HL Deb 20 July 1978 vol 395 cc532-46

7.56 p.m.

Lord MELCHETT rose to move, That the draft Matrimonial Causes (Northern Ireland) Order 1978, laid before the House on 8th June, he approved. The noble Lord said: My Lords, this order aims to reform the law in Northern Ireland on divorce, annulment of marriage, judicial separation and other matrimonial proceedings. First, it establishes a single ground for divorce, that the marriage has irretrievably broken down. Second, it allows a fairer distribution of property on dissolution of marriage. And third, it aims to provide better protection for children in divorce cases. Broadly speaking, it follows the Matrimonial Causes Act 1973, which applies in England and Wales.

This draft order is the result of a long period of consultation in Northern Ireland, which began in 1976 when the Standing Advisory Commission on Human Rights was asked to consider Northern Ireland's divorce law. It reported last year that there was a widespread desire for the law in Northern Ireland to follow the law in Great Britain. This was followed, last November, by a proposal for a draft Order-in-Council, together with an Explanatory Document. We received many comments on this, and the draft order now before the House has been improved as a result. However, the overwhelming majority of those who commented were in favour of reform.

The order will alter the grounds of divorce in Northern Ireland so that in future the only ground on which a decree of divorce may be granted would be the irretrievable breakdown of a marriage. The misleading concept of the matrimonial "offence" would disappear. Irretrievable breakdown will be established by proof of one or more of the facts set out in Article 3. In the reference to adultery in Article 3, the order follows Scottish, not English law. The order has two further parallels with Scottish law: first, there is no requirement for solicitors to certify to the court whether they have discussed the possibility of reconciliation (a provision to this effect has proved to be of no value in England and Wales). Secondly, the court will be able to dismiss a petition for divorce based on proof of adultery, if the adultery has been connived at by the petitioner.

The order will give the courts greater flexibility in granting financial relief, and it provides safeguards to protect a wife from losing her entitlement to a widow's pension or suffering other financial hardship if her husband divorces her without her consent on the basis of five years' separation.

Besides the two ways in which the order differs from the English law that I have already mentioned, there are other differences, which are mainly the result of representations made during the consultative period. First, under Article 43, rules of court will provide that where a petition for divorce, nullity or judicial separation has been presented, and there are children of the family to whom Article 44 applies, reference must be made to a suitably qualified person to consider conciliating the parties and for a report on the suitability of any arrangements which have or may be made for the children's welfare. Second, we received many strong representations that the county court should have a divorce jurisdiction, and Article 48 now makes this possible. There are also differences over proceedings for financial relief, and what are known here as "postal divorces" will not be available in Northern Ireland, again as a result of representations made to us.

This order has been the subject of long and detailed discussion both inside and outside Parliament. I believe that it has been greatly improved by changes made as a result of these consultations. I believe that this order will help to reduce the suffering and bitterness that can accompany the breakdown of a marriage, and I hope your Lordships will welcome it. I beg to move.

Moved, That the draft Matrimonial Causes (Northern Ireland) Order 1978, laid before the House on 8th June, be approved.—(Lord Melchett.)

Viscount LONG

My Lords, I am grateful to the noble Lord—as I am sure others of your Lordships are—for the information he has given on this important step forward in the matrimonial laws of Northern Ireland, and the matching up of them with England and Wales. There are greater trained brains in this type of law than mine. I am not a lawyer. There are those in your Lordships' House who know what divorce and its problems in law are all about. Divorce has always been thoroughly controversial, and it will continue to be so. But I believe that this order is a great step forward.

I gather that, at the moment, there are something in the vicinity of some 700 divorces a year going through. I believe that those are the facts. There are many tragedies in Northern Ireland, and I believe that this order could well help in the cases of broken down marriages and help the children who suffer problems from a broken down marriage. I noticed that the advice that the Government received was from many different bodies, including the Church authorities. I believe that to be a great step forward. I believe also that the Queen's University played a great part in advising the Government. It appears that there is a majority in favour of this order. I think that we all agree from these Benches that it is a great step forward. Divorce will always be controversial with many bodies, but probably as life goes on in a minor rather than a major way. We welcome this order.


My Lords, I too am grateful for the noble Lord's compassionate approach. However, I should like to say that this is another order that seeks broadly to bring the law of Northern Ireland into line with that of England and Wales, and in this case on the question of divorce. As I understand it, before 1939 the number of divorces granted in the Province each year was normally as low as single figures. As in the rest of the United Kingdom today, the figure is very much higher.

There are two extreme and opposing ways of looking at this problem. The first is to say that the old law was absurdly restrictive and caused much suffering to couples who wished to end their marital union. The second is to look with horror at the high number of divorces granted today and say that unnecessary unhappiness is now caused because marriages can more easily be dissolved, and that the realisation of this is a destabilising influence.

On the whole, this is a reasonable order, but I am sure we must never, in thinking of divorce, undervalue the great importance of family life. Perhaps I am not a good person to speak on this subject because for 20 years I have been happily married and have not for one moment had any desire for divorce. On the contrary, I should have considered it an extremely selfish move even if I had wanted it for myself, knowing the devastating effect it would have had on our children.

Parliament, of course, cannot make people good or happy, but it can help to create an atmosphere in which this is more easily possible. The whole question of the law of divorce must be considered at any time that it seems unsatisfactory. In saying that we support the order, as do quite a number of organisations, as an honest attempt to deal with the unhappy problem, perhaps I might ask the noble Lord, Lord Melchett, whether he can clarify for me the position as regards what has been termed postal divorce. Can he offer an assurance that it is not proposed to introduce a system by which a divorce might be obtained on affidavit evidence alone? One must accept the need for an understanding approach to this problem, but we should not make the process of divorce, if I may use the word, easy. I should be grateful for clarification on that point. Incidentally, I learned today that 1979 is designated by the United Nations as The Year of the Child.

8.5 p.m.


My Lords, after the notable speeches with which your Lordships were favoured on the Appropriation Orders, it needs no emphasis from anybody addressing your Lordships of the heavy responsibility which lies on the Westminster Parliament now charged with the duty of legislating for the people of Northern Ireland. When the measure affects the most intimate relations of countless ordinary people, the welfare of countless children and the fundamental institutions of society like marriage and the family, a measure is not simply, in my respectful submission, to be nodded through in an empty House during a dinner hour.

It is true that this measure is founded on the 1969 Act in this country, but we have now had a great deal of experience of that Act and we have been able to judge what injustices and hardships it has caused. At the very time that that Act was being debated parliamentarily, those injustices were demonstrated by such disparate political figures as the noble and learned Lord, Lord Hailsham of Saint Marylebone, then in the House of Commons, and the noble Baroness, Lady Summerskill. I think she was by that time already in your Lordships' House.

They had no doubt—as I have no doubt—that this measure, like the 1969 Act, is utterly unjust to married women. I have therefore presumed to come here to say so, drawing on the experience I had myself being charged as President of the Divorce Court in this country. I do not believe that it is the actual divorce itself that causes the anguish that one sees, that brings about the poverty one knows; and that was amply demonstrated by the Finer Committee on one-parent families. It is not the ground of divorce, it is the fact that a union is being broken up, that promises are being betrayed, that one family, if not two, is being relegated to subsistence level and having to look to the National Assistance Board, the Supplementary Benefits Commission, for assistance.

Not only that, it was my painful duty with my colleagues to take on the task of adjudicating on the fate of children of divorced parents. That again does not depend on the grounds of divorce. It does not matter if you pretend that you have gone over to a system of breakdown of marriage; it is the break-up of the secure background of those children. We found that a child could generally—and this was also brought out by the Morton Royal Commission—put up with a very considerably amount of turmoil between the parents, but it was the actual background that one saw bring out the symptoms of bedwetting, stammering, speech disorders, and plummeting down in class. One could almost time those symptoms, and therefore the first question that has to be asked is whether this measure will multiply or diminish such situations.

There can be little doubt that this measure makes divorce much easier, and will make it much more frequent, as well as much less just, than the present law of Northern Ireland. One can see the effect of the 1969 Act in this country; the number of divorces between 1969 and 1977 approximately trebled. In 1976, which is the latest date for which I have been able to find figures, divorces in Northern Ireland numbered less than 700. If this measure has a similar effect to the 1969 Act in this country—and there is no conceivable reason why it should not—Northern Ireland can look forward to about 2,000 petitions for divorce each year; that is, after the spate is over, and that will be a rising figure. That is in a population of about 1½ million. Is that really what Northern Ireland wants? Does it know that that is what it is in for and that is that what it has been saddled with by this measure?

There was a pressure group behind the 1969 Act. It was called the Divorce Reform Union and it had extremely able political or Parliamentary officer whom I have seen working in other capacities, and in those other capacities I have greatly admired his work. This is what he wrote shortly after the 1969 Act was passed: In future, marriages will quite normally end in the mid-20 years of age of the parties". He was the person who was able best to judge the effect of the measure which he has done so much and with such ability to promote. Does Northern Ireland realise that? Does Northern Ireland really want that? Does it really wish that the nature of marriage will change from, in general, a lifelong union to one of a short term of years?

I mentioned the effect on the children and I mentioned the Finer Report. There is no excuse for us now, as there might have been in 1969, for ignorance of the dire effect of one parent families, of being a member of a one parent family, on children. When that report was debated, both elsewhere and in your Lordships' House, there was a rather cavalier rejection of the remedies which that most distinguished and careful body had put forward. But that it is important, in my respectful submission, for your Lordships to recognise is that this measure facilitates and is designed to facilitate the creation of one parent families, notwithstanding what we know about them since the Finer Committee reported. Does Northern Ireland realise that? Does it really want to multiply the poverty, misery, bitterness and heart-searching that is involved in one-parent families?

Can Lord Melchett tell me the cost of this measure? I have given your Lordships as best I can the likely future number of petitions compared with today. The noble Lord on the Liberal Benches was anxious that there should not be introduced into Northern Ireland the summary procedure whereby divorce could be granted without even the appearance of the petitioner or any other person as a witness in court. What will be the cost of legal aid, on the assumption first, that the summary procedure is resorted to, so that there is little better than register office divorce, and, secondly, on the basis that that procedure is not introduced? What will be the cost in social security? We have all the information that the Finer Committee accumulated. We know that the great majority of men in Northern Ireland cannot support two families on one wage and that therefore one—and It is usually the first—goes plummeting down to subsistence amd must rely on the mercies (I use that word advisedly) of the Supplementary Benefits Commission. Thus, what will all this cost? Is it the best use of money in the interests of the people of Northern Ireland? Can we really say it is, after listening, as your Lordships did, to the notable speeches on the appropriation orders? Is that expenditure in preference to other possible expenditures really what the people of Northern Ireland want?

I will not cover the ground I ventured to cover when I think the noble Earl, Lord Dundee, introduced a Bill, which made no progress and which rather covered the same ground as Part II of this measure; but I must at least deal with the noble Lord's assertion that divorces will in future be based on breakdown of marriage and that we have got away from the matrimonial offence. One need only look at Article 3 to see that that is quite wrong. The court, by Article 3(1), must grant a decree … on the ground that the marriage has broken down irretrievably but the court is not to be satisfied of that unless one of the five matters set out in paragraph (2) is true. The first is "adultery". Is adultery not a matrimonial offence? The second is "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". Is that not a matrimonial offence? The third is desertion. Is that not a matrimonial offence?

The truth is that although it is possible to construct a divorce system genuinely based on breakdown of marriage—and that is what was advocated by Lord Walker in his dissenting opinion in the Morton Commission Report and supported by some others—this does nothing of the kind. It labels the matter "irretrievable breakdown". But irretrievable breakdown depends on the proof of one of three matrimonial offences, plus divorce by consent—which I shall come back to—plus divorce by repudiation—which I shall come back to.

It is true that paragraph (5) says that if the court is satisfied of any such fact—that is, adultery, intolerable conduct, desertion, and so on—then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall grant a decree of divorce. I ask the noble Lord how many times since 1969 has an English court been satisfied, despite the proof of one of the facts in sub-paragraphs (a) to (e), that the marriage has not broken down? I do not believe a single one. The reason for that is, of course, all the petitioner has to do is to say, "I am not going to go back at any price at all".

I have seen that myself in connection with Islamic divorce. There you have divorce, as your Lordships know, by repudiation. But Pakistan has erected over and above that an elaborate procedural machinery whereby the parties have to go before some officer who will try to reconcile them. There was one case I had to try in this country where the reconciling officer was the Head of Chancery at the Pakistan High Commission. He took the view that the marriage had not irretrievably broken down, but the husband there who wished to repudiate his wife merely said, "I say it has and I am not going to make a go of this marriage whatever happens". Then, of course, the High Commissioner, the Head of Chancery, was bound to admit that the marriage had irretrievably broken down. It is the merest humbug—if I may say so with respect—to pretend that we have got away from a matrimonial offence to a system of breakdown of marriage.

I am certainly not going to deal with the social fundamentals of marriage and the family, but I venture to say, because this measure can only be understood if this fact is accepted—and I think all of your Lordships will accept it—that men and women in the nature of things perform different functions in society. It is the woman who becomes pregnant and bears children and, generally speaking, has the care and duty of looking after the children during their immaturity. As a result, women are inherently—even working women—disqualified to some extent in their economic activities. But there is the fundamental division of co-operative labour, between husband and wife. By the wife playing her role as home-keeper she releases the husband to perform his as breadwinner. Does that not give the wife a right to share in the loaf when it comes to be cut up? It may be that if the wife has defaulted on her own vows, has disregarded her own obligations, that she may have forfeited either in whole or in part the right to claim her share of the loaf.

But what of a wife against whom nothing more can be said than that she has ceased to find favour in her husband's eyes, possibly because some younger woman has found greater favour. Yet it is that woman who can be repudiated. It is that woman who can be cast off and it is that woman who will be reduced to the conditions that were described by the Finer Committee. The matter goes further than that. Emoluments in these days are often postponed to be enjoyed in the form of a pension, including a widow's pension. Why should a blameless wife be deprived of a widow's pension—and there can be only one widow in a monogamous society like ours—yet that is the system which is sanctioned by this measure. Indeed, that particular injustice is inherent in the system of divorce by repudiation such as you find in Article 3(2)(c).

I turn to the measure itself, and again I shall try not to cover the ground that was covered in the debate on the measure of the noble Lord, Lord Dunleath, but I am going to ask the noble Lord—he referred to this—in Article 3(2)(a) one of the facts that has to be proved is that the respondent has, since the date of the marriage committed adultery. Why is that separately listed? Why is it not subsumed in sub-paragraph (b) of the paragraph dealing with intolerable conduct? Is adultery not behaviour in such a way that the petitioner cannot reasonably be expected to live with the respondent? In the Domestic Proceedings and Magistrates' Courts Act of this Session there is no such paragraph giving a right to a matrimonial order as the sub-paragraph (a) here—in other words, adultery. Obviously the draftsmen of that Act, the Government, considered that an act of adultery was an act of intolerable conduct such as to justify the other spouse in living apart.

I can think of only three cases which would fall within sub-paragraph (a), which would not fall within subparagraph (b). Perhaps the noble Lord will tell me whether I am right about these three, and whether there are any others. The first is when, say, the petitioner has committed frequent, flagrant, and humiliating adultery himself, and his wife in despair commits an act of adultery—perhaps only an isolated act. That would give entitlement under subparagraph (a), but not under subparagraph (b). But is it just that it should? Should a wife in that position be cast off to the conditions described by the Finer Committee? Do the people of Northern Ireland consider that to be just?

The second situation that I can think of is where there is connivance; that is to say, where, say, the petitioner either consents to adultery, or even procures the adultery of the respondent. That would give a right to a divorce under subparagraph (a), but not under subparagraph (b). But is it really just that a petitioner who procures the other spouse to commit adultery should obtain a divorce, with all the evil consequences that that involves to the respondent, particularly a respondent wife?

The third situation—and this is the only other one that I can conceive—is where the adultery is condoned; that is to say, where the spouse against whom the offence of adultery has been committed takes the other back and resumes the co-operative division of labour, enjoying a right as a spouse, as if the act giving a right to divorce has not taken place. That is dealt with on a very limited basis by Article 4, where the only bar is cohabitation for six months. However, let us suppose that there is cohabitation for less than six months. Let us suppose that the wife becomes pregnant during a period of five months' cohabitation. Is it right that she should be divorced under those circumstances? Is that just? Is that what the people of Northern Ireland know is the effect of this measure? Is that really what they wish?

If I am right in saying that those are the only three cases which would fall within Article 3(2)(a), and not within Article 3(2)(b), the only effect of Article 3(2)(a) is to perpetrate injustice, and I hope that the noble Lord will deal fully with that point. Article 3(2)(c) purports again to deal with divorce by consent and ostensibly after only two years' separation, but there can be consent not only to divorce, but to adultery. Connivance and collusion are no longer barred. Article 49 expressly says so in relation to collusion. Why?—if not to facilitate and promote divorce. In other words, the effect is that under this measure there is divorce by consent not after two years' separation, but only after the time that it takes to arrange an act of adultery. I ask the noble Lord whether I have got it right. Is that what is understood in Northern Ireland? Is that what is wanted?

There is much more which I thought I ought to draw to your Lordships' attention, but I know that your Lordships have much other business—

Several noble Lords

Hear, hear !


My Lords, I do not in the lease apologise for drawing to the attention of your Lordships a measure that, in my experience and in my belief, is so destructive of human felicity, so entirely unjust to married women, that it demands proper consideration.

8.35 p.m.


My Lords, first, I wish to deal with the points which the noble Lord, Lord Hampton, put to me. I can assure him that, as I said in my opening remarks, there will not be any postal divorces (as they are known) in Northern Ireland. This was one of the changes which was made as a result of the very extensive consultations which took place in this case, arising from the views expressed to us by the Official Unionist Party in Northern Ireland. I believe that the changes we have made went a very long way—if not entirely—towards satisfying the many worries that they had about the order before the consultation period started.

The noble and learned Lord, Lord Simon of Glaisdale, asked me a series of questions, and I think I would be gauging the flavour and the mood of the House correctly if I did not spend as long as the noble and learned Lord spent in asking the questions by replying to them all in detail. Perhaps he would allow me to write to him if there are particular points of detail which I do not cover in my reply—


My Lords, I hope that the noble Lord will not confine himself to a written letter—though I am very grateful for his courteous offer—because this measure is of immense importance to very many people in Northern Ireland, and they are fully entitled to know what the measure will do to them.


I shall come to that very point in a few moments, if the noble and learned Lord will allow me. The noble and learned Lord asked me about Article 3(2)(a) which, as I said in my opening remarks, and as the noble and learned Lord will know, follows the Scottish law which, according to the information we have, and as a result of the very extensive period of consultations in Northern Ireland, was expressed to us to be working apparently satisfactorily. It was felt by those whom we consulted in Northern Ireland to be a more appropriate formulation than that in the English law, and that is why it is included in the order. The reason for this, which the noble and learned Lord will have seen, and which was given in another place, was that it was felt right that the choice as to whether or not to rely upon adultery ought to be left to the aggrieved spouse. I refer to Hansard of another place of 20th June this year.

The noble and learned Lord also asked me about the cost of the measure. I think he will accept that it would be very difficult to make a realistic estimate about the cost without making a number of assumptions about the future. The noble and learned Lord made a number of such assumptions which I would not necessarily accept as valid. To extrapolate simply from what has happened in England and Wales and to apply it to Northern Ireland is always dangerous. It is almost always unreliable and inaccurate, and I believe that on those grounds alone it would be difficult to estimate what the costs—if there are to be additional costs—of this particular order would be.

The noble and learned Lord also asked how many times an English court has been satisfied that a marriage has not irretrievably broken down if a number of specific things are found to have happened. The noble and learned Lord did not give me notice of that question, and I regret that I do not have the information with me. I am afraid that that will have to be one of the matters about which he will have to allow me to write to him.

The noble and learned Lord also asked me on a large number of occasions whether this was what Northern Ireland really wanted; and whether the people of Northern Ireland really know that this was what was going to happen to them. He also suggested near the start of his speech that the measure was being nodded through your Lordships' House with an almost empty Chamber—but the Chamber is certainly not almost empty at this stage of the proceedings. As I said in my opening remarks, the consultations on the measures started in 1976. If I may say so, I think it a little insulting to the people of Northern Ireland to suggest that after that very long and extensive period of consultation they do not know what is involved in the measure and what the effects are likely to be. No doubt they will have had the advantage of reading the noble and learned Lord's contribution to the debate in your Lordships' House on the Bill of the noble Lord, Lord Dunleath, when many of these points were made.

Not only has the consultation been going on since 1976, but the draft order has been published and available in Northern Ireland for no fewer than nine months. As the noble and learned Lord will know, that is an exceptionally long time for an Order in Council to be published and available. It has been extensively discussed and a great many meetings have been held. I bow, of course, to the noble and learned Lord's extensive knowledge of the law, which I do not pretend to match; but I am sure he would also accept that there are many in Northern Ireland with extensive and expert knowledge in the law and on many other issues who are also concerned with the order. They, of course, all of them, have been fully involved in the consultations which have taken place since 1976; and, as I made clear, and as other noble Lords who have spoken on this subject have made clear, there is widespread agreement in Northern Ireland that this is a desirable measure.

There are certainly arguments over the balance between the harmful effects of divorce, particularly on children, and the harmful effects of forcing people whose marriage has irretrievably broken down to remain married to each other; and several of the opinions that I have had expressed to me from Northern Ireland have been from women in that position who were anxious to obtain a divorce, who were not able to do so under existing Northern Ireland legislation and who felt that their children were being very seriously harmed as a result. My Lords, I was grateful for the welcome given to the order by noble Lords speaking from the Liberal and Conservative Benches—a welcome that was obvious in another place and was obvious when your Lordships gave a Second Reading to the Bill introduced by my noble friend Lord Dunleath, and a welcome which I am quite sure will be widely echoed, as it has already been, in Northern Ireland.