HL Deb 04 July 1975 vol 362 cc551-75

3.15 p.m.

The Earl of SELKIRK

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.—(The Earl of Selkirk.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Alport in the Chair.]

Clause 1 [Irretrievable breakdown of marriage to be sole ground of divorce]:

Lord SIMON of GLAISDALE moved Amendment No. 1: Page 1, line 14, after (" shall ") insert (" not, though ").

The noble and learned Lord said: May I take Amendments Nos. 1 and 2 together. In sneaking to these Amendments I have two apologies to make. One is that an English lawyer is poking his nose into the affairs of Scottish law. My only excuse is that there is a large common area between the English and the Scottish matrimonial law and such judicial experience as I have had has mostly been as a matrimonial judge, as indeed was that of my noble and learned friend Lord Hodson who has been good enough to put his name to the Amendment, but who unfortunately cannot be here today.

I have felt it right to take advantage of the privilege perhaps I might claim thereby because I feel, based on such experience as I have had, that the Bill has an inbuilt bias against wives. The second reason why I have cause to apologise to the Committee is that I could not take part in the Second Reading debate. That was because the date was changed at the last moment; I had arranged to keep clear the original date. I recognise that your Lordships have approved the principle of this Bill, and it would be wrong of me to press any Amendment which would have the effect of wrecking the Bill and undermining the principle which has been approved; nor indeed would I wish to endanger any opportunity of the discussion of this Bill in another place, raising as it does very important issues indeed. I have had an opportunity of speaking to the noble Earl who is in charge of this Bill and I hope that, in view of our discussion, it will be possible for me to raise shortly what I regard as serious issues arising from this Bill without endangering its further prospects.

It is an important Bill. It introduces a new principle into the law of Scotland; namely, that the law should lend its aid to a person who has defaulted on the most solemn of all obligations, for him to take advantage of his own default, even though it causes hardship—and possibly grave hardship—to the person to whom that obligation was owed and who has substantially performed her own reciprocal obligations. It seems to me a pity that a matter of that importance should have to be discussed at this time and at this stage of the Session, although I fully understand the noble Earl's position.

The other matter closely connected with that is that, in my respectful submission, it is principally wives who will suffer from this Bill. Indeed, I think this represents serious potential injustice to married women. When the English Bill, which ran very much on the same lines, was being debated my noble and learned friend Lord Hailsham of Saint Marylebone felt it was unjust to wives, and the feeling was shared by the noble Baroness, Lady Summerskill. The noble Baroness has sent me a message of support today, regretting that she cannot be present. Perhaps I might read a passage from a book which was written after the English Bill passed. It was written by one of the most experienced of all divorce solicitors in London—a man of very great ability—Mr. David Morris. His book was called The End of Marriage, with a punning title. The last words were: I cannot help thinking that the champions of women's rights have been asleep during the last two years and will wake to find that the male has won the last battle in the hundred years' war. It is because I share these fears that I have ventured to table some of these Amendments so that the matter may be considered. The general background to all the Amendments perhaps I might mention. I ventured to mention this when the Inheritance Bill was before your Lordships recently: it is that the upbringing and creation of children for the continuity of society involves a division of co-operative labour between men and women. And the woman, in that division of labour, inevitably suffers an economic disadvantage. It is she who has to bear the child and, as society is organised at the moment, it is she who has the principal task in the rearing of the child during its early years. It is by her assumption of that burden that the man is released to pursue his own economic advantage and, as he is freed by the wife's assumption of her role, to be the breadwinner. As always with a division of co-operative labour, there is a moral obligation on the man to share the loaf with the woman and, indeed, with the children whose upbringing is necessary for the continuity of society. The institution within which those various obligations are worked out is the institution of the family and that, in turn, is created by the institution of marriage.

This Bill is concerned with the termination of the relationship, the termination of the institution of marriage; and what is part of the essence of it is that not only has the wife a moral right to share in the financial reward which the husband is released to gain, but increasingly nowadays part of that reward is postponed in the shape of a pension, increasingly a vocational pension. Anything that deprives a wife, who has substantially performed her own obligation in the marriage, of the pension which her husband has been enabled to earn by her self-sacrifice, she being substantially blameless, is very hard, to say the least, to reconcile with justice. I am bound to say that this Bill seems to me to be better than the equivalent English Bill. Because this Bill allows for the wife to be put at that disadvantage in certain circumstances—a perfectly blameless wife—to see her widow's pension (vocational, not National Insurance) carried away to another woman when she has made the sacrifice to enable that pension to be earned, seems to me to be a matter of injustice.

The first two Amendments that I ventured to table I certainly do not propose to press. They are really designed to show that the irretrievable breakdown which is supposed to be the basis of the new divorce régime is, to put it mildly, a sham. The English matrimonial law has certainly suffered a good deal from humbug, but this is the merest humbug, as one can easily see. It is perfectly easy to put a quite nonsensical word like "abracadabra" in the place of "irretrievable breakdown" and the clause would have no different effect. For example: In an action for divorce the court may grant decree of divorce if, but only if, it is established in accordance with the following provisions of this Act that abracadabra of the marriage has occurred "— and then subsection (2): The abracadabra of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if "— (a), (b), (c) and (d).

As if that were not enough, of course the breakdown of a marriage is not a triable issue. One party has only to say, "I am unwilling to be reconciled" and the marriage has irretrievably broken down. I think the noble Earl has been realistic in not making the irretrievable breakdown of the marriage a triable issue, as it was sought to be made under some of the earlier proposals: Lord Walker's dissent on the Morton Commission and the Bishop of Exeter's Committee in Putting Asunder.

Thirdly, the words "irretrievable breakdown" might have some meaning if the Bill included, or our matrimonial law in England and Scotland extended to, certain attempts at reconciliation. I know that there is a clause in this Bill which purports to deal with reconciliation and it is mentioned in the Long Title, but the only way of seeing whether a marriage has irretrievably broken down is to see whether the parties can be reconciled. I will not detain your Lordships at this hour by expatiating on this theme. It was admirably discussed in the Report of the Committee on One-Parent Families headed by the late Mr. Justice Finer, in which he put forward a scheme for a heirarchy of family courts.

I venture to add that on the model of the Conseil d'EÉtat in France such courts ought to have an administrative side concerned with reconciliation and conciliation if the parties cannot be fully reconciled, and a judicial side to determine those issues with which the administrative conciliatory side has failed to deal. I can well understand the noble Earl saying that what I propose goes beyond the provisions of the Bill. But this Bill does not deal with that. Therefore, for that reason as well, "irretrievable breakdown" is a meaningless phrase.

The fourth reason why it is not real to talk about "irretrievable breakdown" is that by Clause 1(3) the old Scottish law of connivance and condonation has been imported—although there are modifications of that law—whereas in the English Bill, more logically but less justly, in my view, they were not imported. But the fact that condonation of adultery has occurred, the fact that adultery has been connived at—that is to say, there has been consent to it or encouragement of it—has nothing at all to do with the breakdown of a marriage. The marriage may well have irretrievably broken down, notwithstanding that the adultery has been condoned or connived at.

Although this Bill uses the words "irretrievable breakdown"—probably in deference to a trend of intellectual fashion that was potent a few years ago—it restates the grounds of divorce, three of them being modifications of the existing ones; namely, adultery in Clause 1(2)(a); a modification of cruelty in paragraph (b). or virtually what was arrived at by judge-made law in this country in the form of constructive desertion which I do not think is known to the law of Scotland; and desertion in its ordinary sense in paragraph (c). Adding to those traditional matrimonial offences, there is divorce by consent in paragraph (d) and divorce by repudiation in paragraph (e). I venture to suggest that if we are to look realistically at this Bill we should realise that it is that which the Bill does, and that talk of "irretrievable breakdown" has no significance at all when it is analysed. As I have said, I put down these first two Amendments without intending to press them, in order to pave the way by way of introduction for the following Amendments. On that basis, I formally beg to move.


The noble Earl, Lord Selkirk, has known for some time that my noble friend Lord Hughes would for good reason be prevented from being here today. I have to say that a request was made to the noble Earl to move the Committee stage, but he felt unable to do so. In these circumstances. I should make clear that we shall sit with a watching brief during this Committee stage, but that it is not my intention to take any part.

3.40 p.m.

The Earl of SELKIRK

I appreciate what the noble Lord, Lord Strabolgi, has said and I will not go into the reasons why I was reluctant to change the date. I must admit that I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, did not take part in the Second Reading debate on this Bill. We have now had a very interesting Second Reading speech from him. However, although I would not reply to it in detail, there are one or two things he said which are so wide of the mark that I feel it would be a pity they should go out without being at least (shall I say?) criticised to some extent.

First of all, he says there is a bias against women. I would absolutely deny that, for this reason. The purpose of this Bill is to abolish the matrimonial offence, and, so far as I am aware, matrimonial offences are committed about as often by men as by women. I think this is shown by statistics. The financial arrangements following divorce are now open according to the means of the party and according to the needs as seen by the court. That is a very big difference and goes a long way. From what the noble and learned Lord, Lord Stow Hill, said on Second Reading, the experience of England in operating very similar legislation has been that it is working well. I cannot say more than that, but I believe it to be true.

Lord Simon brought up the question of the upbringing of children. The main purpose of this Bill is to maintain those marriages which were working well and to allow those marriages which are not working to disappear in as seemly a way as possible. That is a big change and one generally welcomed on most sides. I do not think it is fair to say that "breakdown" is really meaningless, because it has changed the whole attitude towards what happens after divorce. I believe this can be of far-ranging significance. Of course, where there is no money it is always difficult to make arrangements. But the attitude that the so-called guilty party must always bear the cost has now disappeared completely.

I know that Lord Simon wanted to say these things and it is probably of value that these ideas should be properly put forward. But I think it is right to add that both the Church of England and the Church of Sctoland, which are, after all, deeply concerned with the welfare of their members, agree that the irretrievable breakdown of marriage should be the basis. That they have accepted. What they have found more difficult is what situation of fact should justify it. This is what we are examining on this Bill.

I think the first two Amendments of the noble and learned Lord are unnecessary. As to the provision he read out, the peremptory requirements which are imposed by Amendments Nos. 1 and 2 are, I think, effectively covered by the words degree of divorce if, but only if, it is established …". That provides the peremptory requirement which I believe is intended by the words the noble and learned Lord would insert into subsection (2). I hope he will agree with that. I do not think the Amendment adds anything to what is already in the Bill, and I should be grateful if he would withdraw the Amendment.


I venture to agree with the noble Earl that these words do not really make any difference. As I said, I put down the Amendment in order to point out the unreality of the test of irretrievable breakdown. The noble Earl says that the Bill is to abolish the matrimonial offence. One has only to look at Clause 1(2)(a) to see that the matrimonial offence of adultery is still there. Paragraph (b) certainly subsumes the matrimonial offence of cruelty, and paragraph (c) states the matrimonial offence of desertion. So that however much various groups may have wanted it, and however much this Bill may purport to found a divorce law on the irretrievable breakdown of a marriage, and to get away from the matrimonial offence, it simply does not do that.

As for the bias against married women, the crucial case is the one I mentioned of the vocational pension being carried away from a woman who has performed her matrimonial obligations, to another woman who has found greater favour in her husband's eyes. The noble Earl was justified in saying that to some extent the remarks I ventured to address to your Lordships were Second Reading points. I think he was perfectly fair in making that observation, and that being so the proper thing for me to do is to ask the leave of your Lordships to withdraw this Amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Lord SIMON of GLAISDALE moved Amendment No. 3: Page 1, line 20, leave out (" whether or not ") and insert (" not being ").

The noble and learned Lord said: This is quite a short point. It arises on Clause 1(2)(b) which, at the moment, reads: Since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender; ".

As I ventured to submit to your Lordships, that subsumes the matrimonial offence of cruelty, and in effect states the English matrimonial offence of constructive desertion as it has been developed by the judges.

The words to which this Amendment is directed are in the last line of the first page: … (whether or not as a result of mental abnormality …)".

I recognise that since 1937 in England, and I think since 1938 in Scotland, incurable insanity has been a ground for divorce, and I think it is probably too late now to go back on that. What worries me is that while the promise made at marriage is to take for better, for worse, in sickness and in health ", the Bill goes much further than the present law. What I fear may he the situation is that a woman suffering mental abnormality as a result of the change or life may, to her prejudice, find herself divorced. That is the point to which this Amendment is directed. If the noble Earl can reassure me about that I shall not hesitate to withdraw it.

The Earl of SELKIRK

This clause applies more than any other clause to the matter of an irretrievable breakdown. It has to be established to the court that it is no longer reasonable to expect the parties to cohabit. To some extent, I agree that may involve an inquisition, but if it cannot be accepted that the parties should cohabit, then surely the marriage quite clearly has broken down. The noble and learned Lord has raised the question of mental behaviour. If we accepted his Amendment, any form of mental abnormality would be a complete defence to an action brought under this subsection. I do not really think he can mean that. I do not know whether he wants to go back to incurable insanity.



The Earl of SELKIRK

There are varying degrees. In the first place, cruelty may in a sense be associated with some degree of mental abnormality. That would mean that however cruel a person was he could claim mental abnormality, and that would be a complete defence to any possible action brought against him that the marriage had in fact broken down.


If the noble Earl will forgive me, I do not think that can be right in view of the decision of this House in Williams v. Williams, which I imagine would be accepted in the Scottish courts, too.

The Earl of SELKIRK

I am afraid I am now at a great disadvantage, not having read Williams v. Williams, and not having had anything like the experience in this narrow field of the noble and learned Lord. I do not know whether the effect of Williams v. Williams would be accepted. Speaking virtually as a layman in this matter, I should have thought the words are quite clear, "not being … mental abnormality". If you establish mental abnormality then that is a complete defence. I find it very hard to put any other normal interpretation on those words.

The noble and learned Lord has raised what is undoubtedly a narrow case, that of the woman having change of life. I would think courts would take this very fully into consideration, and that medical evidence on this point could easily be obtained. Perhaps I may remind the noble and learned Lord that these cases are all taken not at the county court but at the Court of Session, before men of really high standing and experience. I do not think they would regard that condition as being something so serious that it would be quite unreasonable to expect someone to put up with it. I think it is a proper point to be borne in mind. I believe it would be quite unusual—or shall I go further and say it would never happen?—that on grounds of this sort an action could be successfully brought.

I admit there must be a certain number of marginal cases of difficulty as to what exactly constitutes this point. One must remember that one party has already said for good or bad reasons that the marriage is at an end, that it is unreasonable for the parties to live together, and there are grounds for assuming that that is so. Those two things have to be established. Then the court has to judge whether they are established. I am told by those who know far better than I that this is a very much better clause to operate than the clause dealing with this aspect in the 1938 Act. That is the view of those who may have to operate this clause. I hope, therefore, the noble and learned Lord will not press this Amendment.


I am very much obliged to the noble Earl for his explanation. I agree with him that the Amendment goes too far. I tabled it in order to draw attention to the specific case of the woman suffering mental abnormality due to change of life. Having done that, I can only hope that the noble Earl is right and that the word "reasonably" will be construed in such a way as to avoid hardship to the married woman in such a situation. I have drawn attention to this matter. The Bill will be considered elsewhere. I feel that I have done all that I can properly do. As I said, I do not want to destroy the chance of this Bill being considered further this Session. In those circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord SIMON of GLAISDALE moved Amendment No. 4: Page 2, line 3, leave out (" cohabit ") and insert (" resume cohabitation ").

The noble and learned Lord said: With this Amendment may I take Amendment No. 5, because Amendment No. 4 is purely a paving Amendment to No. 5. As I ventured to mention to your Lordships, paragraph (b) in effect restates the English law on constructive desertion. In order for the constructive desertion to operate in English law there had to be a period of separation for what was then three years. That gave to the offending spouse a chance to make amends. In a great many cases that it was my duty to try, the marriage had gone astray due to excessive drinking, and it would be perfectly possible for a promise of amends to be made in such a case if the erring spouse could assure the offended spouse that there was a genuine cure.

Another frequent cause of breakdown of marriage that I came across was meanness by the husband about housekeeping money. That sort of case could legitimately drive a wife away, but could legitimately be put right by a properly framed assurance that the wife would have a secure and adequate source of housekeeping money for the future. It was, in other words, to use the technical term, a locus pœnitentiœ, an opportunity to repent. As this paragraph is drawn, there is a danger, it seems to me, that there is no opportunity to repent. I have clearly in mind Clause 2(1), but I do not think that that is adequate. The matter may well turn on a subject on which I must certainly bow to the noble Earl's expertise, as to whether the evidence in Scotland in this sort of situation is assessed at the date of the action being started or at the date of proof. If he can assure me that it is at the date of proof, then I think that gives time for repentance between the time of action brought and the time of proof taken. It is because I was not certain of that that I ventured to put down these Amendments.

3.58 p.m.

The Earl of SELKIRK

I am at a slight disadvantage, because we do not have constructive desertion in Scotland, but I have a vague idea what it means. The difficulty about the Amendment, "resume cohabitation", is that it at least appears to assume that there has been a separation. This may not happen at all. There may be a case of bad behaviour, cruelty, and it may be that the wife cannot leave the husband. It is a serious disadvantage if she cannot leave the husband because she has nowhere to go. If the noble and learned Lord were to insist on resuming cohabitation, she would have to leave the husband before she could bring the action. That is not necessary under this Bill. I think, therefore, that resuming cohabitation is not necessary, and I think it is wrong. The word cohabit "covers everything whether it is cohabiting now or resuming cohabitation in the future.

With regard to the second point which the noble and learned Lord brought forward, I think several points arise. He asked me specifically the position at the moment when the matter comes under the review of the court. The moment is, I am assured—and I believe that it is the common-sense reading of this subsection—the moment of proof. It is not the moment of summons nor the moment when the action took place. It is the time when the proof takes place in court. As I believe the noble Lord is aware, even after the record is closed it can be amended. That means it can be amended right up to the moment when proof takes place. That is the moment when it counts as to whether or not it is reasonable to expect the parties to live together.

The difficulty about a promise is that a promise is really no good. If someone has behaved in a manner which is intolerable and it is not reasonable to expect anyone to live with him or with her, it is no good promising to do better. The answer there would be, as the noble Lord has referred to Clause 2, to continue the case and the power under the clause. That means that the case could be continued indefinitely and, if the promise changes the behaviour, there is ample opportunity for reconciliation. I feel that this meets the point better than putting too much faith in a promise of amendment. There may be many of us in this House who have promised to amend our characters and have failed to do so. This probably happens from time to time in marriage, too. It means that, if the spouse has not only promised but has shown that he has amended his character—he has been to Alcoholics Anonymous or for psychological treatment or has subjected himself to training—that could be established at the time of proof. If it is not established, I do not think a promise is adequate. I feel we must go further than that. Otherwise, one would be compelling the wife to remain with someone who had promised to do better but whose current conduct makes it unreasonable to expect them to live together. I feel that the main point which the noble Lord wants is established: it is at the moment of proof that the conduct is taken under review. I hope that that satisfies the noble Lord.


So far as "promise" is concerned, I agree with the noble Earl. Certainly, the English courts have always taken that as requiring the sort of promise that can be relied on. However, as regards the point on which I wish for assurance, I have been reassured by the noble Earl, namely, that it is the moment of proof, not the moment of action brought, when the conduct will be considered. That gives an opportunity for a promise that can be relied on to be considered both by the spouse and by the court. I am grateful for the assurance given by the noble Earl and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord SIMON of GLAISDALE had given Notice of his intention to move Amendment No. 7: Page 2, line 17, leave out from (" divorce; ") to end of line 21.

The noble and learned Lord said: This Amendment is at the very heart of the Bill and, as I said at the start of the Committee proceedings, I should not think it right, the House having given a Second Reading to the Bill, to move so drastic an Amendment. Therefore I do not intend to move it.

Lord SIMON of GLAISDALE had given Notice of his intention to move Amendment No. 8: Page 2, line 28, leave out (" the ").

The noble and learned Lord said: This Amendment raises a very difficult and technical point on the law of condonation. I do not think it a suitable occasion to move it and I believe that the matter is better left to the court. Therefore I do not intend to move the Amendment.

Lord SIMON of GLAISDALE moved Amendment No. 10:

Page 2, line 28, at end insert— (" ( ) The irretrievable breakdown of a marriage shall not be taken to be established in an action for divorce by reason of subsection (2)(b) of this section if the behaviour mentioned in the said subsection (2)(b) has been condoned by the pursuer's cohabitation with the defender in the knowledge that the defender has behaved in the way alleged or proved.").

The noble and learned Lord said: This Amendment deals with condonation. The Committee will see that Clause 1(3) of this Bill, unlike the English Bill which runs parallel, imports a doctrine of condonation. I imagine that that means the same in Scottish law as it does in English law; namely, a conditional forgiveness, or, more accurately, a conditional remission of a right to complain of an injury, the condition being, that there shall be no repetition of the conduct complained of. It is not limited—certainly so far as the law of England is concerned—to matrimonial law. One finds it in the law of master and servant where, for example, a servant has stolen from the till and the master continues him in service, so that, relying on his services and taking the benefit of them, the master cannot complain.

It is the same in military law which, I apprehend, is Great Britain law, if not United Kingdom law. A military offence can similarly be condoned by the military authorities relying on the continued service of the soldier after they know of his offence.

It is exactly the same in the matrimonial law. It would be unjust to allow a spouse who has been offended to approbate and reprobate, to take advantage of the marriage and then disclaim it. It is for that reason that the law of both England and Scotland has imported the concept of condonation. It is applied to adultery in subsection (3). The proposal of this Amendment is that it should equally apply to the intolerable conduct which is referred to in subsection (2)(b). It already applies both in the law of England and in the law of Scotland to the offence of cruelty, which I venture to point out is subsumed in paragraph (b). For example, if a wife has been guilty of intolerable conduct, but the husband nevertheless continues to live with her and has her domestic services, so that she is prejudiced thereby, it seems to me that the doctrine of condonation ought equally to apply in those circumstances as to where the offence is adultery. I beg to move.


The difference between paragraphs (b) and (a)—which is concerned with adultery—is really quite substantial. Normally, adultery is one act—although there may be more; I cannot say about that—and condonation of that act is quite clear and understood, and absolutely right. But this is an entirely different proposition. We are not dealing with a single act. We are not dealing with one act of cruelty which you can condone or not condone. We are talking about a different situation. We are taking the situation at the time of proof and whether it is reasonable to expect the parties to live together at that moment. There can be no condonation. There is no act to be examined. It is merely whether at that moment it is reasonable to expect people to live together. They cannot condone it, because the moment is there; they can condone it only in the future. There are provisions which enable the case to he continued, if necessary. But I do not think that at that time the word "condonation" would have any meaning at all.

May I take a case in point? Let us suppose that there had been a very bad act of cruelty, and the parties had lived together for some time. It would not be a question of whether or not that act of cruelty had been condoned. It would be a question of whether on a given date, when the case was being heard, it was reasonable for t hem to live together. Whether or not the cruelty had been condoned is, in that sense, quite irrelevant. What matters is whether the conduct would make a marriage wholly vacant and meaningless. In those circumstances, the point which the noble and learned Lord has in mind is met by the point of proof. Condonation is not necessary and indeed, I would say, impossible. I hope this meets the point. It is different from adultery. So I do not think this would add anything to what the court can do, and I believe that the kind of condition which he has in mind is covered.


I am very grateful to the noble Earl, but I am bound to say that I found his answer less than convincing. In this country we have, for a long time, had the task of dealing with conduct that would fall under paragraph (b), and we have had no difficulty in applying the law of condonation to it. Nor, indeed, is an act of cruelty necessarily a single act. It may well be a course of cruelty, and neither the courts in England nor those in Scotland have had any difficulty in applying the law of condonation to those circumstances. I therefore still venture to disagree. It has no kind of meaning in the context of paragraph (b). However, I take the point made by the noble Earl about the word "reasonably" and his assurance that the moment of proof is not the moment when action is brought which is relevant to paragraph (b). That may well take care of my point about condonation and injustice to the wife in the circumstances which I have described. In view of that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord SIMON of GLAISDALE moved Amendment No. 11: Page 2 line 39, leave out (" be bound to ").

The noble and learned Lord said: This and the next Amendment are by far the most important that I venture to table before your Lordships. It deals with divorce by repudiation under paragraph (e) and goes thus far to deal with what I regard as the crucial case of injustice to a wife under this Bill; namely, when the vocational widow's pension which she has enabled the husband to earn is carried away, willy-nilly, to some new wife of the husband to her detriment and impoverishment. The Bill goes only thus far to meet it: … the court shall not be bound to grant decree in that action if in the opinion of the court the grant of decree would result in grave financial hardship to the defender.

I venture to ask why a wife who has done no more than merely cease to find favour in her husband's eyes—possibly because another woman finds greater favour—should be required to suffer any hardship, much less grave hardship. If she suffers any hardship which is less than grave, the court has no discretion at all—it must pronounce a decree of divorce. If it is grave, the court has a discretion, and there has been at least one case in England under the parallel provision where the court pronounced a decree of divorce notwithstanding that it would cause financial hardship to the wife. I think the words in the English Act are "financial or other hardship". The point is exactly the same; in other words, that a formula such as this, a provision such as this, has a built-in injustice to a wife.

I should prefer to take out the words "be bound to" so that where there is grave financial hardship, it is mandatory on the court to refuse a decree of divorce. Alternatively, I should be content (although I should like both) with the next Amendment, to leave out the word "grave". There may be advantages in accepting this Amendment rather than the next because I gather that the Scottish courts, unlike the English courts, are reluctant to exercise discretion. In English law we are very ready to load on to the courts the exercise of a discretion; and judges are ready to assume that, for that is part of their duty. Scottish law, as I understand it, has developed differently. It endeavours to circumscribe narrowly the circumstances in which a court shall be required to exercise a discretion, preferring to proceed by definite rules where the result falls from the given facts found judicially. So I should be content if the noble Earl would accept this Amendment, in which case I would not press the next one. But this is the most important Amendment because it involves a built-in injustice, a potential injustice, to married women. I beg to move.

The Earl of SELKIRK

I am grateful to the noble and learned Lord for not moving out paragraph (e) because that is absolutely fundamental to the Bill. I think I must remind the Committee of the basis upon which the Bill proceeds. It is the support of marriages which have a chance of survival and the decent burial with the minimum of embarrassment, humiliation and bitterness, of those indubitably dead. So far as the ladies are concerned, the noble and learned Lord did not mention that second part which he knows has quite a large rose. At the present time in Scotland (and in England, too, for that matter) the position is very disagreeable for the ladies. This is remedied. I think that his constant reiteration of bitter bias against women is not justified. If the noble and learned Lord were to take out both of these Amendments, that is Nos. 11 and 12, the situation would be that the court should not grant a decree in an action where a case of financial hardship existed.

Since we started the discussion today the noble and learned Lord has constantly repeated the hardship of divorce. I agree with him in believing that no divorce goes through without hardship. But that would mean that the court would have to refuse a decree under paragraph (e) in any case in which hardship was shown. I believe that there are very few divorce cases in which one of the parties does not suffer hardship. To accept the Amendment would in effect virtually make inoperative, or completely wash out, paragraph (e).

I think the noble and learned Lord greatly underestimates how important paragraph (e) is in maintaining what we believe are many illicit but stable marriages. The most recent figures, which I quoted on Second Reading, show that in the first three years of the operation of the English Act 55,000 people took advantage of paragraph (e). I have no particular reason to believe that there are not a substantial number of people who are reluctant to enter into the devious processes which are demanded of divorce. They are scrupulous people and have taken advantage of paragraph (e) to relieve themselves from a bond which is wholly and completely empty. I can see no point in stopping the use of this paragraph. It would be a grave disservice to many people in this country and not promote stable marriages. The noble and learned Lord is not arguing about marriage, he is talking about money.


The noble Earl is doing me an injustice. I did not seek to remove paragraph (e) in Committee; what we are here concerned with is grave financial hardships. It is wrong to make me appear to be only interested in the financial side of the marriage. On the contrary, I regard this Bill as causing general misery; but at the moment we are on the financial question.

The Earl of SELKIRK

If I have done the noble and learned Lord an injustice I willing withdraw my remarks. I obviously had the wrong impression. In this case you have a married couple who have lived apart for five years. I do not know how the woman has lived during that time; presumably she has had alimony of some kind, possibly from the sheriff court or the Court of Session. The act of divorce will make no difference to her so far as that is concerned. Clause 5 of the Bill says that either party to the marriage may ask for financial provision and, in granting that, the court has complete discretion to make any order which it thinks fit, taking into account respective means. Normally what was considered proper as alimony would be considered perfectly proper as financial provision, so there should be no change. I agree that the noble and learned Lord has taken into account certain further and wider considerations. I do not pretend that this is a complete answer. This Bill does not deal with general provisions for husband and wife, because it cannot do so. State pensions would have to be altered in some way to deal with this.


It is for that reason that I confined my observations to vocational pensions. It must meet that point.

The Earl of SELKIRK

If anybody has a large vocational pension, there is no reason why he should not make some provision for his wife. I was taking the State pension because it was important. The only time the lady would suffer would be if her husband died before she was sixty and his executors had no assets. He would be obliged to go on paying her financial provision so long as he lived. At sixty she would get the old age pension. I do not say it is generous, but it is something. There is a gap from the moment he dies without any executory matters and the time she is sixty. There may be difficulties regarding private financial vocational pensions, and there are always difficulties when there are not enough assets. People who make extensive life insurance provision could be made to pass on some of this, either in capital or periodical allowances, to the other party if the court decides that is appropriate. It is fully in their power to make any arrangements that they think fit and proper.

What I suggest should happen is that after five years' separation the husband asks for a divorce. The court can say: "What provision are you making?", because Clause 5 says quite clearly that: Where an application under the foregoing subsection has been made in an action, the court, on granting decree … shall make with respect to the application such order, if any, as it thinks fit …". In other words, when the decree is granted they will see that some provision is made, and I imagine that what is being said is: "If you don't make proper provision you won't get a decree." That is well within the power of the court. There may be cases when people might find it difficult, but I am bound to say that after five years' separation I do not think that they can expect absolute provision for life. That is going too far, when you consider the great number of people who may be able to build up an illicit liaison, an illicit marriage, in which their children can be legitimated—which I think many people consider to be important—as against the comparative few who may be damaged. If you have been apart for five years your marriage has quite clearly broken down, and the court can do no more than make the best possible provision for you.

Here we have two provisions. One is whether or not a decree would be granted if in the opinion of the court the granting of a decree would result in great financial hardship. This would mean that you had a very small measure of discretion for the courts—and I am bound to say that I think they should have some discretion.


Does not the noble Earl think that there would be a discretion in assessing the gravity?

The Earl of SELKIRK

There would be theoretically an objective discretion; the other would be a subjective discretion. There is a distinction between the two, and I do not know which the noble and learned Lord would look at. This is possibly something which might be looked at more closely in the further stages of the Bill. Frankly, at this stage, I should not like to accept either of these Amendments because, as the noble and learned Lord will be aware, a Bill of this sort, which has taken years to mature, is built on a balance and I am not absolutely certain whether these Amendments would throw the balance out somewhat. If the noble and learned Lord were to agree to withdraw these Amendments, I would certainly undertake that they would be brought up for full consideration later, either here or in another place. I am reluctant to appear discourteous to the noble and learned Lord, but I saw these Amendments only at twelve o'clock yesterday morning, and there has been little time—


We only had the Second Reading last Thursday.

The Earl of SELKIRK

The Bill has been before your Lordships for a fortnight and more, and there were 18 Amendments put down in the noble Lord's name just before lunch yesterday. It has not given me as much time as I should like to inform myself fully about them. I welcome the fact that the noble and learned Lord has made these varied points, because it is important that they should he voiced. But I hope he appreciates that I should not like to accept these Amendments without taking a little more than 24 hours for consideration. That is what I should like to make clear.


I confess that I am very disappointed by the noble Earl's reply on this crucial matter. When he is asked, "What did you do in the great sex war. Daddy?", he will be able to say, "In International Women's Year. I brought in a measure so that a woman who had done nothing worse than find disfavour in her husband's eyes could be deprived of her widow's vocational pension, even though it caused her grave financial hardship ". Having said that, I must be content with the noble Earl's offer to consider this matter further, and although he has not gone as far as I would wish I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?


This clause is the essence of the Bill and it has been fully discussed on Second Reading and on the various Amendments today, so I do not propose to detain the Committee on it. However, I just want to say this. The noble Earl has said on several occasions that we are concerned with dead marriages and he has accepted that divorce causes hardship. Why do marriages die? In many cases, it is through the misfortune of the spouses who have looked for felicity with each other and have been disappointed. But a crucial factor is also the support that society gives to a marriage.

It is remarkable how one can find a divorce law, say like the Muslim divorce law, operating quite differently in its incidence in different countries, because the various societies give different support to a marriage. One of the dangers of a Bill of this sort—indeed, of the specific steps we have made to facilitate divorce—is that we are encouraging a decease of marriage. The figures must be looked at and no doubt will be carefully considered. In England, the number of decrees has more than doubled since 1969. In 1969, there were just over 55.000 decrees, whereas the provisional figure for 1974 is 131,500-odd.

Then there is the matter that will undoubtedly have to be considered in another place. I do not ask the noble Earl to answer this, because I have not had an opportunity of giving him notice and I am not sure that I have discovered the right figures myself. But there is the question of the cost of the increased divorces under this Bill. As I have said, the number of English decrees has far more than doubled. and I should think there would have to be an assessment of the cost of this measure in terms of legal aid and payments made by the Supplementary Benefits Commission, to women who are thrown on the community as single parents or who are divorced without means.

So far as I could see, the cost of divorce in this country in 1973–74 was about £6£ million and, undoubtedly, one of the things that would have to be considered is whether the greater cost occasioned by the increased divorces which this Bill sanctions is the first priority, in a time like this, on our payments for social services. The recommendations of the Finer Committee's Report on one-parent families are still unaccepted. Which comes first—an allowance for a ore-parent family or the increased cost of divorce by repudiation? As I say, that will have to be considered in the House which is primarily concerned with finance, but it is not a matter which should go unmentioned.


On the Question, Whether Clause 1 shall stand part—and

apologise again, as did the noble and learned Lord, for intervening in a field of law to which I do not belong—I rise to say that I am very glad that the noble Earl made no concession at all to the noble and learned Lord. He said that he wanted to consider one change that has been proposed by the noble and learned Lord. I hope that he hesitates a very long time before he makes any change at all. I should have thought that Clause I went a long way towards civilising our concept of divorce. Of course, divorce is always sad. Of course, people who enter into the state of marriage hope to gain felicity from it and everybody hopes that they will. But if the marriage bond breaks down and they cannot go on together, for goodness sake let us make their parting civilised and decent and get rid of this archaic, antiquated idea of matrimonial offences. That is what Clause 1 does, and I am very glad that the noble Earl has not agreed to any changes.

Clause 1 agreed to.

Clause 2 [Encouragement of reconciliation]:

On Question, Whether Clause 2 shall stand part of the Bill:

4.37 p.m.


I intervene merely to point out the inadequacy of these provisions, in view of the claim that is made in the Long Title of this Bill. If society is really serious about reconciliation, it will do much more than is done in this clause. I have mentioned already the possibility of having tribunals that are separate from but connected with the courts—a conciliation service attached to the courts which would do something to promote reconciliation. This is good so far as it goes, but it goes almost nowhere. The English Bill has such provisions and other provisions for reconciliation and I am assured that they have been virtually a "dead letter".

Your Lordships may have seen the other day a report of a conference that was presided over by the learned President of the Family Division. That report brought out the utter failure of the reconciliation provisions. It is not true, as the noble Lord, Lord Stow Hill, has claimed, that we have done away with the matrimonial offence. I have already pointed out that it is there in paragraph (a); it is there in paragraph (b); and it is there in paragraph (c). So it is pure fancy to claim that it has been done away with.

They, and all the other provisions of the Bill, make it more than ever necessary, if we are to spare particularly children the misery of divorce, that we should have an adequate reconcilation procedure. I have had to try many cases of this kind, and I was left entirely convinced that children can stand a great deal in the turmoil of a marriage, but that it is the break-up of the marriage that is really disastrous for them. It is at that moment that you find quite dramatically the speech disorders, the bed-wetting and the various failures at school. Therefore, I venture to draw attention to the inadequacy of Clause 2 and to the need to implement the Finer Committee Report on family courts and use them purposely for reconciliation.

The Earl of SELKIRK

I agree with what the noble and learned Lord says about reconciliation. He mentioned what I believe the present President of the Family Division said, but of course failure of recognition only shows how difficult it is. I do not think anyone would deny that an enormous amount of skilled labour is put into this matter—perhaps not enough, but it is exceedingly difficult. I should have thought that the idea of having an adjunct to one of the courts as a reconciliation centre would not be of much use. Once one gets into the courts—


The noble Earl may know that it has been done successfully in some of the American States.

The Earl of SELKIRK

I am grateful for the advice; I do not know. When the noble and learned Lord says that so many divorces take place, and suggests that the divorce laws make this possible, he should remember that divorce rate in Scotland is rising steadily and rapidly under the present law, almost as rapidly as it is in England. What one cannot calculate—and this is what really matters—is whether or not this makes more happy families. That is the purpose of the Bill, and that is what we hope will be the result; but, alas! it can never be presented statistically.

Clause 2 agreed to.

Remaining clauses and Schedules agreed to.

House resumed: Bill reported without Amendment.