HL Deb 18 December 1975 vol 366 cc1605-17

1.8 p.m.

The Earl of SELKIRK

My Lords, I beg to move that this Bill be now read a second time. It has come to my notice that in the course of yesterday the Member for Argyll, Mr. MacCormick, introduced a Bill identical to this in the other place. I have not seen that Bill, nor have I seen the sponsors, but I am informed that they include sponsors from all political Parties in any way concerned with Scotland. I therefore considered whether I should be right in asking your Lordships to proceed any further with this Bill that we have in front of us. I think I am right to do so, for two reasons. One is that in the best constitutional system in the world there are sometimes slips between the cup and the lip and, secondly, I hope that if we continue to support this Bill it will give at least some measure of encouragement if necessary, to the other place to pursue their examination and approval of the Bill.

My Lords, this is the same Bill as was agreed by your Lordships last Session. It is prepared by the Scottish Law Commission. I take this opportunity of thanking the Scottish Office for allowing the Law Commission to assist me in bringing this Bill to your Lordships' House today for a Second Reading. I think in the circumstances, as the Bill has already been approved once by this House, I can be reasonably brief in dealing with the major points with which it is concerned. It has an interesting evolution, starting with Lord Walker's Minority Report in the Royal Commission on Divorce which reported in 1955. Lord Walker was a senator of the College of Justice. The next step, about ten years later, was the Committee appointed by the Archbishop of Canterbury, whose Putting Asunder is a very impressive document. The subject then went to the two Law Commissions both of which reported on divorce, in England and Scotland, it was also further examined by the Social and Moral Welfare Committee of the Church of Scotland in the years 1968 and 1969. I think that by all standards no one can say that these proposals have been rushed through or pushed on with undue speed. This Bill is not identical with any of the proposals in the Reports to which I have referred, but it seeks to put into practical form, the principles which lie behind all of these Reports.

If I may, I will start by simply referring to certain points with which I believe everyone will be in agreement. The first is that the present system is not satisfactory. In the Church of Scotland it is said that it "lends itself to insincerity and dishonesty"; it is, in fact, an accusatorial basis for divorce. I think that everyone would wish to get rid of the matrimonial offence. It is the purpose of all the Reports to which I have referred that it should be replaced by "the irretrievable breakdown of marriage" as the basis upon which divorce should proceed.

A further point that I must make quite clear is that no one wishes there to be divorce by consent. The purpose is to put these broad principles into practical form. Before doing so, I should repeat the words used by both Law Commissions to describe what is the objective: The objectives of a good divorce law should include (a) the support of marriages which have a chance of survival, and (b) the decent burial, with a minimum of embarrassment, humiliation and bitterness, of those which indubitably are dead". This Bill differs in one major respect from the examination by the Church of England of "putting asunder". It does not accept the inquisitorial basis which was there suggested. A moment's reflection will show that that proposal is just not practicable. To call two spouses before any committee or inquiry to explain whether or not their marriage has broken down, and to examine the causes and circumstances, would be the most embarrassing situation to which anybody could possibly be exposed. This Bill does not, therefore, undertake what I believe is both an impossible and an undesirable course and one which is likely to inflame bitterness to the highest degree. It lays down five fact situations which can be taken not necessarily as the effect but not necessarily as the cause that the marriage has irretrievably broken down. May I mention one interesting historical fact. Four centuries ago Archbishop Cranmer put forward in a Bill proposals which are not very dissimilar from the five fact situations to which I shall refer. It is interesting that human nature has not changed all that much.

The five fact situations are, first, adultery. It may be taken that one case of adultery is not adequate to show that a marriage has irretrievably broken down. At the very lowest, it indicates that one of the parties thinks that the marriage has broken down and has brought a court action; further that the other party has shown rather less than full devotion to that marriage by his actions. Perhaps more important, are you to take one case of adultery or are you to take two cases, three cases, or one a year, or an adulterous disposition? All of these propositions are quite unrealistic.

My third point is that there is ample provision, particularly in Clause 2 to which I shall refer, for postponing the application of condonation. That is to say, there is ample opportunity for the parties to cohabit together again for periods of up to three months, and in some circumstances up to six months, to find out whether they can live together without extinguishing the evidence of "break down" by condonation. That in itself makes the single act of adultery justified in the circumstances.

The second fact situation is cruelty. This will cover generally the reasonableness of the parties being able to live together. The important point is that the proof of whether or not it is reasonable for the parties to live together is at the moment when the action takes place. It is whether in the eyes of the court it is reasonable to expect the parties to live together in future.

The third fact situation is desertion. This is very similar to the present law, except that it is for a period of two years instead of three. Again very wide latitude is given for cohabitation without bringing in the implications of condonation. The fourth fact situation is separation for two years by agreement. In this case there is an alteration from the Bill that we discussed last Session. The court can lay down by act, of sederunt, precisely how that agreement can be made. The reason why this is necessary is that in actions of "status" evidence is required to be given orally.

The fifth fact situation is five years' separation. Five years' separation can afford grounds for divorce without consent. It is very hard to demonstrate that people who have lived apart for five years continue to have a marriage which has any real meaning. It is sometimes argued that this raises acute financial problems. There is some justification for saying that any marriage in difficulties raises acute financial problems, for the simple reason that few people can afford to keep two homes going. However, these problems are essentially financial ones and I suggest that within the limits of a Divorce Bill this Bill does all that it can to rectify this position as sensibly as possible.

First, the financial arrangements do not depend upon what the parties have done, but the judge is free to make any arrangement which in the circumstances he thinks is most satisfactory. The trouble is that in many marriages there are no funds available to make an arrangement which can be regarded as wholly satisfactory. Therefore it depends to a considerable degree on the social security arrangements. This is a matter which cannot be dealt with in this Bill but which I know is being looked at, and it must, I am afraid, be left on that basis.

One point that is referred to always on these occasions is reconciliation. May I say a word about this subject because, unlike the Act in England, there is no obligation to ask clients whether or not any attempt at reconciliation has taken place. The reason is that it is thought to be useless. Reconciliation is a very difficult subject. Clause 2 makes ample provision for opportunities for reconciliation: during the hearing, after adultery, after desertion, during periods of separation. These can be taken without any danger of condonation. I myself do not think that Clause 2 can possibly go any further. Equally, I do not know whether it will work and I am quite certain that we shall never know, for the reason that when it succeeds we shall hear nothing about it.

Perhaps more important than that is marriage guidance, and a great deal is being done. Again it is not a subject upon which statistically any degree of success can necessarily be outlined. However, the Scottish Marriage Guidance Council has 15 social councils and 168 counsellors, and they had about 2,500 clients last year. The Scottish Catholic Marriage Advisory Council have 7 centres and 74 counsellors, and they gave nearly 700 interviews last year. There is also the citizens' advice bureaux which gave 17,000 interviews last year, and of these I believe about one-third dealt with matrimonial subjects. This shows that a good deal of work is being done, and from my own experience, not least in the Armed Forces, I believe that there are many people who from time to time like to discuss their marital problems with people who are wholly unconnected with them.

There are three small matters regarding which there is a change in this Bill from that which was discussed last Session. I have referred to the first already: the manner in which consent can be given after two years' separation. The second is the abolition of the oath of calumny. This follows from certain comments made by my noble and learned brother, Lord Fraser, who thought that this was quite unnecessary. This is agreed. Thirdly, it has been decided that it is no longer necessary to make in this Bill any special provision in respect of children. That matter is already fully covered by the Conjugal Rights Act 1861 and the Act of 1859, besides the normal legal rights, including legitim, which still exist.

The purpose of this Bill is not to make divorce easier but to make the forms of divorce in line with the significance of the institution of marriage. A change is wanted. I believe urgently, by the people in Scotland. It is accepted by a large number of people—the Church, the Law Society, the Commission—as being the wisest lines on which to proceed. There is also an argument that it is undesirable that the procedures for divorce in England and Scotland should be too wide apart. There was a time when people went to Scotland to get married; now they come from Scotland to England in order to get divorced and I do not think that is a very happy situation.

There is one matter which has been raised to which I should like to refer shortly, and that is whether or not the Bill is right in confining actions for divorce to the Court of Session. Some people would like to have it moved up to the sheriff court. This point was carefully examined by the late Lord Grant, whose tragic death occurred a few years ago at the time when he was Lord Justice Clerk. He was head of the Commission on the sheriff court and he examined carefully the implications of bringing divorce cases out of the Court of Session and into the sheriff court—Sections 103 to 115. He went into the argument in great detail; he had a strong Committee and they were unanimous that this should remain in the Court of Session; not least, he said, because the cost would not be materially different. I will not go into the reasons, but I can add today that there are further substantial reasons.

We are now proposing to introduce considerable changes in the law of divorce—by far the biggest changes to have taken place since the time of the Reformation. It is important that the interpretation of this Bill should be sound and uniform in its character. After all, marriage is the most important social relationship that anyone can have and it is important that its status should be maintained. I know there is a large number of undefended divorce cases but that does not mean that they are not important; particularly because undefended cases cannot be appealed. Moreover, I feel it is important that this Bill should have the minimum controversial content. The Bill affects every home in the country, and it is important that it should go forward in widely agreed form. It is not possible ever to say that the divorce law is wholly satisfactory. Divorce is seeking to repair what is broken. These are proposals which will be warmly welcomed by the people of Scotland. I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Earl of Selkirk.)

1.23 p.m.


My Lords, I wish to intervene only briefly in this debate. The noble Earl has outlined with great clarity the purpose and content of his Bill. This enables me to say that the Government are in general sympathy with the principles of the Bill. The Government are, of course, aware that there is considerable pressure for reform of the divorce laws of Scotland. And that the Bill will probably be given a favourable reception by your Lordships, and this, I am sure, reflects a wide range of opinion in Scotland. But the Government also recognise that the subject of the reform of the divorce laws of Scotland raises complex social and moral questions to which there are often strongly opposing answers. While the present divorce laws may operate harshly in individual cases, who believe that any easing of the requirements for a divorce constitutes a weakening of the marriage bond. The Government therefore take the view that any account has also to be taken of the genuine doubts and objections of those proposals to reform this sensitive area of the law should be sponsored by a Private Member in the other place, as indeed is now the case, and that such a Member must endeavour to attract the support of his fellow Members there.

The Government hope, however, that your Lordships' House will indicate its sympathetic consideration for the proposals embodied in the Bill by giving it a Second Reading.

1.25 p.m.


My Lords, I should first like to congratulate my noble friend Lord Selkirk upon his persistence in having introduced again so early in this Session a Bill in almost the same form as the one we discussed in your Lordships' House in the summer. Therefore I can be fairly brief in my remarks upon it on this occasion. Time was not available in another place for that previous Bill and so it died, but it has been pointed out—and the noble Lord the Minister of State has just done so—that a Private Member in another place has decided to introduce a Bill which I understand is in the same terms as the Bill which we have before us. As that private Member came fourth in the ballot he will get a full day's Second Reading debate, and I was glad to see that yesterday that date was chosen as 27th February, because it is only the first six in the draw in another place who are able to get a full day's debate.

Not only does a Bill in another place have to attract a majority of those voting, but also there is the matter of those who may wish to continue speaking at 4 o'clock on the Friday and the need for there to be enough Members in favour of the Bill—at least 100—to ensure that a Division is taken on the Second Reading.. Those are the main obstacles facing the Bill in another place to which I thought I should draw your Lordships' attention, although I see some noble Lords here who are very familiar with the procedure in another place. That means it is important that this Bill in this House should continue its passage in case there is some procedural problem in another place.

There are strongly held personal views against anything which appears to make divorce easier, and indeed there are strongly held views against the concept of divorce at all. These I respect, as I am sure do all your Lordships—the views of those who are against any measure of this kind. As the noble Lord, Lord Kirkhill, has said for the Government, this is a subject which the Front Benches normally leave to individuals to take decisions on. My noble friend has reminded us that this Bill is based on the Scottish Law Commission's recommendations and has considerable support in Scotland. A large majority of the legal profession certainly seem to be in favour of it and the noble and learned Lords, Lord Kilbrandon and Lord Fraser of Tullybelton, supported the Bill when it had a Second Reading in the summer.

The question that has to be considered is whether a marriage is completely dead. If it is, should that be recognised as a ground for divorce? As the law now stands, there are people whose marriages have been dead for years, but because they have no wish to resort to the grounds which today in Scotland would warrant divorce often involving pain and distress for other persons, they do not go to the divorce court. This Bill retains adultery and desertion as grounds, but, as my noble friend has pointed out, the far more important (in future) ground is introduced, and that is virtually whether the marriage is dead. While the Bill would have the effect of officially terminating some marriages which are completely dead anyway, I note that most lawyers in Scotland do not regard it as a Bill which would make divorce easier in the future. Divorce is available now for married couples who are prepared to invoke the grounds now existing and to take the action which will provide the necessary evidence. The aim of the Bill, as I see it, is to rationalise the present arrangements and also to reduce the resort to shabby expedients in order to obtain divorce.

My Lords, the noble and learned Lord, Lord Kilbrandon, when he spoke on Second Reading, referred to what he described as a pilot scheme which has been operating quite successfully South of the Border in recent years. In making reference to the change in the law in England and Wales that took place some five or six years ago, I would point out that there have been anomalies and very distressing problems where the problems of dead marriages extend across the Border, and also where there is residence in both England and Scotland because the law is different in England and Scotland. This has caused a considerable amount of difficulty and distress in recent years, arising when cases of divorce affect both England and Scotland, as the laws are at present very different. I must say personally that I support the Bill, but, speaking from this Front Bench, I think I have already made it clear that this is a matter which we leave to individuals to decide upon for themselves. But we welcome the fact that there is this opportunity, provided by my noble friend, to consider this important matter, and for a decision eventually to be taken.

1.32 p.m.


My Lords, I rise briefly to speak in support of this Bill and to congratulate the noble Earl, Lord Selkirk, in bringing it forward once again. It is a civilised and practical Bill which is much needed in Scotland. I should also like to congratulate the noble Earl on bringing forward this Bill in parallel with that being brought forward in the other place. A two-pronged attack is essential, because in the other place procedural devices have been used to block various attempts to get the Bill through. The noble Lord, Lord Campbell of Croy, pointed out that there are still further procedural devices which can be used by individuals to block the Bill. Therefore I think the wisdom of bringing it forward in this House for its approval, and possibly as another prong in the attack, is right and proper.

It is also a proper use of your Lordships' House to bring forward a Bill such as this, and to facilitate the passing of a law which will alleviate a great deal of genuine suffering in Scotland. It will enable a large number of decent people to avoid going through a degrading form of deceit in order to escape from the deterioration of a marriage which has become what A. P. Herbert described as "Holy deadlock". This is entirely non-political, but I think I may say that I do not know of any of my colleagues in either House who does not support this excellent measure. I thank the noble Earl for bringing it forward.

1.34 p.m.


My Lords, I do not feel I can assist your Lordships beyond making one or two extremely brief observations. When this matter was before the House in the summer, the only reason I ventured to intervene was that it occurred to me—and I think I may say this to the noble Earl, Lord Selkirk, who has introduced this measure—that it might be of some help to have the experience of the working of the English Act which was passed some time ago and in the passing of which I took some part myself.

My Lords, I intervene really to say that I am so wholly in agreement with everything that has been said this after noon that there is nothing that I can add to it. Personally speaking, I have always taken the view of the English Act—and I now take it of the Scottish Bill—that the basic situation is that there is this sacred relationship into which a grown-up man and a grown-up woman have entered. They arc no better or worse than the rest of us; they pin so much hope upon it, and expect it will produce so much happiness and witness in their afterlife. It founders; it crashes; and they have met with a personal and emotional disaster. What should be done?

I am passionately convinced that the old idea of a matrimonial offence, not so very far from the concept of a criminal offence, is a procedure which is utterly inappropriate to deal with a situation I have just ventured to describe. This relationship has foundered. Surely to goodness it should be terminated in dignity, causing as little pain as possible, subjecting parents to as little ill advertisement as possible in the eyes of children, relatives and friends—particularly children. Approaching it from that point of view, I have myself always thought that the most significant provisions of the English Act—and as they will now, I hope, become of the Scottish Act—are the provisions which enable divorce to be obtained by consent after two years' separation, and the further provision that a marriage can be put to an end without consent after five years' separation. It seems to me that that is sensible, civilised and dignified.

My Lords, if two people such as I have described, have passed through the experience which I have ventured to adumbrate, come to the conclusion, having been separated for two years so that there is really no doubt whatever left in their minds that the relationship is at an end, decide by consent to terminate it by going to court, it seems to me that that is exactly what should happen. Having said that. I can only join fervently in the hope that has already been expressed by a number of your Lord ships, that this Bill will find its way successfully onto the Statute Book.

Baroness WHITE

My Lords, I should just like to say a word of encouragment to the noble Earl, Lord Selkirk, and to wish his Bill a fair wind. In 1951 I introduced a divorce law reform Bill into the House of Commons. I survived the first hazards, obtaining an overwhelming Second Reading; but it was a period of acute political blackmail, and we had to accept in the result a Royal Commission, which was so much divided in its opinion that it gave no firm leadership whatsoever. It took a very long time before others in another place ultimately obtained the reforms affecting England and Wales which are now on the Statute Book.

When I first studied the matter, I found that in some respects the law in Scotland was more progressive than that in England and Wales. It is only in more recent years that Scottish law seems to have slipped behind. Therefore, I hope that either the noble Earl, Lord Selkirk, or his partner in the other place will be successful in obtaining the necessary reforms in Scotland. Divorce is never lightly entered into. Perhaps some times it creates more problems than it solves. Nevertheless, the way should be open, I believe, for recourse to the law, perhaps in the Bill which is before your Lordships today.


My Lords, I, too, should like to intervene. I just want to stand up and be counted, and to say, as a Scot and one who has no intention whatsoever of recourse to this Bill, that I think it will remove the pretty shameful state of affairs and the whole of the hypocritical situation which exists. Speaking as an old court reporter, the humiliation of the device of coming into court and pleading what is manifestly, in the case of adultery, a fake, a frame-up and all the rest of it, is one of the things that I find is an indignity to the law and an indignity to human beings. I wish the noble Earl's Bill the very best of progress.


My Lords, may I intervene with one sentence. I divorced by first husband in 1937. If the law had been as it is today, I would have married my second husband, Hugh Gait-skell, at least three or four years earlier. The divorce proceedings at that time—and it is not so very long ago—were utterly shameful and disgraceful. I give a great welcome to the noble Earl's Bill.

1.41 p.m.

The Earl of SELKIRK

My Lords, may I thank noble Lords very warmly for the support they have given to this Bill. I appreciate Lord Kirkhill's position; he wishes to stand well on the side lines. I hope however he will at least give some gentle weight on the subject of time, if conceivably that does arise. A little help from the Government is of enormous value, without necessarily corn-miffing their souls to one side or the other of the argument.

I am so glad Lord Campbell made the point that the Bill is not intended in any way to make divorce easier. This is not the purpose. But, frankly, if people want to marry and cannot marry, then the institution of marriage becomes less respected. This really is the basis on which I should like to think we are proceeding. I am very glad Lady White was able to say something. She speaks with great advantage over the Gorell Report: it took 25 years for anything to emerge from the Gorell Report, and only 18 from her own examination of the Bill in 1951; so at least that shows we are making some kind of progress. I should like to thank the noble Lords, Lord Ritchie-Calder and Lord Mackie, for their support; and it is always of value to hear the opinion of the noble Lord, Lord Stow Hill, who raises the point that this slight connection between guilt in marriage and guilt in crime is really ludicrous. I hope we will get rid of it once and for all.

On Question, Bill read 2a, and committed to a Committee of the Whole House.