NULLITY OF MARRIAGE BILL

HL Deb 11 May 1971 vol 318 cc928-50

7.0 p.m.

LORD GARDINER

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into committee. —(Lord Gardiner.)

House in Committee accordingly.

[The LORD JESSEL in the Chair.]

Clause 1 [Grounds on which a marriage is void]:

VISCOUNT BARRINGTONmoved Amendment No. 1: Page 1, line 17, leave out from ("that") to end of line and insert ("either the presumed husband or the presumed wife is not, or neither of them is, of the sex of which he or she was presumed to be at the time of the marriage.")

The noble Viscount said: In the rather congested state of your Lordships' time, I will not waste time by apologising for introducing as a layman an Amendment in a lawyer's debate, but I think that I ought to apologise for appearing under a false name on the Marshalled List, in case anyone thinks that I am trying to pose as a Life Peer. It was one of those unfortunate oversights at the Printed Paper Office. Having said that, I will come straight to what my Amendment is trying to do and how it is trying to do it. As I understand it, Clause 1 deals entirely with void marriages —in layman's terms, the question of when is a marriage not a marriage?

To compress this into an omnibus case, nobody denies that it will be a void marriage, if a lady already legally married and not separated from her husband were to marry a son while he was still an infant. That would be a void marriage on three grounds. It would be difficult to find a voider one. The Bill has found another reason and I think a good reason —that is, where a son turns out not to be a son but a daughter. I do not think that anybody disputes that where a male marries a female and she turns out to be a male, or vice-versa, that marriage should be void. The question I raised on Second Reading and on which I am now moving this Amendment is that there is some doubt about what would happen in what your Lordships might say was the quite incredible but not logically impossible condition that two people are found to have changed their sex at the same time —as one might say, a double switch.

Before I discuss the terms of the clause and the Amendment, I should like to say that this is not quite so remote and impossible, by reason of the fact that I have myself been a witness of such a marriage at the time when my sister was married in the 'thirties. Before Hansard gets this wrong, I should like to make it quite clear that neither my sister nor her husband changed their sex, either then or at a later date. They were married at a time when it was not unusual for a young married couple to have at least one servant, sometimes two, living in the house. They compromised by having one and a half —an elderly cook-housekeeper between 40 and 45 and a boy (as they thought) between 17 and 19. In the first week when they were in the house the boy came to my sister in a naturally somewhat upset condition and told her that he was changing into a girl. She tried to persuade him that he was not, but he convinced her because he already had claimed this three times.

This was a difficult thing for a young married woman and her husband. They did everything reasonable that they could do. They consulted the best medical opinion they could afford. The verdict was that this was unusual but not impossible. On the whole, he would be happier as a girl. Before they could implement that, the case became academic, because he left the house with the cook—housekeeper as half of a married couple —which half we never knew, but with hindsight, the rumour was that they were interchangeable. This was a genuine case, and if your Lordships doubt it I could give the names.

I come on to what the clause is saying and means to say. It means to me, and I think the noble and learned Lord, Lord Gardiner, is saying, that if the parties are not respectively male and female, it is a void marriage; but that is the only condition apart from the first three. In a double switch, of course, they are certainly male and female, but a great deal depends on the word "respectively". Respectively may have a legal sense. I looked it up in the dictionary and I shall not waste your Lordships' time with quotations which seem to confirm my opinion. The quickest way of explaining what I understand by respectively is to apply it not to parties in a marriage but to political Parties. If, at some remote date, the Liberal Party was no longer thought to be dictating to this House, there would be only two principal Parties. And if someone were to say at an Election that those two Parties consisted respectively of honest men and humbugs, I believe that there would be some doubt in your Lordships' House whether it was a howling libel or a plain statement of fact, unless one knew to which side it referred.

May I take an example from history and quote the late Lady Asquith, when she said that the country was asked to choose between two men as Prime Minister, one of whom was suffering from sleeping sickness and the other from St. Vitus's dance. Every one knew what she meant, but if she had added the word "respectively" I do not think it would have made the matter any clearer, because it would not have referred to the two names. If she had said that Lloyd George and Bonar Law were suffering respectively from sleeping sickness and St. Vitus's dance, everyone would have known that she meant the opposite.

That is the only point I want to make about "respectively". If that is what the Bill is saying, I should like to suggest that my Amendment is worth thinking about, because I do not believe that that is what is meant. I do not believe, if it is intended that a marriage should be void because of one mistake, that it should cease to be void when there are two mistakes. As to the legal sense we shall hear in a moment; but that is quite different. and in any case I shall withdraw the Amendment unless encouraged to go on with it.

As to the desirability of a marriage subsisting on the basis that the husband has married somebody whom he thinks at first to be a woman, I believe that would be intolerable on two grounds. On biological grounds, I suppose that it would be a marriage between male and female like an electro-magnetic coupling. But that is not, as I see it, in the philosophy of marriage.

As to the legal terms of the contract, if somebody announces in either church or registry office, "I, Leslie, take you, Evelyn, to be my wedded wife", and it proves to be the other way round, that the wife has taken a husband, I do not know what the status of that marriage would be in law in terms of contract. I am certain that I should he doubtful about marrying a lady of foreign origin, particularly of different religion. But if I said, "I, Ian, take you, Yasmin, to be my wedded wife", and then found that the sexes had switched —I am giving an extreme case —and instead of being the husband of a devoted wife I was a wife of possibly a devoted husband who might have other wives, that would clearly alter the whole thing. I will not labour that point, because it is a little remote, but I believe it is a real one. On the religious basis (and some people regard marriage as a religious thing) I would say that it is not the same thing, whether the proposition is true or false, to say that the Church is the bride of Christ as it is that Christ is the bride of the Church. Anybody is at liberty to contradict this.

Your Lordships will say that this is all gibbering air, because the odds against it ever happening are so astronomical —it is not worth pursuing. I do not like the word "astronomical" in that connection, in view of some of the predictions that have been made. But in view of the limited time that we have, I will not put those points now because there may be a possibility of putting them later. I am proposing to move the Amendment simply on the ground that I do not think it is clear in what it says. I do not like to sit down without at least one Latintag, which is fiat justitia ruat cœlum. As applied to Acts of Parliament it would mean, I think, not that justice be done even if it brings down the Pope, but let an Act of Parliament say what it means and not what it may be deemed at some future date to mean, even if it meant sending back to another place with an Amendment that Bill which had been sent to us with a clause which was not discussed in Committee in another place. On those grounds I beg to move.

THE LORD CHANCELLOR

I hope on reflection that the noble Viscount will not press this Amendment. I can give the answer to it —I hope he will not think I am discourteous —in a few sentences. I congratulate him of having thought of a situation which most of us I believe had not seriously contemplated. When we had the Second Reading we were talking about a case when the two parties to the marriage were not of opposite sexes and the result would be that there was not the partnership between a man and woman who married competently. The noble Viscount's positive situation is where there is a partnership between the man and the woman, where the presumed wife is a man and the presumed husband is a woman. I do not speculate as to whether that has happened or is likely to happen. I only venture to say to the noble Viscount that he has reckoned without the ingenuity of the Parliamentary draftsman. If the Parliamentary draftsman had wanted to say that marriage should be void on the grounds that the parties were of the same sex he would have said it; but he did use the word "respectively" man and woman in paragraph (c). If you reflect upon the meaning of "respectively male and female" in paragraph (c) I think you will come to the conclusion that it means rather more compendiously exactly what the noble Viscount's Amendment seeks to say.

LORD GARDINER

The noble Viscount, Lord Barrington, need not apologise for having put down this Amendment. Indeed, I am grateful to him because when he raised this somewhat esoteric point at the end of the Second Reading I am afraid that I got the answer to it wrong. I said that I should like to have time to consider it. Having done so, I am of the same opinion as the noble and learned Lord the Lord Chancellor. We all want, in the highly unlikely event adumbrated by the noble Viscount, that the marriage should be void; but I agree with the noble and learned Lord the Lord Chancellor that the word "respectively" must in character have that result. Therefore, I think it has already been covered in the Bill as drafted.

VISCOUNT BARRINGTON

I am grateful to the two noble and learned Lords who have given answers. As a layman, I find it difficult to understand this legal sense of "respectively". I certainly would not question it, though I shall he interested to hear afterwards how it applies in private. Meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

LORD SIMON OF GLAISDALE moved Amendment No. 2: Page 1, line 17, at end insert ("and the court shall not in proceedings commenced after the commencement of this Act pronounce against the validity of any such marriage (whether such marriage takes place before or after the commencement of this Act save by a decree of nullity.")

The noble Lord said: I beg to move Amendment No. 2 standing in my name on the Marshalled List. I think this is a totally uncontroversial Amendment. It is designed merely to ensure that what I conceive to be the purpose of an Amendment that was tabled and carried in another place achieves its purpose. It mainly relates to the matter that your Lordships have just been discussing; namely. paragraph (c) of Clause 1(1), which was the paragraph that was added in another place. So that a marriage is to be void if the parties are not respectively male and female".

The noble and learned Lord the Lord Chancellor defined "marriage" on Second Reading as a contract resulting in a status; and that is of course what it primarily means to lawyers, although it means so much else to every one of us. But it is not only to a lawyer a contract leading to a status —that is to say, the status of the parties as married people enjoying particular rights and having particular burdens in the law —because, although that is its primary legal effect, it can have secondary legal effects which can exist independently of the primary ones. The parties may not succeed owing to some defect in ensuring that the primary legal purpose of the marriage that they enjoy the status of married persons is brought about, and yet the secondary legal purposes and effects may be brought about. For example, their children may be legitimate, and they may have rights and obligations of maintenance the one against the other even though they may not be in the eyes of the law married people.

It is to that situation that this Amendment is directed; because the consequence is that there are four ways in which a marriage can be attacked. It can be said to be non-existent, in which case there are no legal consequences at all. It can be said to be void, which is what this clause deals with, in which case it fails to establish the status of married person in the ostensible spouses; but it may still have secondary legal consequences, particularly rights of maintenance. It may be voidable, which is what the next clause deals with. Or it may be dissoluble, the subject of divorce, if something has happened after the marriage which renders it right in the eyes of the law for it to be terminated.

What we are really concerned with here is the case of the trans-sexual; that is a very sad and tragic circumstance which gives rise on occasions to legal consequences. That sort of union can be attacked in two ways. It can be said to be non-existent, in which case there are no rights of maintenance, or it can be said to be void, in which case, although the parties cannot be man and wife, there may be rights of maintenance. Your Lordships will agree that what is highly undesirable in those circumstances is that there should be manoeuvring at law to see who can get in first: the ostensible husband to have the marriage declared non-existent, as he can do under our laws of procedure, or the "wife" to have the marriage declared void, in which she can still have some rights of maintenance which sometimes it may be equitable should be exercised. It is to ensure that that sort of manoeuvring does not take place that I venture to move this Amendment. It forces the parties to have recourse to a decree of nullity only, and precludes them from having recourse to a declaration of non-existence.

That is the purpose of the Amendment. I am conscious that its drafting may be defective, so if I am told that it is all wrong I shall not be offended, so long as the noble and learned Lord goes on to add that he will accept the point in principle, and put the matter right himself before another stage.

THE LORD CHANCELLOR

I hope the noble and learned Lord on the Cross Benches will not press this Amendment too far. He is quite right in saying that it is much too widely drawn. To begin with, supposing I were to go about saying that I had married the noble Baroness, Lady Summerskill, by special licence in my room last Friday, and there had been some sort of ceremony, she might well wish to get a declaration from the court pronouncing against the validity of the ceremony.

BARONESS SUMMERSKILL

I might not!

THE LORD CHANCELLOR

This would be prevented by my noble and learned friend's Amendment. Equally, if somebody left a legacy to a person described as my wife and then were to die, my real wife might easily complain and ask for a declaration that my alleged marriage to the claimant to the legacy was void. On the wording of this clause, it would be impossible for her to obtain such a declaration.

This matter can be dealt with perfectly easily without an insertion in the statute at all, by either a Practice Direction or a Rule of Court. I agree with my noble and learned friend that it is quite undesirable that those who have a right to nullity should try to go by the other route for a declaration. I think this has already been ruled by Mr. Justice Ormerod in a reported case. If it is not so I will seek to see that the Divorce Division either has a Rule to effect it, or has a Practice Direction to ensure it. In those circumstances I hope that my noble and learned friend will not press his Amendment.

LORD GARDINER

I agree with what the noble and learned Lord the Lord Chancellor has said. I agree with the noble and learned Lord, Lord Simon of Glaisdale, that we ought to stop procedural devices of the kind that he has suggested to get men out of their financial difficulties. But the clause could not possibly stand as it is because it would also apply to third parties. I hope that we shall, with the assistance of the noble and learned Lord the Lord Chancellor, be able to devise a form in which the object of the noble and learned Lord would be achieved, but this could not possibly be applied to third parties. There are cases where after the husband and wife are dead a question arises about who is entitled to the estate. Somebody says that one of the relevant marriages was bigamous, and the court has to inquire into that and come to a decision and make a declaration. Such a court may not be a matrimonial court, and it would be lamentable if different forms of proceedings in nullity had to be started in the family division. I hope that the noble and learned Lord will accept the offer which the noble and learned Lord the Lord Chancellor has made to see whether the object he desires can be achieved in particular by Rules of Court.

LORD SIMON OF GLAISDALE

I am very ready to respond to the invitation that has been made. It is quite true that there is a decision at first instance which takes care of this matter. It would be unwise to leave it there. I doubt if it could be disposed of properly by a Practice Direction. It is undesirable that it should be disposed of by Rule. Therefore I would ask the noble and learned Lord to reconsider this matter before the next stage. I have had serious doubts about the drafting, which has been pointed out by the two noble and learned Lords, and I therefore beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause I agreed to.

Clause 2 [Grounds on which a marriage is voidable]:

7.27 p.m.

LORD SIMON OF GLAISDALE moved Amendment No. 3: Page 2, line 1, leave out paragraph (b).

The noble and learned Lord said: This is an important matter raising matters of principle to which many people attach great importance. In addition, unless this Amendment is carried, what is universally regarded as a major anomaly in the law will be perpetuated. I ventured on Second Reading to draw attention to this matter in fairly general terms. I emphasised, so far as I could, the desirability of logic in the law. I noticed that on another Bill the noble and learned Lord who sits on the Woolsack used a wonderful phrase: "the comprehensive rationality of the law". It is in an endeavour to achieve that that I put down this Amendment. I think he was using the word "comprehensive" not merely in the sense of all-embracing, but that the law should be comprehensible, lucid, understandable and capable of being expounded to students and those who are interested.

What one wants in aiming at law reform is, first, logical cohesion, because anomaly sooner or later leads to injustice. Secondly, lucidity. Thirdly, an absence of anomaly, because anomaly will bring the law into disrepute. What is proposed in the paragraph that I seek to leave out is a major anomaly. It is a matter that arises subsequent to the marriage and is declared to be a ground of nullity. In every other contract, in every other branch of the law, nothing can be a ground for nullity which does not arise at or before the time of the transaction in question. Here, however, we say that something which arises after a marriage shall be a ground for nullity. The absurdity is really more than that, because under the Divorce Reform Act 1939, Section 2(1)(v), wilful refusal to consummate a marriage is also a ground for divorce. And what could be more absurd than to say the same matter can be a ground for nullity and divorce?

If it were only my view against the views of the noble and learned Lord, Lord Gardiner, and the noble and learned Lord who sits on the Woolsack, I should not surrender my judgment to them —because this matter seems to me plain beyond any question —but I should at least defer my judgment to theirs. But this is not a matter which is of my own judgment. As I told your Lordships on Second Reading, this is a matter on which the whole of the Divorce Bench of 17 Judges was unanimous; a majority of the members of the Court of Appeal have sat as Judges of the Divorce Division, and they, too, were unanimous that the provision in the Bill was wrong and ought to be taken out. And my noble and learned friend Lord Hodson, who has unique judicial experience in these matters, was of the same view and indeed has been good enough to put his name to the Amendment. But it is not only lawyers. The Archbishop's Commission on the Church and Nullity of a Marriage was unanimous on this matter; the Royal Commission on Marriage and Divorce, which was a body of very great distinction and thoroughly representative, was also unanimous on it, and so was the Committee that was presided over by the right reverend Prelate the Bishop of Exeter, who also is here this evening, and produced the Report Putting Asunder. That, it seems to me, is a most remarkable unanimity of view on a matter of this kind.

I dealt with some of the general matters on Second Reading. I did not. however, deal with the arguments of the Law Commission. I thought that perhaps I ought to do so at this stage. They are set out in paragraph 27. The noble and learned Lord, Lord Gardiner, read all the arguments out on Second Reading, and I know that your Lordships have extremely important business to transact, so I am not going through them except summarily. But so far as 27(a) is concerned. I would merely point out that it is contradicted by their own paragraph 24(c). So far as their paragraph (b) is concerned. they say that parties would think it strange that the nature of a relief should depend on the court's decision whether non-consummation was due to the respondent's inability or whether it was due to unwillingness. I can only say that I have had frequent experience of trying to explain to clients when nullity is in question or when in the alternative, as often happens, divorce is in question, because what looks at first sight like an incapacity may be an act of desertion; I have never had the slightest difficulty in having that understood and I have no reason at all to think that lay persons coming to the law have any difficulty in appreciating the distinction between nullity and divorce once it is explained to them.

As to (c), which is an obscure point of jurisdiction, I can only say that I asked the officials of the Divorce Registry whether they had known any such case as the Law Commission imagine there, and they said that they had never had any such experience of any such case within any living memory. Indeed, your Lordships in considering the reasons set out by the Law Commission may well be reminded of the famous philosopher Bradley and his definition of "metaphysics", of finding bad reasons for what we believe on instinct. The Law Commission are finding very bad reasons for what they want to do, which is to undermine the three-year rule. That is the rule that was introduced in 1937, which bars divorce within three years. I know that the noble and learned Lord, Lord Gardiner, does not like that very much. I imagine that the Law Commission does not like it very much. I do not like it very much myself, not because I believe that frequent and facile divorce promotes human happiness, but because I do not like humbug in the law.

But that is the fourth ground advanced by the Law Commission, and it is the one that the noble and learned Lord who sits on the Woolsack put forward with great force on Second Reading; namely, that it would be a hardship if the marriage had not been consummated by reason of wilful refusal to consummate, to refuse relief until three years had elapsed, whereas by pretending it is nullity and not divorce immediate relief is obtainable. The first point is that if, as the Law Commission says, it would be a substantial hardship, that is virtually the same as a ground on which the court can already allow a divorce within three years; namely, exceptional hardship. Secondly, the Royal Commission themselves, in recommending that wilful refusal to consummate should be a ground of divorce but no longer a ground for nullity, recommended that it should not be subject to the three-year ban. That could have been done in the Divorce Reform Act; or it can be done in a one-clause Act introduced in this or next Session. It is quite unnecessary to make a monkey of the law by pretending what is a matter of divorce is to be called "nullity" to meet that point.

There is, however, one matter that now arises that I think I should draw to your Lordships' attention, which was not and could not be before the Royal Commission, and that is this. One of the evils which we sometimes find is a spurious marriage in order to obtain British nationality. Nothing would be easier, if this Bill goes through in its present form, than for people to agree to marry and then one of them to refuse to consummate, and immediately relief is available. That is completely new, and it arises from later provisions of the Bill whereby a voidable marriage is valid until it is set aside, so it would be effective to give the wife nationality, and another provision whereby for the first time the collusive nullity —which would of course be by the sort of agreement that I have referred to —is available.

The Committee may well think that, quite apart from the logical rationality of the law, its comprehensive logic, its comprehensibleness it would be a great evil to open the door to the sort of agreements to which I have referred. I beg to move.

7.40 p.m.

THE LORD CHANCELLOR

It gives me real pain to differ from my noble and learned friend. We argued this point out on the Second Reading of the Bill and I am afraid I still remain completely of the same opinion. What I am concerned about is the immediate and serious in justice which would follow if this Amendment were carried. I must tell the Committee that there can be no possibility this Session of a new Bill bringing in some alteration of the three years rule for dissolution, and it could not be tacked to this Bill. Nor can I promise that there would be much chance of it next Session. Therefore, the result would be that a large number of people who ought to be rid of their marriages on the ground of wilful refusal to consummate would be deprived for three years of their remedy. What is much worse, if they had doubt as to whether wilful refusal to consummate was the real reason for non consummation or whether it was impotence —whether general impotence or impotentia quoad hunc or quoad hanc —they would in fact be in a double difficulty, because if they did not take advantage of that ground I have a feeling that they would be barred by the discretionary bar in Clause 2 from asserting one of their new grounds of complaint. I think these alone are reasons for supporting the Law Commission.

I am of course appalled by the enormous unanimity of the judges on the other side. I must, however, point out that the Royal Commission on Divorce in 1912 (the Gorell Commission) took exactly the same view as another place has now taken, that the law has been as it is now proposed for 37 years without, so far as I can see, any kind of tangible disadvantage to anybody at all. I repeat what I said on Second Reading, that serious damage is done if parties are not allowed to plead in the alternative wilful refusal to consummate or impotence, whether, as I have said, general impotence or impotentia quoad hunc or hanc.

I should like to draw this point to the attention of my noble and learned friend. I have had the figures collated. They appear in Appendix B of the Law Commission Report and they dispose of an argument that he put forward on Second Reading. The average number of petitions based on wilful refusal alone was 193; that is to say, cases in which impotence was not alleged, presumably because it was not believed to be the true reason. The number of decrees made on the ground of wilful refusal to consummate was 333. It follows that at least 140 of these decrees must have been made in proceedings where the grounds were presented in the alternative. I know of some judges (I think my noble and learned friend is one) who in these cases nearly always go on the ground of impotence and not on wilful refusal. But this is not universal practice, and not all judges take the same view. The ordinary practitioner and the ordinary client is put in an impossible position in having to opt in advance for which of two alternative proceedings he is going to take. In my view the amount of substantial injustice which is done by this is quite disproportionate to any theoretical advantage which may be gained by tidying up the law.

In conclusion. I must say that I am not persuaded, despite the great weight of ecclesiastical and judicial authority against me, of the anomaly. I think a lot of ordinary people, despite the Latin tag consensus non concubitus facit matrimonium would think that a marriage which was never consummated at all was not a true marriage if in fact one party from the first had withdrawn his consent to consummation. Also, I think that viewing matters from the point of view of reality and not the Bill, most people would think that if from the start —that is to say, from the day of the marriage—one party refused this essential element in what is normally regarded as part of the partnership, any person drawing a reasonable inference of fact would say that that was a state of mind which dated back to the time of the marriage and therefore it would be just one of those things which lie in the realm of nullity and not dissolution. I am quite of the opinion that there is no great anomaly, that the law has worked perfectly well for 37 years; it was based on the finding of the Gorell Commission, it has been supported by another place and to change it now would undoubtedly lead to hardship in the case of many unhappy couples. Despite the enormous weight of judicial authority which my noble and learned friends carry, and the great weight of judicial authority behind it, I hope the Committee will not accept this Amendment.

7.45 p.m.

LORD HODSON

I promise not to detain the Committee long but I feel I ought to add something to what has been said by my noble and learned friend Lord Simon of Glaisdale, for this reason: I think he has overstated my experience in this matter because it is a long time since I sat in the Division over which he has presided with such distinction for so long, and longer still since I practised at the Bar. But in my view there has been some very confused thinking about this question of lawful refusal. During the first War there were cases in which judges pronounced decrees on the grounds of wilful refusal to consummate the marriage, which were reversed on appeal. But medical science has advanced, and was advancing in those days, and by 1924 this House decided —and I rather suspect that the noble and learned Lord the Lord Chancellor, thinks that decision was wrong as well as a great many other decisions —that wilful refusal just does not happen.

I am thinking really of the case of the woman. I am not thinking of the case where there is something which can be diagnosed as vaginismus. There are cases over the years where judges have found that there is an involuntary reaction which is not wilful at all, and it seems to be thoroughly unfair to get rid of the difficulty which has existed in the past (but I do not think it exists now) by saying that it should be a ground of nullity. My noble and learned friend Lord Gardner, for whom I have the profoundest respect—we have been against one another at the Bar in that Division—made an entirely false point in his speech on Second Reading when he talked about the young woman who was in love with her husband and so disappointed that nothing happened when they went to bed together —as if that were a case of wilful refusal. Of course it is not wilful refusal at all. That is a way you prove impotence in a man. If a man is normally formed you cannot prove impotence except by showing that he does not act in the way he is expected to act.

The whole of this trouble has been caused by, I suppose, a reluctance on the part of those who are responsible for the legislation to introduce a new ground of divorce. At one time it was difficult to get through divorce legislation, and presumably they thought the legislation would get through more easily if they made the new ground one of nullity. But for my part I am not satisfied that the reason given by the Law Commission —which is simply that we have got on nicely for 37 years, so why worry —is good enough to prolong and make permanent that position. It is really unfair. I know it is unfashionable to talk about blame, and to apportion blame or praise in a divorce case; one does not do that any more. But there is a distinction between the divorce case and the nullity case. In a divorce case it is quite likely that one person is at fault; in a nullity case nobody is at fault. If a man is impotent he cannot help it, just as one cannot help being illegitimate.

To my mind, there is a real distinction between matters which arise after marriage and used to be called "offences" (I do not know what they are called now) and the actual fact of the marriage itself and whether it ever came into existence. For that reason, whatever the fate of this Amendment may be I felt it my duty to justify my own opinion, or to try to do so, because my noble and learned friend Lord Simon of Glaisdale referred to me on Second Reading, and was afterwards good enough to ask me to support the Amendment. I have not regretted doing so. notwithstanding the stern admonitions which have fallen from my noble and learned friend on the Woolsack to the effect that it is not any good.

7.50 p.m.

THE LORD BISHOP OF EXETER

Although I cannot claim with certainty that what I am about to say represents the unanimous opinion on these Benches, it is certainly the case that for many years now the Church has disliked the anomaly in our marriage law and has hoped that an opportunity would be taken to remove that anomaly; and we deeply regret that the Law Commission and the other place have not taken advantage of this present opportunity. It cannot for one moment be doubted that there always has been a clear distinction between what constitutes a ground of nullity and what constitutes a ground of divorce. There cannot be any doubt that wilful refusal to consummate a marriage is not and cannot be a ground of nullity but must be a ground for divorce. I could scarcely believe my ears when I heard the noble and learned Lord the Lord Chancellor attempting to argue that a wilful refusal to consummate, something which clearly only comes into effect after the marriage, was somehow present at the time when the marriage was contracted.

THE LORD CHANCELLOR

The right reverend Prelate is doing me an injustice. What happens in these cases —and I say this both to him and to the noble and learned Lord. Lord Hodson—is that you get a marriage in which a young man is perhaps persuaded to marry a girl who is pregnant by him and from the word "go" he never intends to sleep with her. That is not impotence; it is wilful refusal to consummate and it is a state of mind which exists from the very start.

THE LORD BISHOP OF EXETER

In that case, would not the noble and learned Lord agree that the grant of nullity is for defective intention and not refusal to consummate? Putting wilful refusal to consummate into the nullity grounds and not divorce grounds is done for the sake of convenience and the ease of petitioners. This one understands. Lawyers of great experience have said that petitioners find it very difficult sometimes to determine whether the non-consummation has been due to incapacity, general or particular, or whether to wilful refusal. It is very important that it should be possible to make the alternative plea, which of course is sound, but the cost of this is the perpetuation of an anomaly.

This anomaly and the inconvenience could both be avoided if the matter were attacked from another angle. I would suggest that our marriage law should continue to include incapacity among the grounds of nullity, but that to the three existing facts which are now in the Divorce Reform Act as prima facie evidence of the breakdown of a marriage there should be added a fourth; namely, failure to consummate the marriage. if that were done it would not be necessary for the petitioner to decide, or even the court to decide, what was the reason of the failure to consummate, whether it was incapacity or wilful refusal. What would matter would be the mere fact of non-consummation. That is fairly easily provable and the court could well take the view that the failure to consummate created an intolerable situation which must be taken into account and would mount up to sufficient evidence of the irretrievable breakdown of marriage.

If something like that were done, then our English law would be brought into line once again with the ancient canon law of Western Christendom and the existing law of the Roman Catholic church on this point, that a marriage which is valid but has not been consummated cannot be annulled but may, for proper reasons, be dissolved; that the bond of such a marriage is capable of dissolution by the mere fact that the marriage has not been consummated. Therefore I should like to support this Amendment and I hope that the two noble and learned Lords will take another look at it to see whether something cannot be done to remove an anomaly which is nonsense and at the same time to provide maximum relief to the parties to these unfortunate marriages.

LORD GARDINER

I am afraid I cannot advise the Committee to accept this Amendment. The first and main point, I think, is the degree to which incapacity and wilful refusal have always gone together, for the simple reason that in so many cases it is quite impossible for anybody to say which it is; and it is about the last thing which a girl, after marrying a man she has fallen in love with and finds he never consummates the marriage, will know. It had been argued that there are cases where there is physical incapacity, but in these cases of what are said to be uncontrollable aversion, who knows whether it, is uncontrollable or not. This, no doubt, explains the fact —and it is this kind of nullity which is much more common than any other, as the Law Commissioner's figures show. These are not for some old state of affairs —this is the average for the years 1964 to 1969. Many people of course petition on both grounds. The judges found incapacity in 349 cases, and wilful refusal —which is said virtually by some not to exist —in 333. Some judges, not knowing really what the truth is, tend to make a decree on the ground of wilful refusal,and some on the ground of incapacity. This shows how much the two things are wrapped together.

Before the Gorell Commission wilful refusal was not a ground either of nullity or of divorce. On the Gorell Commission there was the former President of the Probate Divorce and Admiralty Division as Chairman, the Archbishop of York, the Earl of Derby, Sir William Anderson, Sir Lewis Dibdin, Judge of the Arches Court of Canterbury —this Commission was not without ecclesiastical authority —and a young barrister, Rufus Isaacs. They dealt with it by saying that at that date what the judges in fact did, in finding it impossible to disentangle the two, was to treat wilful refusal as evidence of incapacity. This shows how much the two are mixed up together. They thought it would be better to deal with the thing openly as a separate ground of nullity rather than it should be covered up in that way.

It is true that the Morton Royal Commission tok a different view, but it was a very small part of their inquiry. I can only find in the index one witness who dealt with the subject at all, and that reads: In Section 8(1)(a) of the Matrimonial Causes Act, 1950, a marriage is voidable on the ground that it has not been consummated by reason of the respondent's wilful refusal to consummate it. There is no corresponding provision in Scots law. We recommend that such wilful refusal should be a major ground of divorce, and not of nullity, in both England and Scotland. We consider that the presentation of a petition on this ground should be made art exception to the restriction, in England, on the presentation of petitions for divorce n the first three years of marriage. Refusal to consummate the marriage may be evidence of impotence in the psychological sense, as, for instance, some invincible aversion or repugnance which make consummation impracticable. Such incapacity presumed to exist at the time of the marriage is a non-statutory ground for nullity in both England and Scotland. Wilful refusal, on the other hand, connotes capacity to consummate the marriage but unwillingness to do so. To make this a statutory ground of nullity suggests some confusion of thought. Nullity should be granted for some defect or incapacity existing at the date of the marriage. Wilful refusal is something that happens after the marriage and should therefore be a ground of divorce. Everybody can understand the only thing that there is to be said for this Amendment; it is that it would be more logical, as wilful refusal normally takes place after the marriage, to make it divorce rather than nullity. We can all understand that. The law was changed on the recommendation of the Gorell Commission and in the 35-odd years which have passed since then nobody has produced one single case in which dealing with the law in this way has produced any injustice of any kind to anybody at all.

The reasons given by the Royal Commission were, first, this inter-relation of the two: 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 refuses to consummate 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 evidence before it and it seems unreal that the relief granted to the petitioner for 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. Then they point out that Failure to consummate, whether it be because the respondent is unable or because he is unwilling to have sexual intercourse, deprives the marriage of what is normally regarded as one of its essential purposes. They go on to say that they think The parties would think it odd if the form of relief was entirely different. Then they point out that The jurisdiction in nullity and divorce is not always the same. 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 true grounds of the alternative although he himself might not know which of these was the effective cause preventing consummation of his marriage. And of course the last reason, the one which influenced the other place most, was that one cannot alter the three-year period in this Bill; that this would mean that the girl, in what I always think is a very unfortunate position which really ought to be resolved as soon as possible —and it has always been possible to resolve it at once —would have to wait three years, and nothing in this Bill can be done to alter that.

LORD SIMON OF GLAISDALE

May I ask the noble and learned Lord why he says that it cannot be altered in this Bill? He has already a later clause dealing with divorce in this Bill.

LORD GARDINER

I am advised. and I understand the noble and learned Lord the Lord Chancellor was advised, that the three-year period could not be abolished for this in this Bill. This is a Bill dealing with nullity and not a Bill dealing with divorce. Further, it must be argued that this question whether the Bill ought to be altered in this way has already been considered and rejected by the other place. Of course, it is possible to make an application for leave to present the petition within three years. on the ground that the case is one of exceptional depravity or hardship; but this is no form of depravity, and I apprehend that exceptional hardship means hardship exceptional to the particular case. It would not be possible for the judge to say in every case of wilful refusal, "I am going to find there is exceptional hardship". For those reasons, and very largely for similar reasons put forward by the Solicitor General in the other place, namely, that there is nothing to be said for this at all except the mere logical argument that it happens after the marriage and therefore it ought to be divorce rather than nullity, because the existing law creates no hardship for anyone at all, and because the Royal Commission, the second Royal Commission, the Morton one —in whose view, if I may respectfully say so, no argument by the Archbishop of Canterbury's Committee really dealt with any of the four reasons given by the Law Commission —I respectfully support what the noble and learned Lord, the Lord Chancellor, said in resisting this Amendment, which I hope the noble and learned Lord, Lord Simon of Glaisdale, may not think it necessary to press to a Division.

LORD SIMON OF GLAISDALE

I am a novice in the service of your Lordships' House and I believe your Lordships have nothing so brutal as a guillotine. Nevertheless, I understand that this debate now comes to an end. I am entirely in your Lordships' hands whether I should reply to this debate now or on Friday, and I should be grateful for instruction and direction in that matter.

THE LORD CHANCELLOR

It is, of course, a matter for the noble and learned Lord, but if he were going to reply at length I do not think he could effectively do it now, because of the agreement made through the usual channels. We do not know what is going to happen on Friday. We already have deferred business for it. There is a real danger, I think, that this Bill might be lost. I would try, of course, to force time for it as well as I could, but if the Bill were amended at all it would have to go back to another place, which is in worse condition than we. I hope the noble and learned Lord will make up his mind —recognising that we have not persuaded him to alter it —whether to press this Amendment to a Division because I would ask the Committee to come to a conclusion now.

LORD SIMON OF GLAISDALE

I do not feel that this is treating me entirely fairly. In effect it is depriving me of replying to a debate in which, I hope I shall not be thought impertinent in saying, the arguments produced against the Amendment have not answered the arguments put forward by those who spoke in favour of it. I certainly should not be justified now in infringing the agreement as to time. I would merely say that the points that have been put forward have not been answered, particularly the point about the spurious marriage, the point about the power of the court to give leave to divorce within three years and indeed the possibility of dealing with that in this very Bill, since it does, in fact, in Clause 6(2) deal with divorce as well as nullity. But although I do feel some resentment I should not be justified in keeping your Lordships longer, and I therefore beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

I think the point has been arrived at at which I am compelled to ask that the House do now resume. I do 'so with regret and apologies to my noble and learned friend.

House resumed.