations, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a. (Lord Gardiner.)
§ 4.39 p.m.
§ LORD SIMON OF GLAISDALE
My Lords, I venture to address your Lordships on this Bill because until very recently I had some responsibility for the sphere of law with which this Bill is concerned. I know that your Lordships will wish me first of all to express our appreciation to the noble and learned Lord, Lord Gardiner, for his lucid explanation in introducing this Bill, and to the Law Commission for the work they so competently did.
As the noble and learned Lord explained, this is a Bill partly for the codification of the common law by Statute, partly for consolidation. I do not know whether it was a slip of the tongue when he suggested at the outset that there was only one subject left in this field of law on which we await the advice of the Law Commission. That is not so. There are widely expected, and indeed long overdue, recommendations to rationalise and render more equitable the law of married women's property.
The necessity of reform in that field has been very much accentuated and aggravated by the Divorce Reform Act 1969. It was many months ago that we were promised a comprehensive framework of proposals in this field within a few months. Instead, there was the 808 Matrimonial Proceedings and Property Act, which did little more than tinker with the existing law. The substantive proposals are still awaited. I mention that merely because, although this seems to me, on the whole, a useful measure, and one which unlike some that have been put forward in this field does not do any active harm, there are far more urgent matters that we require to deal with and on which we look to the Law Commission to frame proposals.
Codification and consolidation can be very useful. It can make the law more accessible; it can, in exceptional circumstances, make the law more intelligible to ordinary people—and that is particularly desirable where the law affects everyday life, like the matrimonial law. Some judges—my noble and learned friend Lord Denning is a conspicuous example—have a knack of explaining and expounding the law in a way that makes it immediately intelligible to laymen. That is not always possible. The great consolidation and codification measures of this century, the property legislation of the 1920s—which I suppose will always stand as a monument—effected a great improvement, a great simplification and a great increase in perspicuousness of the law: but they still require lawyers to interpret. Of course, if you make the matter easier for lawyers, you make it in turn easier and cheaper for laymen, too.
I sometimes think that the noble and learned Lord, Lord Gardiner, rather oversimplifies the value of codification and consolidation. I sometimes feel that he has in mind a picture of two elderly people arguing amicably about their rights and, finding themselves at variance, reaching up for one of the 12 volumes in which the whole of English law is set out with great simplicity. If they are lucky, they find one of his own measures—one that I mentioned recently, the Matrimonial Proceedings and Property Act 1970—and they read there:Section 9, subsection (1) and subsection (3) of this Act shall apply to an order made or deemed to have been made under section 15 of the Act of 1965 in its application to proceedings for restitution of conjugal rights under section 21 of that Act or under section 34(1)(c) thereof as they apply to the orders mentioned in subsection (2) of the said section 9.This Bill at least avoids that sort of nonsense. It is indeed reasonably clear 809 and can be reasonably understood, at least by lawyers.
There is another matter on which it seems to me that this Bill has been well framed. The Act which I have just cited has occupied endless time of the court and involved great expense to litigants and the public because it did not make clear how far the Act was retrospective. As the noble and learned Lord has explained, this Bill is at least clear on that matter. Moreover, it removes certain anomalies and inconsistencies. It simplifies the law.
I thought that the noble and learned Lord was inclined to dismiss too airily the value of logic and absence of anomaly in the law. The value of logic is that anomaly and lack of logic, first of all bring the law into disrepute, and secondly, sooner or later, lead to injustice. Logic leads to consistency, and therefore to equity. I suppose most of your Lordships have had to undergo this sort of conversation from children: "Why cannot I do that? You let Bobby do it", to which the answer is "Bobby is two years older than you." That is exactly the way lawyers reason. Are circumstancies fundamentally the same, so that they shall be treated similarly in equity, or is there a difference that makes all the difference? When, therefore, one finds a major anomaly and illogicality perpetuated, such as the one to which the noble and learned Lord, Lord Gardiner, referred in Clause 2(b), it does discredit to the law and is liable to cause injustice to litigants.
I should like to say a word or two about the authority of the Law Commission in this matter. Although the Law Commission have done valuable work in this and other fields, it would be unfair to them, and quite wrong, to approach their deliberations as if they were sacrosanct. This matter has been investigated by other bodies. There was the Morton Royal Commission on Marriage and Divorce, which sat for three years. That was a very distinguished body: it was carefully balanced ideologically; it contained persons of all Parties and no Party; it contained women as well as men; it contained laymen as well as lawyers; and it contained practical people as well as intellectuals. In those respects I think it stands in contrast and 810 advantage to the Law Commission. It recommended on this matter diametrically opposite to what the Law Commission have done; namely, that wilful refusal should become a ground for divorce and should cease to be a ground for nullity. The Archbishops' Commission on this subject also recommended this, and so did the Bishop of Exeter's Commission which produced the document, Putting Asunder. The Law Commission gave great weight in other parts of their Report to that body of "minority opinion", as they put it, but brushed it aside on this subject.
But the matter does not only rest with the institutional bodies. After the Law Commission had issued their Report I formally consulted all the Judges of the Probate, Divorce and Admiralty Division. They were unanimous that the Law Commission were wrong on this matter and that the Royal Commission were right. It was of course not my place to consult those Lords Justices who have sat in the Probate, Divorce and Admiralty Division formerly—a majority of them have—but I consulted most of them, all except two, informally, and they were unanimously of the same opinion that the Law Commission were wrong on this matter. That is also the view of my noble and learned friend Lord Hodson, who has sat on the Bench for 33 years—he has only just retired—and for most of that time in the matrimonial jurisdiction.
As for the view of the other place, that the noble and learned Lord suggested should keep us from putting forward an Amendment in Committee, I would venture to point out that, according to my recollection, an Amendment on this point was defeated by a majority of four to three. It seems to me to be an extraordinary constitutional doctrine that this House should be precluded from reviewing a matter on which there are weighty opinions, as I have suggested, to the effect that the Bill is wrong in this respect, by a majority of that sort.
Otherwise it seems to me that this Bill effects an improvement in the law. There were many matters that were very unsatisfactory about the 1937 Act—A. P. Herbert's Act. Some of them have disappeared in this Bill. For example, the description of the mental disability that invalidates a marriage is much improved in this Bill. And it was certainly an 811 anomaly that epilepsy should be a ground of nullity, even though existing at the time of the marriage, when no other physical ailment, and only to a very limited extent mental ailments, invalidated a marriage.
My Lords, may I finally draw attention to one further matter relating to wilful refusal. I suppose that anyone, lawyer or layman, would say that it would be a complete nonsense that the same matter should be at the same time a ground for divorce and a ground for declaring a marriage void. Yet that is what the Bill in effect does. Under the Divorce Reform Act 1969, Section 2(1)(b), the court shall give a divorce on the ground of irretrievable breakdown of marriage if it is proved that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. Clearly wilful refusal to consumate a marriage would fall within that paragraph and would thus be a ground of divorce, while this Bill purports to declare that it should also be a ground of nullity.
I do not propose at this stage to go further into the matter. In my respectful submission none of the Law Commission's reasons stand up to detailed or informed scrutiny. As I have told your Lordships, the Judges gave their opinion in the light of the Law Commission's Report. I have no desire to hold up this Bill in any way; I certainly would not oppose a Second Reading, and if the noble and learned Lord, Lord Gardiner, feels that an Amendment, if discussed at great length, might endanger its future, the matter lies entirely in his hands: he can indicate that the Amendment will be accepted. I personally propose to move an Amendment at the Committee stage to remove this anomaly, but otherwise I commend the Bill to your Lordships.
§ 4.58 p.m.
§ THE LORD CHANCELLOR: (LORD HAILSHAM OF ST. MARYLEBONE)
My Lords, I am sure that the whole House is grateful for the lucid explanation of the purposes of the Bill given us by the noble and learned Lord, Lord Gardiner, and for the weight of experience and wisdom with which my noble and learned friend Lord Simon of Glaisdale has en- 812 riched the debate. They clearly differ on one important point to which I will come. It is desirable that I should declare both my own and perhaps also the view of the Government on the issues which have been raised.
As the noble and learned Lord, Lord Gardiner, has said, this is another law reform Bill arising out of a Report of the Law Commission. Occasionally, the Law Commission will produce Reports which introduce matters of controversy, but I do not think that this is controversial in that sense. I am therefore able to welcome the Bill wholeheartedly on behalf of the Government. I should like to give thanks both to the Member in the other place who undertook the burden of sponsoring the Bill, and to the noble and learned Lord, Lord Gardiner, for sponsoring it in this House.
I should like to take the opportunity to repeat that it is my settled intention to use whatever influence I possess to secure an easy passage for law reform Bills which are not politically controversial and which have passed the Law Commission or one of the Law Reform committees. But it is an essential part of this policy that once I have cleared the Bill through the Government machine I should be able to count on the good offices of Private Members in each House, and of all Parties, to sponsor as many of these as are capable of being handled—and some of them are not capable of being handled—by Private Members in both Houses. I think there are a good many Members of both Houses who would be glad and proud at least once in their Parliamentary lives to have passed a Bill of their own into law, and I can promise them the full co-operation of my own Office in any technical assistance which it is in our power to give.
The noble and learned Lord, Lord Gardiner, has already explained the purpose and scope of the Bill, and I am sure the House will not expect me to duplicate his labours; not would I desire to do so. I will therefore turn, if I may, to the one or two points that are likely to give rise to discussion in Committee. But, if I may do so, I should like to preface it by one or two observations about the philosophy of marriage underlying the Bill. The Bill deals with nullity of marriage. What is marriage? Marriage is for this purpose 813 a contract giving rise to a status. And nullity of marriage is a process of law designed to discover and declare the state of affairs where, despite appearances to the contrary, it can be established either that no marriage has ever existed or that circumstances are such that one party is entitled at his option to rescind the marriage and restore so far as possible the status quo.
The first situation is dealt with in Clause 1. The second in Clause 2 and, I think, Clause 5. Obviously, the second situation partakes of something in common with divorce. Although it is called nullity, a marriage subsists up to the moment of decree and therefore what is done is to break the vinculum, the bond, of marriage. But it is done on the ground that the marriage is annulled. If there is said to be an anomaly in the sense that my noble and learned friend has just been talking about from the Cross-Benches, I would suggest it probably lay in allowing the second situation to subsist as nullity, rather than bringing the whole thing into the field of divorce. But, for the reasons which the Law Commission give, I am wholeheartedly in favour of retaining the law of nullity in the case of the voidable marriage. The noble and learned Lord, Lord Gardiner, adumbrated the reasons, and, as I understood my noble and learned friend's speech, the second speech, who differed on the one point of wilful refusal, he did not complain of the general proposition. But if there is an illogicality it lies there, and I shall be going on to argue, when I come to deal with my noble and learned friend's speech, that it does not lie so much in the field where he thought to find it.
But, basically speaking, nullity on the grounds of voidability, as distinct from the situation where the marriage is void ab initio, is not the same as divorce. To begin with, there is not the same religious objection to it where religions believe that there is an objection to dissolution. One cannot say that there never is the same religious objection to it, because unfortunately the law of nullity, as explained by the Roman Curia, is not identical with the law of nullity, as it exists in English law, or as it will exist in English law if this Bill comes into effect. But when you have to advise as a matter of practical politics a party 814 that has an "unhappy" marriage (if I may put the word in inverted commas), and also has the misfortune to belong to a religion which holds that there is an objection to divorce but not to nullity, one sometimes does find the distinction of very considerable importance in actual practice.
Moreover, consequences are different. And it differs in the connection which has become relevant from divorce from a procedural point of view in so far that a petitioner for nullity on the grounds of voidability can take advantage of his remedy from the start; that is to say, he can bring his petition at once and he need not wait three years. Indeed, your Lordships will see if you turn to Clause 3 of the present Bill, which very largely reproduces the existing law, that for some purposes a petitioner for nullity loses his right to nullity if he in fact waits for a long time; or may lose his right to nullity if he waits for a long time before exercising it. And, if I may say so to my noble and learned friend whose speech has really provoked to some extent my own, I think there he may find the answer to the ingenious but, I suspect, somewhat specious point that he made about the 1969 Act providing the same ground for divorce as this Act provides for nullity, because of course the 1969 Act might very well apply where the grounds for nullity were barred under Clause 3 of this Act. So it may not be so stupid or anomalous to allow both grounds or both kinds of proceeding as my noble and learned friend seemed to think.
There is one other preliminary point I think I ought to make. It is of course normally one of the parties that seeks to establish the invalidity of a marriage. In a case of a void marriage, of course this is by no means necessarily the case—titles of honour, succession to property often depend on whether or not a marriage has taken place. And third parties can often raise the question directly or obliquely when they wish to set up a state of facts which, if established, would establish also and indirectly the nullity of somebody else's marriage. But, strictly speaking, although the result of such proceedings will be governed to some extent by the law declared in this Bill, such proceedings are not correctly described as the proceedings for nullity of marriage. They 815 are actions of one sort or another in which the case for one side or the other depends on the proposition either that no marriage has taken place or that facts exist which, if true, would have that result.
The two really contentious clauses in the Bill are the subsection which relates to marriages between persons who are not of opposite sex and the subsection which relates to wilful refusal to consummate the marriage. In the first case there are those, including the Law Commission, who would wish to put the alleged unions outside the law of nullity altogether. What would be the difference, what would be the effect, of doing so? The effect would be that the parties who wish to attack a union of that kind would be left to proceed by action for a declaration. This of course would mean that the party seeking the declaration would be unable to obtain ancillary relief; that is to say, would be unable to obtain maintenance if the party was a woman. That would deprive them of an important ancillary relief which is available to them in what are strictly nullity proceedings. As sent up to us, the Bill does make such a union void, but allows nullity proceedings between the parties to be available, although for the reason I have stated it will also in certain circumstances be open to third parties to attack the marriage for reasons of their own. I shall advise the House to accept the view of the other place in this respect.
In the second case there is, as appears from the very powerful speech of my noble and learned friend from the Cross Benches, a respectable school of thought, backed apparently by all the Judges of the Probate, Divorce and Admiralty Division, who want to make wilful refusal to consummate a ground for divorce and not for nullity. This Bill, which follows the status quo which has operated for, I think the noble and learned Lord said, 34 years—at any rate since the Herbert Act of 1937—sticks to nullity in the voidable class and therefore continues the status quo. Although I recognise the strength of what is alleged to be a purely logical argument, although I shall seek to attack its logic at one stage, the other way, I myself have absolutely no hesitation in advising the House to retain the Bill in its present form; and this corre- 816 sponds to the advice given by the Law Commission in paragraphs 26 and following of their Report.
I want, if I may, to give some reasons for my attitude on each of these two controversial topics. There is, however, one ground common to both. I absolutely agree that the other place is not infallible. This is not a Chamber that has simply got to rubber-stamp decisions which the other place makes. I would very strongly resist the suggestion that, simply because they have put us in a certain position in the Parliamentary year, we should necessarily refuse to change what they have done if we think they are wrong. But I would suggest that when we are not talking about matters of high principle, and when we are not talking about politically contentious Bills, one ought to keep disputes between the two Houses to a minimum and one ought not to start with the presumption that the other place has made a mistake; because they are occasionally right, and in this case on both of these contentious issues I would suggest that they are in fact right.
This brings me to the two issues. The first is what I might call the unisex "marriage"—using the word "marriage" in inverted commas. Obviously cases can, and obviously cases do, exist where such marriages are nothing better than a conspiracy against the law as it now is. In such cases I have no sympathy whatever with those people; and if in fact that was the only type of case coming under this head I would agree with the school of thought which says, "Do not bring it within nullity at all, for nullity proceedings, even in a void marriage, give a wife right of maintenance from the husband, and in a unisex alliance there is no true husband and no true wife".
Those arguments prevailed with the Law Commission; but, on balance, I reject them. Equally I may say in passing that I reject the rather charismatic speech which was uttered in another place and which suggested that all unisex "marriages" should be treated with the same respect as a proper one. But the reason I give for rejecting the Law Commission's view is that in practice alliances of the type which I condemn, and condemn wholeheartedly, are not the only, although they may be the most common, alliances of this class. For instance, I 817 know of at least one case, from my own experience, where the so-called husband had both testicular and ovarian tissue in his body, and in that case the wife had no particular desire to disavow the marriage which resulted. There are other cases where one of the parties has the external organs of one sex and the internal organs of the other. I should say, with respect, that there is no reason in cases of this doubtfulness, where alliances were entered into in good faith, why the parties should be deprived of maintenance or ancillary relief.
Moreover, in nullity cases—and I think one must remember these practical details—evidence can be given in camera, and in my opinion evidence of this kind is very much better given in camera. I think the feelings of parties who have a humiliating experience of this kind ought to be considered. Painful and intimate matters are better not ventilated in public, and the law of nullity provides for such evidence to be given in camera.
To ray mind, another and in this case I think conclusive, argument (and I am happy on this occasion at least to agree with the judges) is that the rights and wrongs of the situation set up in the case have been fully considered in two of the reported cases in the courts in the last five years. There was a case called Talbot in which the two parties were alleged to be women, or basically female, and there was a case called Corbett where the contrary was the situation. The judges argued the matter out at great length and eventually came to the same conclusion that I have set forth. Although I agree with the Law Commission that financial relief is inappropriate where parties enter into the relationship with their eyes open, since financial relief is discretionary the courts are quite forth. I think, to establish their own practice in the matter. I thought it right to say how I stood on that subject because it is something which we may be considering later.
That brings me to the argument of my noble and learned friend about wilful refusal to consummate. I agree unequivocally with the Law Commission. I admit that they are not infallible—I have just been stating my reasons for differing from them—and although I respect the members of the Morton Commission and 818 the two Church reports, and perhaps more than any of them my noble and learned friend Lord Simon of Glaisdale, I adhere to my view. Apart from the general reason I have given for leaning in favour of another place in a matter of this kind, there is a great deal to be said for leaning in favour of the status quo. It would create anomalies to make marriages ending before a given date void on nullity proceedings and after a given date to dissolve them. That is an anomaly and it would give rise to results which in my view would be undesirable. From the practical point of view I agree with the noble and learned Lord, Lord Gardiner.
The logical truth of this matter is that although theoretically an incapacity to consummate a marriage and a wilful refusal to consummate a marriage are mutually exclusive alternatives, they must almost always in practice, if we want to achieve justice between the parties—which, after all, we are seeking—be pleaded in the alternative. At least that is so when one is acting on behalf of a petitioner who wishes to terminate the marriage on the grounds that it has not in fact been consummated and where there is no physical reason why it has not been so consummated—that is to say, where there is nothing wrong, for instance such as the absence of external sexual organs. Incapacity is, and must, by consent remain in the field of nullity. My noble and learned friend does not suggest the contrary. Indeed he could not, because incapacity is one of the age-old grounds for nullity. I think it is one of the grounds accepted by the Roman Catholic Church.
However, it would be a real departure from logic to move wilful refusal into the field of divorce. This is because, as the noble and learned Lord, Lord Gardiner, pointed out, incapacity is often mental and not psychological, and the point at which it ceases to be incapacity and becomes wilful refusal to consummate is often a matter of degree, or at least a matter of opinion not discoverable until evidence is given at length. In my view, some of the earlier cases of nullity on the grounds of incapacity, before 1937, were at least really cases of wilful refusal.
As I have said, the difference between nullity and divorce which is reflected in the so-called three-year rule relating to divorce is that whereas in divorce one 819 should only proceed to it when the marriage has irrevocably broken down, whether one is acting under the old rule or under the new (and therefore in the absence of exceptional depravity not for three years) in cases of nullity the practical answer is "the sooner the better"—much sooner, much better. Although both parties should make every effort to consummate their marriage, inability or complete refusal to do so can usually be ascertained beyond a peradventure long before three years are up.
Before I sit down I should like to pass to a short point which was raised by the noble and learned Lord, Lord Gardiner, not on the content of the Bill but on the way in which it is set out. He referred in passing to the Keeling Schedule, but he then went on to point out that in another place the Solicitor General gave a sympathetic reply when the sponsor of the Bill referred to the possibility of explanatory matters—in this case the clause notes, I think, of the new Commission—being interleaved with the Bill instead of the limited Explanatory Memorandum printed at the beginning of the Bill. He ventilated the theory that the Bill would have been better had it been printed in that way. Of course it must be clear that in theory each House can determine the manner of printing the Bills in front of it. It could be done, I suppose, by a simple Resolution of each House. I suppose also (although I do not know this) that by the time the Bill was passed from one House to the other—if it was initiated here, from this House to the other place; and if it was initiated there, from the other place to this House—it would have to be printed in a form which that House was willing to accept, and joint resolutions, preceded by a Joint Select Committee or Joint Sub-Committees of their two Procedure Committees, would in my view be a necessary method before a permanent change was Made. Of course, there could be experimentation in either House, but I doubt whether it would be desirable for the two Houses to pursue different lines of policy in the matter.
As regards the merits of the proposal, the Solicitor General, as the noble and learned Lord said, gave a sympathetic reply. I am personally a little more sceptical than he was. It would of course 820 be easy and helpful enough in the case of a simple law reform Bill sponsored by the Law Commission, like the present, but what goes into or is left out of the explanatory material in more contentious Bills might very well turn out to be a matter of great controversy, and people might be accused of either omissions or insertions which were misleading. For instance, in the case of Bills floated by private Members one might have material inserted for publicity reasons. Or in the case of contentious Bills floated by the Government—the Industrial Relations Bill, the Immigration Bill or perhaps a Common Market Bill—no doubt the Explanatory Memorandum inserted by this Government would be very helpful; but then again it might not, and it would almost certainly be tendentious and in the worst cases openly propagandist.
I am grateful to the noble and learned Lord for raising the subject, but if he wishes to take it further I think the next step would be to put it before the Procedure Committee or raise it through the usual channels. I see the problem as a little more difficult than it appears at first sight. In the end it is for the House to decide, and not the Government, but I fancy that a good deal of preliminary Committee work would be necessary before a viable plan could be made, even supposing the principle were accepted. I hope that I have made my position plain on this Bill. I am not, as is so often the case on a Private Member's Bill, neutral; I am in favour of it as it stands, not merely for the procedural reason which the noble and learned Lord gave in his opening speech, but because I think on its merits it stands better than any alternative on the two contentious points.
§ 5.23 p.m.
My Lords, may I with your Lordships' permission, ask a question—probably a stupid question? It is certainly a layman's question, and one which has only just occurred to me, in view of the two extremely lucid interesting expositions I have heard. It relates to one of the two clauses which are in dispute, that is to say Clause 1(c), the unisex marriages. I do not think anybody anywhere, in this House or elsewhere, would dispute the object of this clause; that if a male 821 marries somebody whom he believes to be a female and then finds he is wrong, or a female marries somebody whom she believes—wrongly as it turns out—to be a male, that is not a proper marriage. In the case of a husband who finds he has not got a wife, or a wife who finds she has not got a husband, that is adequately dealt with in this way.
These cases happen very seldom, but I know that they do happen, and they are not jokes. What happens if the husband finds that he has not got a wife and the wife finds that she has not got a husband? As the clause is worded—"that the parties are not respectively male and female"—that applies, unless "respectively" has a legal sense. One might go into the marriage hoping to be the husband and finding oneself the wife. It might avoid trouble, if this point has not been covered, if we were to deal with it. I wonder if there is another way of wording it. I apologise if I have wasted your Lordships' time, but we live in a progressive age when strange things happen.
My Lords, I am grateful to noble Lords who have taken part in the discussion of this Bill. I am not sure, with the greatest respect, that I got the last point of the noble Viscount, Lord Barrington, right. Was he asking what will apply if the man who thought she was a man turns out to be a woman and the woman who thought she was a woman turns out to be a man?
§ LORD GARDINER
If that is so, I should have thought the new subsection would not apply—the question is whether they are "not respectively male and female". If in fact they are male and female, there is no reason why there should be a nullity of that marriage. I will consider that point further, if I may, before Committee stage.
There is no Member of your Lordships' House from whom in a matter of this kind we would sooner hear than the noble and learned Lord, Lord Simon of Glaisdale, whose knowledge and authority in this field are, of course, quite unrivalled. It is, I think, quite right to say that the Law Commission are still considering the question of community property. We know that it is difficult, and I hope they 822 may find a practical solution. I am very glad to know that the noble and learned Lord, while not being as passionate an adherent of codification as I am, is of opinion that this is a Bill which removes anomalies and inconsistencies, as well as codifying the part of the existing law which remains, and that he differs from the Bill only on the one point, which is whether wilful refusal should continue, as at present, to be a ground of nullity or should be a ground of divorce.
It would not be right that I should continue the discussion of this point at this stage of the Bill. All I can ask him to do is to be kind enough, if he will, before we approach Committee stage, to consider the reasons I ventured to give. I had of course taken into account the views of the Morton Commission some 15 years ago. I would ask him similarly to take into account not only the views of the Law Commission, but also the views of, I think, all other common law countries, and in particular, of course, the observations which the noble and learned Lord the Lord Chancellor has expressed in this House today. Perhaps it is not too bad for the Second Reading of any Bill that only one point of objection is taken to anything in the Bill, and then only by one Member of your Lordships' House. That makes it sound to me as if it is rather a good Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.