§ 5.43 p.m.
§ Lord Meston
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Meston.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]933
§ Clause 1 [Marriage between certain persons related by affinity not to be void]:
Lord Meston moved Amendment No. 1:
Page 1, line 5, leave out ("in England and Wales").
§ The noble Lord said: In speaking to this amendment. I should like to speak also to the identical amendment, Amendment No. 9.
§ Amendment No. 9: Page 1, line 14, leave out ("in England and Wales").
§ Lord Simon of Glaisdale
Has the noble Lord considered also speaking to Amendments Nos. 15 and 16 as they seem to raise the same point?
§ Lord Meston
In fact, they do not raise an identical point but a similar point. Subject to the better view of your Lordships' Committee, I would prefer to deal with them separately. If that is satisfactory, I shall simply speak at this stage to Amendments Nos. 1 and 9. These are slight and technical amendments to remove unnecessary potential restriction on the recognition of marriages to be covered by this Bill.
In removing the reference to England and Wales in Clause 1, one is not presuming to legislate for foreign countries. The intention of the amendment is to include cases which, by established principles of English private international law, would be governed by English law, even if the parties concerned were married abroad. For example, if an English domiciled couple were married in France, it would be a wrong and odd result if French law applied English law and found that the marriage was not valid simply because of the place of marriage. The amendment also introduces a measure of consistency with earlier marriage enabling legislation. I beg to move.
§ Lord Simon of Glaisdale
In rising to support the amendment, I do so not only because it raises an important point of private international law but also because the background of the leading case throws considerable light on the social problems with which your Lordships, I believe, will be largely concerned. This Bill is concerned with capacity to marry. Under our private international law, capacity to marry is referred to the personal law of the person who is concerned, that is to say, in English law, normally the law of the domicile, as the noble Lord said; although in some systems, it is the law of the nationality. It differs therefore from where the question of the formality of the marriage is concerned, which is referred to the law of the place where the contract of marriage is concluded.
It would therefore be quite wrong to confine the question of capacity to marriages in England and Wales. As the noble Lord explained, one takes one's personal capacity to marry abroad. If one can marry according to one's personal capacity abroad, then that is a valid marriage in English law. If one is incapable of entering into that marriage by reason of a personal incapacity, then the marriage is invalid in English law.
I mentioned a leading case. In fact, the principle that I have endeavoured to lay before your Lordships is established by a decision of the House of Lords. It was another case that throws an interesting light on the Book of Leviticus, with which most of the report of the 934 Seear Committee was concerned as the originating point of its deliberations. As your Lordships know, under Chapter 18 of the Book of Leviticus, a man is precluded from marrying or, indeed, having sexual intercourse with his sister-in-law.
I speak, subject, in all of this, to the correction of the great Biblical scholars and canon lawyers whom I see on the Bench of Bishops this evening. Under Chapter 20 of Leviticus, that bar is regarded so seriously that sexual intercourse between a man and his sister-in-law is a capital offence. Oddly enough, under Chapter 18 an uncle can marry his niece. It seems to me—and again I speak subject to correction—that the reason for that must be that the uncle and niece were normally living in different households at that time.
The odd thing was that an aunt could not marry her nephew and that was—again subject to correction—I think because that reversed the order of authority in the family which was regarded as the social norm at the time that Leviticus finally took shape.
As the Committee knows, during the Middle Ages all those degrees of affinity became vastly proliferated. Indeed, one had not only affinity by marriage but spiritual affinity by godparentage, so that as the degrees were multiplied one had a situation where a distant relative of a godchild might well be precluded from marrying a distant relative of the godparent. The marriage would be set aside as void.
At the Reformation most of that was swept aside and the Protestant Churches returned to the word of the Book of Leviticus. The Roman Catholic Church subsequently went a long way in the same direction at the Council of Trent. But there was a curious difference which gave rise to the case to which I was going to refer. The Lutheran Church applied the ban on an uncle/niece marriage literally and did not extend it to an aunt/nephew marriage. But the Calvinist Churches applied the Levitical ban by analogy to aunt/nephew marriages. The Anglican Church in that respect followed the Calvinist mode.
The case which I had in mind establishing the principle which lies behind the amendment of the noble Lord arose in this way. A British Jew wished to marry his niece, as he could by his own religious law which was, of course, the Levitical law. He could not do so in this country, so he went to Germany—a Lutheran country—where he could go through such a ceremony, and did. Subsequently questions of settlement arose and it was held that the marriage was void, because the propositus being a domiciled Englishman carried his incapacity abroad.
I venture to go into that case further because the difference in Leviticus between uncle/niece marriages and brother-in-law/sister-in-law marriages is accountable by the separation of households; and second, to show that although we apply the Levitical law by analogy to our aunt/nephew marriages, we have never countenanced brother-in-law/sister-in-law marriages. For those reasons, which in the end come back to a question of law—we are concerned here with capacity which ought to be referred to the law of the domicile and not to the law of the place of contract—I venture to support this amendment.
§ Lord Meston
I am very much obliged to the noble and learned Lord for his expertise in this matter, and 935 for his lucid explanation not only of private international law but of the very remarkable man-made development of the law of affinity of which he gave us a very good example.
All I know, as a practising lawyer, is that in private international law as it has developed in recent years the court needs as much room for manoeuvre as possible. It is on that basis that I commend this amendment to you.
§ On Question, amendment agreed to.
Lord Denning moved Amendment No. 2:
Page 1, line 7, after ("daughter") insert ("daughter-in-law").
§ The noble and learned Lord said: With this amendment I propose to deal with amendments raising the same points. They are Amendments Nos. 3, 4, 6, and those of my noble friend Baroness Seears, Amendments Nos. 10 and 11, and Amendments Nos. 32 and 33.
§ Amendment No. 3: Page 1, line 7, after ("grand-daughter") insert ("a grand-daughter-in-law").
§ Amendment No. 4: Page 1, line 9, after ("father") insert ("father-in-law").
§ Amendment No. 6: Page 1, line 9, after ("grandfather") insert ("grandfather-in-law").
§ Amendment No. 10: Page 1, line 16, after first ("the") insert ("mother or").
§ Amendment No. 11: Page 1,1ine 17, after ("his") insert ("son or").
§ Amendment No. 32: Page 5, line 34, leave out from ("words") to ("to") in line 36 and insert ("from 'Wife's mother' ").
§ Amendment No. 33: Page 5, line 37, leave out from ("words") to ("to") in line 39 and insert ("from 'Husband's father' ").
§ This raises the point of marriages between father-in-law and daughter-in-law. My proposition is that we have already affirmed the principle which runs through the majority report of the archbishops that a man and woman, previously married, whose marriages are terminated by death or divorce, should be free to marry each other as long as they are over the age of 21, notwithstanding the disloyalty, the adultery, the abduction which may have taken place previously while they were married.
§ When this matter came before us on Second Reading I venture to think that I was about the only one who opposed marriage between step-father and step-daughter because I felt that that was an intrusion into the structure of the family. I gave the illustration of my own case, a widow and widower, both in their forties, and stepchildren both in their teens and under 21. Was it to be allowed that I should take the daughter and seduce her, take her away, and divorce my wife in order to marry her? That seemed outrageous to me. I therefore protested in your Lordships' House against this introduction of marriage between step-father and step-daughter. But I was in a minority. Every one of the bishops were against me. I have therefore to accept the first clause of this Bill, which allows a step-father and step-daughter to marry once the previous marriages have been terminated by death or divorce.
§ I suggest that the only logical consequence of that is that a father-in-law should be able to marry his daughter-in-law once their previous marriages have been terminated by death or divorce because the principle has already been established.936
§ Let me take your Lordships briefly through the history. Your Lordships will know from history, all the arguments in 1907 as to a man marrying his deceased wife's sister. The Churches were opposed to this. It was felt that for a man to marry his deceased wife's sister might mean that he might be tempted to poison, kill or hurt his wife so that he could marry her sister. But such marriages were allowed in 1907. In 1925 it was extended to the deceased brother's wife but that always dealt with death.
§ 6 P.m.
§ However, in 1960 both Houses allowed the marriage of a man with his brother's wife. Just think of the disloyalty there would be in the family! To take my case, could I be so disloyal to my brother as to make love to his wife, or seduce her and take her away to live with me? It is a monstrous idea—a gross breach of loyalty within the family. Yet if there is a divorce on that account, if my brother should divorce his wife, by law we could marry. That was the principle established in 1960 by both Houses of Parliament. Dr. Williams, the then Bishop of Winchester, was in favour of such a marriage; Geoffrey Fisher, the Archbishop of Canterbury was against it. However, that principle was passed. We have to accept the introduction of the principle into our law that a man can marry his brother's wife once the brother is dead or divorced, notwithstanding all the infidelity and breach of loyalty that went on earlier.
§ Under Clause 1 of the Bill we extend that principle to the step-father and step-daughter. I have already indicated the gross disloyalty which will arise within one family if the father, who is already married to the mother of the family, seduces her daughter and goes off with her, the result ending in a divorce. Is that to be allowed? Under Clause 1 your Lordships will allow it. Once the people involved are dead or divorced, we are saying that marriage can take place between the step-father and step-daughter.
§ Now we come to the father-in-law and the daughter-in-law. That does not seem to be nearly as bad as the case of the step-father. The father-in-law may have a grown-up son who may marry and set up his own household elsewhere. There would be two separate families. It may be that the girl is already with the family and the father-in-law then makes love to and goes off with his son's wife. Of course, there would be a divorce. The disloyalty to the son is not nearly so great as the disloyalty in the cases which I have mentioned because there are two separate households and there has been divorce or death on both sides. Therefore, they are free to marry.
§ Why is that principle not just as applicable as all the other cases which I have mentioned? The majority report of the archbishops took that view. What a good committee it was! Among its members where my noble friend Lady Seear, Sir George Baker, who was president of the Family Division, and John Rubinstein, a very skilful lawyer who knows all about these matters. The majority took the view that as long as those involved are over 21 years of age and once the previous marriage has been terminated, they should be free to marry. It is only the minority report, without any particularly good reasons, which would not extend this principle to parents-in-law. If we extended it to 937 parents-in-law and children-in-law, the law would be wholly consistent throughout and we would avoid all those petitions and special Bills before this House.
§ Therefore, as we have got this far, as we have got to step-fathers and step-daughters, logically we should extend the law to fathers-in-law and daughters-in-law. That is the object of these amendments which I beg to move.
§ Lord Meston
I hesitate to intervene at this stage, but the noble and learned Lord, Lord Denning, clearly indicated at Second Reading that he opposed this Bill root and branch. Of course, we all respect his strength of feeling in this regard. Clearly these amendments are wrecking amendments. However, naturally the noble and learned Lord wants a serious discussion as to whether the law should remain as it is, as to whether the law should change at least as far as this Bill would allow and the minority of the committee reporting under No Just Cause would allow, or whether the changes should go further, as the majority of the committee wishes; that is to say, that the law should be extended to in-laws.
The noble and learned Lord, Lord Denning, suggests in his very lucid way that logically, if we extend to step-parents, we should extend to in-laws. I beg to doubt that that is a logical progression. The minority of the committee did not perceive that as a logical progression.The point I make at this stage is simply that, if the law were to be extended to in-laws, these amendments as drafted—and I say this with great respect—are not the way to do it. The amendments as drafted use the expressions "daughter-in-law" and "father-in-law", which are not expressions used in other legislation; indeed, they do not make sense in this context. They create an ambiguity.
For example, the first amendment would, if accepted, lead Clause 1 to read:the daughter-in-law of a former spouse".The daughter-in-law of a former spouse could be your own daughter-in-law or the wife of your stepson, who is someone you could marry anyway. Accordingly, a nonsense would be created. Furthermore, there is another substantial technical difficulty in these amendments because they have been drafted in such a way that they are attached to Clause 1(1), which is a clause specifically designed to cover and protect stepchildren in circumstances in which the stepchild has been in the same household and the step-parent has been in loco parentis. It is highly improbable, that for example, a daughter-in-law could be treated as a child of the family, and I would suggest that it is wrong to seek to superimpose the extension of the law relating to in-laws, which the noble and learned Lord suggests, on a clause of this nature. Indeed the reference to "child of the family" would be otiose in this context.
Having pointed to those serious technical defects, as I would respectfully suggest they are, I venture to suggest to the noble and learned Lord that perhaps the debate on this topic should be deferred until we reach Amendments Nos. 10 and 11 in the name of my noble friend Lady Seear; they cover the same ground 938 without—and I say this with enormous respect—the technical defects which I perceive in these amendments.
§ Lord Denning
I quite agree. I am ready to wait for the amendments proposed by the noble Baroness, Lady Seear.
§ Baroness Phillips
I do not want to detain the Committee, but there is to me a sense of unreality about this. I should like to assure the noble and learned Lord, Lord Denning, that had I been present he would have had a supporter on this. Speaking as a grandmother, I am trying to imagine wanting to marry my grandson-in-law. The mind boggles. I have never had any of these kind of feelings, but perhaps I am old fashioned in these matters. If we are to spend a lot of time discussing this, there is a curious air of unreality. Are there cases that we can feel are going to be presented that would need the attention of the law?
I am sure that the noble Lord, Lord Meston, must have had something in mind when he put this Bill together. Before we proceed it would be useful if those who have amendments or speeches on the clauses could give some examples which would take us away from the realms of fantasy. This may be enjoyable legalese but it has no bearing to the real world. As I recall it, the original Bill we discussed was based on a case relating to a stepmother who wished to marry her—a stepfather who wished to marry—Anyway, I am moving now into a totally unreal situation. I am sure that it is valuable to discuss this around the dinner table, but I am not sure that it deserves the attention of this Committee.
§ Lord Simon of Glaisdale
In answer to the noble Baroness, the reference to grandparents and granddaughters is of couse quite unreal, but both the majority and the minority reports included them because they appear in both the table known as Archbishop Parker's table to the Book of Common Prayer and in the schedule to the Marriage Act. Therefore, they must be picked up when one is dealing with the realistic question which arises under this subsection—not the next—which is dealing with stepparents as a matter of reality; with stepfather and stepdaughter, and stepmother and stepson. The next subsection is the one which deals with in-laws.
I should like to reinforce what the noble Lord. Lord Meston, says, that it would be much tidier if we postponed the discussion on this amendment to the important amendments of the noble Baroness, Lady Seear, which pose to us the question of the minority or majority report. I therefore hope that my noble and learned friend will see his way to withdraw this amendment.
§ Baroness Seear
May I say to the noble Baroness, Lady Phillips, that perhaps because the noble Baroness is not a member of the Anglican Church (I think I am right in saying that) she has not whiled away the time during tedious sermons reading Parker's list. Otherwise she would understand why this is necessary.
§ Baroness Phillips
In the Catholic Church we have an even more complicated list of consanguinity, and that for our sins would cry to Heaven for vengeance. I also used to enliven myself with reading that and one or two other things, not having understood them nor hopefully having committed any of them.
§ Viscount Davidson
To help the Committee, may I say at this stage that the Government were in no way involved in the conception of this Bill? Their attitude is one of benevolent neutrality. All we are doing is to try to help in certain small ways in its drafting. We are taking no sides whatever.
§ Lord Denning
I beg your Lordships' leave to withdraw my amendment. I await with interest what the noble Baroness, Lady Seear, is going to do on Amendments Nos. 10 and 11.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 and 4 not moved.]
§ 6.15 p.m.
Lord Meston moved Amendment No. 5:
Page 1, line 9, after ("grandfather") insert (" (whether his father or grandfather is living or not)").
The noble Lord said: Perhaps I may speak also to Amendment No. 12.
Amendment No. 12: Page 1, line 17, after ("grandson") insert ("whether his grandson is living or not) ").
§ On Question, amendment agreed to.
§ [Amendment No. 6 not moved.]
Baroness Ewart-Biggs moved Amendment No.7:
Page 1, line 11, leave out ("eighteen") and insert ("twenty-one").
§ The noble Baroness said: May I first apologise for coming into the debate at rather a late stage, but I do so because my noble friend Lord Mischcon is unfortunately unable to be here today. I shall try inadequately to fill his place and put forward the views that he would have put forward at this stage. In moving Amendment No. 7 perhaps I may, for the convenience of the Committee, speak also to Amendments Nos. 14, 20, 22, 24, 25, 27, 28, 29 and 31.
§ Amendment No. 14: Page 1, line 21, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 20: Clause 5, page 3, line 14, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 22: In the schedule, page 3, line 31, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 24: Page 3, line 46, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 25: Page 4, line 11, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 27: Page 4, line 28, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 28: Page 4, line 34, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 29: Page 5, line 5, leave out ("eighteen") and insert ("twenty-one").
§ Amendment No. 31: Page 5, line 29, leave out ("eighteen") and insert ("twenty-one")940
§ As is self-evident, the purpose of this amendment is to raise the age bar from 18 to 21, and therefore to allow marriage between step-parents and stepchildren only if both parties have attained the age of 21, and a child of the family relationship had never existed between them. As was argued at Second Reading the purpose of the Bill is to strike some sort of balance between the right of people to marry as a fundamental freedom and the need for regulation of the legality of marriage in the interests of preserving the stability of the family.
§ Our amendments suggest that if the age bar is only 18 then the stability of the family is not adequately safeguarded. Let us take the example of a stepchild who is not actually living with a stepfather but is living nearby. That child is not a child of the family but could be subject to tensions and sexual advances prior to the age of 18 with the knowledge that the two people could be legally married when the child reaches the age of 18. That is a situation which could only be acutely destructive to the cohesion of the family during that period.
§ Perhaps at this point one should add a word about the great difference in the adultness of a young person of 18 and a young person of 21, and also the great difference in the attitude of a young person of 18 and a young person of 21 towards an adult in a position of authority. I feel that I know about this because I have a child of 18 and a child of 21. There is no doubt that the child of 18 is more dominated, and feels more affected, by an adult in authority, whoever that may be—a parent, a step-parent, or a teacher—than a child of 21, who would feel much more of an equal. The child would see himself or herself more on a level with an adult or person in authority who might be a stepfather. Her view of that step-parent would not be one which was dominated but would be more like the way two adults behave. This is an important argument for wishing to raise the age bar from 18 to 21 years.
In the majority report it was said that if a child had been a child of the family a marriage should not take place until that child had attained the age of 21. The report reads:
The opportunity for the young person to decide on marriage without being unduly influenced by the previous context of the relationship would be prejudiced unless sufficient interval had elapsed for personal identity and liberty of judgment to be established".
These amendments, which I am moving in the name of my noble friend Lord Mishcon and myself, suggest that the same consideration should apply even if the child is not technically a child of the family, if that child is in close proximity, living nearby but not within the household. I beg to move this amendment for the consideration of the Committee.
§ Lord Simon of Glaisdale
I did not intend to intervene to speak at this stage, but the noble Baroness, as I understood her, said that this would apply notwithstanding that the child in question is not a child of the family. I wonder whether she was right about that in view of the succeeding words at the end of this subsection and subsection(3). As I read the amendment, all it did was to raise the age of 18 to 21. I see the noble Baroness is nodding in approbation. I believe that is right, is it not?
§ Baroness Ewart-Biggs
Yes. I probably explained myself rather badly, but the amendment allows marriage between step-parents and stepchildren only if both parties have attained the age of 21 and if a child-of-the-family relationship has never existed between them.
§ Lord Denning
In this case I support the amendment. I always regretted Mr. Justice Latey's committee decision when it reduced the age of majority from 21 to 18. For centuries the age has been 21 and it was a sensible rule. At 18 people are more susceptible. They are not nearly so aware of the ways of the world. I much regretted the reduction from the general age of 21 to 18. In the case of marriage in such circumstances as we are now considering (where a step-daughter is to marry her stepfather) the age of 21 is the proper age to consider. It is the age that the majority report itself considered. I support the amendment.
§ Lord Simon of Glaisdale
Obviously this is an arguable case. It has been admirably argued. I ask the noble Baroness not the press her amendment for two reasons. The first is that the age of 21 has, as my noble and learned friend has said, for all practical purposes in pursuance of the report of the Latey committee, a powerful committee, been reduced to 18. The argument used at the time in your Lordships' Chamber, notably by my noble and learned friend Lord Gardiner, was that the age of maturity was steadily going down and that 18 was sensible now, where 21 might have been sensible before. The age of 18 here fits better into the general framework of our law of minority.
My second reason is even more powerful; that is, that the minority report on which this Bill is based has received the approbation of the House of Bishops and their support in your Lordships' Chamber. If this alteration were made the whole matter would have to go back for reconsideration. Both the majority and the minority recognised that there were cases of hardship which called for legislation and for a different treatment from the personal Bill procedure with which your Lordships have been concerned previously. It is because the noble Baroness may have an arguable case, because she may not wish to prejudice the chance of this Bill going through, that I ask her, with respect, not to press this amendment.
§ Lord Swinfen
I should like to support the noble Baroness. Lady Ewart-Biggs, in her amendment. I hope that the noble Lord, Lord Meston, will accept it. I believe that when the age of adulthood was reduced from 21 to 18 it was a mistake. For generations the age of 21 has been the age when those who mature more slowly have reached the time when they can be said to make sound decisions. I do not think that the world has changed to such an extent that all those of 18 make the right decisions. I have children of 20 and 19 and some of their friends mature at different rates. I am sure that 18 is the wrong age. I support the noble Baroness in this amendment.
§ Lord Meston
I resist the amendment on a limited basis. If I may explain why that is so, I do not want the 942 noble Baroness, Lady Ewart-Biggs, to think that I have a closed mind on this point. She has linked her Amendment No. 7, which deals with the minimum age at which the couple can marry, with her Amendment No. 14, which deals with a different point; namely, the age to be covered in the definition of a "child of the family". I respectfully suggest to her that that is a defect in the amendments, particularly if they are moved together and linked in the way she has linked them.
Although I wish to say something about the age limits in this Bill and the age limits she proposes, if she felt able to withdraw her amendments I should be prepared to reconsider the position and inform her at a later stage. As the noble and learned Lord, Lord Simon, has said, the present state of the law is that 21 has little or no significance in English law, certainly in English marriage law. That may still be the age someone has to be if he is unwise enough to want to stand for Parliament. But subject to that it is of no importance at all. The proposition suggested by these amendments—I invite the noble Baroness to think about this—is that a girl, a woman indeed, aged 18 may wish to marry somebody. But because her fiance, perhaps even before she was born, was married to her mother, she must wait until she reaches the age of 21.
I venture to suggest that it is really wrong to deny an adult the freedom to marry at the age of majority. All age limits are arbitrary. There is no magic in, or consistency between, age limits. I would accept that. As the noble Lord pointed out, you can have a mature 18 year-old and an immature 21 year-old. But, by and large, 21 is to put the clock back when, for all other purposes, 18 is the age; and indeed, for all other forms of marriage 18 is the age.
The noble Baroness touched on the peculiar position of step-relations in this Bill. However, there are safeguards built into this Bill. I shall not weary your Lordships by repeating them at length, but the safeguards already existing in this Bill are that both parties must be 18 rather than 16, as is the present age at which people may marry in this country; that the younger party must never have been a child of the family of the other for any period; that there are formal preliminaries, that is to say, they are both required to make statements which are ultimately enforceable under the law of perjury; that there is a procedure enabling third parties to intervene and object and, ultimately, a procedure for the courts to investigate the facts, and that the clergy have a discretion not to marry such people, as through the conscience clause in Clause 2; and, indeed, marriage by banns (which is sometimes thought of as the easiest way to slip through the net) is specifically excluded. Ultimately, of course, a marriage in defiance of this Bill would be void. Those are the safeguards which already exist in the Bill as drafted.
But different people have different views. Some people still wish to put the clock back. The problems of marriages between young people are not unique to this Bill. But in the situation most likely to arise under this Bill, then, of course, one of the parties at least is likely to be mature; there will not be two immature people. I would suggest that perhaps further protection is unnecessary.
943 There are just two other points that I should really wish to raise. To raise the age generally from 18 to 21 is really to increase the time distance between the age of consent for sexual intercourse, which is 16, and the age of lawful marriage. And, as was observed, I think, in the Latey Report of 1967, saving a man from the risks of responsibilities of marriage until he is 21 increases the risk of unmarried motherhood. And even if the parties do not marry because they cannot but cohabit, then of course cohabitation, as we all know, in the present state of our law has a second-rate status.
The prime defect, I would suggest, as I have already indicated in these amendments, read together,—and I emphasise "read together"—is that the amendment of the noble Baroness seeks to redefine "child of the family" in Clause 1(3). That is to introduce a redefinition which is inconsistent with any previous definition in any other statute. Then one has this situation which might arise. A child who has remained outside the family, outside the household, throughout his or her minority, may come into that household after he or she reached 18. It is inconceivable, in the law as it now is, that that person can become a child of the family because he or she is not a child in law. Yet, under Amendment No. 14, although over 18, that person would be deemed to be a child, and, strangely, would be barred from marriage for all time by coming into the household after he or she were 18—barred from marriage notwithstanding that the relationship which led them to want to marry was formed after the younger party had reached the age of majority. That, I suggest, would be a counter-productive and unnecessary result.
I venture to suggest that this Bill, as drafted, already gives extra protection by saying that you cannot marry at 16, which is the usual minimum age; that you have got to wait until you are 18. One final factor, as the noble and learned Lord, Lord Simon, said, is that to damage the Bill in this way by pressing this amendment would be to deprive everybody of the modest advance which the Bill seeks to propose.
§ Baroness Ewart-Biggs
I am very grateful to the noble Lord, Lord Meston, not least for his sympathetic approach towards the principle of my amendment, towards what I am trying to protect. But I agree with the point that he made that there is a conflict between my Amendments Nos. 7 and 14 and I do not think that I made quite clear the redefinition of "child of the family" as contained in Amendment No. 14. However, he accepted the point that I made: that I think there is a very great risk of an immature girl of 18, living, after all, in the same village, as could be the case, perhaps feeling very inadequate in her ability to decide about her step-father; whereas a girl of 21 might be in a better position and might be in a more mature position to be able to do that.
I should like to stress that point. I am glad to hear the noble Lord, Lord Meston, say that there is protection in the Bill. I am glad for his confirmation of that. I am grateful to him for saying that he would discuss it with me. With that I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.944
Baroness Seear moved Amendment No. 8:
Page 1, leave out lines 11 to 13 and insert ("twenty-one at the time of the marriage").
§ The noble Baroness said: With the leave of the Committee, I should like to take in conjunction with this amendment, Amendments Nos. 13, 19, 21, 23, 26 and 30.
§ Amendment No. 13: Page 1, leave out lines 19 to 22.
§ Amendment No. 19: Page 3. line 14, leave out from ("if') to end of line 17 and insert ("twenty-one at the time of the marriage").
§ Amendment No. 21: Page 3, line 31, leave out from ("of') to end of line 37 and insert ("twenty-one").
§ Amendment No. 23: Page 3, line 38, leave out from beginning to end of line 18 on page 4.
§ Amendment No. 26: Page 4. line 20, leave out from ("27B") to end of line 17 on page 5 and insert ("Where a marriage mentioned in subsection (2) of section 1 of this Act is intended to be solemnized on the authority of a superintendent registrar's certificate, the superintendent registrar shall not enter notice of the marriage in the marriage notice book unless he is satisfied by the production of evidence that both the persons to be married have attained the age of twenty-one.").
§ Amendment No. 30: Page 5, leave out lines 26 to 31.
§ These are all the amendments which deal with the position of the step-parent and the step-child; and not those which deal with the position of in-laws. These will come later in Amendments Nos. 10 and 11.
§ As I think your Lordships will be aware, these amendments represent the position of the majority report of the Archbishop's Committee as opposed to the minority report which is the recommendation which has been incorporated in the Bill, which received a Second Reading and which received the support of the Bench of Bishops, as your Lordships will see this evening.
§ The majority report is the report which adopts the approach which is embodied in this recommendation. In view of the attitude taken at the time of the Second Reading and of the position of the Bench of Bishops, I would feel great anxiety if I were opposing their decision solely from my own extremely limited experience of these matters. But I must make the point to your Lordships that I am speaking for the members of the majority report and I would remind your Lordships of who those members were. They included a much respected cleric who was also Professor of Moral and Social Theology at King's College, London University; they included the late Sir George Baker, a High Court judge who had been presiding judge of the Family Division; they included the director of the Institute of Marital Studies; they included a woman solicitor with great experience in matrimonial cases who also, and most exceptionally, is a trained and practising analyst; and they included a well-known anthropologist. So the points that I am putting forward are not simply the points of an inexperienced spinster. They are the points supported by people with very wide knowledge and experience of these questions.
§ I would also point out that what we are talking about is the law of the land. It is not in any sense the law of the church. As your Lordships are aware, we are today a pluralist society and the legislation which goes through this House applies to people of many different religions in our country and of no religion at all. Of course, all the different churches and all the different religious persuasions, quite rightly and properly, have 945 their own doctrine and discipline in regard to marriage and remarriage. That is as it should be.
§ I was much impressed by, for example, the evidence which came from the Jewish community and which said, somewhat crisply, "You can legislate as you like. We have our own rules and our members will obey our own rules." That surely, in a pluralist society, is the right way to approach what is legislation for the state, for a society in which people hold very differing views about the nature of the family, about family responsibilities and about family relationships.
§ Thirdly, I would remind your Lordships that if what is passed is only what is recommended by the minority report, and only what is embodied in this Bill which is before us, we shall be left with the position that all those people who are not covered by the minority report—and that is the great majority of cases—will have to continue to pursue the process of the Private Bill.
§ Your Lordships have experienced the Private Bill, and a very unsatisfactory experience it is. We have been in the position in which we in this Chamber have been trying to judge whether it is appropriate that two persons should marry, with no one here to speak for or against the case of the parties who are wishing to marry; on at least one occasion in the extremely embarrassing and, I felt, humiliating position that those persons who were deeply concerned were sitting in the Gallery and listening to the inept way—and I do not think anybody in your Lordships' House would deny that it was an inept way—of dealing with something which was of the greatest personal importance to those individuals. We do not have a process that is satisfactory for dealing with those cases and yet we shall be left with nothing better, if all we do is to pass the recommendations that are embodied in this Bill as it stands, against the recommendations of the majority report.
§ I know that in some quarters it was hoped that we would recommend for those cases that there should be a judicial decision, that it should be left to the courts with lines of guidance, and that the judges should make the decision. That, I think, was favoured in certain quarters. I can only tell your Lordships that the late Sir George Baker spoke very strongly on the basis of all his experience, supported with representations which came to us from the courts in Australia, and said that this was not the right way to proceed. Sir George Baker commented, when we were discussing this possible change, how difficult it was to make any kind of proper decision in these cases on a matter of judgment by the judge.
§ As he said, it is not enough to know, when the rice pudding has been thrown, who threw it.You also have to know how the rice pudding was cooked. That illustrates very well the difficulty, if you are leaving it to the judges to make up their minds whether or not it is appropriate that marriage should go forward in these cases. Certainly, I beg to submit that he had far greater experience than anybody in your Lordships' House, and that was his view.
§ 6.45 p.m.
§ The difference in the position of the majority report, so far as stepchildren are concerned, is this. The 946 minority report and this Bill would never allow marriage between persons who have been, or are, in a step-parent/stepchild relationship unless that stepchild had never at any time been a child of the family. The majority report would say that such marriage was possible, provided that the younger of the two parties was over 21. If the minority report goes through as the Bill stands at the present time, that would mean that a girl who was at boarding school at the age of 16 when her mother remarried, and who had gone to her mother's new home in the summer holidays and stayed in that house, would rank as a child of the family.
§ If some 20 years later her mother had died and she and the step-father, whom she had come to know as two adult persons, wished to marry they would not be permitted so to do, because she had spent two summer holidays in that family 20 years before. This seems to me to be a somewhat absurd position at which to arrive. This is the difference between us. The Bill as it stands does not permit any marriage ever between step-relations if one was a child of the family. The majority report and this amendment propose that such marriage should be permitted, if there has been a child of the family position, after the younger member is 21.
§ If I understand it aright, the opposition to the majority report stems from a profound belief in the importance of the family; that the family is an essential unit of our society, essential for the upbringing of children, and that it is vital that its position should be strengthened and maintained. The belief is also held that if there is a possibility of marriage between step-father and step-daughter, or step-mother and stepson, where there has been a child of the family relationship, the possibility develops of erotic relationships within the family which would be devastating to the family and extremely harmful to the task of the family in nurturing people within the family group. There is also the view that the family is felt to be under threat, that it is necessary to draw a line and call a halt to the permissiveness which has allowed the widespread development of divorce and has contributed to what is seen as the breaker of the family.
§ Let me say in response to those criticisms that the majority shared absolutely with the minority the belief in the importance of the family as a unit in society, although I must say that I think there is a considerable amount of romanticising at times about the nature of the family. I would remind your Lordships that some of the most hideous crimes in modern society are committed within the family and, at a different level, reading the notes of the planner of leisure time activities on the basis of the family, he remarked that it had been observed that if a family were left together on their own for a period of more than two hours they started bickering. That may not be everybody's experience, but I think we do well not to wear too rose-coloured spectacles when viewing the family.
§ Be that as it may, we absolutely agree that the family is important, must be maintained and where possible strengthened. But when it comes to the argument that you cannot accept at any stage the marriage of people who have been step-relations, with a child of the family relationship because of the danger of the development of erotic relationships—the danger that 947 the young girl will be seduced by the glamorous stepfather—there are, of course, always dangers of erotic relationships developing within the family circle. We know perfectly well that incest is more common than is generally admitted. We know that this is extremely undesirable; but I also believe that most responsible adults share the view that it is highly undesirable. I find it extremely difficult to believe that the vast majority of step-parents would not share the view that everything has to be done to see that erotic relationships do not develop.
§ In any case, it is only in cases in which the family relationship is in an extremely poor position. Once again, so often when families break down because of a third party it is because the relationship between husband and wife is already very weak indeed. I should have thought that we could depend on the responsibility of the vast majority of people to see that relationships of this kind do not develop. I should have thought that the greater danger between step-parents and stepchildren, certainly based on all the mythology, is not that too affectionate relationships will develop but that relationships of an extremely hostile and disagreeable kind are likely to develop? that hate rather than the wrong kind of love is more likely to be the risk in relationships of this kind.
§ I should like to make a further point in this connection because it is often pointed out that where adopted children are concerned there is no question of allowing subsequent marriage. The argument is put forward that because it is not allowed for adopted children the position of stepchildren is similar. I think this is a false argument. The whole point about adoption is that the adopted child is received into the family, and although it is of course never true in the literal sense, the whole atmosphere is to be such that that adopted child is to feel absolutely at one as a member of that family and of no other. As I understand it, people working with children who are stepchildren are now arguing very strongly that it is important that a child, where it is of divorced parents, should keep in touch with his natural parents; that the stepdaughter or stepson should be encouraged to continue a relationship with the natural parents. It is not true that stepchildren are ever in the same sense one of the family, or indeed arguably should be encouraged to be, as is the case with the adopted child. It is a fiction to say that the relationship between the stepchild and the step-parent is really the same as that between him and the natural parent. This is the sad consequence of divorce. Once this has happened the bonds are broken, and there is no true relationship with the new parent when the mother remarries. We are fooling ourselves if we think that it is otherwise.
§ The last argument is that the time has come to draw a line. What an extraordinary place to draw it! One marriage in three is breaking down. Maybe we sold the pass at that time; I do not know. Maybe Rome was right when it was said that if you want to protect the family you do not move in the direction of legalising divorce at all. But we have done it. One marriage in three is breaking down—and in supporting the minority report we say that we are taking a line to save the family? What a curious place to draw it! There is a great deal to be done to save the family. There is a great deal to be done in the way of better help for 948 parents, in the way of better housing, of better child care help and a whole variety of counselling and assistance to help to support the family.
§ That is the place to start. That is where to draw your line: not on this Bill, which affects a very small number of people and in which, because of the fear that in a very small number of cases there might develop an erotic relationship, you are refusing to allow the marriage of anybody who has been a child of the family, even 20 or 30 years later, even when the natural parent has died and perhaps the marriage of the stepdaughter has broken down—nothing whatsoever to do with the original relationship with the stepfather. We are turning all this down because we think this is the place to draw the line. I cannot believe that this is sensible. I beg to move.
§ Lord Denning
Perhaps I may say just a word in support of the amendment. The illustration given by the noble Baroness was quite clear. Let us suppose you have this stepfather who is aged 40, shall we say, and the stepdaughter, who is 15. There is no possible sexual ribaldry, or anything, for years, and the girl is at school and so forth, for 15 of her first 20 years. Then, afterwards, there may be a death or divorce or whatever. Why should not the two be free to marry then, whereas the original clause said that while she was under 18 and a child of the family they could never marry? I would support the amendment.
§ 7 p.m.
§ The Lord Bishop of Birmingham
In speaking to Amendment No. 8 I should like to thank the noble Lord, Lord Meston, for introducing this Bill. I should also like to thank the noble Baroness, Lady Seear, for having chaired the group which produced that excellent report No Just Cause. I listened with rapt attention to her eloquent speech tonight. I only wish that I could agree with the noble Baroness in her amendment, but I regret that I cannot.
Let me first say that I believe there should be some legislation in this matter. I remember, when I was a Bishop in South London, a very tragic pastoral case in which a man and his stepmother met as strangers, fell in love, and did not know that they were related by affinity until they decided to get married, which they found they could not. Since they did not believe in living together unmarried, they were in some distress. They did not know about the possibility of bringing a personal Bill before your Lordships' House, but if they had known they would not have had the means to do so and would not have wished to publicise their personal history.
I listened with great interest to the exposition of the noble and learned Lord, Lord Simon, of the Book of Leviticus, but I am not deterred in my feelings that there should be legislation because Leviticus, when it was written, envisaged an extended family. It is inconceivable that any stepchild should not have been at some period a child of the family. Therefore, it does not really affect the Bill as the noble Lord, Lord Meston, has put it forward.
So, though I welcome legislation I oppose the amendment of the noble Baroness. It has the effect of removing all impediments in cases where a step-parent wishes to marry a stepchild except that the marriage cannot take place until they are both over 21 years of 949 age. This amendment has the effect that the permanent impediment to marriage would be lost in cases where the younger partner has been a child of the family. I would remind your Lordships that if, as the noble Baroness so eloquently told us, one marriage in three is now breaking down, there are far more stepparents and far more stepchildren than there ever have been in this country before. Therefore, this is a more important and pressing problem than it has been in the past.
In opposing this amendment I speak only for myself, but I carry with me almost the whole Bench of Bishops. When we considered this matter carefully and voted formally in our House of Bishops we decided, by a vote of 39 to 2, that a step-parent could marry a stepchild only if the younger person had never been a child of the family.
As this Bill, if it ever becomes law, will have effect in Wales it is perhaps important that Members of your Lordships' Committee should know that the Bishops in the Churches of Wales agree in this matter with the Bishops of the Church of England, and so does the Free Church Federal Council. The Baptist Union in particular has pledged full support to the Bill as it now stands, without the amendments of the noble Baroness.
The noble Duke, the Duke of Norfolk, made clear on Second Reading the position of the Roman Catholic Church. I am sure that we all regret the noble Duke's illness and hope that he will soon be able to return to this Chamber. He was broadly supportive of this Bill as it stood, unamended.
Had this been a Government Bill then of course I would not have dared to mention that pretty unanimous Church support, because I know from experience of the Shops Bill that the Government take no notice of the views of the unanimous Church, especially when pleas are made on behalf of the family. However, this is not a Government Bill but a Private Member's Bill. In the circumstances, I hope that the united views of the Churches may carry some weight. Indeed, if this amendment were to be carried then I fear that the Bench of Bishops would be forced to find itself in opposition to this Bill.
What are the arguments in favour of the amendment? In the majority report, great emphasis was put on the liberty to marry: the natural right that an individual should be free to marry the person of his or her choice. That is not the case of course where there is consanguinity. In that case, not only is there a natural taboo against marriage but there is also a threat to the physical and mental wellbeing of any offspring. However, such does not apply to degrees of affinity, at least so far as any offspring are concerned. Should not affines be free to marry? That argument has some weight, but it is insufficient to bear the burden that has been put upon it because all liberty must be used with restraint or it degenerates into license.
My personal freedom can only be exercised when it does not conflict with the benefit of the community. My freedom to marry whom I wish must be circumscribed by the good of the family as an institution. I must emphasise again that we are talking about 950 marriage. There is nothing in the law that forbids freedom for a father to have sexual relations with his stepdaughter or for a mother to have sexual relations with her stepson. If they so wish, they may live together. But to enable them to marry confers a problem of social status; it shows that society as a whole is prepared to approve of that relationship. I maintain that society should not and indeed does not approve of that relationship, because it endangers certain roles within the family.
Those roles, if they are to be exercised properly, need to be free from sexual overtones. If it be argued that the fact that two people cannot marry does not always prevent those sexual overtones from being present, then the answer that should be given is that whereas it does not absolutely prevent them it does act as a powerful deterrent. Thus it is very desirable to restrict the ability to marry in the case of a father and his stepdaughter or a mother and her stepson where one has been a child of the family. So the objection that everybody has the liberty to marry does not do away with the need for an impediment to such marriages in cases where the younger person has been a child of the family.
It is claimed—and we have heard it claimed again tonight—that the law of affinity has already been breached. As the noble and learned Lord, Lord Denning, has told the Committee, after 1907 it became possible to marry one's deceased wife's sister, and in 1960 the ability was extended to one's divorced wife's sister. I remind the Committee that at that time divorce was comparatively uncommon. It affected a comparatively small number of the population of this country.
In 1961 only 2.1 per cent. per 1,000 of the population were currently engaged in divorce proceedings. Today, a generation and 25 years later, the figure has increased sixfold so that there are 12 people per 1,000 engaged in divorce proceedings. I must admit that were the 1960 law being discussed today, 25 years later, then I personally would oppose it in the different circumstances in which we now find ourselves. I believe that many Members of your Lordships' Committee would do the same because that law endangers the family in a way that it did not 25 years ago. However, I am a realist and I accept that that particular law will never be repealed. Nevertheless, I hope that your Lordships will not wish to endanger further the family by removing all impediments to the step-parents of stepchildren, except that of attaining 21 years of age.
After all, marriage really is under siege today. As I understand it, the institution of marriage in this land has not been greatly helped by recent or present legislation. It is now possible to institute divorce proceedings only one year after a marriage has taken place, and under the Shops Bill, if it is passed in its present form, wives who work in retail shops will be forced to work on Sundays when they should be spending the day with their husbands.
Be that as it may—and I do not wish to introduce another Bill at this juncture—the statistics of divorce tell their own story. And divorce proceedings only show the tip of the iceberg. There is considerable fluidity of marital and sexual relationships in our society today. In such a situation I venture to suggest 951 that the family as an institution brings stability and permanence where those used to be fulfilled by marriage. I am not looking at the family through rose-tinted spectacles. In fact, I believe that bickering within the family helps one to learn how to resolve conflict as one grows up. Also, the fact that evil crimes take place within the family does not in my view diminish its importance.
For those reasons, it is very important that every care is taken to protect the family, which is after all the fundamental unit of society and on whose stability the very stability of our society in this country rests. That includes protecting the roles within the family. But I fear the amendment we are considering would serve to endanger the family and not to strengthen it.
I am sure that I do not need to press upon the Committee the importance of the different roles that are exercised within the family, which act as a safeguard for its stability and which have the potential to enhance it. Specific relationships may flourish within the family precisely because they are free of sexual expectations. That applies particularly to parents and their children and grandchildren. It applies also to parents and their adopted children. I agree with the noble Baroness that the situation is not exactly the same, but it is not wholly dissimilar. A stepchild who is assimilated into a family does not, as I see it, have the same relationship as is the case with an adopted child, but it is very similar. Indeed, under our law it is incestuous for an adoptive parent to have sexual relations with an adopted child.
If within the family a step-parent and a stepchild can never marry, the parent-child relationship is clearly established and they are less likely to view one another as sexual partners. They are free to develop their relationship as step-parent and stepchildren without sexual overtones. Even though it is possible that sexual expectations may be aroused, the fact that the couple can never marry acts as an important deterrent. If there are cases that are plainly unfair, then there still remains the possibility of bringing a personal Bill to this House. Even though that option has its disadvantages, it still remains a possibility.
In the recent past some of us have been deeply shocked to find that child sexual abuse is far more common in our society than used to be thought; a figure of one in 10 has been responsibly put forward. Only last week someone who works for a victim support scheme told me that when she was visiting a person who had been robbed, the experience of describing that distressing experience enabled the victim to remember and talk about sexual abuse in childhood, which had had a very devastating effect upon her. That kind of story can be repeated again and again. It shows that the fact that marriage is forbidden in certain relationships does not affect the occurrence of sexual abuse within that relationship. But if marriage were to be permitted, then sexual abuse would be likely to become much more common just because sexual expectations would be more likely to be aroused.
If the amendment of the noble Baroness were to be agreed it would have an affect far beyond the persons immediately involved. As the minority report put it so aptly: 952To license marriage between a step-parent and a step-child of the family would be to condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family would be destructive of the father-and-son, and mother-and-daughter relationships. In other words, the law would be seen to condone an assault on family relationships which are recognised as essentially valuable ones.It is true that the law cannot prevent such sexual rivalry but it can deter it and reinforce a taboo which acts for the general well-being of society.
There is a further confusion which would come about if the amendment were to be passed. Let us imagine that this amendment were to be carried and eventually became part of the law of the land. Let us suppose a man marries his stepdaughter and goes to live with her in the same area as his natural children live. His natural children would then see their former stepsister in the role of mother in relation to their father. Their father would assume the role of stepbrother in relation to themselves. We can imagine the emotional confusion that would be caused for the man's natural children. We can imagine the disapproval and repugnance of neighbours, and the acrimony. For all I know these things may happen already but if society sanctions such a liaison with the dignity of marriage where there had been a child of the family it would seem to bestow its approval in a way which would not redound to the well-being of society.
It could be said that such confusion ought to be avoided when children are young but that it is a different matter when step-parent and stepchild are older. Should they not then be free to marry? What does "older" mean in this context? Thirty years is said to be too old. The amendment of the noble Baroness permits marriage when the younger partner has reached the age of 21. Incidentally, this restricts the liberty of the stepchild who is not a child of the family more than the original Bill does, as we have seen already with the amendment which the noble Baroness, Lady Ewart-Biggs has not pressed. The Bill before us would enable such a marriage to take place when the younger partner attains the age of 18 years.
Let us take the amendment of the noble Baroness as it stands. Only three years' waiting would be needed. The step-parent and the stepchild could live together until 21 years of age and then get married. Sexual expectations would be aroused. The role of step-parent would not be free of sexual overtones. The family, which should be supported by those who exercise different roles within it, would be in danger. That is why I hope your Lordships will agree that the amendment of the noble Baroness should be resisted.
In speaking as I have, I have adhered to the thinking of the minority report. I remind your Lordships that it is a minority report that has some distinguished signatures attached to it; including those of a Professor of Moral and Pastoral Theology, an expert lay member, a member of the General Synod and, if I may mention it, a Bishop's wife. However, I hope that the Committee will be impressed not by the signatories but by the force and clarity of the report's arguments, from which I have freely drawn in speaking tonight.
At the beginning I spoke of the all but united view of the Churches against this amendment, but I have been very careful not to argue on grounds of religion. I agree with the noble Baroness that a particular 953 Church should not impose its views upon society as a whole. I have tried to argue the case not on the ground of religion or from the words of the scriptures—certainly not Leviticus—nor from Christian tradition. I have attempted to look at the question from the point of view of natural law, the nature of marriage, the needs of the family and the safeguards it requires.
I believe in a natural right to marry, but that natural right must be exercised in a way which is for the welfare of society and for the family, and with limits. Therefore, I hope that in considering this amendment your Lordships will see the great drawbacks which it has if you are deeply concerned, as we all are, for the welfare of the family.
§ 7.15 p.m.
§ Lord Simon of Glaisdale
I am glad on this occasion to follow the right reverend Prelate in total agreement, save for his reference to the Shops Bill, on which I shall not follow him.
I feel considerable ingratitude in opposing categorically, as I do, this amendment, because the noble Baroness has put us under such a great debt by the admirable clarity of the report No Just Cause and compounded that debt with the speech she has made today. I also naturally feel some reluctance because Sir George Baker was my successor in office as President of the Probate, Divorce and Admiralty Division, and later the Family Division. Indeed, I know none of the signatories of the minority report, whereas I have worked closely on many of these matters with members of the majority.
Nevertheless, I confess I found the arguments of the minority quite compelling. But there was one other matter which I also noted. In the anthropological appendix there is an important extract from an essay by Professor Malinowski submitted to an earlier Church committee. He was, of course, the greatest anthropologist of his day. What he said is not at all affected by what Professor La Fontaine commented about it. What Professor Malinowski said, as his first principle, was:The main sociological reason for marriage taboos and prohibited degrees is the elimination of sex from relations of the family type.If you are to allow marriage then sexual preliminaries are almost inevitable, as the right reverend Prelate said. It took someone as frivolous as the Rev. Sidney Smith to ask, "How does a curate propose marriage? Does he say 'I will see you in the vestry after the service?' "Of course, if you are going to contemplate marriage you contemplate sexual relations and, contrary to what Professor Malinowski said, you bring them right into the centre of the family.
I desire to make only three more points. First, the noble Baroness today and on Second Reading powerfully put her case on the fundamental liberty to marry; an innate freedom. I say only this. One can obtain freedom and one can advance freedom by taking part in an organisation or an institution. The individual who is left naked before the state is unlikely to be left free for very long; whereas if he is a member of a family, a trade union, a club, or whatever it is, his freedom, his power of choice—his power to influence the decisions that affect himself—are enormously advanced.
954 The second point is that we already accept, and the noble Baroness accepts, that there must be some limitation on the freedom to marry. For many centuries a marriage could be contracted without any formalities at all. Now we demand publicity, which happened only in 1753 in this country and as late as 1939 in Scotland. But that was accepted as a limitation on the freedom to marry. Then there is the age of marriage. Since 1929 it has been 16, but for centuries it was the canonical age of puberty, sometimes formalised into 14 for the boy and 12 for the girl. As late as the Royal Commission on Marriage and Divorce in the 1950s, Dr. Marie Stopes advocated the lowering of the permissible age. There is nothing sacrosanct about 16. It is a limitation on freedom which we accept as buttressing the institution of marriage and safeguarding the family.
Finally, there is the adopted child. I agree with what the right reverend Prelate had to say. It is a pure fiction and a valuable one to say that an adopted child is a real child. I myself cannot see any logical distinction between an adopted child, who may not be married within the family, and a stepchild.
My last argument is to repeat something which I said on Second Reading. I do not believe that any divorce case—certainly very few divorce cases, if any—can be free from pain. Most are profoundly grievous to both parties and even more so to the children. Divorces have proliferated greatly, particularly since the Divorce Reform Act 1969. I tend to test adherence to the principle of the family by asking myself where the various people who talk about it stood on that Act. If I may say so with respect, I do not think that the Bench of Bishops can be entirely exculpated in view of the book Putting Asunder, which followed so closely after the authoritative statement of the Church's position by Archbishop Fisher to the Royal Commission.
Though I believe that hardly a single divorce is unattended by grievous pain, I have no doubt at all which divorces are the most grievous, painful and agonising. They are the cases where a father-in-law or a stepfather has made sexual advances to the daughter-in-law or the stepchild and the marriage has broken up in consequence. They are by far the hardest cases. If I had not been convinced by the arguments of the minority, that fact would certainly have clinched the matter in my mind.
§ Lord Meston
Despite the formidable advocacy of my noble friend Lady Seear, I cannot accept her amendment in this context. I am most grateful to the right reverend Prelate the Bishop of Birmingham for his exposition and development of the minority report position and I should like to adopt every word that he said.
This amendment seeks to allow an unrestricted right to marry between step-parent and stepchild provided that both are 21. In itself, 21 is an arbitrary age limit and I have already indicated that it is something which I am prepared to consider on its own merit; but I suggest to your Lordships that the removal of any precondition other than age is wrong, in particular of course the removal of the precondition in the Bill that the younger party should not at any time before 955 attaining the age of 18 have been a child of the family in relation to the other party.
My noble friend talked about drawing a line and suggested that this was a curious and indeed a wrong place to draw the line. On the contrary, I suggest that this is the correct place to draw the line. As she suggested, the relationship between the step-parent and the stepchild in the family might have been fairly brief, but it might have lasted for virtually all the childhood of the stepchild. The step-parent may have been in loco parentis for almost all the 18 years or so before the child reached its majority. The step-parent has an important place in the family in his or her own right. Indeed, it becomes an even more important place when there has been a divorce. The step-parent comes along and provides support and security which very often is badly needed in a family which has been devastated by separation and divorce.
My noble friend seeks to suggest that there is some qualitative distinction between adoptive parenthood and step-parenthood. I suggest that on the contrary there is very often no qualitative distinction between an adoptive parent and a step-parent where the stepparent has played a very full part in the childhood and upbringing of the children of the family. If a stepparent does not adopt it is very often a matter of accident or legal difficulty which is encountered because of the strange requirements of Section 10 of the Children Act 1975.
When it comes to drawing the line, I suggest that the minority got it right in paragraph 246 of No Just Cause, when it said:Protecting a young adult from a precipitate marriage is no substitute for protecting a child from a damaging sexual entanglement. We think that it is a proper task of the law to protect children in emotionally threatening situations and we cannot see why it should hesitate to give protection in this case".Indeed, the majority itself recognised the need to preclude marriages where either of the parties was under 18 or where either was still under 21 and the younger party had been a child of the family. The risks are obvious: distortion of family relationships and important family functions.
In this country we have a system of law which is child-centred and, one might say, increasingly child-centred. How often have your Lordships seen in Bills and statutes that the welfare of the child is paramount? That is the way our system works. In cases of divorce we distinguish between childless couples and marriages where children are involved. Where there is a child, the court has to be satisfied that the arrangements for the welfare of the child are suitable, and one of the questions which is often asked when that is being considered by the court is, "Who else is living in the household?".
Similarly in the case of adoption, today the whole law and practice of adoption is designed to minimise distortion of families and family relationships. As I ventured to suggest at Second Reading, if a function of the family is the upbringing, and the careful upbringing, of children there should not be any hope, expectation or possibility of sexual or marital relationships either during or following the minority of the children. To have that would simply add strains to family life with which it sometimes cannot cope.
956 7.30 p.m.
The answer of the majority is that we should have a delay and put it off from 18 to 21, but I suggest that there is no magical transformation in people between the ages of 18 and 21. Family life does not dissolve when the youngest child reaches 18, and the three-year period which is suggested in the amendment and by the majority does not dissolve the dangers which were perceived by the minority as inherent in the situation. In short, the three-year gap is not enough to protect the position. It is on those bases that I find myself unable to accept the propositions advanced by my noble friend. Perhaps more importantly in the context of the survival of the Bill and the modest reform that it proposes, the Bench of Bishops find themselves unable to accept what is proposed, however eloquently, by my noble friend.
Of course my noble friend is right. There will still be hard cases. There may well still be cases coming before this House under the personal Bill procedure. However, it is also fair to say that this Bill, if it becomes law in its present form, will limit the number of cases coming before this House under that procedure. I agree with my noble friend that an adjudication by a court of law is an unsatisfactory solution for all the reasons which she has advanced and which have been advanced on several previous occasions in your Lordships' House.
The suggestion that I put to my noble friend is that her amendment goes too far. It is not for me, and I am not qualified, to pontificate about the family in the abstract, but I do not accept the proposition that the minority, or indeed myself, have an over-rosy view of what the family consists of. It is precisely because things can go wrong in the family that it needs the protection which the Bill proposes. We all know that a family can create strong loyalties and and can provide cohesion and support for its members, but in some respects those strengths are its weaknesses. We get these horrible cases of violence within the family. Because of the loyalties that are created and engendered, great tensions are also created, jealousy and damage arising when loyalties clash. To allow the sort of marriage that is proposed by my noble friend without any precondition is to open the door to yet further strains.
§ Baroness Seear
There have been few speakers in support of the amendment, and I do not intend to speak any longer about it because I think that I have raised all the points already. I should, however, like to test the opinion of the Committee.
§ 7.33 p.m.
§ On Question, Whether the said amendment (No. 8) shall be agreed to?
§ Their Lordships divided: Contents, 20; Not-Contents, 34.957
|DIVISION NO. 1|
|Carmichael of Kelvingrove, L.||David, B.|
|Cledwyn of Penrhos, L.||Dean of Beswick, L.|
|Craigavon, V.||Denning, L.|
|Crawshaw of Aintree, L.||Donoughue, L.|
|Elystan-Morgan, L.||Mulley, L.|
|Graham of Edmonton, L.||Nicol, B.|
|Jeger, B.||Northfield, L.|
|Jenkins of Putney, L.||Ponsonby of Shulbrede, L.|
|Kilbracken, L. [Teller.]||Seear, B. [Teller.]|
|McNair, L.||Underhill, L.|
|Bessborough, E.||Mottistone, L.|
|Birmingham, Bp. [Teller.]||Munster, E.|
|Butterworth, L.||Newall, L.|
|Carlisle, Bp.||Oxford, Bp.|
|Chichester, Bp.||Renwick, L.|
|Denham, L.||Ripon, Bp.|
|Hampton, L.||Rochester, Bp.|
|Hereford, Bp.||St. Albans, Bp.|
|Hooper, B.||Selborne, E.|
|Hylton-Foster, B.||Simon of Glaisdale, L.|
|Kennet, L.||Skelmersdale, L.|
|Lauderdale, E.||Swinton, E.|
|Lawrence, L.||Trefgarne, L.|
|Leicester, Bp.||Truro, Bp.|
|Long, V.||Winstanley, L.|
|Masham of Ilton, B.||Wise, L.|
|Meston, L. [Teller.]||Ypres, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.41 p.m.
§ Lord Meston moved Amendment No. 9:
§ [Printed earlier.]
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
Following is the text of the amendment (No. 9):
Page 1, line 14, leave out ("in England and Wales").
§ Baroness Seear moved Amendment No. 10:
§ [Printed earlier.]
§ The noble Baroness said: I do not intend to rehearse any of the arguments that I used on the previous amendment. Most of them are the same. I wish, however, to make the point that this amendment deals with the relationship of in-laws, not of step relations. Here, most of the arguments that have been advanced against the previous amendment do not apply—in particular the central argument about the position of child of the family and the danger to the family and to the child being brought up in the family if the possibility of marriage is there.
§ As to in-laws, it is not possible that someone in an in-law relationship can at any time have been child of the family. So the persuasive points that, I am sure, moved most of your Lordships to oppose the previous amendment—the argument that someone living as a child should be protected from any possibility of erotic relationships within the family—does not hold in regard to this amendment.
§ My second point, as stated previously, in the Committee tonight, is that the law now permits marriage between a brother and his divorced brother's wife. Marriage between in-laws has, for 20 years, been permitted by the law of the land. What logic can there be in permitting marriage between a man and his divorced brother's wife and forbidding it between a man and his divorced son's wife? On the basis of logic 958 and because there is no argument based on child of the family, I beg to move.
§ 7.45 p.m.
§ Lord Denning
I have already spoken about this. I suggested earlier and I suggest here that there is no difference in principle. Once you let the step relationship go into marriage, you have the in-law relationship, too. Indeed, the position is far more serious in a step-relationship because then you have father and mother with their joint stepchildren in one family, and you are allowing, after divorce, marriage between members of that self-same family—the stepfather with the step-daughter. That is a far greater breach of the loyalty or the integrity of the family than the next step, the in-law relationship. There, you have two families, separate ones. You have the father-in-law with his wife, and you have the son who marries the daughter-in-law and sets up his own family. Then, whatever the cause, both parties divorce.
Then you have the son with the sister-in-law. Surely, in those circumstances, they should be allowed to remarry or to marry. Or there is the case of the brother and sister-in-law which was allowed in 1960. In other words, there is no difference in principle between the cases. This case should go with the others. I support the amendment.
§ The Lord Bishop of Chichester
I should like to suggest that there is a difference, and quite an important difference, between the relationship of parent and child and the other relationship that has been mentioned. Many of the arguments advanced by the right reverend Prelate the Bishop of Birmingham in connection with the previous amendment—arguments concerned with the need to protect the family and to have rules to protect sexual relations within a family—apply equally in this case. At this late hour, I do not propose to weary the Committee by repeating them all over again. The right of the individual to marry whom he or she chooses cannot be absolute. It is already limited by consanguinity, which has among its other purposes the promotion of the right relationships within the family and protecting them and helping to provide the right setting in which people grow up. Similar considerations apply to affinity.
As the right reverend Prelate the Bishop of Birmingham said, we have to face the situation of a great increase in the number of divorces producing a very large number of people who are involved in these sort of relationships. It is all the more necessary, therefore, that we should have some clearly understood rules about who may marry whom in order to protect relationships within the extended family. The report itself—it is a part that, so far as I can follow it, is agreed by the majority—says:What about a father who is becoming sexually interested in his son's wife? Or a young married man who begins to feel he might prefer not his own, perhaps immature, wife but her more mature mother?What indeed? The report goes on to say that such cases do arise and that the law cannot prevent this. That may be so in some cases, but that seems to assume that the law has no educative or deterrent influence, and that it has nothing to do with the building up of the 959 climate of opinion. That also ignores the fact that every injury to the present law concerning the family, every weakening of it, tends to devalue the institution further, and to reduce its standing and importance. The present law is a guard against the exploitation of a younger person by an older. Indeed, it may be that in some cases that is also needed the other way round.
In the debate which immediately preceded this present Committee stage the noble Lord, Lord Lloyd of Kilgerran, quoted from an advertisement put in a periodical by the Patent Office in which there was the phrase, "When new ideas are born they need protection". I should like to suggest to your Lordships that when a young couple marry that marriage needs protection, and it needs protection above all from the families of the two partners. That protection will be gravely weakened if this amendment were passed and the possibility of marriage between parents and the children were allowed.
The minority report again seems to me to put this very clearly and strongly. This amendment…would deprive the child-in-law of his or her safety of place as child in the new family into which he or she marries. When, for instance, a son brings his wife to his father's home, there is an underlying assumption that the daughter-in-law will assume a role in relation to her father-in-law which is exempt from sexual expectations. To admit the possibility of a future marriage between parent-in-law and child-in-law would be to undermine assumptions which make for the safety and comfort of the adult family.May I again remind the Committee that the opposition which I voiced to this amendment is supported by the bishops as a whole, by the Free Church Federal Council, and by the Church in Wales which has similar obligations in regard to marriage as those of the Church of England. The Archbishop of York made it clear on Second Reading that if an amendment of this kind were carried he and other bishops would have to oppose the Bill.
At present we are happy to support this limited relaxation of the present law, but I hope that the arguments which I have tried to present as briefly as possible to the Committee at this late hour may suggest that there is a distinct difference between the issue of parents-in-law and children-in-law and the whole question of sisters-in-law and brothers-in-law.
§ Baroness Seear
May I ask the right reverend Prelate whether his opposition would be maintained if the Bill were limited to the deceased son's wife, and if there were no question of the divorced son's wife? In the event of the son having died, and the father-in-law himself being a widower, would the right reverend Prelate continue to believe that marriage should not take place?
§ The Lord Bishop of Chichester
I am not sure that I can answer that question without having time to think about it. My immediate reaction is that there is some difference between the two.
§ Baroness Seear
If I were to withdraw the amendment at this stage and to return at Report stage with this alternative, would that meet the approval of a large number of Members of the Committee?
§ Lord Meston
I suspect that that question was directed as much at me as at the Bench of Bishops 960 opposite. I certainly find myself unable to accept the amendment in its present form. Like the right reverend Prelate, I should need time to think about the ramifications of enabling a marriage in the circumstances suggested by my noble friend. But the question is not a simple one. These are very complex questions. One is dealing with complicated family structures. One has to remember that parents-in-law are not just parents-in-law; they become grandparents. The whole family structure can be completely destablised and distorted by a marriage of the kind which is suggested in this amendment.
I do not know whether that is sufficient answer at this stage to my noble friend. However, although I would keep an open mind at this stage, I would certainly invite her to withdraw this amendment.
§ Baroness Seear
My olive branch having been rejected. I do not propose to withdraw the amendment. I beg leave to divide the Committee.
§ 7.56 p.m.
§ On Question, Whether the said amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 17; Not-Contents, 24.
|DIVISION NO. 2|
|Cledwyn of Penrhos, L.||Kilbracken, L. [Teller.]|
|Craigavon, V.||McNair, L.|
|Crawshaw of Aintree, L.||Nicol, B.|
|David, B.||Northfield, L.|
|Denning, L.||Ponsonby of Shulbrede, L.|
|Ennals, L.||Seear, B. [Teller.]|
|Graham of Edmonton, L.||Stoddart of Swindon, L.|
|Houghton of Sowerby, L.||Underhill, L.|
|Jenkins of Putney, L.|
|Bessborough, E.||Lucas of Chilworth, L.|
|Birmingham, Bp.||Meston, L. [Teller.]|
|Butterworth, L.||Mottistone, L.|
|Chichester, Bp. [Teller.]||Munster, E.|
|Colwyn, L.||St. Albans, Bp.|
|Hampton, L.||Selborne, E.|
|Hereford, Bp.||Simon of Glaisdale, L.|
|Hooper, B.||Skelmersdale, L.|
|Hylton-Foster, B.||Swinton, E.|
|Lawrence, L.||Trefgarne, L.|
|Leicester, Bp.||Truro, Bp.|
|Long, V.||Wise, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.4 p.m.
§ [Amendment No. 11 not moved.]
§ Lord Meston moved Amendment No. 12:
§ [Printed earlier: col. 939.]
§ The noble Lord said: I have already spoken to this technical amendment. I beg to move.
§ On Question, amendment agreed to.
Following is the text of the amendment (No. 12):
Page 1, line 17, after ("grandson") insert ("(whether his grandson is living or not)").
§ The Deputy Chairman of Committees (Lord Hayter)
I have to point out that if Amendment No. 13 is agreed to, I cannot call Amendment No. 14.
§ [Amendment No. 13 not moved.]
§ [Amendment No. 14 not moved.]
Lord Meston moved Amendment No. 15:
Page 2, line 4, leave out from beginning to ("to") in line 5 and insert ("Where, apart from this Act, any matter affecting the validity of a marriage would fall").
The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 16.
Amendment No. 16: Page 2, line 7, at end insert ("and nothing in this Act shall preclude the determination of that matter in accordance with that law").
§ Amendment No. 16 is simply part and parcel of the same alteration to Clause 1(5) of the Bill. The word "and" at the beginning of the words to be inserted in Amendment No. 16 has somehow crept in by mistake, and I invite noble Lords to read the amendments together as if the word "and" were not there. Essentially this is a drafting amendment, the effect of which is to produce a change of emphasis.
§ As at present drafted, Clause 1(5) disapplies Clause 1 everywhere in every case in which the court might otherwise, on established principles of private international law, apply Clause 1. This amendment would allow the court a freer rein and preserves the rules of private international law. It does not, however, seek to dictate to the court the principles of international law to be applied in any given case. Again, there is also an argument in support of this amendment that it is more consistent with preceding legislation, and in particular consistent with Section 14 of the Matrimonial Causes Act 1973. I beg to move.
§ On Question, amendment agreed to.
§ Lord Meston moved Amendment No. 16:
§ [Printed above.]
§ The noble Lord said: I beg to move.
§ The Deputy Chairman of Committees
With the Committee's approval, presumably we can take out the word "and" at the beginning of the sentence in this amendment.
§ On Question, amendment agreed to.
§ On question, Whether Clause 1, as amended shall stand part of the Bill?
§ Baroness Ewart-Biggs
The reason that my noble friend Lord Mishcon and I gave notice of our intention to oppose the Question whether Clause 1 shall stand part of the Bill is not out of disagreement over specific objections contained in the clause but because we doubt the validity of making changes in the law in such a piecemeal fashion.
On Second Reading my noble friend Lord Mishcon argued that the procedural aspects of legalising marriage within the degrees of affinity are at present very imperfect, and this is what his speech was mainly about. Indeed, I think that many other speakers have 962 agreed with that. Everyone has agreed that the present system of personal Bill procedure is objectionable, clumsy and expensive. My noble friend made a powerful speech on Second Reading arguing that, instead of bringing about changes in this piecemeal fashion, such as would be the case under Clause 1 of this Bill, we should concentrate on a more civilised procedure for dealing with all the cases of affinity. This of course could be done through the establishment of the family court.
Of one thing there can be no doubt. Support for the concept of a family court has been very strong indeed for a long time. The noble and learned Lord the Lord Chancellor announced on the Second Reading of the Matrimonial and Family Proceedings Bill that there should be a re-examination of the idea of a unified family court, and many noble and learned Lords have given support to that concept. The noble and learned Lord, Lord Denning, supported it in the year 1946. The noble and learned Lord, Lord Simon, has also been a great advocate for the concept of the family court, starting his advocacy in 1954. There has been no lack of support for the concept and idea of a family court.
Here again, it is my submission that if family courts were set up—and I know that this has not had the agreement of Sir George Baker in the writing of the report, and has not got the support of some of the other advocates of a family court—one of the functions could be to investigate impediments on marriages. It has been argued against, but in my view it is something that would be a most appropriate function for it to serve.
The aim of all of us is to protect and help members of families at this time when formalised and conventional family structure is breaking down, and to make adjustments to prevent suffering and unhappiness for men, women and children who have been swept into this crisis which has occurred through the high rate of divorce in this country. Surely an important step must be towards the establishment of a unified family court.
My opposition to Clause 1 is not founded on deep, fundamental disagreement with the proposals contained in it, and not in a confrontational way, but I cannot give it my full support when what I really want is another method of dealing with the issue, which is to press on towards the real goal we should all have, and that is the establishment of the family court.
§ Lord Simon of Glaisdale
As the noble Baroness was kind enough to say, I have been a long time proponent of the institution of the family court. I proposed quite an elaborate structure in 1954 to the Morton Royal Commission. The concept has lately been gathering support significantly and encouragingly, particularly with the Law Society Family Law Committee, and now the Law Society itself.
I desire to say only two things. There is a great danger in treating the words "family court" as an open sesame which will solve all family problems. Secondly, I entirely agree with the noble Lord, Lord Meston, on Second Reading when the noble Lord, Lord Mishcon, 963 used the words "family court" almost as an open sesame and the noble Lord, Lord Meston, said, in effect, "There are here some ascertained people who have a grievance. They have so far had to go to considerable difficulty and expense through the Personal Bill procedure. You do not solve those grievances, you do not remedy their disadvantages, by saying, 'We will throw the whole thing to a family court which does not yet exist, with no criteria at all save merely here is the Book of Leviticus; here is the Book of Common Prayer with a table of consanguinity and affinity; here is the admirable Seear Report with its majority and minority reports; here are some people who would like to marry in a way that the law does not permit at the moment. Now go ahead and decide'."
What the noble Lord, Lord Meston, said on that occasion was quite unanswerable. There is a difference of opinion in your Lordships' Committee as to how far we should go, but that we should go somewhere unites us all. It would be an abnegation of responsibility to say that we may some day get a family court which may, in some magical way, without any criteria at all, solve this problem by the wave of a wand. Therefore, I would ask your Lordships to support Clause 1.
§ 8.15 p.m.
§ Lord Meston
We have heard a debate about what I regard as a red herring in the context of this Bill, the involvement of the court. It does not matter what label you put on it. It may be a family court, it may be some other court, but at the end of the day you are asking the court to be involved in deciding whether people should, or should not, get married. As to the defects of that idea, I can do no better than refer your Lordships to the excellent speech of the noble Lord, Lord Boston, in one of the earlier debates on 25th March 1981 at col. 1242 onwards.
To invest a court with a discretion to decide whether or not a couple should marry is a quite unworkable idea. What sort of criteria should that court apply, particularly a court which may well be attuned to apportion fault? What sort of evidence should that court receive? What sort of procedure should that court adopt?
You have a couple coming to the court and they both want the same thing! They are coming to a court which is used to dealing with things on an adversarial basis, and so you probably have to involve the expense of the Attorney General or the Queen's Proctor to act as devil's advocate. The example of New Zealand and Australia shows that the courts do not relish the task of making this sort of decision.
However sensitive our judges are, and in particular our Family Division judges who are most sensitive, they are not going to be used to this sort of task. The law will build up a set of precedents with hard cases making bad law. As it says simply in this report, if you have a freedom you should not have to argue for it before a court of law. It will involve expense, delay, embarrassment, anxiety and uncertainly for the couple involved: all the defects which presently exist in the personal Bill procedure which has been so roundly disapproved of on all sides.
964 The family court in itself is not a panacea. It does not matter what label you put on the court; if you decide to create a family court and ask ten different people what they have in mind for a family court, you will get ten different ideas. We understand that the Lord Chancellor's Department is going to put forward models for a family court in the spring, but certainly this Bill ought not to have to wait until the family court is created.
For all I know it may never be created. There are difficulties in the present system of family law as at present administered, but they are undoubtedly exaggerated. As the Booth Committee recently emphasised and illustrated, many of those difficulties can be removed by fine tuning. I therefore would distance myself from any suggestion that the sort of decisions which are required, or may be required in this Bill, should depend on the existence of a family court.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Marriage according to rites of Church of England or the Church in Wales]:
Lord Meston moved Amendment No. 17:
Page 2, line 15, leave out ("affinity") and insert ("the relationship of the persons to be married").
§ The noble Lord said: This is a drafting amendment, to produce consistency and clarity. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Amendment of s. 3 of Perjury Act 1911]:
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Baroness Seear
I do not propose to oppose the Question, That Clause 3 shall stand part of the Bill.
§ Clause 3 agreed to.
§ Clause 4 [Amendment of Schedule 1 to Supreme Court Act 1981]:
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Baroness Seear
I do not propose to oppose the Question, That Clause 4 shall stand part of the Bill.
§ Clause 4 agreed to.
§ Clause 5 [Short title, citation, commencement and extent]:
Lord Meston moved Amendment No. 18:
Page 2, line 36, leave out ("1970") and insert ("1983").
§ The noble Lord said: This amendment is simply to remove an error in the Bill as drafted in the citation of the Marriage Acts. I beg to move.
§ On Question, amendment agreed to.
§ Clause 5, as amended, agreed to.965
§ In the Schedule:
§ [Amendments Nos. 19 to 33 not moved.]
§ On Question, Whether the schedule shall be agreed to?
§ Lord Simon of Glaisdale
I have one question to ask about the schedule. I cannot find the reference, but I shall tell the noble Lord what my problem is. Why is there a provision that publication of banns should not apply to marriages under this Bill? It seems that it applies to all the other ways of publicising marriage or authorising marriage—licence and superintendant registrars' certificates—but why not the publication of banns?
§ Lord Meston
I was grateful to the noble and learned Lord for having given me some notice that he would raise this point. I hope I can now furnish him with an answer. I am told that procedural alterations would be required and they would be very complex. It would apparently be very difficult to deal with the challenges that might be created by a marriage proposed under this Bill. Secondly, I am told that the rubrics of the Book of Common Prayer would have to be altered to cope. There are defects in discovery of impediments through the banns procedure. I refer the noble and learned Lord to Professor Cretney's excellent book on family law, where he deals with the problem in a succinct paragraph in which he observes that, whereas in the case of civil preliminaries the registrar may refuse to issue a licence unless he is satisfied by the production of written evidence that the necessary consents had been obtained, there is no analogous right in the ecclesiastical procedure. Hence, I gather, the need for fairly drastic amendment. He goes on to suggest as follows in the case of somebody under 18 who wants to marry without consent:The best advice to be given to a person under 18 who wishes to contract a marriage without his parents' consent is therefore to be married after publication of banns in church, preferably in a large town, where the incumbent does not take an officious view of his pastoral responsibilities, and where it is unlikely that members of the congregation will know the parties. Not only will the marriage be valid (in the absence of objection) but no criminal offence will have been committed. He may thus enjoy his married life in defiance of the policy of the law and without fear of penal sanctions.".Having said all that, marriage in a church is not precluded under the Bill because a church wedding is still possible in appropriate circumstances with a common licence.
§ Lord Simon of Glaisdale
The noble Lord has given quite a number of answers to my query, any of which would have been conclusive, so there is nothing for me to do except say "thank you".
Schedule agreed to.
House resumed: Bill reported with the amendments.