HL Deb 26 June 1975 vol 361 cc1650-78

7.27 p.m.

The EARL of SELKIRK

My Lords, I beg to move that the Divorce (Scotland) Bill be read a second time. At this hour, I will seek to put, as briefly and as clearly as I can, the essential points to which I want to draw the attention of the House. I should say that I have not devoted my life to the study of divorce and I have not especially raised this because the Viner Report suggests that some reform should be made, nor that the Lord Advocate recently said that the matter of battered wives could be helped by some sort of reform. I have done it because I think a reform is now urgently necessary.

Perhaps I may give one example of what I have in mind. If at the present time a married couple live apart and have no desire to live together, they have no means at all of dissolving that marriage unless they are prepared to commit a matrimonial offence. They may be scrupulous people and, as Lord Morton said 20 years ago, The law is weighted in favour of unscrupulous people. They can, of course, commit an offence with all the hypocrisy that means, with perhaps the degradation and all the temptation of committing perjury. To have to do that in connection with perhaps the most sacred union that man can enter into is I think most undesirable. As my noble and learned brother Lord Kilbranden said in his Report on Grounds to Consider he did not believe that such a law could serve any purpose useful to society. My Lords, it is more than that.

We have had this Report, Grounds to Consider, for eight years now and I feel very sad that Parliament has not been more sensitive to the points which it made with such prescience and such clarity, also because I believe that informed opinion in Scotland is very nearly unanimous that reforms on these lines are necessary. For example, take this Bill: a very similar Bill was introduced into the other place earlier this year and was supported by representatives of all three major Parties, and I have every reason to believe that it will receive similar support if we are able to pass this Bill on to the other place. Any personal communications which I have had have all been on the lines that the matter should be urged on with all possible speed.

The Church of Scotland have very naturally given this matter very close consideration. They accept that the civil power has the right to dissolve marriages, though I must admit that in 1560 after the Reformation I very much suspect that the Church took an extremely powerful part in insisting that adultery and desertion should be grounds for divorce. That is what gave Scotland her power of divorce through the law courts and not through Act of Parliament, as was the case in England until halfway through the last century.

The Church of Scotland have examined this very closely. They have submitted certain proposals to the presbyteries for further examination. It is fair to say that the great majority of those presbyteries agreed that reform was essential. What was not so clear—and this was six years ago—was the form this reform should take. I am not saying that this Bill is exactly in line with what the Church of Scotland would desire. Indeed, nobody can speak for the Church except the General Synod, and their views on this were expressed some six years ago. But the Law Society is virtually unanimous in supporting this Bill. There are a very small number who, for reasons of principle which are readily understood, would not agree. However, I think that the views of the Law Society are those of people who share knowledge of the details of human problems day in and day out. They know how the system works, and whatever anybody says, it is of the greatest importance that their views should be fully taken into account.

This whole subject has been a matter of very extensive examination over some 20 years from the time of the Monton Report and the reports of the English and Scottish Law Commissions. There have been debates in this House, and we have had several years' experience of how a very similar Bill operates in England. I very much hope that the noble Lord, Lord Stow Hill, will be able to say something about how he sees the operation of this Act in England at the present time.

In a very large number of places throughout the world, divorce is based on principles not wholly dissimilar to those which are incorporated in this Bill. This is certainly true of New Zealand and Australia—a very radical Act has recently been passed there. Holden, in considering the influence of Scots on divorce in Commonwealth countries, remarked that the Scots have a liberal tradition on divorce, which had played a very considerable part. Canada now gives separation as one of the grounds for divorce; and the English model, which was passed in 1969, has now been substantially reproduced in Nigeria, Jamaica, Trinidad, Tobago, Hong Kong and St. Lucia. Therefore. I think one has to say that probably in the whole English-speaking world today Scotland stands less in tune than any other part of the community with what one might call modern thought on this subject. Slightly similar measures have also been passed in France, Germany and the United States of America.

May I take a moment to explain roughly the position in Scotland. The divorce rate has been increasing rapidly: in fact, it has increased a hundred-fold from what it was 100 years ago. Between 1964 and 1973 the divorce rate has increased from 1 in 16 to 1 in 6; that was the figure for 1973, and that is the latest figure I have. It is quite true that we live longer, but the decisive factor is probably the much younger age of marriage. Indeed, if one compares the figures for 1938, when two-thirds of the population married over the age of 24, with those of today, one finds that two-thirds of the population now marry below the age of 24. This applies particularly to men rather than to women.

The general indications are that divorce takes place most frequently at a comparatively young age—certainly under the age of 35. It is also interesting to note that the number of live illegitimate births since the end of the 19th century has actually decreased. Of course, the population has also decreased, and viewed from a percentage angle there is a slight increase of something between 7 to 8½ per cent. But there is an interesting indication that on the whole no less importance is being attached to the institution of marriage. For that reason, I think we should make it something which corresponds to the views held by the public today.

This Bill has been drawn up by the Scottish Law Commission and I believe the principles behind it are admirably expressed by words used by both the Scottish and the English Law Commissions. I will quote them: 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 are indubitably dead. These are the purposes which I have sought to achieve in the proposals I make before the House now. Two points come out of them: one is the endeavour to get rid of the matrimonial offence as a matter of guilt; the second is to make an irretrievable breakdown the basis for the dissolution of marriage. Stated like that, this presents a very real difficulty. If I may say so, I believe the Church of Scotland fully accept me proposition, but what they are not so clear about is how it should be put into operation. Something similar was mentioned in the Archbishop's Committee as "putting asunder". If you leave it like that, simply that the irretrievable breakdown of a marriage is a ground for divorce, you are getting very close to divorce by consent, and this is something with which I think most people would be very unwilling to agree. Other difficulties also arise, and these are dealt with under the heading of "Grounds Considered ". If one person behaves intolerably in a marriage and then brings evidence that the marriage is going badly, he may be able to show that the marriage has broken down, while his partner—perhaps the innocent victim of his intolerable conduct—would be divorced against her will. Therefore, a man might be benefiting by his own bad conduct. I think this is a possible danger if divorce based on a irretrievable breakdown is left by itself.

There is another objection mentioned in the Report, which is that the courts would need to hold a very close examination of the relations between the two parties—a sort of inquisition; the sort of inquisition, indeed, that the Scottish Report calls, "one of the most unpleasant and antisocial forms of litigation ". They would have to study why certain disagreements have been taken up. I think we all know that many disagreements are merely the result of a deeper concern and unhappiness. This is highly undesirable and I would say it is extremely unfair to place the duty on the courts. We have therefore to set up certain scaffolding (shall I call it?), certain fact situations, on which the court can judge that the marriage has broken down. That is what is laid down in Clause 1(2). These provisions are very similar indeed to those which have been agreed to in England—adultery, unreasonable behaviour, which includes cruelty, desertion, two years' separation with consent, five years' separation without consent.

I should like to return to those particular points and examine them more closely but in the meantime go through the remainder of the Bill to see how it stands. The first point I would make quite clear is that because irretrievable breakdown is the basis of divorce, there is no distinction between the position of pursuer and defender so far as financial arrangements are concerned. The whole circumstances are under review and the judge has power to make such award as seems to him fit and proper. Either the pursuer or defender can apply for such financial assistance.

If I may go through the clauses, I would refer to Clause 2 which deals with reconciliation. This is an extremely important clause. To some extent it is already in existence and to some extent what exists is extended. I will go through the clauses because it is important to deal with this whole matter. Clause 1 allows the court to continue any case where they think any useful purpose can be served. During that continuation if cohabitation takes place no notice will be taken of it from the point of view of condonation or any other purpose. Clause 2 makes it possible to allow three months of cohabitation after an act of adultery, which would not be considered as condonation. Clause 3 enables a three months' period of cohabitation to take place after two years of desertion have been completed; that is to say, grounds for divorce based on desertion has already been achieved but the parties can cohabit together without the defence of condonation being available.

Clause 4 deals with desertion, the two year period and the five year period. During any of that period six months of cohabitation will be disregarded completely in regard to calculating the period of non-cohabitation or separation. To my mind there is a very broad avail- ability for reconciliation. Of course, one must say that if reconciliation is to take place, the sooner it does so the better. One should pay respect to what is done by the Marriage Guidance Council in Scotland, and indeed by others. I think in 1973 they had 7,500 interviews on marriage subjects. I cannot say how successful they were, but it would be quite right to pay tribute to the active part they play with regard to a vital element in this Bill.

Clauses 3 and 4 restate the grounds of separation. Grounds of separation will in future be similar to those of divorce, except that instead of an irretrievable breakdown it will be said to be grounds justifying separation. Under Clause 3, decree of divorce can follow that of separation by an extract decree on which the separation was given. Clause 5 deals with financial division. There is no basic change here, except that the courts are given ample power to fulfil any requirement which is fit and proper at the time of divorce. Clause 6 deals with gratuitous alienation of property to defeat an order of the court. Clause 7 gives the circumstances in which aliment can be paid during a period of desertion. It is fair to say that the remaining clauses are largely technical.

May I now return to Clause 1, which is to say the first of the evidential fact situations which would justify grounds of irretrievable breakdown. This is regarded with the other five clauses as a presumption which cannot be rebutted—that the marriage has broken down irretrievably. It may be argued that one act of adultery, as under paragraph (a) of subsection (2), is inadequate to justify the view that the marriage has broken down. One must consider first of all the points on reconciliation to which I have referred, and secondly that there is no assurance of any financial award at all according to who is the pursuer and who is the defender. But I would add that anything which loosens the bond of marriage as such would be very regrettable. One may be permissive of course outside marriage, but to be permissive within marriage seems to me to present an entirely different proposition. When one views the alternative one is faced with something like an adulterous disposition or possibly a quota system under which so many events could be allowed to take place in a given time.

My own view is that, to many people, when an act of adultery has taken place—I admit it varies from person to person—the situation can never be quite the same again. Therefore, it would be wrong in any way to give up the position that an act of adultery would constitute adequate grounds to assume that the marriage has broken down. It is of course quite true, as Lord Morton said, that in a great many cases adultery is forgiven or at least overlooked. The next point is reasonable behaviour. This covers the major acts which were put into the 1938 Act—, cruelty, insanity, sodomy, bestiality—and I think it is fair to say that where it is unreasonable to expect two people to live together the marriage may be said to have broken down.

Paragraph (c) concerns desertion. This is very much as it was before although modified and simplified. I think that where desertion has taken place it is fairly clear that the marriage is not likely to subsist. Paragraph (d) deals with separation for two years with consent. This is the basis on which we were told that the majority of cases in future would proceed. I hope this indeed will be the case. It requires consent and by act of severance the Court of Session will insist that any pursuer will explain how that consent can be given to the defender when the action is raised.

There will always be a certain amount of doubt about paragraph (e), the fifth ground; that is five years' separation without consent. I would remind your Lordships of the provisions about reconciliation. I would also call attention to the saving clause, which means that the divorce can be refused if grave financial hardship takes place. But what is perhaps the most striking point is what has happened in England in this connection. When the noble and learned Lord, Lord Stow Hill, moved the Second Reading (I think it was) of the English Bill he said he thought that something like 5,000 cases a year might be made under the five-year plan. The actual figures of the first three years show that more people were divorced under the five-year plan than under the two-year plan. In 1972 the figure rose to over 22,000.

This has borne out a view which is very widely held, that there is a considerable number of people living together who are waiting for this clause in order to regularise their perhaps illicit union. I do not know whether or not this will be true about Scotland. I am informed that it is likely to be true and that there is a large number of people waiting for this clause so as to be able to take advantage of it and also to take advantage of something which is very important. It will enable them to legitimise any children which may have been the fruit of this illicit union. In itself this may be a material factor in building up a stable union and a firm background. Views have been expressed in the Church of Scotland that five years is too long a period—that it ought to be two or three years. I am not saying that this is their view but that this is the view which has been expressed.

I have spoken for too long, but this is an important matter. I believe that reform of the law is essential—at least, if nothing else, to take away the demeaning character of divorce actions at the present time. I am satisfied that it appears to those who have studied this problem that there is a widespread demand for reform. It will enable empty marriages to be dissolved, but I do not believe that it will make divorce any easier. Nevertheless, it will reflect more truly the realities of life. The financial provisions of the Bill are sufficiently adequate to protect the weaker partner. The powers to enforce the financial provisions are quite adequate. I believe that what remains of matrimonial offences will become less significant in every way.

The Bill will benefit a number of people. They will be able to benefit from firm family life. It will enable them not only to legitimise but to bring up and educate their children within the security which firm married life gives. This fulfils in a high measure the two objects to which I referred earlier; namely, the support of marriages which have a chance of survival and a seemly burial for those which do not. I beg to move.

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

7.53 p.m.

Lord KILBRANDON

My Lords, I shall be very brief. I am bound to say that the pleasure which I have in supporting this Bill is faintly tinged with melancholy. As my noble and learned friend has just said, it is now over eight years since, in my capacity as Chairman of the Scottish Law Commission, I was invited with my calleagues by the then Government—that is, by the present Secretary of State for Scotland and the then Lord Advocate—to examine the divorce law of Scotland with a view to its reform. The Archbishop of Canterbury had set up a group under the chairmanship of the Bishop of Exeter, which had produced a very striking paper called Putting Asunder. The Lord Chancellor of the day invited the Law Commission to examine this paper and advise him upon it, whereupon the departments responsible for the Scottish Law Commission invited that Commission to advise both on Putting Asunder and on the paper which had been produced by the English Law Commission, which was called The Field of Choice. We gave our advice in the paper which has been referred to, and that paper was prepared with—I do not say in conjunction with, but certainly in very close consultation with—Sir Leslie Scarman and his colleagues in the English Law Commission.

Fundamentally, the Bill which is before your Lordships today brings into existence the scheme of things which the Scottish Law Commission unanimously recommended at that time with the English Law Commission. It will be found that the differences between the two systems—the system which is now operating in England and the system which is proposed for Scotland—are consequential upon the differences in the two legal systems. They do not proceed upon social or religious differences, or upon any other differences which would be relevant to a system of divorce. As has been pointed out, in a sense there is no change; that is to say, adultery and desertion will continue to be acts which found a divorce, but they do not found a divorce because they are offences. Under the new system they found a divorce because they have wrecked a marriage—which is a very different thing.

This is probably the answer to the question which was put by my noble and learned friend of whether one act of adultery ought to be irrebuttably con- sidered as showing that the marriage had broken down. My Lords, I think it must, because if you take the case of a woman who comes before a judge and says, "I find that my husband has committed adultery and that makes it impossible for me to go on living with him," I do not think that the judge could possibly say, "You are wrong ". In such circumstances, it is for the woman herself to decide, and it would be impossible to legislate in a matter of that kind. In a sense, we are putting adultery and desertion on the same footing as insanity, because insanity never was an offence. Insanity was a misfortune on the part of one of the spouses, but the marriage was dissolved in respect of that misfortune because that misfortune had wrecked the marriage. And so it will be in the future.

I am very happy to say that "cruelty" now disappears as a word in the divorce code. No longer shall we have to go in for these highly legalistic definitions of cruelty, upon which the courts have spent so much time and which have given so much pain in the course of their elucidations. Now one looks at the conduct of the party concerned. It may have been violence—I am afraid that only too often it is. It may have been a kind of sullen or contemptuous silence—refusing to speak. Very often it is. This is conduct which makes it impossible for a marriage to be properly carried on. It may arise from mental illness, or it may not. It may be active conduct or it may not, but conduct of this kind can wreck a marriage just as surely as adultery or desertion.

These proposals as regards cruelty were made by the Royal Commission which was presided over by the noble Lord, Lord Morton of Henryton, almost 20 years ago, so we are not making what one might call a "leap in the dark". To any of your Lordships who, like myself, have had experience in a divorce court of the degrading business of listening to parties accusing one another of various crimes of cruelty—very often blown up for the occasion; and, of course, also in the background are the children who are being used as pawns in the battle—the end of this system will be welcome.

As regards the new proposals, there is to be no uncontrolled divorce by consent. In spite of the divorce figures to which my noble and learned friend has referred—and these do go up and down—if you take a long average they do not look anything like as bad as they do at the moment. But even when one looks at the divorce figures, the great majority of people get married with the intention of entering into a permanent relationship. When we wrote our report in 1967, we pointed out that in Scotland no fewer than 80 per cent. of them took the occasion to make an oath at a religious ceremony. That is what people have at the back of their minds when they talk about marriage. That is what they mean when they marry. It does not always come out that way. But there is to be no divorce by pure consent, because we thought that was inimical to the system as it now is, whereby people have this intention of permanency.

However, one has to recognise that even at the moment there is a highly consensual element in divorce. I understand that 95 per cent. of divorces are undefended, which shows that there is a very high proportion of divorces in which there is some kind of agreement behind the scenes. Let us take the case which is legislated for in this Bill of the spouses who have been married for two years and find that they simply cannot "make a go" of it; they cannot get on together. What are they to do? The remedy today is that either one of them commits adultery or pretends to desert the other and the other one commits perjury in support of the desertion. That is the consensual way out at the moment. That way will disappear, and those who support this Bill think that the dignity of society will be to a great extent enhanced.

I think the only controversial part of the Bill may be the divorce after five years of separation, without consent. In a sense this is the acid test, whether one genuinely wants to give decent burial to dead marriages, because if one really does want that then there must be some provision of this kind. Again one remembers the huge majority who intend a permanent relationship when they marry. But nevertheless the problem is there. I am not going to enlarge on it, because the problem and its solution is now very well known to your Lordships because the solution has been adopted in England and, as my noble friend has said, it appears to be working very well. It is familiar in England, and I think in Scotland we are perhaps entitled to say that a "pilot scheme" has been adopted South of the Border; that it appears to work well and it might well be introduced into Scotland. I am most reluctant to recommend any Bill which brings the law of Scotland into line with the law of England on the view that that is the object of it, because I know that sometimes causes unhelpful comments in certain quarters. At the some time, I suggest that if it has been shown that provisions in an important matter of this kind have been successful in England, it is a considerable testimonial towards their adoption in Scotland.

After all, we are very much a mixed community nowadays. If I may be personal, my father married an Englishwoman, my wife's father married an Englishwoman, which means that we are both half English and half Scots and so are our children. Two of my daughters have married Englishmen—not that any of us are contemplating divorce. I merely mention this to show that we are very much an integrated society now between England and Scotland and it is not surprising that there should be a good deal of interest in seeing that the social customs in both countries should be similar. That is one of the reasons why I heartily recommend this Bill.

8.2 p.m.

Lord TANLAW

My Lords, I welcome very much the opportunity to speak in support of this Bill. It is difficult for me to follow the noble Lord, Lord Kilbrandon, in any of the legal emphasis which he put on his support for the Bill. I can only say that I did some reading before this debate in order to discover some of the legal preparations that preceded the English Bill. I arrived at two major conclusions. The first, which was an interesting bit of new knowledge and somewhat surprising, was that nearly 10 years ago, when the Law Commission made its Report on the investigation of the possibility of changing the English law, they concluded: There is no real evidence that the proportion of marriages which break down has increased during the century. I found this most encouraging. The Report then went on to state the intention of the English Bill—and the noble Earl's Bill achieves exactly the same objectives, which are: Firstly, to buttress rather than to undermine the stability of marriage; and, secondly, when regrettably a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation. The noble Earl went on to quote similar points from the Commission's Report.

I think the question of irretrievable breakdown is perhaps one of the most essential and important facts in the Bill. Although there is difficulty in legal definition of the phrase "irretrievable break-clown ", when a marriage has reached this stage it is quite dead to the parties concerned, and, what is more, from their point of view there is no question but that the marriage has broken down. What is worse, is that when a marriage gets to this stage, the effect on the children is perhaps often forgotten because the dispute between the two spouses becomes all-important. I feel that this Bill, for those in Scotland who have had the unfortunate experience of an irretrievable breakdown of marriage, must come not only as a great relief to the spouses concerned, but may in the future help children to be able to readjust to a new life, whereas now they may have to continue in the home of a dead marriage, which in many ways can lead to permanent emotional damage for years to come.

I needed some reassurance as to how the Church of Scotland stood in relation to this Bill and I was relieved to find that in a Report by the Scottish Law Commission in 1967 the Social and Moral Welfare Board of the Church of Scotland issued a statement called Whom God Hath Joined. They were able to advance the view that the irretrievable breakdown should be the sole ground of divorce in place of the matrimonial offence, and I find this extremely reassuring, as well as the words of the noble and learned Lord, Lord Kilbrandon.

With regard to my own Party, I was very pleased that at their conference this month in Scotland, the Scottish Liberal Party passed the following Motion: That this Conference deplores the failure of successive Governments to allocate Parliamentary time for the enactment of legislation to reform the matrimonial law of Scotland. I feel that no more need be said, except that I would be most distressed if the noble Earl's Bill were to be delayed or put on the shelf for some technical or procedural reason in another place.

For this reason alone, I ask noble Lords on the Government Benches to take this into consideration, because a tremendous amount of legislation has been going through this House this Session and there is much more to come. Much of that legislation is involved and some of it is concerned with deep matters of political doctrine. The application of these measures may take some years to take effect. The noble Earl's Bill will become law within three months of it being passed through Parliament, and after that period of three months this Bill will help many people in Scotland who are in desperate straits as a result of the present legislation.

I shall end on a rather personal note. There are times when I arrived home late from sessions in your Lordships' House and was unable to put my own children to bed. The next morning they used to ask "What do you do in Parliament, Daddy?" I tried to tell them that I did things to help people. I regret to say that a great deal of the legislation is not covered by that phrase, but I think this Bill is one of the few Bills which will help people. I believe it should receive all the support it can possibly get and that it should go through the other place with all possible speed.

8.9 p.m.

Lord FRASER of TULLYBELTON

My Lords, I should like to join in welcoming this Bill and to express the hope that it will soon become law. I have no authority to speak for anyone except myself, but I have had very recent experience on the Bench of the Court of Session in applying present law and I think I can say with some confidence that all the practitioners of the law in that court, both on the Bench, at the Bar and particularly among the solicitors, would welcome a Bill on the lines of this one and would regard it as a great improvement of the law of Scotland by bringing it up to date in important respects.

I do not intend to refer to what seem to me to be the main provisions of the Bill which have already been referred to, namely, the two new provisions allowing divorce after two years with consent and after five years without consent. Those are undoubtedly the most important provisions, but the provision that I should like to refer to for a moment is that which replaces cruelty as a ground for divorce by the new form of words: … behaviour in such a way that the pursuer cannot reasonably be expected to cohabit with the defender". I think that is a very desirable reform because the word "cruelty" has become so refined and so enlarged, partly by judicial decisions and partly by legislation, that its meaning has departed widely from the ordinary and original meaning of cruelty as understood by the man in the street. That led to very unfortunate results.

It meant in the first place, of course, that people were branded as being cruel, or felt they had been branded as being cruel, who had been guilty of what I might loosely and generally speaking call legal cruelty. That was very unfair, because legal cruelty included actions done with no intention of being cruel or in any way unkind to the other spouse. At the worst in some cases they might be categorised merely as lack of consideration. Of course they included real physical cruelty as well; but they extended to actions that were little more than being rather inconsiderate. They also included actions which had no direct connection with the marriage at all. A man who committed a crime, if it happened to upset his wife and damage her health, and if the wife could show that it affected her health adversely, although he had no intention of doing anything wrong to her, might be branded as cruel. The result was that people felt that they were being branded as cruel in a sense that was in no way in line with the ordinary understanding of the word.

For that reason, I think there is no doubt, a certain number of actions on the grounds of cruelty were defended by a defender who was not willing to have it said that he or she had behaved cruelly towards his or her spouse. Therefore an action was really unnecessarily defended; the defender had no intention and no desire to preserve the marriage; all he or she wanted was to avoid being stamped as being cruel. That sort of thing will no longer occur if the new form of words is introduced. For that reason I think it has practical results and is not merely a matter of words.

While I think the Bill is entirely on the right lines, there are some matters of detail which at a later stage I would hope to see amended. For instance, I notice in Clause 3(2) the preservation of the oath of calumny. The oath of calumny, as your Lordships will know, is a formal oath which is put to a pursuer before the case begins. It is read out by the clerk of the court and the pursuer has to sign it. It is a step which has always seemed to me to be rather a formality. I do not think it serves any useful purpose, because immediately after signing the oath of calumny the pursuer then has to take the ordinary oath, swearing to tell the truth in his or her evidence. The administering of this rather elaborate and formal oath, read over in court to the pursuer, who is rather anxious anyway, always seems to me to be unreal and not useful. That is a matter of detail. There are some other details that I should like to see changed, but these are small matters. On the whole, I warmly welcome the Bill, and hope it will soon be passed.

8.14 p.m.

Lord STOW HILL

My Lords, your Lordships may feel that I am guilty of some audacity in intervening in a debate which entirely concerns the law of Scotland, and I speak with greater timidity after hearing the comments made by the noble and learned Lord, Lord Kilbrandon, on that aspect of affairs in his extremely interesting speech. I speak with puzzlement after listening to the most polished and learned speech from the noble Lord who has just sat down, because I see against his name the letter "M" in brackets. I cannot believe that a noble and learned Lord who addressed the House with such full knowledge, so eloquently and with such extreme authority, could possibly be a maiden speaker. It is always the custom in this House to congratulate a maiden speaker, partly in order to reassure him and to welcome him into a new forum. The noble Lord requires no such reassurance. He spoke, if he will allow me to say so, in a way which all of us admire. I hope he will come down and speak a great deal more often and will help us in the further passage of this Bill, as he said, in the Committee stage. Obviously a number of the points he raised will need full research and discussion in the Committee. May I simply say to him that I greatly enjoyed his speech and very much admired it; and I am sure we all did.

My Lords, I simply venture to intervene in this debate because the noble Earl, Lord Selkirk, suggested to me that it might possibly be of some help to your Lordships if I were able to say how the Divorce Reform Act 1969 has worked out. That Act, as your Lordships now know, has been consolidated into the Matrimonial Causes Act 1973. In order to equip myself to give your Lordships some indication of the way in which the 1969 Act has worked out. I ventured to address myself to my old friend Sir George Baker, the President of the Family Division in this country, to ask him whether he would be so kind as to put me in possession of some views which I could put before your Lordships' House. I should like to say publicly how grateful I am to him—and I am sure the noble Earl, Lord Selkirk, joins with me in this—for receiving Lord Selkirk and myself and having with us a very full discussion in order to answer the kind of questions which we wished to put to him as to how the English Act had worked out. The President of the Family Division is universally respected, and, of course, brings to this topic a wealth of knowledge as to how the English Act has worked out which nobody could possibly be said to be able to rival.

My Lords, obviously, if one consults a learned judge of his very great authority and experience, one should be very careful to quote him accurately and not to attribute to him views which he does not completely hold. For that reason I asked him whether he would be so kind as to give a general indication of his views which I could take down and which he would authorise me to quote to your Lordships' House. The learned President very kindly agreed to do that, and I wrote down his expression of opinion, which has his approval. It is quite short. It reads as follows: If you believe that parties who cannot live amicably in a state of matrimony ought to be able to obtain a divorce simply, then the English divorce law works admirably. Those are the learned President's words, and that is the extremely weighty opinion he has expressed as to the working of the English Act.

My Lords, the learned President begins his expression of opinion with the words: If you believe that parties who cannot live amicably in a state of matrimony ought to be able to obtain a divorce simply …". My Lords, I passionately believe that. If two people, probably both of them perfectly nice people, a man and woman, who have entered into this state, which should be a blessed state capable of producing the utmost happiness throughout life, find that they have made a mistake and that they are not suited for each other, I feel passionately convinced, and I have always felt convinced, that they should be able, in a dignified way which does not degrade them in the eyes of their children, and degrade them in the eyes of their friends, to put an end to the marriage, which has become no more than a completely meaningless link between them.

In saying that I have always thought, and I say it again, that the children are of the greatest possible importance. Children should respect their parents. They do respect their parents, they love their parents, and they rely upon their parents; and if children have to witness fathers and mothers living in a state of semi-hatred of each other, behaving badly to each other, and then perhaps their conduct is investigated in the court and results in public cross-examination showing that people have behaved towards each other at their worst, that is calculated to destroy the love and respect of the children for their parents.

When I say that I very much believe in the principle embodied in the English Act, and now in the Scottish Bill, that a permanent breakdown should be the test; it is not only the happiness in future, and the capacity to reconstruct the lives of the husband and wife that I have in mind, but, particularly, the happiness of the children, and their desire to go on loving and respecting both parents, even if they are to live separately in future, I approach it from that standpoint.

It is said, "Yes, but still the breakdown of the marriage has to be proved by these acts of adultery, or behaviour which is unreasonable, or separation, or parting by consent for two years." That is true, but what is important is that the Act now shifts the emphasis on to complete and permanent breakdown, and it seems to me that that is utterly different and infinitely more dignified and human and civilised than the old idea of a matrimonial offence, a semi-crime; you perform an act of sexual intercourse, and thereby commit a semi-crime. That system carried with it all the humiliating procedure about the discretionary statement, and all the rest of it. I am so glad that all that has gone and has been buried in oblivion. I hope it never comes back to us in any form in the future.

Therefore, I hope that I might, through the lips of the learned President, say that the 1969 Act works admirably in England upon, of course, the assumption which the learned President makes and I accept. In those circumstances, obviously if the principle is accepted one must look to see whether the Scottish Bill—following possibly the noble and learned Lord, Lord Kilbrandon—following closely the English Act requires further change in the course of its Committee stage. At this stage on Second Reading it is interesting to look to what, perhaps, are some of the main differences between the two. One of the main differences which immediately occurs to one as one looks at the text of the two is that the Scottish Bill before us, in its reference to adultery, simply provides that adultery by itself should be an indication of breakdown, whereas the English Act uses the words: the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; I confess that I liked the English provision when the English Bill was introduced. I liked it because I thought it excluded the idea of this single act of adultery constituting a crime, and made one think in terms of breakdown, which was the real question that one was trying to solve.

I am told that that English formula has not worked well. I had always thought, when I ventured to commend the English Bill to your Lordships' House, that what in practice would happen is that adultery would be proved, and the learned judge who had the petitioner, husband or wife, in the witness box would be able to say to himself, "Adultery is proved. I see the petitioner asking for divorce on the ground of the adultery. The conclusion is very easy to draw, and a very obvious conclusion; that because of that adultery it is intolerable for the petitioner to go on living with the respondent." In practice I am told that it has not worked out in that way. To begin with a whole series of doubts have arisen as to what the words mean. Must the continued cohabitation be intolerable because of the adultery, or must it be intolerable because of some reason independent of the adultery? Or can the adultery constitute an element in the situation which makes further cohabitation intolerable?

Worse than that, I am told that this sort of situation not infrequently arises: a petitioner goes into the witness box, whether husband or wife, and proceeds to give his, or her, evidence. Suppose it is a husband. The petitioner may say "My wife has gone off to live with X. She is living with X. I still love her. If she came back I should be only too delighted. I would receive her back with the greatest of joy, and continue our married life." The result of that, in the light of the language used in the English Act, is that there can be no divorce because the petitioner, from his own lips, has said that it would not be intolerable to go on living with her. He would very much like to do so, so obviously that formula has miscarried, and I should have thought, if I may say so with the greatest respect to the noble Earl, that he has chosen a formula which is preferable to the one used in the English Act.

I am told that experience shows that this rather odd situation arises under the English Act and under the Scottish Bill: after two years' separation divorce can be obtained by consent, and I am told that over and over again parties quarrel, one behaves to the other in a way which the other regards as creating a situation in which he cannot go on living with the respondent, or she cannot go on living with the respondent. Therefore, a petition is started on the ground that the respondent has been guilty of behaviour which makes it unreasonable for the petitioner to go on living with him, or with her. It all takes time for the parties to make up their minds. They separate, they write letters to each other, ultimately they go to solicitors, and then a petition is put upon the file alleging that type of behaviour. In due course it comes before the court. By the time it gets to the court perhaps the separation has been as long as two years. I am told that what happens in something like 95 per cent. of the cases in which such behaviour is alleged is that two years have gone by, there has been a separation for two years, and that the parties, when they get before the court, amend the ground of their petition to ask for divorce for separation for two years with consent. All the disagreeable necessity of one party establishing as against the other behaviour of that sort is happily obviated.

My feeling, when I think of that situation, is that really there is a lot to be said for the Australian view, that perhaps one year's separation with consent should be enough always, and indeed I think it is in Australia the only ground on which divorce could be granted. I should have thought that two years undoubtedly indicated a breakdown of marriage. If a husband and wife live apart for one year—unless there is some question of service overseas, or something of that sortit is difficult to infer that the marriage has not broken down after that one year. However, that is a matter of controversy, and many Members of your Lordship's House might think that that is going too far as a matter of consideration, and possibly could be raised on Committee stage.

There is another point. I wish to show the difference between the Scottish Bill and the English Act. The noble Earl, Lord Selkirk, has retained in his Bill the existing Scottish provisions, which I think are almost exactly the same as the old English provisions, about connivance and collusion. I gather that the argument in favour of retaining the doctrine of connivance is this. A husband and wife want to be divorced; they can either wait two years and be divorced by consent, or the husband can say to the wife, "Go and commit adultery and we can get it right away." That is very unpleasing and unpleasant conduct, undoubtedly, and the argument which I believe the noble Earl would address to your Lordships in justification for retaining the doctrine of connivance would be that that is conduct which should not be accepted by the courts.

My personal reaction would be different. The very unpleasant and disagreeable conduct between the two parties is the stronger reason for putting them apart, because less malice develops between them, it is better for the children, and each can take steps to reconstruct his or her own life and perhaps set up a happy matrimonial state for the future. My view, therefore, is that the English approach on that matter is preferable, as also would I prefer the English approach on the doctrine of collusion, which the Scottish Bill retains and which the English Act abolished.

My Lords, the hour is late and I feel rather an intruder in this debate, except that it is more a social than a legal debate. It is something of great and fundamental importance which touches all of us. These are some preliminary observations and I hope that I have given your Lordships some indication of how the English Act works in the English courts, and that that may be of some help to your Lordships in deciding whether, as I hope you will, to give this Bill a Second Reading.

8.33 p.m.

Lord CAMPBELL of CROY

My Lords, I join the noble Lord, Lord Stow Hill, in congratulating the noble and learned Lord, Lord Fraser of Tullybelton, on his maiden speech, which was made in such an assured and effortless manner that it was difficult, as Lord Stow Hill said, to recognise that it was a maiden speech. Some of us know the notable contribution that the noble Lord, Lord Fraser, has made in legal affairs in Scotland, and we laymen in your Lordships' House were particularly struck by the ease and clarity with which the explained the legal points. I particularly appreciated benefiting from his legal experience in his explanation of the change proposed in the concept of cruelty in this Bill, and I am sure that all noble Lords look forward to hearing him speaking on many occasions on other subjects as well as legal ones.

The fact that the noble and learned Lord, Lord Fraser, and the noble and learned Lord, Lord Kilbrandon, have given their support—and have stated their reasons tonight for so doing—to this Bill will, I am sure, weigh heavily with those who are very sincerely concerned to have divorce law in Scotland in a form which will be best for the institution of marriage and for the community. We are all grateful to my noble friend Lord Selkirk for introducing the Bill and for obtaining time for Parliamentary debate. We have an opportunity, and further opportunity will be coming in this House, to discuss a matter of considerable interest in Scotland. This Bill, as he described, originates with the Scottish Law Commission, who have made it clear that they regard reform as necessary in Scotland, in their view for the good of the individual and the community. But this is a subject on which there are strong personal views, which are no doubt held in your Lordships' House as outside, and it has not been the custom for legislation on this subject to be introduced by Governments. This has been the tradition.

There has been a difficulty in another place in finding time for this subject and having recently come from another place, and having sometimes been successful in ballots, and sometimes not, I am well aware that unless a Member of Parliament is in the first eight in the annual ballot for Private Members' Bills he is unlikely to obtain time for a Second Reading debate on the Bill. The first eight in the ballot are always under great pressure from those interested in a whole range of subjects, and it is always difficult for an individual one to get precedence. We are, therefore, glad that my noble friend has found the opportunity for time for a debate in this House on this subject.

It is clear that the Law Commission and most of the Scottish legal profession favour a reform on these lines, and the two noble and learned Lords who have spoken today have made it clear that they share this view. The support for this reform is on its merits within Scotland. That is important; that this is considered in relation to the law as it stands in Scotland and the effects of change to it. It is clear that the majority of the legal profession in Scotland believe that a reform of this kind would not make divorce easier. That is important, because it is an objection which has been raised by those who are doubtful or who are opposed to a reform of this kind. As I understand the reason which has been given why this would not make divorce easier, it is because at present the matrimonial offences, adultery and desertion are grounds, as they still would be if this Bill were enacted, but this means that divorce is now virtually available by consent to those who are prepared to stoop to the resorts necessary.

Despite some of today's trends and theories, I believe that most people are still in favour of arrangements likely to strengthen rather than to weaken marriage as a lifelong partnership. It will be a matter of judgment, however, both in this House and in another place, as to whether these proposals strengthen rather than weaken marriage. I believe the principal question to be considered is whether it is best to recognise failure when a marriage is completely dead. The conclusion in this Bill is clearly that it is, and as a result there are these provisions for five-year separation in certain circumstances and two years in others becoming new grounds for divorce. There are a number of people in Scotland whose marriages have been at an end for years, but still exist in name. They have no wish to go through the processes of proving or, indeed, as I have suggested, committing adultery, ascertaining whether the behaviour of the spouse amounts to cruelty for the purposes of the present divorce law, or taking other steps likely to inflict unnecessary pain or embarrassment on other people. The two noble and learned Lords who have spoken today emphasised the distress which they have witnessed in the courts that can occur when such proceedings are started.

Those people in Scotland whom I have described, whose marriages have come to an end, no doubt consider that their marriages are completely dead regardless of whether or not grounds for divorce can be proved in the ways I have mentioned. From correspondence—both public, in the Press, and private—it is clear that most of these people would like to see the reform suggested in the Bill. My noble friend gave some figures showing the number of divorces that have taken place since similar provisions were enacted for England. From those figures—particularly those for 1973—it was clear that there was a backlog of marriages which were completely ended and were then dissolved as a result of the new law in England. If there were a reform of this kind in Scotland, I should expect that there would be quite a number of such marriages ending in divorce through the five year or two year separation provisions, in the course of the first five years or so. After that the numbers would no doubt go down, because this situation would be dealt with when the Bill was first enacted.

My Lords, some people will no doubt examine the Bill from the viewpoint: will it strengthen marriage? If marriage is to be lasting and happy is it not as important that it should not be entered into lightly as that its dissolution should be properly regulated? The community as a whole, and those who can influence young people in particular, might well assist towards increasing successful marriages by calling more attention to their beginning; that is to say, the serious step that is taken. I shall not pursue that subject now, but I feel that that is as important, if not more important, as the question we are now considering about the dissolution of marriages, where the strength of marriage as a lasting partnership is being considered. I am glad that my noble friend has taken the trouble to introduce this Bill to enable the discussion to take place. I am sure that noble Lords on all sides of the House will be glad that there is time for a debate on this important question, whatever views they happen to take.

8.43 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (Lord Hughes)

My Lords, I first wish to thank the noble Earl, Lord Selkirk, for introducing this Bill and thus giving us the opportunity to demonstrate that in Parliament there is a desire for reform of divorce law in Scotland. That is my first reason for being grateful to him. The second reason is that this debate has given me the opportunity of sharing with your Lordships the maiden speech of the noble and learned Lord, Lord Fraser of Tullybelton. It is now more years than I can be certain of since we first met and sat together on a committee in Scotland. From the interventions which the noble and learned Lord made on those occasions, during the fairly lengthy procedure of our committee, it was quite obvious to me that in due course he would become one of the senators of the College of Justice in Scotland, and it is no surprise to me that he has now landed here in your Lordships' House. I am not so certain that he would have predicted from my contributions to the debate in that committee that I would have been here before him. Like my noble friend Lord Stow Hill and the noble Lord, Lord Campbell of Croy, I share the wish that the noble and learned Lord may frequently take part in our debates, and that he does not find it desirable, or necessary, to confine himself to legal matters.

My Lords, the principles embodied in the Bill put forward by the noble Earl have been most thoroughly outlined by him and I need do little more than say that these principles have the general support of the Government. The Government recognise that the law of divorce in Scotland is in need of reform. However, like their predecessors—and this was mentioned by the noble Lord, Lord Campbell of Croy—the Government take the view that ally measure with this aim, which must raise deep social and morel issues, should be sponsored by a Private Member who must seek to attract the support of his fellow Members.

We welcome very much the noble Earl's initiative in bringing forward his Bill. It must be pleasing to him, and of interest to all of us, that all noble Lords who have spoken this evening have been in favour of the kind of changes proposed in the Bill. This is an important indication of what I believe is a widespread view in Scotland. It must be recognised that there are still many people who have sincere doubts and objections to what they consider to be a relaxation of the marriage ties. We must respect those who hold these views, but it cannot be denied that the present situation can, and does, lead to real hardship in individual cases, and we feel that there are strong reasons for changes to meet modern needs.

The noble Lord, Lord Tanlaw, suggested that to become law the Bill will need active Government help in another place, and, in particular, will need to be given Government time if it is to complete its Committee consideration. Of course the allocation of Government time in another place is not a matter for me or for my right honourable friend the Secretary of State for Scotland. But I should be misleading your Lordships if I did not point out that the time remaining in the present Session is limited, and that the Government's own legislative programme continues to place extreme pressure on the Parliamentary timetable. I should hope that the best service we can give to trying to get this Bill on the Statute Book during the present Parliamentary Session is to give it the speediest possible passage through your Lordships' House, consistent with persuading people in another place that there has been a proper ventilation of the matters in the Bill. That might enable another place to do what has not been possible up to now. For those reasons, the Government hope that your Lordships' House will give the noble Earl's Bill a Second Reading.

8.47 p.m.

The Earl of SELKIRK

My Lords, I am very glad that this should have been the occasion on which the noble and learned Lord, Lord Fraser of Tullybelton, should have made his maiden speech. That is a matter of great happiness to me. I am also very pleased that he found it possible to say that he would regard this Bill as an improvement to the law of Scotland. I think that I can claim to have known the noble and learned Lord, Lord Fraser, longer than Lord Hughes has known him. It is true that our paths did not overlap at Balliol College, but I think that he, like me, will remember with great happiness many meetings in the august halls of the Speculative Society at which we were both present, I should not say in a distant age but, at least, some years ago. I am very grateful to the noble and learned Lord for joining in the debate on this Bill.

I also wish to thank the noble Lord, Lord Hughes, for what he said. He has been extremely helpful in his remarks, and I realise that time is a problem to us all. But I am grateful to him for saying that the need for a speedy passage, subject to sincere and careful examination, is what it is hoped the House will give to this Bill. I am grateful also to the noble Lord, Lord Campbell of Croy, for supporting the Bill. Of course the important thing is the beginning of a marriage, not the end. I personally would be only too happy if the age of marriage without consent was raised. I think that it would be no bad thing if the age for marriage without consent of parents was raised. But I am afraid that this is not proposed in the Bill, and would probably not be politically very easy to achieve.

I also thank the noble Lord, Lord Tanlaw, for what he said in giving the support of the Liberal Party. He empha- sised that we are here concerned with a personal matter on which there is not many votes for anyone. But it is essential to give relief to spouses and help to children. This is the object of the exercise, which I greatly hope will be attained.

It was very good of the noble Lord, Lord Stow Hill, to take part in the debate. I am grateful to him for emphasising that this is not just a recapitulation of matrimonial offences; it is something quite different. It puts an emphasis on breakdown which is different in terms of humanity and civilised life and of an entirely different character. The noble Lord mentioned the matter of a single act of divorce. This subject is dealt with extremely well by the Morton Commission, at paragraph 117, and it is an extremely valuable point.

The noble Lord also raised the question of connivance. I do not want to go into this in detail other than to say that connivance is possibly more positive in Scotland and less negative in England. We do not want to encourage people to do what is after all a put-up thing before the court. My Lords, we take it away—and it will not make all that difference either way. Besides which, English law has a slightly different attitude. How could you connive with your wife, or spouse, to commit adultery and then say that the cause of the break-up of the marriage which had been made intolerable was the adultery? It seems to me that this is an impossible situation. We do not have that provision under the Scottish Act. It may be necessary, but this is a matter which can be considered in Committee. I should like to thank the noble and learned Lord, Lord Kilbrandon, for taking part. I think it is the great strength of this House that the authority and experience of a former chairman of the Scottish Law Commission is available to your Lordships.

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