HL Deb 14 June 1979 vol 400 cc725-38

3.36 p.m.


My Lords, I beg to move that this Bill be now read a second time. I must first remind your Lordships that it is four months, almost to the day, since your Lordships passed the Second Reading of an exactly similar Bill by a comfortable majority. A month later in Committee a number of Amendments were set down, but of these several were not moved and those that were moved were subsequently withdrawn. Therefore, the Bill which is before your Lordships today is the one which had completed its progress through the first two stages in this House, before its untimely death owing to the dissolution of Parliament. That being so, I greatly hope that your Lordships will feel that the decision to approve this Bill in principle, which you made so recently, will still stand today.

I am, however, aware that there were a number of noble Lords who wished to amend the previous Bill in its later stages, by setting a higher age limit for marriages which would be legalised by this Bill than is set for marriages with affinities, or indeed for other marriages altogether. In our previous discussions, although I do not accept the desirability of this change. I indicated that should the House so desire and an Amendment be moved in that sense I would accept it, and that understanding I now repeat.

Since the demise of the earlier Bill and the birth of this one, I have received a number of further communications from people who would be affected by the Bill. All are variants of the stepparent/step-child pattern and, though I do not have full details of them all, it appears from this sample—which is not, of course, a scientifically selected sample; it is people who have picked on my name by chance in the Press—that the widowed and the divorced are about equally matched in numbers. I sometimes wonder whether, in our anxiety about rising divorce rates, we have forgotten that death is still with us, and that it is death that terminates a very large number of marriages, sometimes quite early in life. But, in the divorced category, I have yet to meet a single case in which either of the parties wishing to marry has been involved in the divorce proceedings of the other. There may, of course, be such, and it may be that such people would not have chosen to write to me, but that is the fact of the cases that I have had so far.

For the most part, my couples are well advanced in age—some are even in their 60s, and I have one in the 70s—and have waited a long time for the opportunity to legalise their unions. The younger ones sometimes think it improper to beget children. Others have brought up children, though aware that these must be condemned to permanent illegitimacy. There arc very few young people who have written to me, and I have only one case in my file in which there is a single individual under the age of 20. That is the case of a step-father in his 40s and a girl of 19, who wish to marry. If a dozen or so persons have written to me, it seems reasonable to suppose that there must be a thousand or two more scattered about the country who have not done so. But even if few in number, they are real people and not hypothetical cases. Those who have written complain that they are obliged to live a lie and that they are also penalised both socially and financially as I hope presently to show.

Now let me turn to what the Bill will do for them. As, unfortunately, I cannot assume that all noble Lords present today were in their places for the Second Reading of the previous Bill, I regret that I must recapitulate its background and effect, although as briefly as I can. In this situation, I am not sure who is most to be pitied: myself for having to repeat the story or noble Lords who have heard it before. The Bill is concerned only with marriages between affinities, defined as: persons connected by marriage and not by blood". It would validate all the remaining marriages by affinity which have not yet been legalised, but it leaves the prohibition on marriage between blood relations exactly where it now stands. It would in fact permit marriage between any two people not already married who are not connected by blood, with the single exception of adopting parents and their adopted children.

The Bill does not, as the media would sometimes have your Lordships believe, 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 in progress for the whole of this century and, in a sense, for a good many centuries before. As your Lordships are aware, the list of what are known as the prohibited degrees goes back to the Old Testament, but they remained matters purely of ecclesiastical law in this country until the time of Henry VIII—who, after all, had considerable marital experience. They were incorporated into our statute law by an Act of 1540.

If I may now jump four centuries, the first important change in the prohibited degrees was the Act of 1907 which legalised marriage between a man and his deceased wife's sister, but it 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 this change came it was not expressed in the same form as the right already conferred upon a man. In those days, it was assumed that men always married women and that women never married men. So the Act, which should have been, by parallel "The Deceased Husband's Brother's Marriage Act" was entitled The Deceased Brother's Widow's Marriage Act. If we turn it round, it comes to exactly the same thing, while maintaining the fiction that the marriage is always by the man and never vice versa.

The next stage was the Act of 1931, which extended the freedom to marry by permitting marriage with the former spouse of a deceased niece, nephew, aunt or uncle. In 1949, a consolidating Act tabulated all the prohibited degrees of both blood and affinity exactly as they then stood. However, as soon as that tidying up process was finished, the Government of the day promptly untidied it by appointing the Morton Royal Commission on Marriage and Divorce, which considered all aspects of the law of marriage. On the prohibited degrees, this Commission received evidence from the British Medical Association, pointing out that there could be no possible biological objection to marriage between affinities, since they were not related by blood. Similar evidence was also given by Professor Glanville Williams on behalf of the Haldane Society, and by the Fabian Society, both advocating the abolition of all restrictions on marriage between affinities.

It is fair to say that none of these witnesses elaborated their evidence, nor did the Commission examine them at length. The Commission was much more concerned with the question whether the right to marry the relative of a former spouse should be extended to cases where that spouse had been divorced as well as to cases where his or her marriage had ended in death. Eventually, with three dissentients, the Commission decided to report in favour of this concession. This was quite shortly afterwards enacted in the Marriage (Enabling) Act 1960 which permitted marriage with a divorced spouse's relative if marriage with the same relative of a deceased spouse was already legal.

The last review came in 1970 when the marriage laws in general were reconsidered by the Law Commission. Contrary to their usual custom, the Commissioners treated the subject of the prohibited degrees 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"—-that relationship by marriage was equivalent to relationship by blood. They added: This reasoning is unlikely to appeal today, so one must ask whether there exist social or moral reasons against such unions. However, having posed this question, its authors made no attempt whatever to answer it. They merely circulated to certain professionally interested groups a working paper which stated that: There are people who feel that unions between step-relations are immoral and should not be permitted, although the Commission added, without further comment, that some witnesses who appeared before the Morton Commission had recommended that all prohibitions on the marriage of relations by affinity should be abolished. Nevertheless, neither in their report nor in their working paper did the Commission seek to evaluate the social or moral implications of these obviously conflicting views or their acceptability to the general public. In their report they merely 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.

Lacking any evidence on the state of public opinion, the Commissioners took no steps to collect any. I have taken what steps I can, but it is, I think, significant that out of some scores of persons to whom I have put the simple question: "Do you think it is right that a man should be allowed to marry his stepdaughter?"—people in all positions of life, and of many varieties of occupation and political or religious opinion—the vast majority, with I think only two or three exceptions, have all expressed astonishment that such marriages are not legal, usually accompanied by some such comment as, "Why ever not? They arc not blood related". Nor can it be disputed that in the two decades since the Morton Commission reported there has been a marked change in public attitudes generally towards matters of sex and marriage. Rightly or wrongly, divorce has become more frequent and more socially acceptable. An increasing number of couples now live together without marriage, either because they wish to evade or to postpone the obligations of matrimony, or sometimes because either one is already married to someone else, or even both of them are.

Against that background, does it not seem ironic that a proposal to allow the marriage of couples who earnestly wish to be married, who are free of all marital ties and who arc not related by blood should be condemned as a threat to the stability of family life? Is there not a much greater threat in the temptation to such couples to live together as man and wife without the legal or religious sanctions of matrimony? To that course neither the civil nor the criminal law raises any objection. Yet any children of such a union cannot be legitimated by the subsequent marriage of their parents, as other illegitimate children can. In certain cases a court might agree to their adoption by their parents, but even this can by no means he taken for granted.

Apart from the question of children, there are other disadvantages. If the man dies, the woman gets no widow's pension, either from the State or from the man's previous employment. And if either of them has any capital or owns the house in which they live, on the death of the one partner the survivor gets no benefit from the exemption from capital transfer tax which is available on bequests between spouses.

My Lords, the cases I have quoted relate mainly to step-parent relationships, but the Bill covers others. I have chosen these because I think they are the ones most likely to cause practical interest and concern. Not many of us, presumably, are consumed with a passion to marry our fathers-in-law or mothers-in-law, or the former spouses of our grandparents or grandchildren; but I have included these also, for two reasons. The first is logical completeness and the second is that the Statute Book would look rather ridiculous if the only people we were forbidden to marry were the people marriage with whom would be the least likely to attract us.

I have also followed the precedent of the 1960 Act in proposing that the law concerning marriage with any relative of a former spouse should be the same, s whether that spouse has died or been divorced, as is already the case in all those affinity marriages which are at present legal. In the absence of any evidence that this rule has resulted in disastrous consequences, I have therefore applied the same principle to the marriages which would be legalised by this Bill.

There remains, however, I know, the fear in the minds of some of your Lordships that the right to marry a divorced wife's daughter may lead a man to get rid of his present wife in order to substitute a younger and possibly more attractive edition of the same, or even because she stands to inherit money from her own father. I have lived long enough to know that there are people who will do anything for sex or money, but a case such as I have just described has never yet come to my notice. Although I would not deny the possibility of its occurrence. I would reply, first, that a family in which the husband casts lustful eyes upon his stepdaughter is not a particularly stable family anyhow, and that my Bill does nothing to produce that situation, which can arise independently of the Bill.

Next, 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 get sexual or financial benefit are hypothetical. Finally, it seems somewhat illogical to exclude one particular class of relationship from the conditions which apply to all other marriages between affinities. Would it not be a little absurd that a man should be able to marry—as he now can—his divorced wife's sister, aunt or niece, but that marriage with her daughter should be legalised only if the couple have waited until her mother is dead?

The British people have the reputation for always taking two steps to reach an objective where one would do, and the history of the prohibited degrees fully confirms that reputation. It took 53 years for the right of a man to marry his deceased wife's sister to be extended to cases where his 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 only so far as to permit marriage with a deceased spouse's son, daughter or parent, before long the same right would be conferred by another Act upon a person whose marriage had been dissolved. Meanwhile, I must repeat the hope that your Lordships, having so recently expressed in principle approval of this Bill's predecessor, will uphold that decision today and in so doing will bring comfort and happiness to a number of distressed individuals at practically no financial cost to the community and without ally damage, but rather, as I have tried to put it. with benefit to the institution of marriage and the family. I beg to move.

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

3.54 p.m

The Lord Bishop of GUILDFORD

My Lords, I should like to begin with a personal word of explanation and an apology that I have not been present at all on any of the former occasions on which this Bill has been debated. In fact, work at the national level in Church House on matters concerned with Christian unity have prevented me from attending your Lordships' House as frequently as I would wish. Also, I very much regret the absence this afternoon of the right reverend Prelates the Bishop of London and the Bishop of Truro, who have encouraged me to speak in this debate. As the Bishop of London made clear at the beginning of his speech on the earlier Bill, the House is indebted to the noble Baroness, Lady Wootton of Abinger, for her care in presenting this Bill to the House. I also express sympathy with her at the untimely death of her Bill and the obligation which she has now undertaken to present the Bill again to the House. Thanking her for the moderate and careful way in which she has presented the Bill this afternoon gives me great delight, because she is an honoured citizen of the county of which I am bishop. I wish I could support her in her case but I feel that I must ask your Lordships to vote against this Bill this afternoon.

As I see it, the substance of her case is that there are particular people for whom the present law creates injustice, and the speech which the noble Baroness has just made has demonstrated that that in fact is her principal concern. This was demonstrated in the Second Reading debate of the previous Bill by other noble Lords, including the right reverend Prelate the Bishop of Southwark.

In reading the report of that debate it seemed to me that it was concerned primarily with the removal of injustice in particular cases and that the debate did not pay sufficient attention to the more general harm which the Bill now before us could do to the wellbeing of society. I draw your Lordships' attention to the second paragraph of the Explanatory Memorandum on the Bill before you and I submit that this is a misleading statement of the scope of the Bill before us. The wording there suggests that in fact there has been a liberalising tendency during past years which is only to be completed by a modest step this time. I submit that the facts of the matter are in fact the contrary of that. Certain concessions have been made with some difficulty during the past decades but the main substance of the affinity restraints in marriage has not been touched and this Bill is likely to do far more harm by removing those restraints than simply removing injustices for particular individuals.

I cannot help feeling that we ought to have presented to us in this matter a different type of Bill which would not make the sweeping destruction of the affinity restraints but would be directed to the removal of particular injustices in particular cases, perhaps on the New Zealand model, by giving jurisdiction to the High Court in particular circumstances for particular individuals. In a few moments I wish to say a little about the healthy contribution that affinity restraints make to the wellbeing of the family. Indeed I base my case against the Bill primarily on that. I hope very much that, despite the previous Bill having been given a Second Reading, this Bill will be defeated or withdrawn and that perhaps a different kind of Bill, aimed at removing specific injustices will, after consultation, be presented to this House.

Before I speak about the affinity restraints and their contribution to the health of the family, I wish to draw your Lordships' attention to a fact which was overlooked in the previous debate—namely, that if this Bill is passed there will be a conflict of laws between the laws of Parliament and the laws of the Church. At the moment Church and State are in accord with respect to the laws of affinity, and Canon B.31 of the Church of England repeats the provisions of the Marriage Act. This Bill would change that and, speaking personally, I think it cannot be assumed that the General Synod would simply accept a change in this respect made by Parliament. I believe your Lordships should weigh that very carefully before voting today.

The present position was substantially endorsed by an Archbishops' Commission in 1940 and repeated in a more general report, Marriage, Divorce and the Church, in 1970. I believe we ought not to contemplate a major change of the kind set out in this Bill without further consultation—and this point was very competently argued by my noble friend the Bishop of London in the previous debate —nor that we should do it without further research. How pressing in fact are the particular cases of injustice, how many are they, how prevalent are they that they demand a Bill of this nature? I can only say that as a parish priest and as a Bishop I have never been consulted in a single instance about any of the matters now under consideration in this Bill this afternoon.

I wish to pass to some general considerations based on experience and reflection and not simply on the basis of religious authority, though I believe that religious teaching is consonant with what I am going to say. The three considerations I will put before your Lordships are these. First, the ascent of man, to use Bronowski's words, or, if you like, the development of humanity, or, again, the emergence, the creation of civilisation, this human achievement, has been a very great one. It has been brought into being over many generations. And contributory to this achievement has been the ability of human beings to define areas of freedom and areas of restraint.

I believe this pattern of freedom and restraint can be illustrated in many ways. I was present this week in the Royal Horticultural Society Gardens at Wisley, that ecological masterpiece, and it was clear as I walked through those gardens how much the skill of the gardeners depends upon being able to restrain plants and train them and prune them and at the same time giving freedom to develop in other ways. And, of course, in our democratic processes we see this restraint and freedom both playing a part in the processes which enable us to make a change of government as calmly and peaceably as we have done in this country recently.

I believe that in the family and in society we also need this harmony of freedom and restraint. The family is a complex network of different kinds of relationship within which children develop, within which they mature, and within which adult people live securely. But within that network there are necessarily inhibitions on sexual activity, and these inhibitions have been expressed in different ways in different societies, of which, of course, the Old Testament regulations are but one example. These inhibitions, these restraints, have been created down through the ages. I believe that we should take care before we dismantle them in the wholesale way proposed in this Bill this afternoon, and that we should take particular care at a time when people are under greater stress and strain because of the circumstances of modern life. The human personality today has a far greater ability to enjoy life, to enjoy the gifts of humanity, to enter into the fullness of what it means to be a human person, and because of that the waymarks, the guidelines, need to be even clearer than they were in previous generations. I believe, therefore, that we should take care before we pass such a Bill as comes before us this afternoon.

The second consideration is this. Healthy family life is made up of many kinds of relationships, each of which has its own pattern and each of which needs protection. Let me take first of all the normal nuclear family, because I think what I am trying to say becomes clearer if I start there. Within such a family there is first of all the husband-wife relationship, then the parent-children relationship and then the brother-sister relationship. The husband-wife relationship, the foundation of the family life, a relationship in which the whole complexity of personal relationships, physical, emotional and spiritual are desirable, must be allowed free play in order to create harmony, joy and security within that family. The other two relationships are, however, also important; that is, the relationship of parent to child and the relationship of brother to sister or sister to sister, brother to brother. And these other relationships are important for the development and the maturing of persons and for the growth of children towards adulthood.

These relationships can often be of the deepest intimacy—for example, as between brother and sister—but they exclude certain aspects of personal relationships, the explicitly sexual and the marital. Indeed the other two subordinate relationships can flourish to the wellbeing of the family only if it is accepted that the marital, explicitly sexual, relationship is excluded from them. And it is because that restraint is understood and practised that the relationships can develop in their own way to the joy and happiness and harmony of the family. In this case, it seems to me that there is a clear principle that marital relationships can exist only between two principals in the family unit, and that where that is accepted the other relationships may flourish in their own way.

Obviously these restraints are accepted for blood relatives. But I believe that they are also to be accepted in the extended family if the extended family is to live in the most joyous, creative way possible. The same principle of exclusion obtains in these more extended family relationships also. Take the relationship between a father and his son's wife, which would be made legal by the Bill before us. This relationship can grow and flourish and come to a deep intimacy of relationship, to the mutual enjoyment of the father and his daughter-in-law, so long as it is recognised that the whole range of personal relationships cannot be developed in this case—in other words, so long as the affinity restraint is accepted by both sides. Introduce the possibility that they may become suitors to each other and then the whole relationship becomes potentially dangerous to the harmony and well-being of the family. Or, again, take the relationship between a man and his father's wife—that is, his step-mother. So long as the relationship is accepted as one between mother and son then it can be a healthy one. But let the son become a potential suitor to his step-mother and deep distress will be caused to the whole family and not simply to the two persons most concerned. The Bill before us this afternoon would in fact remove the support of law from those affinity restraints, and, by removing the prohibition on marriage within certain degrees of affinity, it would open up the family structure to a whole new set of potentially threatening relationships.

My third submission is that marriage is not simply between two individuals. Marriage entails a wider relationship which brings with it a range of new privileges and new obligations. Some new relationships entered into in marriage are, of course, of a sustaining kind; they bring new friendships to enrich life, new brothers and sisters to share in projects, new aunts and uncles to give help in times of sickness and so on. Other relationships entered into in marriage are of a more demanding kind and I refer, for example, in the case of a second marriage, to the obligations which a person enters into with regard to the children of his spouse—namely, his stepchildren—or to the obligations which a spouse takes upon himself or herself towards the aged parents of his or her partner, caring for them often as if he were a son or she were a daughter.

lf, therefore, by entering into marriage one accepts both sustaining relationships and relationships of obligation, it is not a far cry to suggest that one accepts also the obligation of affinity restraint, to which I referred earlier; that that restraint obtains in the new relationship of affinity entered into in marriage, and in fact is an obligation inherent in entering into marriage, because, as I have said before, marriage is not simply between two individuals but has a much wider range than that.

To underline this matter I should like to refer very briefly to the interchange between the noble Baroness, Lady Wootton of Abinger, and the right reverent Prelate the Bishop of London in the previous debate about the position of adopting parents and adopted children. It became quite clear on that occasion that the law itself is concerned to assert prohibitions on marriage—that is, in the case of adopting parents and adopted children—even in cases where there can be no question of kinship, and that therefore the law itself recognises the importance of restraints beyond those that are due simply to consanguinity, to kinship.


My Lords, if the right reverent Prelate will allow me to intervene, I should like to point out that I mentioned one exception as regards which my Bill leaves marriages that are not blood-related ruled out. Whatever my Bill does, adopting parents cannot, as at present, marry their adopted children.

The Bishop of GUILDFORD

My Lords, I am grateful to the noble Baroness for making that point. I would submit that this exclusion from her particular Bill s underlines the point which I am trying to make—namely, that the law does not simply base itself on consanguinity, but recognises that there are other relationships within the family on which these restraints ought to operate—for example, the particular case of the adoptive relationship. There is also my argument on the affinity relationship as well.

To sum up, I should like to say a little about the function of the law in that respect, although I do so with some deference in this Assembly. I think that one must readily accept that the law may legitimise conduct which is not necessarily the highest attainable. That is true and one accepts it. It is equally true that the law should not create new risks which threaten the institutions of society. Indeed, the law must take even greater care not to introduce such risks in these days when there is so much confusion about what is right or wrong.

I believe that the restraints on marriage imposed by relationships of affinity are the fruit of long experience in human development and entirely healthy and helpful to the well-being of families and the maturing of human persons. I do not think that it is right that this House should remove the support of the law from these restraints in the wholesale way proposed by the Bill. I urge your Lordships not to pass the Bill.