§ Order for Second Reading read.
§ Mr. Speaker
Before the debate begins, may I announce to the House that I have not selected the Amendment on the Order Paper. We shall be debating whether the Bill be read a Second time. All the points in the Amendment, plus any others, will have an opportunity of being expressed during the debate.
May I say, too, that it will help the Chair to arrange a balanced debate if those hon. Members who have not already done so will let me know whether they wish to speak for or against the Bill. Again, r would remind the House that many hon. Members wish to speak. The shorter the speeches, the more I shall be able to call.
§ 11.6 a.m.
§ Mr. William Wilson (Coventry, South)
I beg to move, That the Bill be now read a Second time.
I am sure that the House will understand that in a Bill as substantial and as complex as this I would weary the House if I sought to deal with every aspect of it or, indeed, sought excessively to anticipate other hon. Members' arguments against the Bill. I therefore hope that the House will be sufficiently indulgent as to permit me to deal with the Bill in a synoptic fashion. Then, if other queries arise, my co-sponsors who may be called will seek to meet such queries, and at the close of the debate, if he is fortunate enough to catch your eye, Mr. Speaker, my hon. Friend the Member for Pontypool (Mr. Abse) will, when winding up, deal with any points which at that stage of the debate may stall be troubling hon. Members.
In a sentence, the purpose of the Bill is to recast our divorce law by making the breakdown of marriage the sole basis of a divorce petition. This is established by Clause 1, and most of the remainder of the Bill follows logically from this substantial alteration in the law.
As such a substantial change is being made, it is proper that consideration should first be given to the necessity for amendment. The basis of divorce today 811 is that a matrimonial offence, such as adultery or cruelty, has been committed by one of the parties to the marriage. Although in recent years the doctrine of the matrimonial offence has been impinged by case law, and as long ago as 1937 incurable insanity became a basis of divorce proceedings, it is a fact that matrimonial offences, since 1857, have been the basis of divorce petitions.
Although I suppose it could be argued that after 110 years or so it has stood the test of time, likewise no one could say that the law is being altered without the present basis of matrimonial offences having been given the opportunity to prove itself.
During recent years the matrimonial offence basis of our divorce law has encountered criticism on a variety of grounds. Those criticisms could not be better expressed than by quoting from the Morton Commission on Marriages and Divorce, Cmnd. 9678, page 23, paragraph 70(v):But for whatever reason marriage breaks down, the prevailing law of divorce provides an easy escape from the bond of matrimony for those who are minded to take it. Desertion for three years or, for those who wish a speedier release, the commission of adultery, is all that is needed. For those who are not prepared to resort to such expedients—and we believe the number is by no means negligible —there is, however, no such relief. We think it may be said that the law of divorce as it at present exists is indeed weighted in favour of the least scrupulous, the least honourable and the least sensitive; and that nobody who is ready to provide a ground of divorce, who is careful to avoid any suggestion of connivance or collusion and who has a co-operative spouse, has any difficulty in securing a dissolution of the marriage.Again, "Putting Asunder", a report prepared by a group appointed by the Archbishop of Canterbury says, at page32:… the law as it stands is unsatisfactory, all the judges and lawyers who gave evidence agreed, however much they differed concerning the remedies to be applied. We are far from being convinced that the present provisions of the law witness to the sanctity of marriage or uphold its public repute in any observable way, or that they are irreplaceable as buttresses of morality, either in the narrower field of matrimonial and sexual relationships, or in the wider field which includes considerations of truth, the sacredness of oaths, and the integrity of professional practice. As a piece of social mechanism the present system has not only cut loose from its moral and juridical foundations: it is, quite simply inept.812 The points made by these two reports are echoed by many who have practical knowledge of the actual working of our divorce laws. It is not surprising that today in wide sections of the community, on both the religious and secular fronts, the proposed change from the matrimonial offence to the breakdown of marriage is welcomed. I think that it can be said that the present law tends to discourage reconciliation. It does not provide for the decent burial of dead marriages. Marriages that are ended are often terminated with unnecessary bitterness and humiliation, and quite often a party can be labelled as guilty when he or she in point of fact is not the more blameworthy.
As I see it, the divorce law today should seek to buttress the stability of marriage by ensuring that the parties are induced to make a success of their marriage; to encourage reconciliation by providing a procedure that will not prejudice reconciliation efforts; and to bury the dead shell of a marriage that has broken down, without bitterness between the parties. This point is of even greater importance where there are young children who will be in contact with both parents after the divorce. It seems essential to me that the divorce law should be understandable and respected. Those points are what the Bill seeks to achieve and settle.
The Bill proposes, first, the provision of improved methods of reconciliation and to give more protection to the party who is seeking reconciliation. Reconciliation efforts are more likely to succeed if they are instituted before the proceedings have actually commenced. I am satisfied from talks that I have had with organisations that are skilled in reconciliation work that there is considerable scope for improvement and expansion of the work they do. It is a sobering thought that we give from Exchequer funds £42,000 annually to the Marriage Guidance Council and we spend between £3 million and £4 million annually on divorce costs.
Any Bill which seeks to reform the divorce law must provide a means whereby existing stable illicit unions can be regularised. How many of these unions actually exist no one knows. The children born each year to these unions are estimated as between 10,000 and 813 20,000. One thing is certain: there is a substantial number of them. They are not temporary alliances. They are stable. They are marriages in everything but name. The children of those alliances generally must remain illegitimate. The point can be made that the vast majority of the persons involved in these unions are anxious to remarry. They do not necessarily want to avoid their responsibilities to a spouse from whom they parted 10, 20, 30 or even 40 years ago.
Any divorce reform Bill today must be able also to end marriages which have died without a matrimonial offence having been committed. It is not often appreciated that if a husband and wife sensibly decide that their marriage has ended and agree to part, unless one of them is prepared to commit adultery or perjury or both, they must remain tied in matrimony. I do not think it true to say that the Bill will make divorce easy. In the cases where breakdown is inferred from adultery, undesirable behaviour, desertion or separation, plus consent, the main effect will be to allow those who can and would be divorced under the present law to have their marriage dissolved on a more rational basis.
It is not true to say that the Bill would sap family life or the institution of marriage. The circumstance in which those who could not now be divorced would be able to succeed 'is primarily where there has been a minimum of five years' separation. It cannot really be argued that it will sap the foundations of marriage or family life, but that it formally recognises the death of marriages which have not existed except in name for five years.
Turning specifically to the different Clauses, Clause 1 lays down the basic principle upon which the new divorce law is based. Divorce will no longer be regarded as essentially the punishment of one spouse and the relief of the other. Instead, the court is required to satisfy itself whether the marriage has broken down irretrievably, and if so to dissolve it. This will require a considerable change of outlook by those administering the law, since a divorce suit will become essentially an inquiry into the viability of a marriage and not contentious litigation designed to determine the guilt of one or other spouse. The relative blame of the parties may still be relevant in 814 determining which should provide support for the other, and to what extent.
Clause 2 makes clear that the court can dissolve a marriage only if it is satisfied of the existence of one or more of the five factual situations from which breakdown is to be inferred. Of these five factual situations which are set out in Clause 2, three relate to the conduct of the respondent and are similar to the existing matrimonial offences of adultery, cruelty and desertion. In the other two situations, both of which involve a period of separation, there need be no conduct on the part of the respondent resembling an offence as we now know it.
It should be emphasised that a petition cannot normally be brought within the first three years of the marriage. The two and five years of desertion and separation mentioned in Clause 2 can, of course, start to run during the currency of the first three years. It should be pointed out that the wording of Clause 2 circumscribes the discretion of the court. It cannot grant a divorce unless one of the prescribed five factual situations is proved, even though it may think that the marriage has irretrievably broken down. Equally, it cannot refuse a divorce if one or more of the factual situations is established, even if the judge may have a lingering belief that the marriage has not broken down irretrievably. It is thought that this circumscription of judicial discretion is essential if the breakdown principle is to prove workable. Insanity is not specifically mentioned among the factual situations from which breakdown is to be inferred. It is, nevertheless, covered rather more effectively than under the present law, and in a more realistic and humane fashion. No longer is incurable insanity of the respondent a ground for divorce, thereby acquainting his misfortune with a matrimonial offence. The test is whether the marriage has broken down irretrievably, and that is to be inferred not from insanity so much but from the respondent's intolerable behaviour, or the fact that the parties have lived apart for five years.
Living apart, for the purposes of the Bill, is based purely on physical separation, without any need for a specific mental element. Under the Bill, the petitioner will be in a rather stronger position in an insanity case than at present, because, once there has been 815 five years' separation, it will not be necessary to prove that the insanity is incurable, a point which arises today, of course, when it is almost impossible to prove the incurability of insanity in the light of advances in medical science. It is noteworthy that in 1966 there were only 87 petitions on the ground of insanity.
There is no need to go into detail on the provisions of Clause 2(1,a) and (1,b), which relate to adultery and cruelty, but I should explain why the desertion period has been reduced from three years to two. Two years' separation, by itself, is cogent evidence that a marriage has broken down and, surely, it suffices if neither spouse objects to a divorce. It is hoped that most couples will proceed under this paragraph, enabling the marriage to be dissolved with a minimum of controversy and its unhappy repercussions on them and any children. Two years' continuous desertion is even stronger evidence of irretrievable breakdown than mere separation. A High Court judge recently pointed out in this connection that a reduction from three years to two would considerably facilitate the task of the courts in discovering where the truth lay regarding the circumstances in which the parties separated.
The opportunity of divorce after two years' separation, where neither party objects, has been described as the introduction of divorce by consent. The Clause does nothing of the sort. The ground for divorce is irretrievable breakdown, and under this paragraph it is separation, not consent, which gives rise to the inference of breakdown.
The prescribed period of two years is shorter than is provided for under the subsequent paragraph, where five years is the basis. This is so because, in the latter case, the consent and acquiescence of both parties is not necessary. What is true is that the paragraph relating to the two years' separation will enable parties both of whom want a divorce to obtain one without having to engage in the subterfuge needed at the present time. The use of this paragraph, I feel, is less likely to embitter family relations and will enable the marriage bond to be dissolved with dignity and humanity and, I hope, without rancour. It is hoped that this will prove the most widely used 816 of the methods of ending marriages and replace most of the present undefended suits based on the matrimonial offence.
There are same cases in which a respondent who does not object to divorce taking place may not be willing to collaborate in consenting to the divorce. For example, there may be an apathetic respondent who does not care one way or the other. There may be a plainly awkward respondent who could not care less. There may also be a respondent who, for conscientious reasons, does no' wish to play an active part in divorce proceedings but who does not raise any objection to passive acquiescence. These cases are not numerically insignificancy, and it would be undesirable to exclude them from the operation of this leas contentious way of dissolving a marriage For these reasons, the positive consent of the respondent is not required, but there will have to be substantial safeguards making certain that the respondent is aware of the proceedings brought against him and of his rights to object.
Clause 2(1, e) provides for divorce after the parties have lived apart for a continuous period of at least five years. This is the most important substantive change proposed in the law. The basic philosophy of the Bill is that a marriage ought, in the public interest, to be dissolved if it has irretrievably broken down. The strongest evidence of breakdown is, surely, a long period of separation. The Clause provides that, if irretrievable breakdown is established, the marriage should be dissolved notwithstanding the objection of one party so long as grave hardship is not caused to that party. To avoid hardship, safeguards are written into the Bill, and these appear notably in Clauses 5 and 7.
The joint effect of these safeguards is to give to the respondent substantial protection. It is true that few men can afford adequately to maintain two homes, but the hardship to the wife and children is caused when the marriage breaks up and when the second home is established. The subsequent dissolution of the marriage can add little to that hardship. There is, however, additional hardship which can flow from the divorce itself. In some cases, the wife would be deprived of the future expectation of a widow's pension.
817 For pensions under the national scheme, some rights have already been given to a divorced wife. Regrettably, the amount of the national pension is not great. Outside the State sector, however, it is not common for pension schemes to confer definite rights upon widows. Hence, the loss of a pension is of major importance—I do not minimise it—in relatively few cases. The Bill would safeguard the wife in two ways as regards loss of pension. First, under Clause 5, the court may refuse the husband a divorce if it would impose grave financial or other hardship on the innocent wife. Second, under Clause 7, the court must satisfy itself about the financial arrangements made for the wife. In exercising its powers under this Clause, the court is bound not only to look at the financial provisions which it can impose under the present law, but it may also, for example, hold up the decree absolute until the respondent takes out an insurance policy providing for the wife a deferred annuity equivalent to the pension.
It is doubtful whether any reform of family property or financial relief could in the overwhelming majority of families give to the wife greater effective protection than she could have under the Bill. The Bill would give the court greater powers than it has ever had before. It could refuse to make a decree until half of the family property had been made available for the respondent. Ender Clause 7, the court is strictly required, in deciding the adequacy of maintenance, to have regard to the financial position of the respondent as it is likely to be after the death of the petitioner, should the petitioner die first.
One of the strongest arguments in favour of divorce after five years' separation is that it will enable many stable illicit unions to be regularised and the children legitimated. I can well understand objection being raised to this Clause that it will enable a litigant to take advantage of his own wrong, which would be contrary to a principle well established in our law. But attack on that ground is misdirected. The ending of a marriage must affect a wide range of people besides the actual spouses. It affects society as a whole. When the court rules that a legal tie be severed, it is not acting solely in the interests of 818 one individual; it is acting also in the matter of public interest. Where, exceptionally, the public interest in dissolving dead marriages is outweighed by other considerations of public policy, Clause 5 may be invoked, and the object will be not to punish the petitioner for his wrong, but to maintain a higher public interest.
Under Clause 3, several steps can be taken to aid reconciliation. Solicitors are among those who are likely to be first consulted when there are marriage differences, and that is why the Clause makes provision for solicitors to certify whether or not their client has been told of the availability of the Marriage Guidance Council and similar organisations. It is felt that it should rest with the solicitor to decide whether he should discuss the matter with his client. There is no question of making any inroad into the privilege which attaches to solicitor-client communications.
Under the Clause, the judge will have power, if he feels that there is a reasonable possibility of reconciliation between the parties, to adjourn the case for three months. The Clause is not likely to be widely used, but it is an important safeguard that the judge should have.
The Clause extends from three months to six the period of reconciliation allowed under Section 42 of the Matrimonial Causes Act, 1965. It is clear that parties should be encouraged to try and try again to reconcile their differences. It is for that reason that the period has been increased to six months in total, and allowance made for a number of periods rather than one, as long as the total does not exceed six months.
One can understand that a respondent who consents to a divorce after two years' separation may well be, intentionally or unintentionally, misled as to the financial position after the divorce. For this reason, Clause 6 provides that the respondent may object to the making of the decree absolute if she has been so misled. It must be emphasised that the petitioner must have misled the respondent in regard to the financial arrangements and no others.
In Clauses 4 and 5 are set out the bars which it is intended shall exist under the Bill. These relate to deceiving the 819 court and grave financial hardship to the respondent. For all general purposes, the existing absolute and discretionary bars to a decree will disappear. One of the most distasteful features of the present system, and the one most likely to lead to perjury—the disclosure of the petitioner's adultery—will go. This does not mean that the parties will not be asked about their adultery. If the Civil Evidence Bill, now before Parliament, becomes law, questions can be asked, but the humiliating, compulsory confession by the petitioner will disappear, and the bar which is now ostensibly on the adultery of the petitioner, but in practice is on the failure to disclose the adultery, will be substituted by an open statutory recognition of a bar based on deceiving the court.
Clause 8 follows the lines of Section 5 of the Matrimonial Causes Act, which enables parties to bring for the approval of the court the proposed financial arrangements in respect of a marriage which it is proposed to dissolve. The opportunity has been taken to remove a defect which has been revealed in that Section 5.
Clause 9 deals with the situation where a petitioner desires to apply for judicial separation. The effect of the Clause is to maintain the present close connection between the grounds of divorce and of judicial separation. The same factual situation will have to be established before either remedy can be granted. The only difference is that whereas a divorce will be denied unless irretrievable breakdown is to be inferred, breakdown is irrelevant in the case of judicial separation.
A small point which may be not be realised is that the Bill takes the opportunity to make a modest contribution in tidying up the Statute Book. At present, the grounds of judicial separation include what were matrimonial offences before 1857. As a result of the Clause, lawyers will no longer be obliged to concern themselves with what were matrimonial offences before then.
The Schedules make the consequential Amendments to the Matrimonial Causes Act.
The Bill cannot come into operation until the Lord Chancellor shall authorise 820 by Statutory Instrument. But once it has passed through all its stages substantial amendments will be required to rules and there will be the necessity for the legal profession to familiarise itself with the new law. It is reasonable to assume that it would be six months before the Bill could become operative.
I am grateful to the House for having patiently listened to my speech, which has already been too long. The Bill commands a very wide measure of support for all its provisions. A few provisions have aroused strong opposition. Whether the differences on points of disagreement can be composed is a matter for argument and discussion during the next stage of the Bill if it gets a Second Reading. On its main provisions, there has been consideration and discussion over nearly 20 years. The Bill is the consequence of those discussions, and I commend it to the House as a realistic attempt to meet one of the outstanding human problems of modern society in a humane way.
§ 11.36 a.m.
§ Sir Lionel Heald (Chertsey)
I rise to oppose the Second Reading of the Bill, but before I do so it would he the wish of the House, as it certainly is mine, that I should thank the hon. Member for Coventry, South (Mr. William Wilson) in the name of the House for the courage and public spirit he has shown in undertaking a very difficult task. For any Private Member to adopt this subject as the means of making use of the privilege he gained in the Ballot is a very fine thing, and we all respect him very much for it. Also, if I may say so without impertinence, he has stated the case for the Bill extremely clearly and with great moderation.
I have always been interested in divorce law reform, as, indeed, in the reform of many other parts of the law. But I claim no special knowledge or experience of the subject. I have never had any practice in divorce and I do not claim any technical knowledge of the difficult branches of it that are involved here to some extent. I have approached the Bill from the point of view of the ordinary man and woman who may through misfortune become involved in circumstances where divorce is inevitable.
821 It can be universally agreed that several of the provisions of the Bill could be usefully incorporated in the present law by amendment, and they would be improvements. But the Bill's purpose is not merely to introduce small improvements; its purpose is much wider. I have had great anxiety as to the proper approach to the Bill, and I have done my best in the short time available to obtain advice and guidance from those in all walks of life, religious and legal authorities, organisations interested in these matters, and, particularly, the people who will be affected by divorce law. I am bound to say that I have come to the firm conclusion that it cannot be described as a good Bill and that it would not be right for the House to send it to a Standing Committee.
This conclusion has been reached on an entirely objective basis. Let it not be that I am making any kind of complaint or expressing any kind of resentment, but I am sorry that the hon. Member for Pontypool (Mr. Abse) thought it right in a recent communication to the Press to describe the Motion as being tae work of "the most conservative of lawyers". Over the past 20 years I have been involved in a number of Private Members' Bills, some of them of some importance. I have often been associated in that with hon. Members on the other side of the House, and as a result I have made a number of friends in the process. I think I can safely say that never on any occasion have I introduced any party politics into the matter. Perhaps I ought to be rather grateful to the hon. Member for Pontypool, because I have some very good supporters in my constituency who complain that I am too moderate—
§ Mr. Leo Abse (Pontypool)
>: I assure the right hon. and learned Gentleman that I did not have him in mind. I had in mind the most conservative Member, the hon. Member for Chelmsford (Mr. St. John-Stevas).
§ Sir L. Heald
I am obliged to the hon. Gentleman. I will not pursue that any further.
In accordance with the traditions of the House, I must refer to one other personal matter. As I said, I have no experience of practice in the divorce courts. In fact, I have been in the 822 divorce courts only once in my life and that was as a petitioner in a very painful case, the subject of which we are in no way concerned to discuss today on the Bill. However, I learned as a result of that what a painful ordeal it is for the ordinary party in a case and how important it is that we should make our divorce laws as humane, equal and fair as possible, and how, above all, we should look after the interests of the children, who, in most cases, are the real sufferers as a result of divorce.
In view of what I have said it will be clear that I have not, and could not have, any conscientious scruples against divorce per se, but I deeply respect the convictions of those who have such scruples, and emphasise that we should bear them in mind, for I feel that they are sometimes forgotten when we are legislating. I was brought up as a moderate Anglican and in the belief that divorce must be regarded as something unfortunately necessary, something which can cause unhappiness—it creates unhappiness not only for the people themselves but very often for many others—and a regrettable necessity; that our ideal should be to see less rather than more of it, and that the best way to do that is by reducing the occasion for it, no doubt by our behaviour and by the upbringing of our children, but also by doing everything possible to make the law fairer in its consequences, and that first and foremost consideration should be given to the children of a broken marriage.
I am utterly opposed to the concept of the rubber stamp or dog licence view of marriage which seems to be popular among some of our intellectuals today. I could quote many instances. At the other end of the scale, I am equally unable to agree with those who contend that we should regard divorce only from the point of view of some matrimonial offence. That clearly involves, as a consequence, that I must accept, as I do, the broad proposition that in certain circumstances and to a certain extent divorce by consent is permissible even when neither party can be said to have committed any offence except perhaps that of being a fallible human being. That by no means implies that divorce by consent is a good or desirable thing. Again, it should be regarded as a sad necessity, as something 823 about which the family and friends will be sorry, justifiable in the last resort after most careful consideration of all the relevant circumstances and particularly the position of the children.
On the first controversial point that arises here, I am not prepared to say at the moment how far, if at all, divorce by consent is permissible, except in the most rare cases, where there are young children of the marriage. That is a very big question. It is not a matter that is considered in the Bill, which deals with the subject on much broader lines than that. But it should be noted that generally the Bill does not take into account any moral considerations. There are no words in it from beginning to end which suggest that the judge will take them into account. The words "financial or other hardship" in Clause 5 could not possibly be construed by a judge as involving moral considerations; they are entirely material.
The next question is the effect of the departure from the criterion of a matrimonial offence. There again, I start hand-in-hand with the reformers in their general approach, but we part company very sharply in the formulation of the new principle. Once one has decided to open the door to divorce by consent, it is obviously convenient and logical to justify this on the basis that both parties are in agreement that the marriage has irretrievably broken down. There we come to the first stumbling block in the way of the Bill. The expression "irretrievably broken down" is an abstract, general phrase. It denotes nothing more than a very general abstract concept. It would be utterly impossible to hand that over to the judges and tell them to get on with it. They must have guidance and assistance. Is it subjective or objective, or both? How is it to be proved or assessed? Is it to be based simply on the statement of the parties or their admissions, and what are the consequences that follow from putting completely uncontrolled discretion of that kind in the hands of the judges? The truth of the matter surely is that in adopting this phrase we are only scratching the surface.
What we have done is to state the desideratum, in effect the problem. We have not begun to provide a solution. The idealist is a wonderful man to have. 824 He will convince us that it would be a very fine thing to do something, but we have to have practical people to carry it out. It is interesting to remember that Heron of Alexandria in a sense invented the jet engine but that it took Rolls Royce 10 years to make the shafts—and matters of that kind are essential before one can arrive at any useful result.
The same thing arises here. One must have blueprints and prototypes before one can get on to firm ground. If one regards irretrievable breakdown as a desideratum or objective, we have the position today—and I think that this is general opinion—that we are far short of agreement or certainty about how to define and prove the fact, and it is supposed to be a fact, of irretrievable breakdown or "IB" as it will come to be known. We are still further short in being able to assess and compensate for the consequences of dissolution by consent on that assumption.
At this stage, it is not justifiable to place on the judges a burden that ought to be discharged by the legislator. We should make no mistake about it. The judges, as they always do, would do their duty without complaint, but they cannot possibly help regarding this task as an intolerable one unless we assist them.
If we insist on this kind of Bill, we shall find that people will not take on the task. I wonder how many hon. Members would be prepared to do so. If we put judges in this position as the Bill stands, I believe that we shall merely be using them as a means of cloaking what is really a free-for-all system of divorce by consent and that view has been stated more than once recently by people of much more authority than I. If we are going to do this, then let us not go through the farce of the judge making an investigation of the whole marriage, which he is not fitted to do and which is not part of his training or job. Let us be frank, come into the open and say these things.
The Bill fails to recognise or to grapple with the consequences in trying in effect to reconcile two things—the concept of divorce by consent, a matter of agreement, and a legal system essentially based on the assumption of conflict. The hon. Gentleman recognised frankly that this is not going to be easy. That, of course, was why the concept of a matrimonial offence was adopted, so that the 825 judges could approach it in a judicial manner. An eminent divorce lawyer said the other day that the basis of irretrievable breakdown is not a justiciable matter unless it is declined in such a way as to establish issues to which a judge ca n address his mind.
I shall not occupy much more time on other aspects because so many other hon. Members wish to speak. But it is important that I should deal with one aspect which is of importance to the House. I do not for one moment suggest that divorce cannot be a proper subject for a Private Member's Bill. No one who has heard of Alan Herbert would differ from that view. But his reforming process was clear and simple and a comparatively easily defined one. There were none of the sorts of complications we are concerned with today.
Today, when making such a far-reaching change in an institution which is at the basis of family life, and with all the modern computations of the social services, insurance and all such matters, it is essential that the policy should first be clearly stated. Without in the least making any political point of it, I say that it is wrong that, in a matter of this kind, the Government should not themselves decide the policy and then bring the matter before the House. It will lead to the most endless troubles in this case, if the Bill ever got to Committee, for we will still not know what the policy of the Government is. One can only say that it makes the situation hopeless. Once policy has been decided upon with the full decision of the Government, then one can proceed even by Private Member's Bill perhaps but certainly not without it.
I do not want to do more than mention that it has been suggested that there is not great opposition to the Bill. A story has been circulating in the last few days that the women's organisations were really in favour of it. I have documents here which contain most valuable material and they show that, after careful consideration these organisations look upon the Bill with deep concern. It has been asked why they were so long in doing so, but the Bill was not available until the end of November and these organisations must consult their areas. They proceed, very properly, on a basis of agreement and consent amongst their 826 members, and agreement has been forthcoming here.
One of the organisations—I will not specify them in detail—refers in particular and asks that the attention of the House should be drawn to a statement in a letter to The Times on 27th January by Mr. Crispin, who is a great authority on divorce. They asked that I should read part of it or at any rate ask hon. Members if they have read it already, as I believe many of them have, to bear it carefully in mind. Mr. Crispin said:If the country really wants this kind of loose relationship, terminable almost at the will of one spouse, then the solution might be to give up the institution of marriage altogether, and to cease to distinguish between legitimacy and illegitimacy.I am appalled that the Churches and the many women's organisations do not appear to have appreciated the implications of this … Bill.They want to make clear that this is a reflection on them. They have, indeed, appreciated the implication and they want their views to count today.
§ Mrs. Lena Jeger (Holborn and St. Pancras, South)
The right hon. Gentleman keeps referring to "they". Who are "they" in this context?
§ Sir L. Heald
The hon. Lady wants the names of these organisations. I am sorry I did not give them but I thought that hon. Members would know. They are the Married Women's Association, the Mothers' Union, the Family Law Association—[Interruption.] People can draw their own conclusions as to the sort of support to be found in some quarters. Another of these organisations is the National Federation of Business and Professional Women's Clubs. These are all women's organisations who have the right to have their case stated by a Member of Parliament. There may be hon. Members who would welcome the time when people would not be allowed to present their case to Parliament, but, fortunately, that time is not now.
There are several questions in this matter which very much concern lawyers. I understand that the Solicitor-General is to try to catch your eye, Mr. Speaker. If he does, I hope that he will find it possible to deal with one or two matters of which I know he must be aware. Many people take the view that before the Bill is ever seriously considered as a subject 827 for the Statute Book, these issues should be carefully considered and that there should be an inquiry into what amendments might be needed in various branches of the law, particularly those relating to National Insurance and pensions and other matters.
Opinions have been given upon these matters and I will not weary the House with them, but serious doubt has been expressed about whether it would be right or wise or possible to bring the Bill into operation until those amendments have been made, if they are necessary. The Solicitor-General will agree with me that, if this were a Government Bill, these matters would have been disposed of before the Bill came to Second Reading, and that is one of our troubles today. If this had been a matter for which the Government were prepared to take responsibility, we would be in a very different position to deal with it today.
§ 12.2 p.m.
§ Dr. Hugh Gray (Yarmouth)
I support the Bill as a timid step in a direction of which I approve, but I do not think that it goes far enough and I hope that it will be considerably changed in Committee. I listened with much interest to the right hon. and learned Member for Chertsey (Sir L. Heald) and I agree that the legal system is based on conflict. That is why when two people who are married consent to a divorce, the divorce should not reach the courts, but should he settled either between lawyers outside the courts, or by some body which has no connection with the courts.
I do not agree with the view that the hon. Member for Chelmsford (Mr. St. John-Stevas) is the most Conservative Member of the House. I have always thought of him as being very pale blue. He supported reform of the law on homosexuality, although he opposed abortion law reform.
§ Dr. Gray
In trying to persuade him and others to support the Bill, I should like to say that there is obviously no problem for those who consider marriage to be indissoluble, who consider it to be a mystical union of a metaphysical 828 nature, or a sacrament. The courts would come into the picture for them only if there were disputes between the two parties when a separation took place. In many cases, known to all of us, where such people separate, private arrangements are made and, rightly, never go to the courts.
All other marriages are based on contracts between the two parties and perhaps the whole of the law relating to marriage should be reformed and perhaps contracts should be variable and perhaps there should be options out of such contacts at regular intervals, but at the moment we are dealing with divorce law reform and not marriage law reform.
§ Mr. Quintin Hogg (St. Marylebone)
There are certain persons interested in every marriage, called children, who are not parties to the contract. How can a law of marriage be based on contracts when one of the main purposes of it must be to protect those who are not parties to it?
§ Dr. Gray
I agree with the right hon. and learned Gentleman about the interests of the children, and there is a strong case for treating any unions which produce children as a very special category. Obviously, the interests of the community are immediately involved when there are children, but that does not mean that necessarily the marriage should be held together. We know that the atmosphere of many marriages is extremely destructive, and psychiatric social workers and others hold that it is in the interests of the children that such marriages should be dissolved, or that the parents should separate.
I am not suggesting that financial provision should not be considered when there is a conflict between the two partners even when there are no children. I do not agree that the purpose of marriage is only procreation. It is one of the many purposes of marriage. People go to a registry office because they consider their relationship to have a chance of permanence, or to be reasonably permanent, and occasionally because they intend to maintain it possibly for only a certain length of time; hence my suggestion on the subject of contracts.
The basic principle of the Bill, that breakdown of marriage should be taken 829 as the sole ground for divorce, is extremely good. I have discussed this matter with priests and clergymen of different denomination and I have found that in my constituency the majority of those I talked to are in favour of the Bill. This is particularly true of two close friends of mine who are priests of the Church of England and who have each said to me that they support the Bill because they resent all the hypocrisy now involved in the law, and because they think that if we could get away from it, it would be an extremely good thing. The Bill, by taking breakdown of marriage as its basis, certainly does that, which is why it has my support.
I am opposed to the first two of the grounds for petitioning for divorce, because they get away from the principle of consent or breakdown and imply value judgments. I dislike the presence of the word "reasonable" in paragraph (b), for what is reasonable is a value judgment, and may be based on conventional values. I warmly welcome paragraphs (c) and (d). If there is a breakdown of marriage, then, obviously, a reasonable period should be allowed to elapse before the case is heard. For example, this occurs under Jewish Orthodox law. Two Israeli friends of mine who were recently divorced appeared before the Rabbinical court, but the decree will not be made absolute until a certain period of time has passed. At the moment, they are separated. This is a perfectly reasonable way of going about these things, and I do riot see any reason why that example should not be emulated.
It seems reasonable to provide in paragraph (d) that, after a further length of time, if one of the parties still does not consent to the divorce, the divorce should take place, provided that all the safeguards are observed, safeguards for both the children and the woman, until such time as we have complete economic equality of the sexes.
The suggestion of my hon. Friend the Member for Coventry, South (Mr. William Wilson) for a deferred annuity equivalent to a pension was an extremely good idea. I am not of the view that all the women's organisations are entirely opposed to the Bill. In particular, the National Federation of Business and Professional Women's Clubs wrote an 830 extremely reasonable letter suggesting that property acquired after the marriage should be equally divided and that we should innovate certain reforms along Continental lines to permit that.
This seems to be eminently reasonable. Some women still have the misfortune to marry men who want them to be little women in the home, and who do not wish them to take jobs, as between one-third and one-half of married women do today. It is surely a good thing for a woman to take a job particularly if the children are grown up.
§ Mr. John Pardoe (Cornwall, North)
Is the hon. Member really saying that he believes it right and proper that married women with young children should go out to work?
§ Dr. Gray
It is perfectly right and proper for married women with young children to go out to work, provided there is someone to look after the children during the daytime, or provided there are nursery schools. I would agree with the implicit criticism that it is better if the mother can stay at home.
§ Dr. Gray
I apologise for digressing. I trust that I have made it clear that the Bill has my support, although it does not go far enough. I should like to see a category of marriages that can be broken by consent of the two parties, with the intervention of the courts on behalf of the community when there are disputes between the two, or if the agreement voluntarily reached between the parties is not thought to be equitable to either party or to the children.
We have to recognise that we do not live in an age in which everyone accepts marriage as being indissoluble. The majority of people do not do this. It is perhaps a pity that people are not made to think very much more about the difficulties over divorce at the time that they get married. We must recognise that for ordinary men and women everywhere it should be possible to dissolve this contract, this union, in a reasonable and acceptable way which satisfies the majority of the members of the national community.
§ 12.12 p.m.
§ Mr. Richard Wood (Bridlington)
I would like to begin my speech by declaring an interest—I declare an interest as a member of the Church of England. I fear that this may vitiate with the hon. Member for Yarmouth (Dr. Gray), and perhaps other hon. Gentlemen and hon. Ladies, much of what I have to say. I would like to assure them that I fully accept the distinction made in the report of the Archbishop's group "Putting Asunder" between, on the one hand, what the Church must require of its own members, and on the other, what the Church thinks should be the law of the land.
The issue today is not and cannot be, the achievement of a divorce law based on the Christian concept of marriage. But I suggest that any reform of the law must pay close attention to the importance of the stability of both present and future marriages. The stability of marriage, although supported by Christian principles, is accepted as an ideal, beneficial to our society, by the large majority of the nation.
I suggest to the hon. Member for Yarmouth that he is making a very grave charge against a number of married people when he suggests that a large number of marriages are entered into as an experiment, because all people who marry, whether in church or register office, undertake a union for life.
§ Mr. Wood
I do not know what the difference is. I cannot see the distinction that the hon. Gentleman makes, but perhaps I had better not get diverted.
The main criterion of the Bill is whether it maintains or increases marriage stability. I have no doubt that the sponsors, particularly the hon. Member for Coventry, South (Mr. William Wilson), would agree with this. He used phrases similar to those used by his hon. Friend the Member for Pontypool (Mr. Abse) at a Press conference, when the hon Member for Pontypool said that the objectives of the Bill were to buttress rather than undermine the stability of marriage. The other important criterion of the Bill is mentioned in the Report, "Putting Asunder". It is 832 whether it affords adequate protection for the weak. These two criteria will be carefully examined by all speakers, because I am convinced, as I think most of us are, that it is by these standards that the Bill must be judged.
My second general observation, which I believe is probably shared by all who wish to take part in the debate, is that the best that we can achieve by any reform of the law will be a very modest subtraction from the sum total of human unhappiness caused by unsatisfactory marriages and their consequences. This is no reason at all for not attempting a subtraction, however small. But I feel that some of the language which has been used in respect of the Bill has been very much more optimistic than the rather sober comment which if I may again quote him, the hon. Member for Pontypool made during the proceedings on the Abortion Bill. I would suggest that it is entirely appropriate in support of this Bill. On the Second Reading, he said:… the passing of the Bill is bound to be a proclamation of defeat on behalf of the community,"—[OFFICIAL REPORT, 22nd July, 1966; Vol. 732, c. 1147.]
§ Mr. Abse indicated assent.
§ Mr. Wood
I quite agree.
We are concerned, as we are so often concerned, with a Measure which seeks to mitigate the consequences of a myriad of moral failures for which the society we represent here, in one way or another, must bear a great deal of the responsibility. It is important that we should devote at least as much of our attention to the re-ordering of our society with a view to contracting the extent of disordered marriages as is spent in attempting to mitigate the consequences of the disorders.
The Bill, in aiming to mitigate the consequences of these disorders and make it generally easier to bring to an end a marriage that is dead or dying, carries the risk, and this I admit is a dilemma that cannot be avoided, of producing disorder in existing or future marriages which would otherwise have been able 833 to steer a reasonably orderly course. This was recognised in paragraph 6 of the Law Commission's Report, which says:From a secular point of view, divorce is socially harmful only when the possibility of obtaining it leads to the break-up of a home which would not have occurred if the parties had known that in no circumstances would the legal tie be severed.Most people agree, although their reasons differ, that the present state of he law is unsatisfactory. When I first read the report of the Archbishop's group, I believed that it offered a way forward and promised some hope of improvement. It pointed out that divorce based on the concept of the matrimonial offence seemed to be becoming increasingly unreal. Legal practice, it pointed out, was moving towards the concept of he marriage breakdown. It seemed generally more sensible, if marriages had o be dissolved, that their dissolution should take place because they had effectively come to an end, rather than on the basis of a matrimonial offence, very often as we know, contrived, and, if not contrived, then a matter of less intrinsic importance than the breakdown itself.
The change recommended in "Putting Asunder" nonetheless carried important implications and raised for many of us new moral difficulties. I know, and all of us who are married know, that our marriages are indissoluble unless we or our wives behave intolerably or go off our heads. If the breakdown of a marriage were to become the sole ground for divorce, we should cease to be certain that in the absence of intolerable behaviour or in the absence of madness, our marriages could not come to an end. No longer could a wife, in the words of the Morton Commission, marry on the footing thatprovided that she did not give her husband ground to divorce her she would retain the status of wife for life.It is true—and I must frankly admit this—that this certainty of indissolubility would be undermined not only by the proposals in this Bill, but also by the proposals of the Archbishop's group. But the effect of the proposals in "Putting Asunder" were modified, as hon. Members will agree, by a number of stringent conditions. In any event, the Archbishop's group was convinced that it was necessary to choose between 834 the doctrine of the matrimonial offence and the breakdown of marriage, and it believed that the choice to be made necessarily involved a choice of two evils. In my opinion, the sponsors of the Bill have chosen both.
The irretrievable breakdown of marriage is to be the only ground on which a petition for divorce may be presented, but to establish breakdown a petitioner must satisfy the court on one of three facts: the matrimonial offence, or the separation for two years with consent, or without objection, or the separation for five years whether or not there is objection. If any one of these three facts were proved to the court's satisfaction, a court would not refuse divorce. Therefore, the sponsors seem to have introduced the definition of marriage breakdown contained in Clause 2, presumably because of the difficulties, to which the Law Commission drew attention, of the procedure of the inquest on marriage suggested in "Putting Asunder".
In the Law Commission's Report, a large number of arguments were adduced against the substitution of the marriage breakdown for the matrimonial offence. Half of those objections were concerned with the principle itself. The other half expressed the procedural objections, emphasising the pressure on the courts and the lack of trained manpower available. So preferable do I believe it would be for us to choose the doctrine of marriage breakdown alone as, in truth, the only ground for divorce, rather than either the doctrine of the matrimonial offence, as we have at the moment, or, as in my opinion the Bill aims to do, a combination of one with the other, that I hope that the Government, whose responsibility in this most difficult of social questions, is very great, will undertake a thorough examination of the procedural objections which have been put forward.
Going back a number of years to 1951, a Royal Commission was appointed to examine the very limited proposal which was contained in the Bill presented by the hon. Lady the Member for Flint, East (Mrs. White), which proposal, incidentally, has been subsumed and significantly changed in this Bill. Today, we are faced with a very much larger 835 question than the question in her Bill: whether we should change the whole basis of the divorce law, as I believe preferable, by substituting marriage breakdown, or continue to rely, as the Bill in effect does, on the matrimonial offence, adding two other grounds of great importance—divorce by consent, and the more controversial divorce by compulsion—and substituting a considerably shorter period for the seven years of separation which was necessary under the hon. Lady's Bill.
As far as the first two definitions of marriage breakdown are concerned, I find it difficult to see how breakdown on the continuing ground of adultery or cruelty would avoid the necessity of husbands and wives, again in the words of the hon. Gentleman, the hon. Member for Pontypool "hurling accusations against each other". Presumably the sponsors believe that a petitioner would usually prefer to wait two years if the spouse agrees or five years if he or she does not agree.
I am very unhappy about the proposal to shorten the period of desertion from three to two years. The hon. Member for Coventry, South made clear that the object was to bring it into line with what was considered the right period, the two-year period, for divorce by consent. All that I can say is that the hon. Gentleman's proposal is bound to arouse disquiet, particularly in the light of the remarks of the hon. Member for Yarmouth, who pointed out that the Bill did not go nearly far enough and that we must go a great deal further later.
If the period for desertion is now. for no compelling reason, to be fixed at two years, will we be faced in future with arguments that, for instance, a wife with young children, deserted by her husband, would suffer even after a year or six months or even less, such hardship that she should be allowed to obtain a divorce and remarry almost immediately after desertion? If so, I believe that the whole stability of marriage would he seriously threatened, especially if these arguments were also applied, as I think they would inevitably have to be, to shortening the period of divorce by consent; and if a husband and wife can agree to wind up their marriage after two years, plenty of arguments could be 836 produced in favour of shortening that period too.
§ Mr. Raphael Tuck (Watford)
If a husband has left his wife and children, and has remained apart from her for two years, does not the right hon. Gentleman feel that it is about time that we faced realities and realised that he is not likely to return and that the wife's life may be completely ruined if she cannot get a divorce after two years?
§ Mr. Wood
I am anxious that someone, in answering the debate on the Bill, should explain what intolerable burden would be removed by shortening the period from three to two years. I cannot see any reason for it, except the reason which the hon. Gentleman adduced, namely, to bring it into line with the period of divorce by consent.
We must think very carefully about the question of divorce by consent. We all know that a great many marriages today end by mutual agreement and that the subterfuges which are resorted to are wholly undesirable. The Bill proposes openly and honestly that a divorce which is desired by one partner and not resisted by the other can be brought to an end without these subterfuges. But the openness and honesty of the Bill help to underline the proposition which I believe to be false—and, incidentally, I noticed that the hon. Gentleman agreed that it was false—that the only important parties involved in any marriage are the husband and wife. I do not believe that this is so, and the hon. Gentleman said that he did not believe it, either.
Whenever two years' separation can be proved and neither party objects, the court will assume marriage breakdown and a decree will be granted. In this case, above all, there seem to be strong arguments for the fuller investigation of the causes of marriage breakdown which the Archbishop's group proposed, because most marriages are of considerable concern to many people other than the husband and wife.
I have in mind not only the children, although, as has been pointed out, their interests are immensely important. I do not believe that the existence of children by any means always supports the denial or benefit of denial of a divorce, because their interests in a dead or dying marriage may in many cases be better 837 served by the dissolution of the marriage -than by attempts to keep it alive. But there are many, perhaps most, marriages which involve a considerable number of relations and friends, and dissolution of the marriage not only breaks the obvious bond between husband and wife but affects a wide range of other human relationships.
In spite of the familiar jokes which we all know and which most of us cease to think funny, very close ties can exist between a man or woman on one side And their in-laws on the other. [HON. MEMBERS: "Hear, hear".] I am glad that the House approves of that, because it has always been my view. The Bill, rightly, lays stress on the processes of reconciliation. In many cases, the older generation are important potential reconcilers with close knowledge of the particular marriage disorder, together with, perhaps, similar experience themselves and success built upon it. I have no doubt that this proposal, making automatic the dissolution of marriage at the behest of husband and wife, will decrease the potential value of the attempts of in-laws or other relations at reconciliation.
More generally, I ask the House to consider whether we have the right to allow the automatic dissolution of marriages, under certain conditions, without paying any attention whatever to any interests other than those of the husband and wife. In the light of the unsatisfactory state of the law at present—which I readily admit—I wonder whether we do not have an obligation to devise some wiser procedure which takes into account the wider interests of society in every marriage?
I have already spoken about the fifth and final definition of marriage breakdown: the automatic nature of the Bill's proposal for the dissolution of a marriage, after five years' separation, against the will of one of the parties, with no provision for a full examination by the court of the circumstances of the party divorced against his or her will. This seems likely to create hardship at least as great as the Bill seeks to avoid.
A respondent who is resisting divorce would first have to prove that the divorce would involve him or her in grave financial or other hardship. The court must then balance that hardship, first 838 against the conduct of the husband and wife, secondly against their interests and those of the children—or, in the words of the Bill, "other persons concerned" —and, thirdly, against… the public interest to dissolve a marriage which has broken down irretrievably.Where the hardship, financial or other, is not "grave", the court seems to have little choice but to grant a decree. This provision could be very cruel indeed, and the example that worries us most is the all-too-common one of the couple in their middle forties, perhaps with one or two children still in their teens or even younger.
Most of us know that the charms and attractiveness of many women approaching middle age grow a great deal greater. However, in other cases, unfortunately, they indisputably diminish. Many a married man finds irresistible the attractions of another woman, untrammelled by domestic care and, in some cases, with no care in the world except how she can catch him. None of us know how many new potential unions are now frustrated by the knowledge that the man may never be free to marry. However, if the hon. Gentleman's Bill becomes law, he—not the hon. Gentleman, but the man in my example—will he as free as air within five years; and if his obligations to maintain his first wife are not made a great deal more effective, she may find herself with only the Ministry of Social Security between her and destitution.
Even without children, she will probably find it hard, certainly in some parts of the country, to get a job. She may not be a saint—few of us are—and she may have talked too much to her husband when he has come home from work about the children's troubles or the inconveniences of the kitchen. Yet this seems a poor reward for all that she may have done—perhaps having cooked 10,000 meals over 20 years, sewn on thousands of buttons and brought up, as wisely as she could, a handful of children.
I beg the hon. Gentleman to think again. We know that he is perfectly sincere in wanting to improve the law and I have no doubt that he is as appalled as any of us by these potential hardships. I ask him to consider the extent to which the Bill will create new hardships while trying to remove old 839 ones and will threaten the security of existing marriages in an attempt to rebuild a stable second union on the ruins of the first.
Above all, I ask the Government, with the general interest which they should have for the social well-being of the nation, to consider whether the Bill, combining marriage breakdown with matrimonial offence, and with inadequate provisions for those divorced—possibly against their will—will not end by creating more hardships than it relieves and will not be likely to add to, rather than subtract from, the sum total of unhappiness which is the present consequence of unsatisfactory marriages.
§ 12.36 p.m.
§ The Solicitor-General (Sir Arthur Irvine)
I intervene at this stage in the hope that it may be useful if I draw attention to certain matters of law which arise in the Bill, to attempt to clarify some points on which doubts have been expressed and to deal with some points which have given rise to discussion in the Press and elsewhere. This subject has, naturally, given rise to a lot of consideration and controversy. At a later stage in my remarks I will refer to the matters which were so persuasively put by the right hon. Member for Bridlington (Mr. Wood).
I wish to make it clear that the Government's attitude to this debate is one of neutrality. There is almost universal agreement that the existing state of the divorce law has unsatisfactory features and calls for change. The Government will give the closest attention to what is said in today's debate and to the reaction of hon. Members to the proposals in the Measure. I am sure that the House will agree that my hon. Friend the Member for Coventry, South (Mr. William Wilson) moved the Second Reading in a speech of considerable power and persuasiveness.
I wish to refer at the outset to my personal position in this matter. I hesitate to do so because I feel that, if a Minister gives his personal view in a debate, there may be a doubt at a particular point about whether he is speaking for the Government or for himself. However, I can deal with my personal view briefly and I hope that, while I do so, hon. Members will bear with me.
840 I had the honour to be asked to serve in the group appointed by the Archbishop of Canterbury in January, 1964, the study of which led to the publication of the book "Putting Asunder". As late as March, 1965, 15 months after the original appointment of the members of the group I filled the vacancy which occurred in the group. I thought it right to resign from the group in November, 1965.
I formed the impression, rightly or wrongly, that, in substance, by the time I joined it, the group had moved strongly in favour of the concept of breakdown of marriage as a ground for divorce. The group was thinking in terms of what has come to be described as "breakdown with inquest". I had my doubts about this, but the matter had been so thoroughly investigated between the first meeting of the group and the date of my first attendance at it, that I thought it best, in all the circumstances and with the minimum of fuss, to ask to be relieved from further attendance.
Although—as a consequence, no doubt, of the Law Commission's Report—breakdown with inquest is, in my view wisely, abandoned in this Bill, there are some provisions in the Measure that do not satisfy me, including the important Clause 2(1)(e). I propose, therefore, if there is a Division today, to abstain. I am grateful to the House for allowing me to deal with my personal position and I now turn to more important matters.
Confronted by three choices for the basic grounds for the dissolution of marriage, first, irretrievable breakdown simpliciter, second, the matrimonial offence, and third, irretrievable breakdown comprising an element of matrimonial offence in the fashion that the Bill treats the matter, the right hon. Member for Bridlington idicated that he might feel a preference for the irretrievable breakdown simpliciter. It seems clear that, on matters of great importance of this kind, the view which the right hon. Gentleman has put forward has a great deal to be said for it. I can assure the House that the Government must and will have regard to the basic factors referred to by the right hon. Gentleman. As I have said, the Government are neutral. They want to hear the opinions of right hon. and hon. Gentlemen, and they will pay careful attention to them.
841 I come now to one or two matters arising in the first two Clauses. The effect of Clause 1 is that irretrievable breakdown of the marriage becomes the sole ground on which a petition for divorce may be presented. It may be helpful if I remind he House that it may be said that, by virtue of this proposal, divorce is made rather more difficult than it is under the existing law. It is important that these matters should be recognised clearly. Under the existing law, proof of adultery on the part of a spouse is a ground for a decree. Under my hon. Friend's Bill, it is not a ground if the court is satisfied that, despite the adultery, the marriage has not broken down irretrievably. This is so important as affecting considerations of social policy that the greatest care should be given to the point.
The fact referred to in Clause 2(1)(a) which is the adultery paragraph, that the petitioner finds it intolerable to live with the respondent, applies a subjective test which in most instances will cause no trouble to the courts. But it is open to a respondent, under Clause 2(3), to bring evidence that, contrary to what the petitioner aserts, there are circumstances about his daily life which justify the conclusion that he does not find it intolerable to live with the respondent. I draw attention to that because, whatever one's approach to this important matter may be, it is wholly unfair to my hon. Friend and his Bill to suggest that, in colloquial language he is simply making divorce easier.
In certain respects, abandoning the concept of matrimonial offence as the sole guide and introducing a concept of breakdown of marriage may make it more difficult to get a decree. However, the expectation is that the amount of time occupied in the courts considering evidence brought before them under Clause 2(3) may not be very great.
The House will want to be clear about the effect of Clause 2(1)(b) and the reference there to behavingin such a way that the petitioner cannot reasonably be expected to live with the respondent.It has to be recognised that, to a very large extent, the paragraph is declaratory of the existing law as to cruelty, discarding the element of injury or apprehended injury to health. As a result 842 of recent decisions of the House of Lords, broadly speaking, cruelty simply means grave and weighty conduct making a continuation of cohabitation intolerable which has caused or is likely to cause injury to health.
In contrast to Clause 2(1)(a), which is the adultery paragraph, the test in the cruelty paragraph is an objective one, although a contrary view was expressed in a letter to The Times on 20th January. In cruelty cases the court and not the petitioner has to regard the respondent's conduct as so grave that the petitioner could not reasonably be expected to live with the respondent, and the respondent's behaviour need not be aimed deliberately at the petitioner. That is the position under the existing law.
It may be thought that the controversial parts of Clause 2 are paragraphs (d) and (e) in subsection (1).
§ The Solicitor-General
I am grateful to be asked that question. My understanding is that the language of that paragraph,the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent",is competent and apt to cover insanity.
Paragraphs (d) and (e) of subsection (1), which invoke as proof of breakdown circumstances which comprise no matrimonial offence, do not give rise to great problems of interpretation, although they are of immense importance. However, the provision that a spouse living apart may be divorced where he or she does not object to a decree being granted and, after five years, may be divorced against his or her will, is a controversial proposal. It has given rise to anxiety which has been widely expressed that, at the least, appropriate financial provisions should be available for people whose marriages have broken down in that fashion. I shall return to that point later.
843 The right hon. and learned Member for Chertsey (Sir L. Heald) said that, in legal circles, there are a good many matters in the Bill which give rise to difficulty and argument. He was characteristically helpful and courteous to me in indicating the kind of matter which was giving rise to discussion and consideration in those circles. I have heard from other quarters that it is being suggested that Clause 2(1,e), which is the five-year paragraph, could be made more acceptable by requiring consent but providing that such consent was not unreasonably withheld.
I am grateful to have had it indicated to me that this view is receiving some attention and support. On that view, one would go a limited distance and by stages. After two years living apart there could, in effect, be divorce by consent, and after five years living apart there could be divorce without consent where consent was unreasonably withheld.
It seems that we are already in a field where there is a danger of non-justiciable issues being brought before the court anyhow. To introduce the question of reasonableness in withholding consent might afford a further example of this and be open to that objection.
§ Mr. T. L. Iremonger (Ilford, North)
Will the right hon. and learned Gentleman add there the word "wrong", in the last line of Clause 9?
§ The Solicitor-General
When a point like that is raised in a speech on Second Reading, I am perhaps justified in saying that it sounds like a Committee point and that I would wish the hon. Gentleman to give me an opportunity later to express an opinion about that.
There is one further example I want to draw to the attention of the House to support the view, which I have touched upon, that my hon. Friend's Bill is not fairly to be regarded as one which simply makes divorce easier. Under that head this is a rather interesting point. The House will have observed from Clause 3(2) that if the court at any stage of proceedings thinks that there is a reasonable possibility of a reconciliation, the court may adjourn the proceedings for a period not exceeding three months to enable attempts to be made to effect reconciliation. The House will appre- 844 ciate that if it appears to the court that there is a reasonable possibility of reconciliation, by the same token the court must surely feel satisfied that the marriage has not broken down.
That must follow, so, as a matter of sheer logic, in that situation the petition should be dismissed because the marriage on that hypothesis has not irretrievably broken down. There is a logical flaw, it seems, in a provision which enables the court in that situation to make this arrangement for an adjournment of the hearing, but an important and interesting thing, which may be thought an acceptable feature of this provision, is that the effect of that flaw is to keep alive rather than to extinguish the prospect of reconciliation.
There remain very important financial provisions in Clauses 5 and 7. I do not think that the House would wish me to go in any detail into this matter. It is obviously of very great importance. but it is a rather detailed matter and these two Clauses, particularly Clause 7, raise a large number of difficult questions of detail. I rather expect that the House will agree that where a spouse may be divorced on the facts referred to in Clause 2(1,d) aria subsection (1,e). where he or she is guiltless of anything of the character of a matrimonial offence under the existing law, it will generally be felt that special safeguards against financial hardship should be introduced.
The impression I have formed is that the Bill attempts the best it can in this regard. It does as much as it can. This may be thought a favourable feature of Clauses 5 and 7. It may be thought that a change on this scale, on the scale proposed in the Bill, in the law of divorce would in theory justify a massive adjustment in the whole system of social security affecting pensions for women, widows' pensions and matters of that kind. Although I fully acknowledge the strength of that view, of course it could hardly be dealt with now. I only mention, in passing, that there are, by virtue of the existing character of our social security system, very clear limitations imposed on what my hon. Friend in this context can propose under this heading. It seems that the Bill does the best that can be done.
To one matter of detail I will refer because I see sitting opposite to me the 845 hon. Member for Dorking (Sir G. Sinclair). I venture to refer to his letter in The Times today and, with great respect, to recommend it to the House as an accurate and helpful statement of the law as far as I understand it. He has drawn attention, in particular, to one matter that has given rise to discussion. That is the question of the effect of the Matrimonial Homes Act upon the financial position of divorced women. I think that the hon. Member was right when he said that under Section 2(2) of the Matrimonial Homes Act,the court has powers in the event of a matrimonial dispute or estrangement to arrange for the wife to have a continued right of occupation even after a divorce has taken place.I think that this is right. In practice, mortgagees and others may make it difficult to give much content and reality to the proposition, but I think that as a matter of law the hon. Member is right.
I have ventured to put before the House points in the Bill upon which I felt might interest hon. Members to hear a legal opinion expressed. I conclude by again expressing congratulation to my hon. Friend for the work he has done in this connection and for the persuasive and able character that attached to his speech moving the Second Reading.
§ 12.58 p.m.
§ Dame Joan Vickers (Plymouth, Devonport)
I am very glad to have this opportunity of saying a few words in this debate. I wish particularly to refer to what was said by Judge Selby, because he is a judge in Australia and in Australia similar Measures have been introduced. He said that it was unwise to treat marital problems in terms of guilty or innocent parties. It was better to look at the whole marriage and the chances of its survival.
That is what we are asking for today. If, for example, one has a very bad toothache and it goes on nagging continually, one goes to the dentist to try to have the tooth preserved. If that fails, when the dentist has tried his best—this may be considered as the reconciliation period—the only thing to do is to remove the tooth as painlessly as possible. I should have thought that this was what we were trying to do today. When we are speaking about divorce by consent, 846 it is only right to remind the House that at present 93 per cent. of divorces go through undefended in about 10 minutes. Therefore, I do not think we should exaggerate the situation. The type of consent is not very different, except that we are doing away with the matrimonial offence.
We have heard much about women's organisations. I happen to represent as chairman 21 women's organisations. I have had letters from only two of them —not expressing dislike for the entire Bill, but expressing anxiety about certain aspects, including the five-year period.
As to the question of the over-40 age range, Appendix C in the Law Commission's Report shows that it is not the over-40's that have the divorces. The divorce rate begins to go down after 40, for both men and women. This is a material point.
I want to refer to the Report of the Law Commission. It says on page 10, as we all agree:The Western world has recognised that it is in the best interests of all concerned—the community, the parties to a marriage and their children— that marriage should be monogamous and that it should last for life.Paragraph 14 says:The Archbishop's group expressed very similar views. They made it clear that the Church of England doctrine fully recognises that it is right and proper for the State 'to make provision for divorce and remarriage', that 'there is nothing to forbid the church's recognising fully the validity of a secular divorce law within the secular sphere', and that the Church is not committed to defend 'the matrimonial offence as the only admissible basis for dissolving legal marriage'.Paragraph 121 states:It is for Parliament to decide whether any, and if so which, of the solutions adopted in paragraph 120(6) is to be adopted. The question arises whether Parliament needs any further information before it can make an informed decision and whether, therefore, there should first be a reference to another Royal Commission or similar investigation.I mention this in view of the Amendment in the name of the right hon. and learned Member for Chertsey (Sir L. Heald).
The Report continues:We would suggest that there is no such need. While no one could pretend that all the facts about family life are known, further details could be ascertained only by elaborate, time-consuming and costly social investigations. These would not alter the general picture, which is already clear enough for an 847 informed decision to be made. Hence it seems neither necessary nor desirable to delay action until those investigations could be completed. This would serve only to shelve the problem.I remind the right hon. and learned Member for Chertsey, whose Amendment suggests that we are rather rushing the matter, that discussions began as far back as 1951. Since then a Royal Commission has reported. We have had two further reports, that of the Archbishop's group under the chairmanship of the Bishop of Exeter, which was set up in 1964 and which reported in 1966, and that of the Law Commission in 1966. I should have thought that everybody had had a full opportunity to discuss the matter.
There is the question, too, of remarriage. There are interesting statistics in regard to remarriage. Divorced women aged between 35 and 45 remarry at the rate of 123 per 1,000. Widows remarry at the rate of 60 per 1,000. Divorced men remarry at the rate of 215 per 1,000. Widowers remarry at the rate of 130 per 1,000.
I agree with the right hon. Member for Bridlington (Mr. Wood) that the happy family is the foundation of the unit of contemporary British society, also that the majority of marriages are happy. What we are concerned with today are the unhappy ones, the ones that have, in the words of the Bill, completely broken down.
Reading through the various information provided by articles and cuttings in the Library I came across this statement, by a woman:I found myself praying every time he went on an aeroplane that it would crash. I knew then that it was time to call a halt.This may be an exaggerated case, but one knows that such cases do exist.
I have received many letters. One, which I think is very interesting, is from a woman now in her seventies who lived with a man for 25 years. During those 25 years the man never saw his wife or his son, who apparently lived only 30 miles away. The man has now died without leaving a will. His legal wife will inherit the house, the £800 he saved, and she even gets the burial grant, though the woman with whom he was co-habiting had actually paid for the burial before 848 this was ascertained. She thus has no rights at all, despite the fact that she lived with him and saved to help buy their cottage.
I know that the financial Clauses may cause some difficulty. I agree with the Solicitor-General that the Bill may make it more difficult, particularly for the lower income groups, to get a divorce, but I think that at present this whole matter in regard to finance and pension is unsatisfactory. I hope that we shall soon have the report of the Payne Committee dealing with the question of maintenance. This Committee has been sitting for a long time. It is time that it reported.
At present deserted and divorced wives cost Social Security more than £32 million a year. At present ex-husbands pay just over £3 million. In return, social security gets back just over £2 million. Therefore, I do not think that this will create any more difficulties. If women cannot get money now, even with maintenance orders, they are not likely to get it more easily under these conditions; it may make it in some cases more difficult for women to be divorced. This is the one thing which worries me in the Bill.
If we could pass the Bill, or at any rate put it into Committee and discuss one or two difficult points there, it would be for the general benefit of all concerned, because it would alleviate the position of people who are having good, stable, cohabitation and it would legitimise a number of children.
There is a National Federation of Divorced and Separated Persons which now has 60 clubs. These people feel themselves in an extraordinary category, of being cut off from the rest of the community, in some way because of the difficulties they have had in going through the divorce court.
I hope that after these very few words of mine, and the excellent speech made by my right hon. Friend the Member for Bridlington and the advice given us by the Solicitor-General the House will agree to this Bill going into Committee, where perhaps the legal difficulties can be ironed out. I believe that as a whole the Bill will be of real advantage, not just to men, but to women also. There are a great number of men and women who want to marry the person with whom they are living. 849 A final word about Servicemen. If a woman cohabits with a Serviceman she does not even get a marriage allowance, even though she has children by him.
I know that my hon. Friend the Member for Dorking (Sir G. Sinclair) hopes to discuss the position of children in detail. I hope that arrangements can be made for them, but I do not think that they are particularly happy if they are living in a household where there is not a community of happiness between the parents. As long as sufficient financial provision is made for them, I do not think that they will be any worse off.
§ 1.9 p.m.
Miss Joan Lester (Eton and Slough)
The longer the debate continues the clearer it becomes to me that what we are talking about is not so much reforming the divorce law as the position of women in society today in relation to property and changes which have taken place during the last 20 or 30 years. For this reason, I rejected the nickname of "A Charter for Casanovas" when it was given to the Bill, because I do not believe that large numbers of men wish to desert their wives or to break up a marriage home.
Casanovas have never needed a charter. They have been Casanovas within the existing laws. Neither do I accept the argument that was put forward by the right hon. Member for Bridlington (Mr. Wood)—although I thought he spoke a good deal of sense—when he referred to the wives who had brought up families, who were getting older and who would be deserted in favour of younger and fresher women. My experience is that old gentlemen often overestimate the attraction that they have for young ladies and, although I do not apply these remarks to any hon. Members present, of course, this is a point which must be borne in mind. The fact remains that I believe that the overwhelming majority of men will not do this at all.
I also reject the statement made by my hon. Friend the Member for Yarmouth (Dr. Gray), who spoke of most marriages being contracted on the basis of a temporary arrangement. This is not true at all. Most marriages are contracted on the assumption that they will continue for 30, 40 or 50 years.
§ Dr. Gray
When I said "temporary" I meant that the marriages were bounded by time. When people get married they naturally hope that the relationship will last for a very long time, permanently, but many people realise that, in fact, this may not happen and that the relationship will not be permanent. These people are in the vast majority eventually. The conviction that a marriage is to be permanent decreases with time.
§ Miss Lestor
With the greatest respect to my hon. Friend, he should not have said "temporary"; he should have said "permanent" or, indeed, "for eternity". The fact remains that the overwhelming majority of marriages, be they register office or church marriages, are contracted on the basis that they will continue for as long as the two people concerned shall live. The fact that they do not do so in a minority of cases—and it is still in a minority of cases—is what we are talking about today.
The Bill is not perfect, but it tries to meet imperfect laws and imperfect circumstances, and I support it hoping that Amendments will be tabled in Committee and that further discussion can take place upon it. The position of women in society has changed fundamentally over the last 30 or 40 years. What the Bill seeks to do—and I hope it will—is to bring the law into line with changes that have taken place and, indeed, with some of the changes in law which the House has passed over the years. Our present laws on divorce were based on the concept that wives were dependent human beings.
The fact that most of them work, because many of them in the lower classes of society or in the poorer classes have had to go out to work, made the divorce laws become over the years one for the rich and one for the poor. It was, and still is, much easier for a rich man to get a divorce, because he can afford to keep two or three families, than it is for a poor man to do so. Although reforms in the context of divorce have helped to ameliorate the position of the poorer sections of society, nevertheless, this is still the law today, and account is taken of this in the Bill.
A man earning £14 or £15 or £16 a week is not and will not be in a position to keep two or three families, and, 851 although I think this is a valid point, it is, nevertheless, something for further discussion and legislation. It is not in itself an argument against ending a marriage contract that has broken down. It is something that we have got to consider as we go along, and it is of vital importance.
This is Human Rights Year. I do not think that the House has paid anything like as much attention as it should have done to Human Rights Year. This is a topic on which we must have a debate some time. But we know that half the female labour force consists of married women. We also know that married women are among the lowest paid workers. All our Income Tax laws and insurance schemes are drawn up on the assumption that women are dependent, that they are not independent, and this is why hon. Members rightly point to the difficulties that women will encounter if society does not change its attitude to maintenance and to women's emancipation.
An hon. Member referred to the Mothers' Union and became a little upset when one or two hon. Members smiled. We smiled because the point made by the Mothers' Union was that they accepted the breakdown of marriage as a ground for divorce. It is true they qualified it, but they put forward the argument that changes must take place in the whole concept of maintenance.
The present law militates against women in being able to claim a degree of freedom when a marriage breaks down. I find it particularly abhorrent when hear arguments implying that a man will stay with a woman, or, to put it the other way round, that a woman is forced to stay with a man simply to be kept, that there is no love or affection, that there is no affinity, but that, because of the financial dependence of women and their difficult circumstances, a woman is forced to be kept by a man for whom she may have no affection. This, more than anything else, will destroy the respect which could exist between two people when they end the union.
The right hon. and learned Member for St. Marylebone (Mr. Hogg) intervened on the question of children, and I accept his point. As someone who has had a great 852 deal to do with children, I just do not know which is best—whether it is better for the marriage partners to stay together for the sake of the children, or whether the marriage should break up and that the children should be cared for by one parent. I do not think anybody knows, because it depends on the circumstances of the family and, more than anything else, on the relationship between the two people.
§ Mr. Hogg
Is not that precisely what we have got to find out in the process? We cannot lay down a general rule. The interests of the children, from the point of view both of a stable home and of maintenance, must be examined against the other factors in each individual case. That was what I sought to say.
§ Miss Lestor
I accept that. I think that people make tremendous generalisations about what is best for the children. I do not think that we can talk about marriage like this, nor do I think we can talk about children in this way. It depends particularly on the two people involved and on their attitude to each other. Some of the circumstances whereby people are forced to live together often destroy the possibility of their having a separate existence under which the children could thrive.
The hon. Lady the Member for Plymouth, Devonport (Dame Joan Vickers) referred, rightly, to the question of the circumstances of the family. I believe that she was referring to the pamphlet which has been published, dealing with the fact that today the State bears an enormous burden of deserted wives. When we are considering this question, which is a social question with tremendous repercussions, we must bear in mind that at present, when we know that many broken marriages result in broken children who again produce broken marriages, we have to try to reconstruct the law and the whole of our social attitude in order to avoid this perpetuation of disaster and misery which we know from our knowledge of children from broken homes takes place.
As my hon. Friend the Member for Coventry, South (Mr. William Wilson) said, there are between 10,000 and 20,000 children born of illicit unions who could be legitimised if people were free to marry in circumstances where a marriage has broken down or where a woman, 853 because of financial dependence or spite, is hanging on to a man.
I should now like to say something that may not be very popular, that in a marriage where the woman is of an age that she is not likely to go out to work and earn a living and where there are children to be kept, it is the financial responsibility of the man, who is the breadwinner, to maintain these people, whether or not he is living with them.
But there are many divorced women today who would not regard it as right to accept maintenance from a man when they have no children and they are capable of earning their own living. This matter must be looked at in the light of charged circumstances. Women who believe in and want equality must also accept that, after the breakdown of marriage, they ought not to be regarded as remaining dependent for the rest of their lives.
One hon. Gentleman said that there was no moral argument here. I think that his phrase was that there is no argument about the sanctity of marriage. When we argue on behalf of a minority of people that, if they would like to be free, it should be easier for them to obtain a divorce and break away from an intolerable marriage situation, it is often said that everyone will want to do it if divorce is made easier. It is said that there is a moral aspect to marriage, as, of course, there is, and that it is most important from the point of view of society that it should be maintained.
Equally, there is something immoral in making people live a lie or tell a lie because the law will not allow them to obtain a divorce frankly and honestly after a marriage has broken down. This is as immoral as anything I can imagine. Yet it is what we force people to do. We force them to lie. Anyone who has experience of these matters knows that many divorces are obtained on falsified evidence. The real reason for the divorce is the breakdown of the marriage, not adultery or desertion. If we look at the matter in those terms, we can bring a little more morality into our personal relationships, not less.
§ 1.22 p.m.
§ Dame Irene Ward (Tynemouth)
Having listened to the entire debate so 854 far, one is conscious of how difficult it is to legislate for the problems of life itself. Looking back over the years, I do not think that Parliament has been particularly effective in dealing with these problems. Certainly, the way in which Parliament has legislated in regard to deserted wives, widows and the disabled leaves much room for improvement.
The whole question of marriage and divorce is very difficult, and I am sorry that the Bill has not been before the country long enough to give sufficient opportunity for people throughout the land to go into all its implications. I was particularly glad that the hon. and learned Gentleman the Solicitor-General, who spoke both for the Government and for himself, did not say that some of the fundamental questions arising on the Bill could be dealt with in Committee. I regarded that as a very proper approach for the hon. and learned Gentleman to adopt. The Bill is not one which could be altered satisfactorily in Committee because it makes certain definite and fundamental changes in the whole concept of married life.
I shall vote against the Second Reading. In the first place, as I have said, the Bill's provisions have not had sufficient discussion in the country. In the second place, I view with great apprehension the proposed alteration of the position of the courts in relation to divorce. Not being learned in the law, I want to hear a great deal more from those who would have imposed upon them the new legal responsibilities which the Bill would entail.
I can only speak from a limited experience as a magistrate. Magistrates' courts try to the very best of their ability to give justice in matrimonial cases, cases involving deserted wives, the question of children, maintenance and the like, but it is generally rough and ready justice. Even though the court is imbued with the highest possible motives, it has great difficulty in arriving at the truth so that it may confidently make a firm decision. If we were to impose on judges the responsibility of coming to decisions on morals, not on facts, we should be asking them to undertake a responsibility which I cannot believe it would be wise to impose.
855 That being so—it is a view which I strongly hold—it is manifestly impossible to alter in Committee many of the Bill's provisions which plainly require further consideration and amendment. One has to decide today whether to vote against it or for it, not falling back on the argument that certain aspects of the Bill which are unacceptable to many right hon. and hon. Members could be altered in Committee.
A word now about the women's organisations. My right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) gave a list of women's organisations which had expressed views about the Bill. I shall name another. The Fawcett Society has considered the Bill, although, like every other women's organisation, it has had very little time, and in the letter which it has sent to Members it has stated categorically that it regards the Bill as biased against women and children. That opinion of the Fawcett Society, which is widely known for its wisdom, its tolerance and its examination of problems of this kind, should be put on record.
The financial implications of the Bill have been widely debated today. As my right hon. Friend the Member for Bridlington (Mr. Wood) said—my right hon. and learned Friend the Member for Chertsey touched on the same point—it would be utterly wrong to proceed with a Bill of this kind, a Private Member's Bill, without knowing how the Government would react in regard to the financial implications and the changes which would have to be made to meet the new procedures which the Bill would entail. To proceed further in ignorance of those matters would be to do a great disservice to women and children. Therefore, I would not be prepared to support the Bill unless we had taken full soundings and had full undertakings as to what the Government would do in matters of this kind.
There is every justification for saying that the Bill is discriminatory in its live years' separation provision. Wealthy men will be able to make proper provision which will satisfy the courts when they ask for a divorce which a wife has previously refused. Much reference has been made to social security, but people who are living on small fixed incomes or are in 856 the middle range of incomes would not wish to be provided for under the social security schemes. People in the middle income group would certainly not he in a position to provide for two or possibly three families, either for their wives or children, and would be very badly affected by the Bill.
It would be deplorable if the Bill went forward for consideration in Committee. The decision to vote for or against second Reading is very difficult. One can argue from all sorts of angles, as those who have taken part in the debate have already done. I fully support the contention of many people that the Bill is not suitable, even though I congratulate the hon. Member for Coventry, South (Mr. William Wilson) on the delicacy, skill and sincerity with which he put forward the case.
I do not think that it is a Bill which should be brought forward by a private Member. It could affect the lives of almost every man, woman and child in the country. If the law needs to be improved, that should be done by the Government of the day and not by a private Member, however well disposed he is to do the best he can under the circumstances for the community as a whole. I shall vote against Second Reading.
§ 1.33 p.m.
§ Mrs. Lena Jeger (Holborn and St. Pancras, South)
I agree with the hon. Member for Tynemouth (Dame Irene Ward) on the question of this being a Private Member's Bill, and I would prefer to see the Government bring forward a much more comprehensive Bill on this difficult and complicated matter. But I must point out that the only significant divorce reform in this century was that introduced as a Private Member's Bill by Mr. A. P. Herbert, as he then was, in 1937. Thousands of men, women and children have had their lives made better because of the endeavours of a private Member on that occasion.
I speak as one of the lucky people who know that there is no happier human experience than a successful marriage. Those of us who have been so blessed have a particular duty to try to overcome some of the unhappiness and misery that is bound to result when marriages break down. There is no legislation that any Parliament on earth could contrive to ensure human happiness. We could not pass any law, with all the 857 wisdom in the world, that would make men and women love each other and make human beings loyal to each other. All that we can do as a Legislature is to try so to arrange the affairs of society that our laws will provide for a minimum of hypocrisy and hardship in these difficult matters which concern the most intimate personal relationships.
Much of the opposition to the Bill really belongs elsewhere. I agree with my hon. Friend the Member for Eton and Slough (Miss Lestor) that much of the anxiety that women feel about property, for instance, should be directed to the need to reform the laws on the community of property in marriage. This has no place in a divorce Bill, because the question of property in marriage equally concerns women and men whose marriages persist. It is important for purposes of inheritance, Estate Duty and many other things. I very much hope that a great deal of the enthusiasm and persistence which the women's organisations have shown in attacking the Bill can be directed to the need to reform the basic law of the community of property in marriage.
The question of pensions is also tackled wrongly by the opponents of the Bill. They should be directing their attention to the whole question of the position of a married woman in relation to National Insurance. It is absolutely absurd that a married woman cannot insure herself against the most obvious hazards that will confront her. She cannot insure herself against widowhood. If her husband dies before she is 50, she receives no pension. She cannot insure herself against breakdown of marriage or disablement. This is how we must approach the question.
It is possible for people with a private pension to nominate a beneficiary in many cases, and it may be that under Clause 5 the court could require a husband to nominate his wife. But we must consider the National Insurance pension and certain other pensions where there is no room for such nomination. It is appalling to suggest that it is in any way equitable that a woman whose marriage has completely broken down and has become a hollow farce should go on living in loneliness, waiting for nothing but her husband's pension.
858 I had a very sad example of this the other day when an elderly gentleman wrote to me. He is over 80, and he had just got married on his golden wedding day. That sounds contradictory. The circumstances were that he had married as a very young man, and the marriage had lasted for only a year or two. It had broken down, and for 60 years he had been living with a woman whom he deeply loved. She bore his children and she sewed on his buttons and cooked his meals—as the right hon. Member for Bridlington (Mr. Wood) so picturesquely described the faithful wife as doing. She nursed him when he was ill.
Only now, after 60 years, have they been able to get married, because the first wife refused to divorce him, insisting that she wanted his pension. She lived a lonely life herself, just longing for the day she would get his pension. Fate has intervened, and she has died first. Now that he is over 80, the couple have at last been able to marry. The person I feel sorry for in that story is the first wife. What a life of misery, bitterness and loneliness must be involved when one takes such an attitude!
It is essential to take the pension question out of the divorce aspect so that when one is trying to assess breakdown or the possibility of reconciliation one is able to concentrate on the real human relationship. One ought not to have to bring into the matter of reconciliation or breakdown the question of whether in a few years' time someone will receive two or three pounds a week. This is not what marriage ought to be about.
I also regret in some ways the tone of part of the debate which suggests that the main problem is the deserting husband who clears off and leaves a faithful wife with a number of children. Of course this happens sometimes. But I think it is not disloyal if I point out to the House that there are in the care of local authorities at present 5,622 children who are regarded by the Home Office as being in care because of desertion by their mothers. It is alarming that over the last three years these figures have increased by 30 per cent. These children now represent 10 per cent. of all the children in care.
I mention this only because I am most anxious that the House should not look at the Bill in any sense in the light of a 859 sex war. It is not a question of 100 per cent. virtuous women and 100 per cent. villainous men or the other way around. There is a sensitivity about these things which one must not judge crudely.
I had the honour to follow soon after the hon. Lady the Member for Plymouth, Devonport (Dame Joan Vickers) as the United Kingdom delegate on the Status of Women Commission of the United Nations. There we have been working on a draft declaration for the elimination of discrimination. I am very much hoping that in Human Rights Year the United Kingdom will give its fullest support to what we have been asking for. At the United Nations we demand equality of responsibility in marriage, equality of responsibility in parenthood, equal rights for guardianship of children and equal status in marriage. I think there is an inconsistency if we are at the same time to demand a continuing level of financial dependence on a man whose marriage, in reality, has completely and effectively ended.
I have had a very large number of letters about the Bill and an overwhelming number have been in favour of it. What many wives have mentioned is that they do not mind not getting money from their husbands. What they really mind is the failure of society to help them, as working women, with day nursery and nursery school provision. This is important to all women who work, whether they are widows or married or unmarried mothers. Society has not taken cognisance of the needs of the working mother.
In matters of Income Tax, provision for children, pay, education and training there are many ways in which women are disadvantaged when they are trying to earn their living. This is partly responsible for the fears that many women have about the breakup of their marriage. But it must be said that these fears do not prevent the breakup of a marriage. It can be seen from the figures of social security benefits paid to deserted and separated wives that the existence of these difficulties does not maintain the marriage.
A great deal has been said about older women and their problems. I think that this is one of the main difficulties, 860 but it does not seem to me to be an insuperable obstacle to giving the Bill a Second Reading. We must look to the future. The latest figures published indicate that marriage starts at a younger and younger age and that it is in the younger age group that the largest percentage of divorces occur. There may be many reasons for this, but at a time when people are marrying younger and living longer and young couples are facing perhaps 50 years of married life together, the fact that they might after an early mistake want to put things right and make another start should also be considered, because we must be legislating for the future rather than the past.
The importance of the social security system in all this is nothing new. The House should be reminded that this was referred in the Beveridge Report, which stated in paragraph 347 that divorce, legal separation, desertion and voluntary separation might cause needs similar to those caused by widowhood. There are other references in the Beveridge Report to the position of a woman whose maintenance by her husband ends for reasons other than widowhood. Professor McGregor has done an interesting study in which he has dealt particularly with the problem of the lower-paid worker and the impossibility of two families being kept out of one wage packet without hardship being caused to one or the other.
These are questions for society as a whole. They are questions for this House, but I submit that they are not questions which arise because of my hon. Friend's Bill. Much of the opposition to the Bill would suggest that it is the Bill which would cause the hardship, poverty, deprivation and desertion. Therefore, although I will not agree with every word in the Bill, and although I should greatly have preferred the Government to bring in a more comprehensive Measure taking into account the work on family law which the Law Commissioners are doing, I gladly agreed to be one of the sponsors, and I very much hope that the House will accord the Bill a Second Reading.
§ 1.48 p.m.
§ Sir George Sinclair (Dorking)
I support the Second Reading of the Bill. In doing so, I congratulate the hon. Member for Coventry, South (Mr. William 861 Wilson) on the clarity, skill, compassion and moderation with which he moved the Second Reading.
In my view, the Bill takes proper account both of the contemporary facts of married life in our country and of the changing attitudes on the subject of greater equality of rights as between men and women—women increasingly as wage earners and women increasingly as claimants of greater equality.
My approach to the Bill is based on a deep belief in the value of marriages lasting a lifetime—a far longer lifetime than in the past—and the value of such marriages not only to the partners but to the children and the immediate family relations as well as to this country, a point which is sometimes forgotten.
Stable and happy marriages are a basis of a good society and of a good country. It is because I believe that the Bill is a contribution to that state of affairs that I support it.
There are in many marriages, perhaps in most, times of great happiness and also times of very great strain. Most of them survive the strains. Perhaps only 10 per cent., judging by today's figures, end in divorce. But within the remaining 90 per cent., the overwhelming majority, there is still a small percentage in which there is no divorce and no prospect of it, but in which the marriage has irretrievably broken down, with miserable effects on the partners and often, but not always, miserable unhappiness for the children. In most cases, of course, such breakdown does bring unhappiness to the children and limits their chances of enjoying life fully and making their pitch with the rest of the community; on them it is such long-term effects of these breakdowns in marriage which are so tragic.
The Bill seeks to provide a compassionate and civilised framework of law in which such families can seek to readjust their lives within the community It recognises three factors. The first is that human beings make mistakes, not only in the initial choice of partner—we know how tentative the approaches to choosing a partner may be in many cases—but also during the short or long course of marriage, which, in the end, combined with other actions, make that marriage into an irretrievable break 862 down. They make it meaningless and miserable both for the partners and for their children.
The second factor is that, where all attempts at reconciliation have failed, the partners of the marriage should be allowed to part. This was the recommendation of the Mortimer Committee, which took a long time to consider the problems and reported nearly two years ago. The country has had plenty of time to digest that Report.
The third factor is that, in the granting of divorce, the court should make the fairest possible arrangements to protect the financial position of the women and children—sometimes, indeed, of the husband. Where a marriage has clearly broken down, great damage has already taken place for all parties, including the children. In such circumstances, I do not believe that either party should be forced to maintain a formal marriage—provided, of course, that the fairest possible financial arrangements are made—and I believe that these can be made both under Clause 5 and Clause 7—but always subject to the over-riding power of the court to refuse a divorce when this means intolerable hardships for one party.
I believe Clause 5 to be of the essence of the Bill as a safeguard against the worst fears many of the critics have expressed. It is on the basis of those safeguards that I support Clause 2(1,e), which allows divorce without consent after five years' separation. This was within the recommendations of the Mortimer Report and it has the backing of the National Council of Women, which considered this Bill only last week and voted—by 112 to six—in favour of the Bill going forward with the safeguards as embodied in it.
What most people are concerned about in this reform is the safeguarding of women and children, and the strength of the Bill, as I see it, is in the additional safeguards over and above the existing law that it seeks to provide. The general safeguard—the "disaster net"—of Clause 5 is a very powerful remedy where, when things have gone wrong, one party is liable to suffer hideous hardship. One can think of cases where two people have lived most of their lifetime together, where suddenly there appears 863 the prospect of the woman being abandoned and having no claim on the property or revenue of the husband, and where, by no conceivable arrangement of the division of the property and revenue can the husband really provide for her. Where there would be such hardship on one party, the judge would have power not to allow the divorce petition to go through. That is a very important feature of the Bill.
The other Clause that is most important is Clause 7, which deals with fair financial provisions. I believe that this would help to make the separation of people who cannot be expected to live together any longer far fairer and far easier than under the existing law.
As hon. Members have said, this Clause imposes a heavy burden on the judges, but we cannot legislate for the infinite variety of shared responsibilities for the breakdown of a marriage, for the infinite variety of needs or for the infinite variety of resources involved in each individual partnership. It is impossible to try to legislate for all that, and it is right to leave the assessing of the best division of resources between the severed partners to a judge, with all his experience, humanity and authority. I realise something of the burden this may be, but I think that it is the best solution that we can find to this intractable and delicate problem.
I believe that those who still have doubts about the financial provisions for women and children should study closely what is provided in the Bill, and, having done so, should give it a Second Reading and press those who will represent their views in Committee to ask for better safeguards—if they can put any forward. I hope that those who have doubts only on that score will give the Bill a Second Reading and let us improve it, if we can, in Committee.
§ 2.0 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I am very pleased to be able to follow the hon. Member for Dorking (Sir G. Sinclair), as I agree with almost every word that he has said. Perhaps that is rather a pity from the point of view of debate, but it is valuable in the sense that I will not have to repeat some of his arguments.
864 During the debate it has become a habit to declare one's basic viewpoint. I was brought up as, and still am. a Welsh Nonconformist. I live in an area where, in accordance with my upbringing, divorce is relatively unknown, certainly comparatively rare. But this is in no way attributable to the law. It is attributable to the kind of social and religious view which the community takes. That is why the right hon. Member for Bridlington (Mr. Wood), in a very fine speech, was right to draw the distinction between the State's approach to a marriage and the Churches' approach, because the two are very different.
During my career at the Bar I have done a fair amount of divorce work and have, therefore, seen the other side of it. What we are concerned with today are not happy marriages, stable marriages, successful marriages. I happen to be very greatly blessed in that I have been a partner in a very happy marriage myself. But we are here concerned with unstable and unsuccessful marriages with marriages which have broken down.
The debate is very important, because if the Bill becomes law, we shall be moving away from the traditional legal concept that a decree of divorce is given only on proof of a matrimonial offence. After giving it very considerable thought. I am in favour of the Bill, because I am convinced that it is time we moved away from this concept of guilt for a breakdown in marriage when considering divorce. Like many members of my profession, I have appeared in a case in which the apparently guilty party was not, in my view, the truly guilty party. This is very often so.
It is trite to say, when discussing divorce, that the important people to consider are the children of the marriage, whether it is successful or unsuccessful. They are not parties to the contract and yet are the product of the contractual union and have a deep and great interest in what happens. It is because of the children particularly that I am very much in favour of reform along the lines of the Bill. There is not a practitioner at the Bar who does not realise that he has had to fight many long and difficult eases—extracting sordid details about matrimony—not because the parties wanted it, but because they wanted to 865 establish an advantage for subsequent custody proceedings.
Above all, what has persuaded me in my approach is the view that we should get away from this concept of blame. Today, once we establish a matrimonial offence against one of the spouses, and this is a result particularly in a defended case, the position of the man or woman vis-à-vis the children is made much more difficult. It so often happens, almost subconsciously, that the parties use their children for their own purposes in a divorce case and it is astonishing how children will refuse to see one parent who has been granted access simply because the other parent or other relatives have influenced the children against that spouse. I always find this a nauseating situation, and so does every legal practitioner, whichever view he takes of this subject.
It is important to get away from the concept of blame when a marriage breaks down. The children are vastly more important than either party to a broken dawn marriage and we do not assist the children by trying to make it more difficult for the parties to regularise their position. After all, we are not discussing marriages which are continuing, where the parties are living together, but situations in which the marriage has broken down and where the parties are not living together. In these circumstances, it does not assist the process of making the lot of these unfortunate children a little better by adopting an ostrich-like attitude to this subject and opposing change.
I have been approached by a number of very distinguished members of my profession taking a substantially different view from my own on the matter. In particular, Mr. William Latey, as great an authority on divorce as anybody in the country, takes a very strong view. He has argued cogently with me that hard cases make bad law.
§ Mr. Hooson
The right hon. and learned Gentleman knows all about hard cases as well as a little about the law! I withdraw that latter part of my remark, which was not justified.
I have concluded that it is better for these reforms to be made. It is better for divorce law to be founded on break- 866 down of marriage rather than concepts of blame. I am not now dealing with moral grounds, for I am not a believer in the law setting up a state of morality. It is not the purpose of the law to do that. I fundamentally disagree with those who hold the view that morality must be established by the law or at least reinforced and guaranteed by the law. I do not accept that basic approach. Once we move away from the concept of blame and accept that the real issue is whether a marriage has broken down, then it is easier to make the situation of each partner, vis-à-vis the other and vis-à-vis the children, easier than it now is, and that is another reason for being in favour of this reform.
The Solicitor-General spoke of the three possible basic approaches to divorce law: that we accepted the irredeemable breakdown of the marriage simpliciter; secondly, the matrimonial offence; and, thirdly, a combination of the two—irredeemable breakdown as evidenced by a matrimonial offence. He said that it was the third approach which had been used in the Bill. I rather agree with the right hon. Member for Bridlington; my theoretical preference would certainly be for the first, that is, the breakdown of the marriage simpliciter. However, by its very nature this is a compromise Bill, and all legal evolution in this country is of this nature. As one is trying to get a consensus view and appreciating that for years our courts have been used to the idea of a matrimonial offence, this is a perfectly proper compromise approach.
The right hon. and learned Member for Chertsey (Sir L. Heald) made the criticism that it would be difficult for the judge—I am not sure that he did not say that it would be intolerable for the judge—to interpret the Bill because of the failure to provide sufficient guidelines. However, if the five categories in Clause 2 were removed, that would remove all the guidelines for the judges and make it much more difficult. That is why, although in theory I favour the approach of granting divorce on the irredeemable breakdown of the marriage simpliciter—which is much easier—until a body of judicial opinion has been expressed and a new case law developed, I am in favour of the third and compromise approach.
§ Mr. Ronald Bell (Buckinghamshire, South)
I am very much attracted, in the same way as the hon. and learned Gentleman, by getting rid of the difference between guilty and innocent parties, which I think he and I would agree is quite artificial. The difficulty I find in his argument, and the Bill, is that Clause 2 keeps the guilt and alleged innocence.
§ Mr. Hooson
I share the hon. and learned Member's reservations. However, I accept that it is an inevitability, believing as I do that it is subsection (d) that will be used by most people, where the element of blame does not enter into the matter.
My real reservation about the Bill, and the one upon which I have had most arguments, and upon which I am sure the right hon. and learned Member for St. Marylebone (Mr. Hogg) will concentrate his attack, if attack it is to be, is Clause 2(1,e), which introduces a new concept into the law, and a rather revolutionary one, namely, that one can have a divorce against the wishes of a party without a matrimonial offence being committed. This is a much more difficult question. On balance, I have come down in favour of it, because I think that it will help to solve more hardships than it will create.
It seems to me that the real argument against this as against any argument based on theological or moral considerations is financial. I entirely agree with the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) who, in her very fine contribution, said that much of the attack had been directed to the wrong quarter, that much criticism was concerned with married women's property provisions, welfare provisions, and so on. This is absolutely right. But still, for myself, it is this provision which has caused me most trouble.
Is it right that, after there has been a breakdown of marriage and the parties have not lived together for five years, whoever is responsible for it, we as the State should insist that the marriage is continued, when the parties to such an unhappy union may have formed other associations, which will be illicit, and where the consequences for a number of 868 people will be extremely bad? There are very strong financial safeguards in the Bill, namely. Clauses 5 and 7. They are not wholly satisfactory because no safeguard can be in this kind of situation. We are not discussing the situation where people have been living on good terms properly supported financially, and so on. We are discussing a situation where people have been separated for over five years and the harm is already done.
The real difficulty arises here about such things as pension rights. The Solicitor-General rightly asked: do we suggest that there should be a massive change, I thing he said, in our welfare law? I certainly would answer him with a firm, "Yes". I would not at all agree that it needed to be a massive change. It is not massive at all. Some adjustments need to be made, and they should be made to provide for a person divorced in these kind of circumstances.
A good deal of criticism has been aimed at the Bill, but I believe that it is a very well-drafted Bill on a very difficult subject. I particularly think that Clauses 5 and 7 provide as good safeguards as can be obtained under the present law. That is not to say that there is not urgent cause for this House to explore generally the question of property in marriage, and the possibilities of enlarging the advantages of the Welfare State, to provide for people in unfortunate circumstances arising from divorce. That is no reason for opposing the Bill. Many Clauses should be studied in depth, and this can only be done in Committee.
I would urge even those with reservations about the Bill to insist that we have the Second Reading, so that we can explore fully some of the provisions of the Bill. No one who knows about our divorce laws or their administration today can be happy with the law as it is. I know of no practitioner who does not have real reservations about it, who knows that a good deal of hypocrisy is carried on; because today this is how marriages are broken up by consent, by the provision of evidence in certain ways, and so on. People have suspected this to be true for a long time, and it turns out to be true quite often. Whatever their views on divorce, most people would like to see a good deal of reform 869 of divorce law, whichever way it is to take place. This is a substantial contribution, and I congratulate the hon. Member for Coventry, South (Mr. William Wilson) on his courage in bringing in the Bill.
§ 2.15 p.m.
§ Mr. Charles Doughty (Surrey, East)
Much as I respect the hon. and learned Member for Montgomery (Mr. Hooson), both as a lawyer and a politician, I beg to differ from what he has said. While congratulating the hon. Member for Coventry, South (Mr. William Wilson), who produced this Bill, on his effort to remedy the divorce laws, may I point out that he has tried to go too far and too fast. I am not saying that one should oppose any changes in divorce law. The hon. Member for Pontypool (Mr. Abse) will recollect that in 1964 I supported him in the Second Reading of his Bill, although we differed in Committee on matters of detail.
This Bill has been brought in with too little consultation with those who really know about the administration of the law, to try to deal with one or two difficulties, and they are admittedly difficulties. BR it does not deal with them sufficiently. If I deal with the individual Clauses 1 do not want to be accused of dealing with Committee points. Although the Bill may have certain good points in it there are too many bad ones, and I ask the House to oppose it.
Before I turn to deal with the details may I say that divorce is always a difficult question. It cuts right across party lines, across personal friendships, across everything. Many people in the country, outside this House and outside the political arena, of course, want the law changed to suit their own particular troubles and circumstances. No doubt hon. Members will have received letters from constituents dealing with their own problems, saying how the Bill will affect them favourably or unfavourably. The majority of these can be dismissed, because we have to consider the whole population of Great Britain—I cannot remember if the Bill deals with Northern Ireland, but if it does then we have to consider that place too.
There are a few elementary but perfectly good propositions about marriage. Marriage is an institution in this country which should be maintained so far as 870 possible. It is in the interests of the people and of the country. Therefore divorce should not be made unduly easy. I entirely disagree with most of the remarks made by the hon. Member for Yarmouth (Dr. Gray), who is not in his place now. Having said that, I realise that there are many occasions when divorce is better for all parties concerned, but let us not get away from the fact that to a large extent the husband and wife, while they may be vitally concerned, are not the only people. As my right hon. Friend the Member for Bridlington (Mr. Wood) has said, we must be concerned primarily with the children. Secondly, there are the relations of both parties, and then one gets even to the question of matrimonial property. We have a Bill coming forward this year in this respect. There is, too, the landlord of the house. A husband living there with the wife may have been a good tenant. But if the wife is allowed to remain there, the landlord may have difficulties in collecting his rent. There are so many outside people who are affected by the divorce laws. We have to consider them, and particularly the children, when we consider any changes in those laws.
It is all very well to say—and I agree with the principle—that a divorce should be granted only when a marriage has broken down irretrievably. But how is that question to be decided? The hon. Member has endeavoured to decide it by defining Clause 2 when a marriage has broken down irretrievably. Clause 2(1) provides:The court … shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court …(a) that since the celebration of the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.In practice, the vast majority of divorce petitions are undefended. Owing to the legislation which has been passed in the House—I do not agree with it, but it has been passed and it is law—most undefended petitions will be tried by county court judges.
I have the greatest admiration for county court judges. They do an excellent job and, on the whole, are very good lawyers. Their knowledge of 871 the hire-purchase laws, the law of landlord and tenant and civil negligence is unsurpassed by many, although one must except the Court of Appeal because it upsets their judgments from time to time. But a large number of county court judges have not been trained in divorce law at all, and yet we are to send these complicated questions to them to decide. They are extremely busy. They decide matters from judgment summonses to long actions which may take several days.
How is a judge, whether a county court judge or a judge of the Probate, Divorce and Admiralty Division, to decide, on an undefended petition before him, whether a marriage has irretrievably broken down? The petitioner goes in the box and there is evidence of adultery by the respondent. The first question which he is asked is, "Has your marriage irretrievably broken down?" to which the answer will be "Yes". If it is not, he would not be there.
Whose job is it to find out whether the answer is true? Is the judge to enter the arena and cross-examine the witnesses upon material which he has not got to know whether the answer is true? Is he to say to counsel who represents him or her, "Have you satisfied yourself that this marriage has irretrievably broken down?" If so, it places a wholly unfair burden on counsel. It is not for him to disclose what conversations he has had with his client or whether he has come to a different conclusion from his client. Therefore, the judge is put in a wholly impossible situation.
I must respectfully, and perhaps wrongly, disagree with the Solicitor-General on a point of law. Clause 3(2) provides:If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings once for such period, not exceeding three months, as it thinks fit to enable attempts to be made to effect such a reconciliation.If the judge is of opinion that there is some possibility of a reconciliation, he is entitled to adjourn the case. If it is reported back to him at the end of the adjournment that there is no possibility of a reconciliation, he is entitled so to find on the facts and he is obliged immediately to dismiss the petition. That 872 is my view. It may be wrong. No lawyer ever comes to the House and says, "I am right and there can be no other point of view".
Therefore, when one faces up to the facts, as any lawyer or practitioner would, one is faced with an insoluble proposition. I do not know whether the promoter of the Bill or other people interested in it think that they should take this jurisdiction away from the court. I do not think that they should. These matters have always been decided by some form of judicial tribunal. If the matter is to be referred to another person who reports back to the court and says, "I have enquired into this matter and, in my view, the marriage has irretrievably broken down", we are taking away from the courts a jurisdiction which this House has always maintained should remain with them. That is one reason why I disagree with this proposal in the Bill.
As I have said, Clause 2(1) provides:The court … shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court …(a) that since the celebration of the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.That is a very omnibus term. It is, I suppose, meant to cover cruelty and insanity. If so, why does it not say so? We know the old definition of cruelty which has been given many times in the courts, with decisions in the House of Lords. Lawyers can advise their client on what it means. But this provision in the Bill—and the petitioner finds it intolerable to live with the respondent"—is a very omnibus term.
Suppose that the man moves to another part of the country because his job takes him there and the wife says, "I hate the North", or "I hate the South". Is she to be held to be unreasonably refusing to live with him? The provision in the Bill is so wide that it would take in that type of case. In my view, strong objection can be taken to it.
Why we should reduce the three-year period of desertion to two years, I do not know. In a few weeks' time, this Parliament—I do not mean the Government, because they came to power in 873 1964—will have been in being for two years. To some people that may seem to be a very long time. But it is really extremely short. I do not think that people can say in two years that their marriage has irretrievably broken down. Three years is the right period.
I come now to the contentious parts of the Bill. So far I have referred to practical difficulties about the Bill rather than questions of principle. May I deal with the provision about divorce by consent after the parties have lived apart for two years. The hon. Member for Yarmouth talked about people entering into matrimony for a trial period. I think that the House disagrees with that. But the Bill will encourage this sort of thing. One person may say to another, "We will make a shot at it. If it does not work we will separate and then in two years we can go to the courts and ask for a divorce."
§ Mr. Edward Lyons (Bradford, East)
Is not the hon. and learned Gentleman aware that, notwithstanding this Bill, there is provision in the existing law that one cannot obtain a divorce within three years of marriage except on proof of exceptional depravity by the guilty spouse or exceptional hardship to the innocent spouse? So there can be no divorce in two years in normal circumstances.
§ Mr. Doughty
If the hon. Gentleman had waited, I was coming to that. That was in the Matrimonial Causes Act, 1965, but there is no reference to it in the Bill.
I come now to the greatest stumbling block for me which has caused a great deal of trouble. Clause 2(1,e) provides that a marriage may be considered to have irretrievably broken down ifthe parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.In the Bill of the hon. Member for Pontypool, the period was seven years. However, that provision was not incorporated in the Act. The hon. Gentleman will recollect that in Committee it was deleted. There was a great deal of debate about it before it was taken out. There were Amendments which proposed periods of five years, three years and, in one optimistic case, six months. I warn the hon. Gentleman that if this 874 Bill gets a Second Reading—I hope that it will not—he will find in Committee Amendments, not from me, but from others, probably including the hon. Member for Yarmouth, proposing to reduce the period of five years to a negligible time. If that is not proposed by way of amendment to this Bill, it will be proposed in future Bills. Someone will say, "If a marriage has irretrievably broken down, why wait five years?". If the hon. Gentleman thinks that the period of five years is sacrosanct—and it has already been reduced from seven years—he is very much mistaken.
However, if the period remains five years, this is an entirely new and novel proposition—and I use the words advisedly—because the guilty party to a marriage, the man who has deserted his wife or the woman who has deserted her husband, perhaps quite wrongly, can say in five years' time, "I am going to divorce you." I agree with what the Solicitor-General said about the hardship that this will cause financially. Although the hon. Member for Coventry, South has done his best, in Clauses 5 and 7, to alleviate this hardship as far as words can possibly do that, I fear that those provisions are wholly inadequate.
In considering this matter I will for the moment put aside the two cases of where the wife has a bigger income, either earned or unearned, than the husband—in such a case the husband can say to the court, "The other party has more money than I have. No order need be made against me"—and of where the two parties are well off, perhaps having a great deal of capital already settled by way of a matrimonial settlement, in which case the court is able to say, "This order may be made." That is done today in many cases, but the number of cases in which this is done is only a small fraction of the total number.
Any lawyer knows that even in an undefended divorce case—one which goes through "smoothly" the questions of custody and maintenance, meaning money, lead to the battle beginning. The fight is then on. How, in the vast majority of cases, will one be able to solve that insoluble problem when a man's income is sufficient to maintain one home but not two? That problem is virtually insoluble today. Under the Bill it will remain so.
875 I think I know where the answer will lie. In a case where the man has deserted his wife, he will support the second wife, to call her that, and the second family and, whatever words one may write, all the rights of the deserted wife will be worthless in practice. That is why I oppose this provision.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Will the hon. Gentleman explain in what way the position is any different today?
§ Mr. Doughty
It is difficult already. The Bill will make it even more difficult because a great number of people who will obtain their divorces under this Clause will neglect, in the legal sense, their divorced wives or husbands, as the case may be. It will be easier for a person who has means—perhaps with a large earned income—to go from wife to wife.
§ Mr. Doughty
Yes, but they do not marry them now. It will be possible for men such as this to go from wife to wife and for a great many of the more determined women of this, and other, countries to snaffle men of this type. Hon. Members will know what I mean when I use the word "snaffle". If these men are worth snaffling financially they will be snaffled. There will be great encouragement for that to be done if the Bill is passed, because these women will say, "We need not worry. Whatever your wife says now, she will have to be divorced eventually." I will willingly give way to any hon. Member who cares to deny that. It may relieve a few hard cases, but in doing so—remembering that hard cases do not make good law—it will cause a great deal of trouble. That is another reason why I oppose the principal provisions of the Bill.
There are some other aspects of the Measure which do not alarm me greatly, like Clause 3(1) which states that:… the solicitor acting for a petitioner…must say.. whether he has discussed with the petitioner the possibility of a reconciliation …and it goes on to point out that the solicitor must have given the petitioner… the names and addresses of persons qualified to help effect a reconciliation between parties …876 Are the names of, for example, the Marriage Guidance Council and the relations to the parties to be given? That provision does not mean anything and it does not carry the matter any further. I do not object to the Bill on those grounds, particularly since, as things stand, that provision could easily be deleted.
Clause 3(2) points out that if the court considers… that there is a reasonable possibility of a reconciliation …it may adjourn the proceedings once while efforts are made to effect a reconciliation. I do not believe that that provision will often be used because, as the hon. Member for Coventry, South said, by the time the parties have reached court there is very little chance of a reconciliation being effected. I am sure that, by that time, all the relations and the other parties involved would have tried their best to bring the couple together. However, I agree that the Clause should remain, in case of the possibility of a reconciliation coming about.
Without expressing a view one way or the other, Clause 3(3) provides a debatable power in that it must be a dog's life for one who is back on trust. After a few months one party—be it the husband or wife—may say to the other, "You know what you did. If you say boo to me again I am entitled to go to court." That could lead to a dangerous situation and I am, therefore, not sure that that provision should remain in the Bill. However, this is a Committee point which I will not press now.
§ Mr. Edward Lyons
Has it not been the case for very many years that where a matrimonial offence was committed, the wife or husband could, a year or two later, allege that offence as a ground for divorce, accompanied with evidence of some further misdemeanour of less consequence? Is he aware that recently we passed legislation permitting a period of three months cohabitation without that being a bar to divorce proceedings being brought, based on a preceding matrimonial offence? Is the hon. Gentleman further aware—
§ Mr. Speaker
Order. Interventions must be brief. Many hon. Members still wish to take part in the debate.
§ Mr. Doughty
I suggest that the hon. Gentleman is some way behind the present law. What he says used to be the law, but now the proceedings must relate to a fresh matrimonial offence and not be coupled with a previous one.
For the reasons I have given—apart from those which I have not given because I do not wish to delay the House—I urge hon. Members not to give the Bill a Second Reading. It is the duty of the Government to go into the matter carefully, seek the advice of all the interested parties, including those who must administer these matters, and then present their own Bill. Naturally, any Bill of this type will be opposed by some hon. Members—no House can be 100 per cent. in agreement on this subject—but at least it should be a Government Bill and not a Private Member's one.
§ 2.38 p.m.
§ Mr. Quintin Hogg (St. Marylebone)
As the Solicitor-General thought, it is desirable that each of the Front Benches should make a modest contribution to the debate, if only to say, as he said from his side and as I say from mine, that by the nature of the matter this is not a party issue of any sort. The Government and Opposition are neutral, not in the sense that we want our members to take no part in these discussions, but—since a political party flourishes by encouraging its members to express their views, whatever they may be, on a variety of topics—in the sense that it is important that the group as such should occasionally desire to play no part as a group.
I wish that I could feel as certain about these matters as a great number of hon. Members have said that they feel, particularly about the consequences of the Bill. The House may ask, "What right, feeling the doubts which you feel about this, have you to offer an opinion?" Like my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), many years ago I entered the divorce court as a petitioner. I can confirm what he said; that nobody who has had that experience, however short, can look at divorce as a light or easy matter. The blighted hopes and the sense of failure are there to the end of one's life, whatever may happen afterwards.
878 I have been a Member of this House or another for more than 30 years. During that time, I suppose that every one of us has received thousands of letters and visits from constituents and others with their matrimonial and family troubles. I have had some professional experience, although not as great as that of the hon. and learned Member for Montgomery (Mr. Hooson), and I am bound to say humbly, but with regret, that the more that I have learned the less easy I have found it to dogmatise about these matters. If I intervene, it is to come to one or two cautious conclusions.
In a recent edition of the Observer, Mr. John Mortimer, a very experienced practitioner, who, I think, does not share any of my general views about life, came to a rather odd conclusion about the Bill. When I read what he had to say by way of reasoning, I found that very largely I agreed with him. He said:The new Divorce Reform Bill which comes up for debate in Parliament next month gives every sign of having been drafted with the aim of pleasing everybody. As a result, if enacted in its present form, it may well leave those unhappy persons concerned—husbands, wives, children, judges and lawyers—in a greater muddle than before.From a divorce practitioner who notoriously does not hold very strong religious views, that is a very remarkable criticism of the Bill. Up to a point, I feel inclined to agree with him.
Even since I was elected to this House, I have lived during a period in which we started with four divorce judges sitting in the Divorce Division and dealing with the whole of the divorce that existed in England and Wales. Now that we have 44,000 divorces a year, things have changed. Are we sure how much human happiness has increased during those 35 years? Would anyone care to dogmatise? Certainly, I would not.
§ Mrs. Lena Jeger
Surely part of the reason for the big increase is the introduction of legal aid, which has enabled many poorer people to obtain divorces previously denied them.
§ Mr. Hogg
I am not asking why the increase has taken place. I am asking who would care to dogmatise that the sum of human happiness has increased, whatever the reason. Certainly, I would not.
879 My criticism of the debate so far is based on my belief that the law ought to be a branch of social science. I would like to know a little more from social surveys and statistical material about what the actual consequences of the availability of divorce may be thought to be. I would like to see it not on the basis of a purely empirical case load of Members of Parliament, practitioners, priests, or even university teachers, but a scientific survey based upon actual statistical material.
As my right hon. Friend the Member for Bridlington (Mr. Wood) rightly pointed out, we have all known cases, although none of us would care to say how many, in which marriages have broken up which might have remained stable but for the availablity of divorce. We do not know what the statistical factor has been and how much weight to attach to it. Whatever may have been the considerable defects of the law as we knew it 35 years ago, we started out with the idea, at any rate, of making people think twice before they married and before they brought children into the world.
When we come to look at the provisions of Clause 2(1,e), about the five-year period before repudiation, one has to reflect that the interests which we have to consider today are not merely the children of the marriage which we are bringing to an end, but the wisdom or unwisdom of the partners to the second marriages bringing new children into the world.
As Mr. Mortimer said at the end of his article:The proposed new law retains a certain air of unreality. Public divorce laws are really to do with how many Sundays a month it is best for the children to go out with their father or how on earth to feed two wives and six children on Mr. C's £15 a week.I think that he was right, and that he had his feet firmly on the ground.
The hon. Member for Yarmouth (Dr. Gray) raised a question which is fundamental to a discussion of this matter. He asked what marriage is. He appears to think either that it is or ought to be a contract, just as people sometimes glibly talk of it as a sacrament and at other times as a partnership. But the 880 marriage which we are discussing is not a sacrament, because the people include many who are not Christians, many Christians who do not regard it as a sacrament, many marriages which are second, third or fourth marriages, many marriages between athiests, and many marriages between Jews.
We are talking about a civil, a secular, institution. It is not a contract. If it were, we would not be here today, because the law of contract is a subtle and sophisticated instrument which can take care of contracts, with actions for damages and breaches dealt with by injunction. Marriage is a contract leading to a status, and the contract is fully performed when the status is achieved. What we are discussing today is the status.
Why are we discussing the status? We are not discussing it simply because, as some hon. Members appear to think, we desire to see stable marriages. We desire to see them, of course. But if anyone thinks that the law of divorce—strict as my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) would have it, or permissive as the hon. Member for Yarmouth would have it—is likely to affect very strongly the stability of marriage, he is probably making a mistake, for the reasons given by the hon. and learned Member for Montgomery.
Marriage is a status and not a contract for two fundamental reasons. The first I ventured to put to the hon. Member for Yarmouth, that the interest of persons not parties to the arrangement are intimately concerned from the beginning. They are the children of the marriage and the potential children, illegitimate or legitimate, who may be born in a subsequent union. It must, therefore, be a question of status and not contract.
Despite the robust speeches which we have heard from three hon. Ladies in the course of the debate, my second reason stems from my own experience, which convinces me that the wife in a marriage is more vulnerable than the husband. Of course, husbands behave badly, and wives behave badly. Both have hearts to break, and both love their children.
I fully accept the valuable point made by the hon. Member for Holborn and St. Pancras, South (Mrs. Jeger). Statistics show that there are a great 881 many cases—all too many—in which mothers desert their children, which is far worse for the children than when a father deserts his children. But, at the end of the day, the law of status exists, or ought to exist, for the protection of the vulnerable against the relatively less vulnerable. So long as the woman is more vulnerable than the man, so long marriage is not an equal partnership; it is an unequal partnership, if it be a partnership at all.
My right hon. Friend the Member for Bridlington was surely right, and so were other hon. Members, to point out that a woman can be ditched with far more serious consequences to herself that for a man who is ditched by a woman. Her earning capacity is impaired by years of matrimony. She may still be able to earn, but her earning capacity is impaired. Her sexual charms may be greater. But they may be less. Her obligation to her children when they are young is much stronger, because they cannot do without her. The man can go and, on £15 a week, as Mr. Mortimer pointed out, he can form another union with another woman.
Although the law aided by my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers), may seek to attach the earnings of the husband or track him down and find where he is living, the second wife will take the pay packet on Friday evening. Possession of the pay packet is nine points in any law we choose to pass.
§ Mr. Hogg
Yes, it happens now, but the point I am putting is that we cannot easily assess the quantitative factor introduced by my right hon. Friend. How many of these irresponsible second unions—and they are in many cases irresponsible—are actually encouraged or achieved by reason of the availability of divorce? I have known many cases where, if a wife is loving and wants to keep her husband, her husband will slosh her about until she does divorce him. It takes only one to make a quarrel in the end.
I am not happy that either in the Bill or in any other—as was borne out by the wide experience of Mr. Crispin in The Times—adequate safeguards can be pro- 882 vided in the ordinary case. Of course, if one is middle-class, one can nominate the first wife to a pension scheme or to the widow's pension under an employment scheme, or even to one's life insurance, but, if one is earning only £15 a week—which, as Mr. Mortimer said, is the commoner case—one cannot satisfy the court of being able to make adequate provision either for the first wife or for her children.
Some hon. Members have jumped from that position which I accept, to the next position, which I do not accept. That is that in no circumstances whatever should a marriage which has withered on the bough—we all know there are many of them although they are a minority—should never be brought to an end without the will of the deserted wife. I do not accept that. There are cases which the hon. Lady the Member for Holborn and St. Pancras, South cited. I could cite many more from my correspondence. But Clause 7 does not go nearly far enough. I do not think that it is a question of the period of time for which the wife has been deserted. I think that the fault lies in a very few words in Clause 7. I do not believe that a divorce should be given when all that can be offered the first wife isthe best that can be made in the circumstances".The circumstances have been made by the husband and the second wife, the common law wife No. 2. That Clause would be a great deal stronger and more effective if those words were left out. They are very few. Then the whole substance of the Clause would be different.
At the end of the day what we have to remember is that it is no good talking about dissolving the bond or the tie. Divorce is three things, and three things only. It is a licence to remarry and form a new union. It is, or may be, an order referring to the maintenance and custody of the children of the first marriage. It is, or may be, an order for the maintenance of the first wife. In very rare cases there may be orders for the husband. Until one puts one's feet firmly on the ground and asks to what extent are we increasing the sum of human happiness by what is proposed here, by altering the terms of those orders, one cannot arrive at a proper assessment of the value of the Bill.
883 I am asked whether it will make divorce easier or more difficult. Like the Solicitor-General, I am bound to say that I do not know, because in some cases it will make it more difficult and in other cases it will make it much easier. I doubt whether we shall largely increase the sum of human happiness, but I hope that the sponsors of the Bill, when they get the Second Reading—which they will do, if the general current of the debate is any guide to the votes when the Division is called—will concentrate their attention in Committee upon the protection of the vulnerable rather than upon the interests of the immediate parties.
§ Mr. Iremonger
On a point of order, Mr. Speaker. You were kind enough to ask hon. Members at the beginning of the debate to indicate whether they were for or against the Bill. I hope it would not be an impertinence to ask if your attention has been drawn to the fact that if the hon. Member whom you have just called is for the Bill there will be three in favour in succession.
§ Mr. Speaker
I am aware of that, and I have every sympathy with the hon. Member. I am also aware that I have called from the Opposition side of the House three more hon. Members than from the Government side to approach a balance.
§ 2.57 p.m.
§ Mr. Raphael Tuck (Watford)
I congratulate my hon. Friend the Member for Coventry, South (Mr. William Wilson) on again bringing to our attention the need to reform our divorce laws. I had originally intended, on a cursory examination of the Bill, to vote for it, but on a deeper examination this week I find myself unable to do so because I do not think that the purpose it seeks to serve will be fulfilled. That purpose is to bring divorce into line with reality and to protect the innocent spouse—generally the wife in a divorce.
Although I am in favour of some of the provisions of the Bill, I believe that my objections are so fundamental, and I want such a fundamental change made, that I am unable to vote for the Bill itself. However, I shall not vote against it. I shall abstain, because I am in 884 favour of some of its provisions and I do not want it to be inferred that I reject, for example, a divorce after two years' separation where both sides consent or where the marriage has irretrievably broken down. In these circumstances, I shall refrain from voting.
I come, first, to the point about the marriage having broken down. I believe that it should be a valid ground for divorce that the marriage has irretrievably broken down. However, I ask my hon. Friend to consider whether the words "the sole ground" should be used, or whether it should be "a ground". Consider this situation. A husband commits adultery and wants to go off with the woman with whom he has committed it. His wife still wants him; she loves him, but she realises that it is hopeless. He will not return to her. She loves him, but she wants his happiness and she realises that the only way that she can give him his happiness is by allowing him to go and marry the woman he loves. She therefore takes him to court and petitions for divorce on the ground of his adultery, although she does not find it intolerable to live with him.
If the Bill goes through, in such circumstances as those she will not get her divorce. This therefore makes it more difficult to get a divorce. The husband has perforce to go and live apart from his wife for two years. Is not that rather hypocritical, particularly as during those two years there is perhaps a child of the new union who is illegitimate?
I have said that I agree that separation for two years should, with the consent of the respondent, entitle a petitioner to a divorce. I agree with that wholeheartedly, subject to reservations which I shall deal with later. One of my main objections is to the five-year period envisaged in Clause 2(1,e). The marriage may not have broken down at all. The wife may be longing for her husband to return, but he is away from her for five years. Should the wife therefore be penalised because her husband has run off with someone else and wants to marry her?
As has been already suggested, as a butterfly can go flitting from flower to flower so a husband can go hopping from wife to wife every five years. He can leave his wife, wait five years, and then divorce her. Then he can marry wife 885 No. 2, tire of her in a year, leave her, wait five years, and divorce her. Then he can marry wife No. 3, and so on until he has string of ex-wives around him.
§ Mr. Ian Gilmour (Norfolk, Central)
Does not the hon. Gentleman agree that that is not a very desirable practice from the point of view of the man, because, as far as I can see, he would have one year's marriage and then a five-year waiting period? Surely this is a rather exaggerated pleasure.
§ Mr. Tuck
I agree, but it is far less desirable from the point of view of the wife or wives whom he leaves behind him, possibly with children. Some years ago Eastern Airlines carried the advertisement, "In and out every thirty minutes". There could well be an advertisement over the courts, "In and out every five years". It is a question of justice to the wife or wives.
§ Mr. Archer
Does not my hon. Friend appreciate that this is what happens now and that the provisions of the Bill would give the husband an opportunity of forming at least one stable union?
§ Mr. Daniel Awdry (Chippenham)
The hon. Gentleman began his speech by saying that he accepted the principle that if parties have been separated for five years there really is breakdown.
§ Mr. Tuck
It may appear to breakdown as far as one party is concerned, 886 but not the other. The wife may want her husband to return and may long for him to return and, if he returns, to forgive him for what he has done. It cannot be said in that case that the marriage has irretrievably broken down.
I have said that I agree with the two-year principle, but the wife, and possibly the children, must be protected. The Bill does not satisfy this condition. What I am about to say applies to the five-year period as well if that provision goes through, though I sincerely hope that it does not. The root of the problem of divorce is money and security for the wife. As has been stated, a divorced wife cannot claim a pension from her ex-husband's employers when he dies. If he goes on living, his first duty is no longer to his ex-wife and children but to his new wife and children. Suppose that he is earning £20 a week and his wife has received an allowance from the magistrates' court of £7 a week plus £2 for each of three children, making £13 a week. Is he going to be able to keep the new wife and possibly two children on £7 a week?
I know that the judge must be satisfied that the financial provision made is reasonable or is the best that can be made in the circumstances. If the husband is a wealthy man there is no difficulty. He can make provision for his ex-wife and children and for his new wife and children. But if he is poor the judge may refuse because he would find that hardship would result to the wife. The judge would be therefore saying to the man, "You have not got the money, so you cannot have a divorce." This means one law for the rich and another law for the poor, which is absolutely contrary to Socialist philosophy if not to Conservative philosophy.
On the other hand, the judge may find that the financial provision is the best that can be made in the circumstances. The wife will then probably have to seek social security. Why should wives be treated in this way and why should the State have to pay for the husband's immorality? The community, which is trying to help husbands and wives to obtain a divorce, will be responsible not only for the legal costs but for paying for the first and second families, or both. In any case, why should not the first wife and children have the first claim, and 887 why should not the light of love and her children have only second priority, which is what they would have if there were no divorce at all?
Before giving my assent to a Measure of this nature I should want a Clause by virtue of which the ex-wife, assuming she is the innocent party, is placed in the same legal position as regards finance as if she had not been divorced at all, so that she and her children would have the first claim before the second wife and her offspring, and so that if the man dies the original wife will receive the pension from his employers. Then, and then only, would I vote in favour of such a Measure.
What this Measure does not do and what I should like to call to the attention of my hon. Friend the Member for Coventry, South is this. At present wives and children are dealt with in every court. We have the magistrates' court; the county court; the High Court—the Divorce, Chancery and Queen's Bench Divisions—and the Court of Appeal. I might add in parenthesis that last night it was announced that the Prices and Incomes Board was going to recommend an increase of 55 per cent. in county court charges, which does not say much for the reason given for removing the jurisdiction from the High Court to the county court in cases of divorce, namely, a saving of public money.
Here we have all these courts dealing with the one subject. I am advocating a family division of the High Court, which is appropriate to the most important social institution. Today we have the courts bedevilled by divorce cases being sent to the county court and the transmission of defended cases to the High Court. I want one family division for all cases—concerning the wife, husband and children.
I should also like to see some kind of marriage education. We have sex education in the schools. Why do not we have marriage education in the schools, too? More emphasis should be placed on the responsibilities of marriage and on the value of the stability of family life.
If those points were embodied in the Bill, I would give it my approval, but for the reasons that I have enunciated I shall be unable to vote for the Bill. I shall abstain.
§ 3.9 p.m.
§ Mr. Norman St. John-Stevas (Chelmsford)
First, I join with other right hon. and hon. Members in congratulating the hon. Member for Coventry, South (Mr. William Wilson) on the way in which he introduced the Bill. Also, if I may be even more bold, I congratulate my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) on putting us further in his debt by the contribution which he made to our debate today.
I cannot congratulate the baroque figure who lurks behind the Bill, that is, the hon. Member for Pontypool (Mr. Abse), who, earlier in the debate, referred to me as the most conservative Member in the House. That is not always the reproach levelled against me by my right hon. and hon. Friends. Of course, the purpose of his intervention was to represent me as a blind reactionary opposed to any change.
That is not my position on legal reforms. It never has been, as my record shows, and it is certainly not my attitude to this Bill. One has to regard every reform as a separate issue to be judged not on doctrinaire grounds of liberalism or conservatism, but on its own merits. I see some good in the Bill and I see some bad. On the whole, I think that the bad probably outweights the good, but I by no means think that this is a Bill composed totally of evil proposals.
I declare my interest, as others have done. I take a religious view of marriage. I regard it as a lifelong and sacramental union. At the same time, I recognise that, in a pluralist secular society, one cannot impose a sacramental view of marriage by law. But those who take this view on marriage are able to make a particular contribution to the dialogue about it, perhaps, because they see certain aspects of the importance of the stability of the marriage union which others do not see. Equally, those who happen to be married, which I am not, though I have not yet given up hope—I suppose that I may still be regarded as of marriageable age—have an insight which they can devote to this problem.
We must base the divorce law on the moral consensus in society. What is that 889 consensus in England today? I can detect two ingredients. First, nearly everyone will agree that, all things being equal, marriage should be as stable as possible and it should be as lasting as possible for the good of society, for the good of the parties, and above all for the good of the children.
We look to the law not, as the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) said, to make people love one another, but to give people a means by which they can enter into a permanent contract with one another, changing their status and making a commitment which the law will back. That is a facility which we expect the law to provide.
The second part of the consensus is that, if there is no marriage in fact as opposed to law, the parties should then be allowed to separate on as equitable a basis as possible.
I accept those principles as a reasonable basis for a secular divorce law. But the question then is how far the Bill puts those principles into practice. If the Bill had been based upon the concept of the breakdown of marriage together with an inquest in order to establish exactly what the status of the marriage is in fact, as the Archbishop of Canterbury's commission proposed, I should not oppose it. The sponsor of the Bill suggested that that is what the Bill does, but even the most cursory examination of it will not sustain that proposition. Only the shell of the concept of breakdown has been maintained in the Bill. It is there only in the negative sense, that it is open to the respondent to prove affirmatively that the marriage has not broken down. To that extent, the concept of breakdown has been preserved, but it is a shadow of the substance proposed by the Archbishop's commission.
For all practical purposes, the grounds for divorce are those laid down in the various subsections. They combine the old matrimonial offences, or some of them, with new grounds for divorce based on varying degrees of consent. The first is adultery plus the fact that the petitioner finds it intolerable to live with the respondent. What is that but the old matrimonial offence back again, plus a declaration from the petitioner? Since 890 the court cannot investigate the basis of the petitioner's declaration—it cannot objectively investigate whether the position is intolerable, but must accept the petitioner's declaration—we are really left with adultery as one of the bases for the dissolution of a marriage. So the Bill will not even get rid of the collusion which the hon. Member for Coventry, South alleged that it would. A couple who do not wish to wait two years will be under exactly the same pressure as couples are under today to fabricate evidence of a fictitious adultery to secure a divorce. In this respect, the Bill will not improve the existing situation.
I have no quarrel with the definition of cruelty in the Bill, nor with the modifications with regard to desertion. But I have severe criticisms of the provisions for a divorce on the ground of separation. I shall deal, first, with the provisions for divorce by consent after two years' separation. This is a revolutionary step in that it radically alters the legal view of marriage. If it does that, it must inevitably in the long run change society's view of marriage as well. Instead of being a contract entered into for a lifelong period, subject to dissolution in certain specified instances, marriage becomes under the Bill a contract terminable by consent after two years, which is a totally different concept.
§ Mr. Raphael Tuck
The hon. Gentleman has just referred to certain specified instances. Surely the Bill merely adds another specified instance to those in which a divorce can be obtained?
§ Mr. St. John-Stevas
That is one way of looking at it, but I would interpret it as being such a radical departure from the idea of a lifelong contract as not to rank as a mere instance but as a provision to alter the whole basis of marriage at law. I fear that it must inevitably encourage people to enter into marriage more lightly than they do at present.
There are even greater practical objections against the final ground for divorce laid down in the Bill—five years' separation—when there is no consent from the respondent. I see no point in keeping parties together legally when there is no marriage in fact. There is something to be said, particularly from the point of view of legitimating any 891 children of a subsequent union, for dissolving the first marriage, because that will benefit them.
One must not only look at the problem from the point of view of such children—if there are any—and of the personal happiness of the person petitioning for the divorce, but must also take into consideration the point of view of the person divorced against his or her will and legally blameless, though I agree that one cannot in any particular case say that anyone is necessarily morally blameless.
But if they are legally blameless, if they have done nothing to bring the disapproval or sanction of the law down upon their head, it is surely the duty of the law to provide them with something in return for the deprivation of the married status which they previously enjoyed. In other words, some kind of quid pro quo must be provided by the law.
I am thinking here, in particular, of the wife who is divorced against her will. It may be, as the hon. Lady the Member for Eton and Slough (Miss Lestor) said, that we are advancing towards a society in which there is great equality between men and women, and I would certainly welcome that, but the point is that we are not there yet and we are still, economically speaking, a male-dominated and male-orientated society.
Furthermore, the problem affects particularly not women of the age or attractions of the hon. Lady, but those who are getting on in years and whose attractions are not as great as they were previously. They must be considered. If a woman in this position—I have had a number of letters from such women in my constituency—is to lose her status as a wife, the least the law should do is to guarantee, in so far as it can, that her economic status is not eroded as well.
This is the point that was being made by the National Council of Women. My hon. Friend the Member for Dorking (Sir G. Sinclair) made much play of its resolution approving the Bill, But it made its approval conditional on the inclusion within the Bill of adequate financial safeguards for women divorced in these circumstances.
§ Sir G. Sinclair
If my hon. Friend will read HANSARD he will see that it was 892 exactly in those terms that I referred to the resolution of the National Council of Women.
§ Mr. St. John-Stevas
I do not have to read HANSARD, because I had the pleasure of listening to my hon. Friend speaking in person. The implication in his remarks—which may or may not be deducible from HANSARD, but which I deduced from his tone of voice—was that the National Council of Women was satisfied with the Bill as it is. That is not so. It wants the Bill only if it contains adequate financial protection for women.
I do not believe that the Clauses which deal with the financial side of the Bill provide that adequate financial protection for women. Clause 7 does not. It provides that the judge must make such financial arrangements as are "reasonable and fair" and then goes on:or the best that can be made in the circumstances.That cancels out completely any effect of the words "reasonable and fair" as it provides an alternative and exclusive ground for making a financial disposition. So the divorced wife, in these circumstances, is left with no entrenched rights.
It does not matter whether one looks at Clause 5, Clause 6 or Clause 7—in every case the dominant characteristic is that everything is left to the discretion of the judge. In these circumstances, that is not good enough. Some tangible rights must be conferred upon the divorced wife if the Bill is to work equitably. She will be losing her contingent rights in any pension to which she may have contributed, either directly by contribution or indirectly by going out to work or by savings she may have made in the course of married life, and she will have no right to maintenance as such.
A number of hon. Members have said that this is a different problem which could be looked after by the Law Commission or by a reform of the law of property. But, before a Bill of this sort is introduced, such problems should have been dealt with, and that is one of our principal objections to the Bill. It has come too early.
It has rightly been said that the bitterness in divorce cases is not so often caused by spite in contested divorce cases, although that occasionally happens, nor, indeed, by religious attitude, although 893 that happens as well, but that disputes and bitterness occur over questions of money and of the custody of children. That really goes to the heart of the objections to the Bill. In the two vital issues of the welfare of the children and the provision of maintenance for the wife, the arrangements proposed under the Bill are radically defective.
The principles on which maintenance is to be awarded are not even mentioned. Who is to assess maintenance? We do not know. Is it to be a registrar or a judge? The person who is to make the maintenance award is not even alluded to. What I fear about the Bill is not that it will be a "Cassanova's charter", whatever that may mean, but a "Scrooge's charter", and that the person who will suffer will be the divorced wife left without financial support in middle age.
It may be said that all this could be put right in Committee, but would it? We have had no assurance from anyone that that would be so. I must say that my own experience of receiving assurrances during the passage of the Abortion Act does not lead me to put a great deal of trust in this process because, in many ways, the sponsors of that Measure proceeded to make it even worse in committee than it was when it first came before the House.
While there are good things in this Bill, and while I congratulate the sponsor on the attempt he has made to reform the law and to relieve human misery and increase the sum of human happiness, I do not think that he has succeeded. The Bill is premature, insufficiently thought out and inadequately drafted. For these reasons, unless my hon. Friends and I receive the most categorical assurances, we shall reluctantly be compelled to go into the Division Lobby against the Bill.
§ 3.29 p.m.
§ Mr. Leo Abse (Pontypool):
Henry VIII had, as has been mentioned, many wives, but although he had many wives he had, of course, no divorces. He either took direct measures to deal with his matrimonial problems or he manipulated the ancient laws of consanguinity, buried within which were old incest taboos, to prove that, although he had lived perchance with a woman regarded publicly as his wife, nevertheless in its origins there was in fact no marriage. 894 The hypocrisy and the humbug with which the divorce law has ever since been associated are notorious, for they are embedded within the indices of all our divorce law.
It is true that some lawyers, as the right hon. and learned Member for Chertsey (Sir L. Heald), a former Attorney-General, indicated in some of his attitudes, make the law in many respects their mistress and, although she may operate with deceit and subterfuge, the delights which they have enjoyed in the dalliance enables these romantics to overlook all the faults of the ageing creature. But the overwhelming majority of lawyers take a totally different view of divorce law.
They take the view which the Archbishop's Committee discovered and stated when it declared, in "Putting Asunder":That the law as it stands is unsatisfactory all the judges and lawyers who gave us evidence agreed, however much they differed concerning the remedies to be applied. We are far from being convinced that the present provisions of the law witness to the sanctity of marriage, or uphold its public repute in any observable way, or that they are irreplaceable as buttresses of morality either in the narrower field of matrimonial and sexual relationships, or in the wider field which includes considerations of truth, the sacredness of oaths and the integrity of professional practice.As my hon. Friend the Member for Coventry, South (Mr. William Wilson) has repeated, the Archbishop's Committee went on to give what must be the general view, that, as a piece of social mechanism the present system has not only cut loose from its moral and judicial foundations, but is quite simply inept.
That view of the Archbishop's Committee should commend itself to all those who have had any clinical experience in the practice of divorce law. But it is much easier to condemn the present law than to spell out a new law which, given the present changing structure of the family unit, will have a relevance to contemporary social reality and which will assist and not undermine the stability of marriage and which will, one hopes, with dignity release those whose fate it is to have found in marriage not happiness, but, alas, despair.
The problem of designating such a law is considerably increased today among other matters because of the extraordinary impact which technology in particular is 895 having on the structure of our changing family life in modern Britain. The right hon. and learned Member for St. Marylebone (Mr. Hogg) shared my approach when he asked that perhaps consideration should be given to the views of the social scientists in these matters, not leaving it only to the empirical experience of churchmen and jurists. But what the social scientists have pointed out with great effect is that the structure of the family in Britain is changing. The reflection of views and the differences of views and the attitudes which have been expressed in the debate have often reflected the attachment which some have to one or other of the changing structures of our family systems in Britain.
We know that in some parts of our constituencies there still exist authoritarian family systems where the man is the head of the household and sometimes still the only wage earner; we know that his word is law; we know that the wife is regarded as someone who is there merely to serve the master, is there for bed and board.
We know, too, that this is changing rapidly. There is within my constituency a new town, and I am aware of the changing attitudes as people move away to there from more traditional areas. I see, as has been reflected, particularly in the speeches made by the lady members of the House, a dramatic change taking place. The family is becoming more democratic, more egalitarian. It is becoming a place where money is shared, where the house may be purchased jointly, where the mortgage is paid for by both, where, because of the rising female activity rate in Britain, it inevitably means that the family unit is more of a coalition.
Changes are reflected because of that. One can have in some circumstances, in some traditional areas, what the right hon. Member for Bridlington (Mr. Wood) was pointing out—the tremendous influence that can be exerted by other members of the family. In short, there can be an extended family system, a more conservative family, but a family where criteria and values are not only determined by the two members of a family, but by the views and ideas of aunts, uncles and 896 grandparents. Then one sees how technology, causing mobility, moves families away from such areas and how one then gets a nuclear family.
The nuclear family is often a family overloaded in many senses, because problems cannot be shared. There is a family system in transition. One of the great difficulties which a legislator must face in dealing with the divorce law is that he must take into account if he can, he must strive to take into account all those attitudes, without damaging the best in the fabric of all those family systems. Those who have complained that they may have found illogicalities in the form of this Bill, those who have described the calculated elasticity of these provisions as being perhaps intolerably vague, need to understand that this Bill is deliberately attempting to straddle, without damaging or at any rate, without undermining the best attitudes contained within all our family systems.
In some parts of Wales, or in the North, where the authoritarian family may exist, the view would undoubtedly be taken by a head of the household that it would be quite intolerable to overlook a single act of adultery. I hear Members asking how can one put together the doctrine of the matrimonial offence to bring it within the doctrine of marriage breakdown. I urge them to consider and to weigh the fact that for many men, may be a Victorian miner or may be a Lord, a single act of adultery by the wife would be regarded as inevitably an end to the marriage. So serious can one act of infidelity be taken, that a Law Lord opposed in my last Bill the principle that there should be a three months "kiss and make up" period, because he looked with such repugnance at the very idea that a man, knowing that his wife had committed adultery, should even contemplate the prospect of remaining with her, to see whether it was possible for the marriage to endure.
Doubtless that Law Lord will oppose an extension of these procedures in this Bill. On the other hand, within our changing family system, where the husbands and wives go out working, it is regrettable, but it is a fact, that in some over-sophisticated groups within the Metropolis they may regard adultery with extraordinary casualness. I would ask 897 those who, for example, mock at the principle in Clause 2(1,a) at our attempt to move away from the doctrine of the matrimonial offence of adultery, to recognise the views and attitudes that responsible sponsors of a divorce Bill must take into account, and must seek to contain. In our plural society, we have observant Catholics just as we have the most radical secularists of which we have had some echoes today.
Therefore, we have some who regard marriage as a sacrament, who believe that God enters into the sex act and that, as a consequence, marriage is indissoluble, immutable and cannot be ended. On the other hand, there are those who believe that, since they asked no one whether they should get married, equally they should be beholden to no one if they wish to consent to a divorce and hence resent the fact, as has been indicated today, chat the Bill insists on two years' separation before consent of the parties leads to a divorce.
The architects of the Bill believe that the court needs strong and extensive powers to deal with the financial safeguards to be provided for wives. The overwhelming majority of divorces affects women, perhaps fortunately, who are aged under 35 and in most divorces, again perhaps fortunately, there are either no children or only one child. It is true that we are living in a world in which there is a strong probability that such a young woman who has been divorced or has obtained a divorce will find pensionable employment in an age of the mechanisation of the household and near full employment.
However, it is not enough to legislate merely bearing in mind that usually half the married life of a wife is spent after she has finished bearing and rearing children, since people marry now so young. We must also have powers—and the Bill has them—which are strong enough and unrestricted enough to deal with the minority of women in divorce cases who may still have a number of small children or who may be over 45 with inevitably, statistically, a poor expectancy of remarriage.
I ask the House not to hearken to those who have pointed to apparent inconsistencies in the Bill or who would wish to bind the courts with strangling definitions or who are zealous, wishing 898 for more permissive or more restrictive laws. Unashamedly and without apology, the sponsors of the Bill acknowledge that it is a consensus Bill and, in this context, it is certainly not a perjorative term. When we deal with delicate cases impinging on human relationships, in a society where there is such rapid change, we do not need to apologise for the fact that the Bill is a compromise, hammered out over a very long time in public and private dialogue, involving, as those who have followed events know, many churchmen, most lawyers and secularist divorce reformers.
However, the Bill is not a botched-up, impracticable compromise. It is no part of the Law Commissioner's task to pronounce on social policy. That is something which they eschew. It is our task. But the Commission, which possesses some of the finest lawyers in the land—men who have practised law in the courts, not in the cloisters—are satisfied of its practicability.
The aid given by the Lord Chancellor's Department in drafting the Bill, for which it has inevitably leant heavily on the Law Commission, means that the sponsors and, I think, the whole House, owe a debt to Sir Leslie Scarman and his team in enabling a Bill to be before the House which, whatever its merits or demerits, can with certainty be regarded as practical and capable of being carried out by the courts if that becomes the declared wish of the House.
The burden which is being placed by the Bill on the judges is not by any means as onerous as was suggested in the opposition speech by a former Attorney-General, the right hon. and learned Member for Chertsey, because it is not something vague and indefinite that the judges must decide when considering whether or not a marriage has irretrievably broken down. If we pass the Bill, then we in Parliament are deciding that. It is our responsibility because we are saying in Clause 2(l) that• the petitioner satisfies the court of one or more of the following facts. …The judges can adjudicate on the facts, not on some vague concept. They can decide on the facts whether or not, on the evidence before them, the parties have been apart for two or five years, 899 as the case may be. We are by no means divesting ourselves of what is to be regarded as declared acknowledgment that a marriage has broken down. Although, therefore, this may be regarded as a compromise—indeed, it is a compromise which spans a variety of attitudes—it is nevertheless a practical, workmanlike Bill which could be adjudicated upon by the judges of the land.
As I listen to the sober speeches in this high standard debate, I suspect that there are three main objections to the Bill. There are those who are concerned about financial safeguards, particularly as they relate to the five-year Clause. There are those who are concerned with the principle of what has been called "compulsory divorce". And there are those who criticise the two-year separation Clause because, they maintain, it is introducing the novel principle of divorce by consent.
In a constructive and informed editorial, The Times this morning, commenting on the financial Clauses of the Measure, said that the objections which were raised against them were dealing with money and not with marriage. That is so, but obviously, even though that may be said, I feel that it is too over-logical a position.
When examining the financial Clauses, the House should examine those safeguards with an understanding of the present law, for Members should know that—and make their decision on this knowledge—at present, even without these increased and strengthened provisions, the law is heavily discriminatory against men. Maybe it should be. Maybe it must be, since women, not men, bear children. The fact remains that the law is heavily discriminatory against men, and while I do not want to elaborate this excessively, it is, for example, now possible for a guilty wife to obtain maintenance against her so-called—according to present standards—innocent husband.
It is possible now for a wife who has divorced her husband to remarry and to have the order reduced, but, nevertheless, if her second husband dies or if she divorces her second husband, she can go back to the court and perhaps get the original order against her first husband proceeded with again. Thus, a much married woman can continue to have 900 maintenance from her first husband. I could cite many such instance. Suffice to say that the House must accept as a fact, because this is so, that, although it may be justified, the law is discriminatory against husbands—and the Bill extends that principle of discrimination.
We must view what is happening in the Bill against too all the protection which wives have, for anything they may have contributed, under the Matrimonial Property Acts, both the old and more recent legislation. There must also be seen—this is, perhaps, most important of all—to be the logical result of the legislation which has been passed since last month, the Matrimonial Homes Act, the possibility of a woman being able to have an order of the court to retain her right to remain inside the matrimonial home after a divorce.
To those hon. Members who have queried the financial position, it must also be seen against the fact that recent case law insists that, where cohabitation has been disrupted by the husband, the courts shall not allow the wife to be relegated to a lower standard of living than that which the husband enjoys.
Without going into all the details, Clause 7(2) of the Bill frees the court in determining whether the petitioner's provision for the wife is fair so that the court is not restrained in seeing that the provision is such as the court would have power to make. In short, the court could put a pistol to the head of the husband and say that it will not finalise the divorce unless and until half the property of the marriage is conveyed to the wife. Never in the history of divorce law have there been greater financial powers given to the court, so that the full facts can be reviewed by judges.
In many ways, the Bill will help estranged wives financially. It will help those women who have been estranged from their husbands for five years or more and whose husbands work in the private sector or in universities covered by pension schemes where it is open to a husband to nominate who shall have the benefit of the widow's pension. In those cases, can anyone believe that an embittered husband living apart from his wife for a decade or two and wanting a divorce will nominate his wife? However, as a result of the Bill, the pension rights of such wives undoubtedly would 901 be strengthened. The court could insist that the wife should be nominated, if it thought that it was equitable. It could insist that it was done by proper security, ensurin2, that the first wife had the pension and no one else. That is an advance, and an important one.
Equally, when it comes to pensions in the public sector, if the woman is the wife of a major or captain in the Army, the court can deal with the problem by insisting, as a prerequisite to finalising the divorce, that an insurance annuity should he bought by the husband. Without minimising the problems which exist among people with small incomes, if people are being fair about the Bill, it should be acknowledged that it is not adding to those difficulties. If it is doing anything, it is diminishing them.
The problem is serious. We have a position where there are 450,000 fatherless children of deserted wives, and only 260,000 children who arc fatherless for other reasons. That is a position which no private Member and no divorce Bill can remedy. My hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) and the hon. Member for Plymouth, Devonport (Dame Joan Vickers) have taken a great lead in this. It is important to remember that, again and again, some of us have urged the adoption of the original Beveridge provision for the inclusion of some insurance against a marriage breakdown in the National Insurance contribution. Equally, if we pass the Bill, I hope that the very fact that we have had a national debate on it will add to the impetus of the demand for a Government collecting agency to ensure that maintenance is paid regularly and enforced by the State, so that we no longer have the wretched position which is the lot of many women.
Whatever else may be said, the Bill is an advance not only in terms of finance, but in other areas. It must surely be an advance if we are able to say that two people can end their marriage in dignity after they have been apart for two years because they do not want to acclaim to the world the cruelty of one side or the adultery of the other. Why is it that there appear to be some who want to have emblazoned abroad and publicly declared that one party is innocent and one party is guilty? Much of the division of opinion over this debate must be 902 between those who believe there is a growing need to extend and safeguard the rights of privacy and those who believe that matrimonial affairs should be known by every Tom Dick and Harry.
This Bill would mean that two people would be able to divorce after a separation of two years. They would not have to put in those miserable discretion statements which enable children to know that not only has their father committed adultery but their mother has also—discretion statements which reveal how empty and stupid are our divorce laws. Since 30 per cent. of those who go for divorce on the ground of the guilt of the other side are admitting that they have committed adultery, what sort of humbug is it that says that we must stand on an old divorce law which demands that men and women must be found innocent or guilty?
I do not believe that the House, when faced with the alternative of being able to get away from that position and to move to one in which people could go before the court and say that they wished to have a divorce, or where one person alleged some facts against the other on the ground of breakdown of marriage, would not want to have a Bill which would mean that a spouse would not have to defend a petition on the ground of cruelty merely so that financial arrangements and the future of any children could be safeguarded.
We can get rid of this public washing of dirty linen which takes place in long drawn out cruelty cases so that a man can allow a divorce to go through on the ground of marriage breakdown and leave to the hearing in the privacy of chambers, where the financial matters and custody of the children could be dealt with and also, should it become necessary, any question of who was at fault or who was to blame.
This Bill is a bold and radical Bill, even if it is a consensus one. It is one for which tens of thousands of men and women are waiting. They wait for it because it is not a question of Casanovas that we have to deal with but the thousands of elderly men and women from whom my hon. Friend the sponsor and I have been receiving letters—in my case, for years. Elderly men and women have written to me time and again saying, "We have lived together for 40"— 903 or 50—"years. Before we meet our Creator, can we not ever regularise our union?" Then there is the question of the 100,000 to 200,000 illegitimate children born of cohabitive unions—born in that way because, from enmity, spite, neurosis, or from questions of financial security, their parents have never been able to get married. After decades of discussion it is high time that this House
§ made a bold decision and decided that the divorce laws of this country should be changed.
§ Mr. Peter M. Jackson (The High Peak) rose in his place and claimed to move, That the Question be now put.
§ Question put, That the Question be now put:—
§ The House divided: Ayes 165, Noes 64.905
|Division No.42]||AYES||[4.0 p.m.|
|Abse, Leo||Griffiths, Rt. Hn. James (Llanelly)||Owen, Dr. David (Plymouth, S'tn)|
|Albu, Austen||Hamling, William||Owen, Will (Morpeth)|
|Alison, Michael (Barkston Ash)||Haseldine, Norman||Page, Derek (King's Lynn)|
|Allason, James (Hemel Hempstead)||Hastings, Stephen||Paget, R. T.|
|Allen, Scholefield||Hattersley, Roy||Palmer, Arthur|
|Archer, Peter||Hay, John||Parker, John (Dagenham)|
|Astor, John||Heifer, Eric S.||Parkyn, Brian (Bedford)|
|Atkinson, Norman (Tottenham)||Henig, Stanley||Pavitt, Laurence|
|Barnes, Michael||Hilton, W. S.||Perry, Ernest G. (Battersea, S.)|
|Bell, Ronald||Hobden, Dennis (Brighton, K'town)||Price, Christopher (Perry Barr)|
|Bidwell, Sydney||Hooley, Frank||Price, William (Rugby)|
|Blaker, Peter||Hooson, Emlyn||Quennell, Miss J. M.|
|Blenkinsop, Arthur||Hordern, Peter||Rees-Davies, W. R,|
|Bossom, Sir Clive||Horner, John||Reynolls, G. W.|
|Boyden, James||Houghton, Rt. Hn. Douglas||Ridley, Hn. Nicholas|
|Boyle, Rt. Hn. Sir Edward||Howie, W.||Roberts, Gwilym (Bedfordshire, S.)|
|Braine, Bernard||Huckfield, Leslie||Robinson, Rt.Hn.Kenneth(St.P'c'as)|
|Bray, Dr. Jeremy||Hughes, Emrys (Ayrshire, S.)||Robinson, W. 0. J. (Walth'stow, E.)|
|Buck, Antony (Colchester)||Hynd, John||Rodgers, William (Stockton)|
|Butler, Herbert (Hackney, C.)||Irvine, Sir Arthur||Roebuck, Roy|
|Butler, Mrs. Joyce (Wood Green)||Jeger,Mrs.Lena(H'b'n&St.P'cras,S.)||Rogers, George (Kensington, N.)|
|Cant, R. B.||Jenkins, Hugh (Putney)||Rowlands, E. (Cardiff, N.)|
|Castle, Rt. Hn. Barbara||Johnson, Carol (Lewisham, S.)||Ryan, John|
|Channon, H. P. G.||Jones,Rt.Hn.Sir Elwyn(W.Ham.S.)||Scott-Hopkins, James|
|Chapman, Donald||Kenyon, Clifford||Sharples, Richard|
|Corbet, Mrs. Freda||Kerr, Dr. David (W'worth, Central)||Shaw, Arnold (Ilford, S.)|
|Cronin, John||Langford-Holt, Sir John||Sheldon, Robert|
|Dalyell, Tam||Lestor, Miss Joan||Shore, Rt. Hn. Peter (Stepney)|
|Darling, Rt. Hn. George||Lewis, Arthur (W. Ham, N.)||Short, Mrs. Renée(W'hampton, N.E.)|
|Davidson, Arthur (Accrington)||Lipton, Marcus||Silkin, Rt. Hn. John (Deptford)|
|Davies, Ednyfed Hudson (Conway)||Lloyd, Ian (P'tsm'th, Langstone)||Silkin, Hn. S. C. (Dulwich)|
|Dewar, Donald||Luard, Evan||Silverman, Julius (Aston)|
|Diamond, Rt. Hn. John||Lubbock, Eric||Silvester, Frederick|
|Dickens, James||Lyon, Alexander W. (York)||Sinclair, Sir George|
|Digby, Simon Wingfield||Lyons, Edward (Bradford, E.)||Skeffington, Arthur|
|Dobson, Ray||MacDermot, Niall||Smith, John|
|Dunwoody, Mrs. Gwyneth (Exeter)||Macdonald, A. H.||Spriggs, Leslie|
|Ellis, John||McKay, Mrs. Margaret||Stewart, Rt. Hn. Michael|
|Emery, Peter||Mackie, John||Strauss, Rt. Hn. G. R.|
|English, Michael||Macleod, Rt. Hn. Iain||Swingler, Stephen|
|Ennals, David||Marquand, David||Tapsell, Peter|
|Evans, loan L. (Birm'h'm, Yardley)||Maxwell, Robert||Taverne, Dick|
|Fisher, Nigel||Maxwell-Hyslop, R. J.||van Straubenzee, W. R.|
|Fletcher, Ted (Darlington)||Mayhew, Christopher||Vickers, Dame Joan|
|Foot, Michael (Ebbw Vale)||Mikardo, Ian||Weatherill, Bernard|
|Ford, Ben||Miscampbell, Norman||Weitzman, David|
|Forrester, John||Molloy, William||Whitaker, Ben|
|Fowler, Gerry||Morris, Alfred (Wythenshawe)||White, Mrs. Eirene|
|Fraser, John (Norwood)||Moyle, Roland||Willey, Rt. Hn. Frederick|
|Freeson, Reginald||Mulley, Rt. Hn. Frederick||Williams, Alan Lee (Hornchurch)|
|Gardner, Tony||Munro-Lucas-Tooth, Sir Hugh||Wilson, William (Coventry, S.)|
|Gilmour, Ian (Norfolk, C.)||Murray, Albert||Winnick, David|
|Ginsburg, David||Newens, Stan|
|Goodhart, Philip||Nott, John||TELLERS FOR THE AYES:|
|Gray, Dr. Hugh (Yarmouth)||Oakes, Gordon||Mr. Peter M. Jackson and|
|Gregory, Arnold||Ogden, Eric||Mr. Daniel Awdry.|
|Atkins, Humphrey (M't'n & M'd'n)||Brinton, Sir Tatton||Deedes, Rt. Hn. W. F. (Ashford)|
|Bellenger, Rt. Hn. F. J.||Bullus, Sir Eric||Delargy, Hugh|
|Bennett, Dr. Reginald (Gos. & Fhm)||Burden, F. A.||Doughty, Charles|
|Biggs-Davison, John||Crowder, F. P.||Elliot, Capt. Walter (Carshalton)|
|Black, Sir Cyril||Cunningham, Sir Knox||Errington, Sir Eric|
|Fraser,Rt.Hn.Hugh(St'fford & Stone)||Jennings, J. C. (Burton)||Price, David (Eastleigh)|
|Giles, Rear-Adm. Morgan||Lane, David||Rodgers, Sir John (Sevenoaks)|
|Clover, Sir Douglas||Legge-Bourke, Sir Harry||Rossi, Hugh (Hornsey)|
|Goodhew, Victor||Lever, L. M. (Ardwick)||Russell, Sir Ronald|
|Grant, Anthony||Longden, Gilbert||St. John-Stevas, Norman|
|Gresham Cooke, R.||McAdden, Sir Stephen||Summers, Sir Spencer|
|Grieve, Percy||Mahon, Simon (Bootle)||Taylor, Sir Charles (Eastbourne)|
|Griffiths, Eldon (Bury St. Edmunds)||Maude, Angus||Teeling, Sir William|
|Gunter, Rt. Hn. R. J.||Mitchell, David (Basingstoke)||Thatcher, Mrs. Margaret|
|Hamilton, Michael (Salisbury)||More, Jasper||Wall, Patrick|
|Harris, Frederic (Croydon, N.W.)||Mott-Radclyffe, Sir Charles||Ward, Dame Irene|
|Harris, Reader (Heston)||Page, Graham (Crosby)||Wilson, Geoffrey (Truro)|
|Heald, Rt. Hn. Sir Lionel||Page, John (Harrow, W.)||Wood, Rt. Hn. Richard|
|Hiley, Joseph||Peel, John|
|Holland, Philip||Percival, Ian||TELLERS FOR THE NOES:|
|Hutchison, Michael Clark||Peyton, John||Mr. Marcus Worsley and|
|Iremonger, T. L.||Pike, Miss Mervyn||Mr. Martin Madden.|
|Irvine, Bryant Godman (Rye)||Pink, R. Bonner|
§ Question put accordingly, That the Bill be now read a Second time:—906
§ The House divided: Ayes 159, Noes 63.907
|Division No. 43.]||AYES||[4.8 p.m.|
|Abse, Leo||Griffiths, Rt. Hn. James (Llanelly)||Oakes, Gordon|
|Albu, Austen||Hamiing, William||Ogden, Eric|
|Alison, Michael (Barkston Ash)||Haseldine, Norman||Owen, Dr. David (Plymouth, S'tn)|
|Allason, James (Hemel Hempstead)||Hastings, Stephen||Owen, Will (Morpeth)|
|Allen, Scholefield||Hattersley, Roy||Page, Derek (King's Lynn)|
|Archer, Peter||Hay, John||Palmer, Arthur|
|Astor, John||Heffer, Eric S.||Parker, John (Dagenham)|
|Atkinson, Norman (Tottenham)||Henig, Stanley||Parkyn, Brian (Bedford)|
|Barnes, Michael||Hilton, W. S.||Pavitt, Laurence|
|Bell, Ronald||Hobden, Dennis (Brighton, K'town)||Price, William (Rugby)|
|Bennett, Dr. Reginald (Gos. & Fhm)||Hooley, Frank||Quennell, Miss J. M.|
|Bidwell, Sydney||Hooson, Emlyn||Rees-Davies, W. R.|
|Blaker, Peter||Hordern, Peter||Renton, Rt. Hn. Sir David|
|Blenkinsop, Arthur||Horner, John||Reynolds, G. W.|
|Bossom, Sir Clive||Houghton, Rt. Hn. Douglas||Ridley, Hn. Nicholas|
|Boyden, James||Howie, W.||Roberts, Gwilym (Bedfordshire, S.)|
|Boyle, Rt. Hn. Sir Edward||Huckfleld, Leslie||Robinton,Rt.Hn.Kenneth(St.P'c'as)|
|Braine, Bernard||Hughes, Emrys (Ayrshire, S.)||Robinson, W. O. J. (Walth'stow, E.)|
|Bray, Dr. Jeremy||Hynd, John||Rodgers, William (Stockton)|
|Buck, Antony (Colchester)||Irvine, Bryant Godman (Rye)||Roebuck, Roy|
|Butler, Herbert (Hackney, C.)||Jeger,Mrs.Lena(H'b'n&St.P'cras,S.)||Rogers, George (Kensington, N.)|
|Butler, Mrs. Joyce (Wood Green)||Jenkins, Hugh (Putney)||Rowlands, E. (Cardiff, N.)|
|Cant, R. B.||Johnson, Carol (Lewisham, S.)||Ryan, John|
|Castle, Rt. Hn, Barbara||Jones,Rt.Hn.Sir Elwyn (W.Ham.S.)||Scott, Nicholas|
|Channon, H, P. G.||Kenyon, Clifford||Sharples, Richard|
|Chapman, Donald||Kerr, Dr. David (W'worth, Central)||Shaw, Arnold (Ilford, S.)|
|Corbet, Mrs. Freda||Langford-Holt, Sir John||Sheldon, Robert|
|Cronin, John||Lestor, Miss Joan||Shore, Peter (Stepney)|
|Davidson, Arthur (Accrington)||Lewis, Arthur (W. Ham, N.)||Short, Mrs. Renée (W'hampton,N.E.)|
|Davies, Ednyfed Hudson (Conway)||Lipton, Marcus||Silkin, Rt. Hn. John (Deptford)|
|Dewar, Donald||Lloyd, Ian (P'tsm'th, Langstone)||Silkin, Hn. S. C. (Dulwich)|
|Diamond, Rt. Hn. John||Luard, Evan||Silverman, Julius (Aston)|
|Dickens, James||Lubbock, Eric||Silvester, Frederick|
|Digby, Simon Wingfield||Lyon, Alexander W. (York)||Sinclair, Sir George|
|Dobson, Ray||Lyons, Edward (Bradford, E.)||Smith, John|
|Dunwoody, Mrs. Gwyneth (Exeter)||MacDermot, Niall||Spriggs, Leslie|
|Ellis, John||Macdonald, A. H.||Stewart, Rt. Hn. Michael|
|Emery, Peter||McKay, Mrs. Margaret||Strauss Rt. Hn. G. R.|
|English, Michael||Mackie, John||Swingler, Stephen|
|Ennals, David||Macleod, Rt. Hn. Iain||Tapsell, Peter|
|Fisher, Nigel||Marquand, David||Taverne, Dick|
|Fletcher, Ted (Darlington)||Maxwell, Robert||van Straubenzee, W. R.|
|Foot, Michael (Ebbw Vale)||Maxwell-Hyslop, R. J.||Vickers, Dame Joan|
|Ford, Ben||Mayhew, Christopher||Weatherill, Bernard|
|Forrester, John||Mikardo, Ian||Weitzman, David|
|Fowler, Gerry||Miscampbell, Norman||Weitzman, Ben|
|Fraser, John (Norwood)||Molloy, William||White, Mrs. Eirene|
|Freeson, Reginald||Morris, Alfred (Wythenshawe)||Williams Alan Lee (Hornchurch)|
|Gardner, Tony||Moyle, Roland||Wilson, William (Coventry, S.)|
|Gilmour, Ian (Norfolk, c.)||Mulley, Rt. Hn. Frederick||Winnick, David|
|Ginsburg, David||Munro-Lucas-Tooth, Sir Hugh|
|Goodhart, Philip||Murray, Albert||TELLERS FOR THE AYES:|
|Gray, Dr. Hugh (Yarmouth)||Newens, Stan||Mr. Peter M. Jackson and|
|Gregory, Arnold||Nott, John||Mr. Daniel Awdry.|
|Atkins, Humphrey (M't'n & M'd'n)||Hamilton, Michael (Salisbury)||Peel, John|
|Bellenger, Rt. Hn. F. J.||Harris, Frederic (Croydon, N.W.)||Percival, Ian|
|Biggs-Davison, John||Harris, Reader (Heston)||Peyton, John|
|Black, Sir Cyril||Heald, Rt. Hn. Sir Lionel||Pike, Miss Mervyn|
|Brinton, Sir Tatton||Hiley, Joseph||Pink, R. Bonner|
|Bullus, Sir Eric||Holland, Philip||Price, David (Eastleigh)|
|Burden, F. A.||Hutchison, Michael Clark||Rodgers, Sir John (Sevenoaks)|
|Crowder, F. P.||Iremonger, T. L.||Rossi, Hugh (Hornsey)|
|Cunningham, Sir Knox||Jennings, J. C. (Burton)||Russell, Sir Ronald|
|Deedes, Rt. Hn. W. F. (Ashford)||Kerr, Mrs. Anne (R'ter & Chatham)||St. John-Stevas, Norman|
|Delargy, Hugh||Lane, David||Summers, Sir Spencer|
|Doughty, Charles||Legge-Bourke, Sir Harry||Taylor, Sir Charles (Eastbourne)|
|Elliot, Capt. Walter (Carshalton)||Lever, L. M. (Ardwick)||Teeling, Sir William|
|Errington, Sir Eric||Longden, Gilbert||Thatcher, Mrs. Margaret|
|Fraser,Rt.Hn.Hugh(St'fford & Stone)||McAdden, Sir Stephen||Wall, Patrick|
|Giles, Rear-Adm. Morgan||Mahon, Simon (Bootle)||Ward, Dame Irene|
|Glover, Sir Douglas||Maude, Angus||Wilson, Geoffrey (Truro)|
|Goodhew, Victor||Mitchell, David (Basingstoke)||Wood, Rt. Hn. Richard|
|Grant, Anthony||More, Jasper|
|Gresham Cooke, R.||Mott-Radclyffe, Sir Charles||TELLERS FOR THE NOES:|
|Grieve, Percy||Page Graham (Crosby)||Mr. Marcus Worsley and|
|Griffiths, Eldon (Bury St. Edmunds)||Page, John (Harrow, W.)||Mr. Martin Madden.|
|Gunter, Rt. Hn. J.|
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).