HL Deb 13 February 1979 vol 398 cc1107-18

3.8 p.m.

Baroness WOOTTON of ABINGER

My Lords, I beg to move that this Bill be now read a second time. The Bill does not, as the media would sometimes try to persuade your Lordships, herald a radical moral or social revolution. It attempts only to bring to its logical conclusion a development in our marriage laws which has been going on throughout the greater part of this century and, in a sense, for a good many centuries before, but in slow motion. In so doing, I hope that it will bring comfort and happiness to a number of distressed individuals, at practically no financial cost to the community and without any damage but rather with benefit to the institutions of marriage and the family.

The content of the Bill is contained entirely in the single sentence which gives it its title. It is a Bill which would enable any person to marry the former spouse of any of his relatives, or any relative of his former spouse. While your Lordships are working that out, may I say that this enables persons to marry anybody who is not a blood relation. The Bill leaves all blood relationships exactly as they are, so far as marriage is concerned. There will be no alteration to that part of the law. However, it would remove the restrictions which are now imposed on marriage between affinities, by which I mean persons who are connected by marriage and not by blood.

As your Lordships are well aware, this list of what are known as the prohibited degrees goes back to the Old Testament and to the Book of Leviticus, where they are very eloquently set out. But they remained matters of ecclesiastical law only in this country until the time of Henry VIII, who after all had a good deal of practical experience of marriage. They were then incorporated into our Statute Law in an Act of 1540.

If I may now jump four centuries we come to the first important change that affects us and that was the Act of 1907 which allowed a man to marry his deceased wife's sister but gave no similar privilege to a woman to marry her deceased husband's brother. For that we had to wait another 14 years and when that change came it was not expressed in the same terms as the privilege conferred upon a man, because at that time men always married women but women never married men. The Act which therefore should have been the deceased husband's brother Act was the deceased brother's widow Act which, if we turn it round, comes to exactly the same thing if the marrying is done by the man and not by the woman.

Next, an Act of 1931 allowed marriage with the spouse of a deceased niece or nephew, aunt or uncle, and in 1949 a consolidating Act set out the whole marriage law with the prohibited degrees of both blood relations and affinities. As soon as that tidying up had been done it was immediately untidied because the Government proceeded to appoint the Morton Royal Commission on Marriage and Divorce, which considered the whole question of marriage, including such matters as property, nullity, the insanity of one partner and so forth. That Commission received evidence from the British Medical Association, pointing out that there could be no possible biological objection to marriage between any affini- ties since they were not blood related. Similarly, they received evidence from the Haldane Society through Professor Glan-ville Williams, advocating the abolition of all prohibitions on marriage between affinities, and similar evidence was given by the Fabian Society. It is fair to say that none of these witnesses elaborated their evidence; neither did the Commission examine them at length. In that context the Commission was much more concerned with the question of whether those privileges of marrying the relatives of former spouses should be extended to cases where the spouses had been divorced as well as to those cases where the marriage was ended by death. Eventually, after long and eloquent argument the Commission decided to recommend that relaxation and they reported, with three dissentients, in favour of it and it was subsequently embodied in the Marriage (Enabling) Act 1960, which permits marriage with the relative of any divorced spouse as well as of any deceased spouse, with certain limitations. At that time it was not all relatives.

Finally, in 1970 the marriage laws in general were reconsidered by the Law Commission. Contrary to their usual custom they treated this aspect of the subject somewhat cursorily. First they found—and I quote—that the "historical objection" to the marriage of affinities was based on the ground that husband and wife were one, so that relationship by marriage was equivalent to relationship by blood. This reasoning"— they added— is unlikely to appeal today, so one must ask whether there exist social or moral reasons against such unions". However, having posed this question the Commission made no attempt whatever to answer it. They circulated a working paper to certain professionally interested people and this paper stated that, There are people who feel that unions between step-relations are immoral and should not be permitted". But they added, without further comment, that a few witnesses before the Morton Commission had recommended the abolition of all prohibitions on the marriage of relations by affinity. However, no attempt was made, either by the Commission or in the working paper, to evaluate either the social or moral im- plications of these conflicting views or their acceptability to the general public. In their report the Commission recommended—and again I quote—that since they had no evidence that public opinion has changed since 1955 and now desires a revision of the existing prohibited degrees the law should stay as it was.

To assess public opinion objectively is a highly technical and expensive matter and neither the Law Commission nor a private person like myself is in a position to do it, but I would produce such evidence as I have of the change since the Morton Commission's recommendation. Of the scores of people to whom I have put the simple question: "Do you think a man should be allowed to marry his stepdaughter?"—people of all grades in life and of all kinds of political or religious persuasions—the vast majority, in fact all but about two or three, have replied with astonishment that such marriages were not already legal, adding such comments as: "Why ever not? They are not blood related". Nor I think will it be disputed that in the two decades since the Morton Commission reported there has been a marked change in public opinion generally and public attitudes towards matters of sex and marriage. Rightly or wrongly, divorce has become much more frequent and more socially acceptable. An increasing number of couples now live together without marriage, either because they wish to evade or postpone the obligations of matrimony or sometimes because one (or even both of them) is still married to someone else.

Against that background, my Lords, does it not seem ironic that the proposal to allow the marriage of couples who earnestly wish to be married, are free of all marital ties and are not related by blood, should be condemned as a threat to the stability of family life? Surely there is a much greater threat in the temptation to such couples to live together as man and wife without the legal or religious sanction of marriage, and against that course neither the civil nor the criminal law will raise any objection. But of course any children of such a union will be permanently illegitimate and cannot be legitimated by the subsequent marriage of their parents, as can other illegitimate children, although they might conceivably be the subject of parental adoption.

Moreover, in such a case, in the event of the man's death the woman will get no widow's pension, either from the State or from his previous occupation and there may be trouble, in the case of those who have houses, in the matter of capital transfer tax. It was one such case which first attracted my attention to the hardships caused by the present law. A man's wife had died, leaving him with two young children of their marriage and a grown-up step-daughter of a previous marriage of hers. After this bereavement it appeared in course of time that the best and happiest solution for all concerned would be for the step-daughter to take over the running of the household and the care of the younger children, which accordingly she did. Not surprisingly, in course of time a growing attachment arose between the father and the step-daughter, culminating now in 20 years of a shared life together, but the goal of marriage is still unattainable.

Since then a number of other cases have been brought to my attention. I have cases of couples who have travelled round the world in search of a country where they could be married, only to find when they get home that the marriage is not valid here. I know of the case of one couple who got so far as advertising their marriage in church (because the clergy do not always know the details of the law) and inviting the guests, only to discover at the last moment that the marriage would not be valid. Not surprisingly, this couple decided to behave as though the marriage had been solemnised and to live together and not to deny themselves the pleasures and responsibility of parenthood. But, of course, the children they have produced are, as I said, illegitimate. I have the case of a man whose wife deserted him eight years ago and dumped a step-child on him. Although the difference in age is quite wide, he is very anxious to marry the step-daughter. He is embarrassed by the fact that, when they travel abroad, he cannot have her name on his passport and she cannot have her passport in his name.

I should like particularly to mention one case of deeply religious people, well on in years, both of whom have been married and widowed, who are devoted to each other and would like to spend their declining years together. Because of their religious convictions they think it would be wrong even to live under the same roof. They were in fact, before they heard of this Bill coming before your Lordships, proposing to revive the long since discarded procedure of petitioning Parliament to accept a personal Bill to legalise their case alone. They are therefore pinning their hopes upon the success of this Bill.

My Lords, the cases I have quoted mainly relate to step-parent relationships because those are, I think, in practice the ones that are likely to cause the most interest and practical concern. Not many of us presumably are consumed with a passion to marry our fathers or mothers-in-law or the former spouses of our grandparents or grandchildren, but I have included these also, partly for the sake of logical completeness and partly because the Statute Book would look absurd if the only people who were forbidden to marry were people we are not going to be anxious to marry.

I have also, with some hesitation, followed the more controversial precedent set by the 1960 Act by proposing that anyone whose marriage has been ended not by death but by divorce should be permitted to marry any relative of his or her former spouse during the lifetime of that spouse. The 1960 Act did allow this extension in all cases of marriage with such affinities as were then legal; namely, the divorced spouse's sister or brother, aunt or uncle, nephew or niece. All I have done is to extend this relaxation to the remaining affinities listed in Clause 1(2)(a) and (b) of the Bill.

There remains, however, the fear in some hearts that the right to marry a divorced wife's daughter may lead a man to get rid of his wife in order to substitute a younger and possibly more attractive edition of her mother, or even because she stands to inherit money from her own father. While I have lived long enough to know that there are people who will do anything for sex or money, to this hypothesis I would reply, first, that a family in which the husband casts lustful eyes upon his step-daughter while he is still married to her mother is not exactly a stable family anyhow. Secondly, I would call in aid the report of the Morton Commission, which pointed out that under the existing law the cases of hardship are fact and the cases of what people might do in order to obtain certain sexual or financial advantages are hypothetical. I would also mention that the Morton Commission did have brought to their notice that if a man was forbidden to marry his step-daughter he might be more rather than less disposed to attempt to seduce her, on the ground that she could not afterwards turn round and say: "Now you can marry me". So we may be making it less probable that illicit unions of this kind will occur. In the end, I came round to the view that it would be illogical to exempt one particular class of relationship from the conditions which appertain to all the other affinities already covered where a divorced spouse's relatives may be married. It does seem absurd that a man can marry, as he can now, his divorced wife's niece or sister, but if he wishes to marry her daughter he has got to wait until mum dies.

The British people have a reputation for always taking two steps to reach an objective where one would do, and the history of prohibited degrees fully confirms this reputation. It took 53 years for the right of a widower to marry his late wife's sister to be extended to cases where the marriage had been ended not by death but by divorce. But things move faster now, and I have no doubt that if the law were to be relaxed now only so far as to permit marriage with a deceased spouse's son or daughter or parent the same right would before long be conferred upon a person whose marriage had been dissolved. If, however, any noble Lord takes a different view on this point, it is, of course, open to him or her to move an Amendment at a later stage imposing particular restrictions in the case of a step-daughter. But, in the meantime, I greatly hope that the many Members of your Lordships' House who have expressed agreement with this Bill in principle will, for the sake of compassion for the cases I have quoted, accept the principle so far as to support the Second Reading of this Bill, which I now move.

Moved, That the BH1 be now read 2a.—(Baroness Wootton of Abinger.)

3.27 p.m.

Viscount LONG

My Lords, may I first say that the noble Baroness's Bill is one that will definitely and utterly amaze one in trying to get the equation right in one way or another. If I may say so to her, I much admire her bravery in your Lordships' House; I much admire the way she and others with her have tried to bring Bills before your Lordships' House in order that we might have a fresh look at what is going on within certain parts of our lives. In saying this, I hope she will not feel that I am being very Right Wing or being very dictatorial in any way, because I feel that this is the most delicate and sensitive subject that we are approaching at this moment. The Bill itself, however good it looks on paper, must raise some very ugly heads underneath it. I think the noble Baroness has been trying to describe those ugly heads during her speech a moment ago.

Like others of your Lordships, we will be trying to delve into this Bill, but I only hope that we will deliberate very carefully on what the Bill is about. For instance, I believe it is, if you really start to work it out, the most technical mathematical equation that exists, and whichever way you are likely to go harm could possibly be done. It can turn many corners; it can even by the equation go on like the universe, for ever and ever Amen. Therefore, I hope that we will, all of us independently, deliberate on this subject and try to get the right answer to what the noble Baroness is saying. To me it becomes almost a nightmare. To me it could be an embarrassment. It could also, to a family man, become a mockery. It can go further; it can ridicule the family. My remarks today are concerned not so much with statistics, as with the family which has always had a moral code and standard of living. If we are not very careful as regards this Bill, we shall create another difficulty within the family.

About a year ago, if not more, the most reverend Primate the Archbishop of Canterbury instigated in your Lordships' House a very fine debate on the family. Many of your Lordships spoke about the family, its problems and difficulties. The debate was inspiring and continued for many hours, and many experts took part. Now we are considering what will happen to the family if we accept a Bill that deals with relations other than blood relations.

Too much has been eating at the heart of the family. Too many strains and problems place upon it in different ways the difficulties of life. I am the father of a family of three and I have found it very difficult, as one of the older generation, to deal with the permissive society in which we live. I find it increasingly difficult to understand a matter which the noble Baroness, Lady Wootton of Abinger, mentioned very briefly—namely, the divorce laws. Divorce is now too easy. Too many hearts are broken not in the adult's mind but in the children's minds. There are new ideas as regards teaching. My children are so advanced that I find it very difficult at times to keep up with them. I admire their education and the educational standards of today, but that is yet another aspect of the difficulties of the family.

The Church has decided to introduce new versions of the Bible. I find that difficult to understand because I do not understand the modern version of English. I like the mystery of the Old Testament and the old writings. The Church is about to set course on a new Communion service and so on. As a father, I find it extremely difficult to keep up with all these matters. There is no consolidation. We just go onwards eroding the love of the family. I am sure that I am right in saying that this Bill is concerned with nothing other than the family. It is difficult to impose discipline on my children because the schooling does not allow the strict discipline that I was used to. We are finding it extremely difficult within the family. Now, the noble Baroness, Lady Wootton, whom I much respect and understand, has put before your Lordships a Bill to alter the family balance once again. I hope that the noble Baroness does not feel that I am being particularly ugly about the situation, but I cannot understand it. What has worked in the past for the safety of good conduct and standards of life must surely be fairly safe to continue today.

Turning to the provisions of the Bill, for a man who has lost his wife to be allowed to marry his wife's mother's mother seems to me most extraordinary. In other words, he will be allowed to marry his grandmother. All right, there is no harm in that as it stands, but for a child to be told that his aunt is now his mother—

Baroness WOOTTON of ABINGER

My Lords, I am not sure whether the noble Viscount has fully understood that under the Bill you cannot marry your aunt because there is a blood relationship. You can marry only your aunt's previous spouse.

Viscount LONG

My Lords, I am most grateful to the noble Baroness for correcting me. Indeed, I stand to be corrected. This is the most difficult equation with which I have ever had to deal from this Box and if I am wrong in any way I ask your Lordships to correct me. I admit that I find the matter intensely difficult.

Under the Bill, a husband will be able to marry his ex-wife's sister's daughter's daughter. Am I right about that? Can noble Lords work out that equation? There is even a greater danger. I am speaking slowly because I feel as if I am under the influence of alcohol when it comes to this equation. Will it not be the case that a husband will be able, if I have understood the Bill aright, to marry his ex-wife's sister and then live with his ex-wife's sister's daughter in order to get divorced? I see that your Lordships are all studying me very carefully, but I apologise for saying that I find the situation very difficult. I believe that this equation is like the universe—it can go on and on.

Over the generations we have lived with very difficult situations. I noticed in a parish magazine an article headed "Scandal in the Chancel or the Heathfield Mural Monument" and perhaps I may read it to your Lordships. It says: Those of you who sit in the Heathfield choirstalls contemplating the calm countenance of Margaret Hadley opposite, little realise the traumatic experience she suffered in her life. Engaged to Thomas Luttrell of Dunster Castle when a baby, they were married in due course, thus fusing two valuable estates. Then it was discovered that Thomas's mother was Margaret's godmother and, in the eyes of the then Roman Catholic church, this was incest for they were ' brother and sister'. (Worse still, they were very distant cousins). So, they were excommunicated and forcibly divorced! Eventually they were allowed to re-marry and this took place at East Quantoxhead Church in 1560. They then produced six children. Thomas, however, died in 1571: she married a John Strode in 1572 and upon his death she married her agent, Richard Hill, in 1587. She herself died at Luxborough in 1607". I have the strongest feeling that if we are not very careful as regards the Bill, we shall go backwards and not forwards and involve ourselves with the reverse situation. We must be extremely careful.

As I have said, I believe that the most sensitive area is the family; the family will suffer most if the Bill is passed as it stands. However, another sensitive area concerns the priest in charge of his parish. With his training and experience he will encounter total embarrassment and difficulty in trying to cope with a family that is going wrong within marriage. Yet, if the Bill goes through he will have no chance, other than by directing the matter to his bishop—and his bishop will find that the law is not even in his hands—to save the family from an embarrassing situation. I do not think that the Bill is being in any way fair at the grass roots, to those who go about their parishes trying to set standards, particularly moral standards, among their flocks. It certainly will not be easy for such people if we involve them in roundabout questions of who may marry whom when people are not blood related.

I find this Bill extremely complicated and I look forward to hearing noble Lords who wish to speak on it. If I have said anything, either one way or the other, and it is wrong, I must of course stand to be corrected. I should like to ask the noble Baroness whether the statistics really show that a great deal of hardship is affecting families in this area. I should like to know much more than she has already told us about the advice she received. There must be further figures. If the statistics show that only a minority group is affected, then I do not think that her Bill is being at all fair to the family. I repeat, I find myself in a very difficult situation; to me the whole Bill is an equation. Would it not be advisable—and I beg the noble Baroness to consider my feelings, not in theory but in practice—to withdraw the Bill in order that an inquiry could be set up to study this particular problem and take evidence from various bodies?

At this stage I do not believe that it is at all fair to the family to have to cope with yet another piece of legislation, in addition to all the other legislation, taxes, et cetera, which I have already mentioned. It is not fair that the family should have this Bill thrown at it. I would certainly be prepared to serve on an inquiry if one were set up. If hardship within the family is demonstrated, I should be quite willing—and I know that there would be others outside the Church who also would be willing—to look at this situation. As it stands, the Bill looks all right, but underneath there is only one part of the community that will suffer, and that is the family—and within the family it will once again be the children.