§ Order for Second Reading read.
§ 11.4 a.m.
§ Mr. Iain MacCormick (Argyll)
I beg to move, That the Bill be now read a Second time.
I suppose that there are times when an hon. Member who is lucky in the Ballot for Private Members' Bills has genuine doubt and worry about what to do and what subject to raise. I was afflicted with that doubt for only a very short time, because it quickly became apparent to me, especially since I was the only Scottish Member to be lucky in the Ballot, that I did not have much alternative. I had to seek to introduce a measure that was genuinely necessary and important and that would affect the whole of Scottish society.
I did not have to look very far. The issue was there in the shape of divorce law reform, a matter which has been raised many times over the past few years.
Having made up my mind and decided to raise this subject, I was quick to find support not only from hon. Members in my own party but, I am glad to say, from hon. Members of all the other parties representing Scottish constituencies, who gave me their encouragement. Having found that support, I was also very pleased to have the constructive assistance of the Scottish Law Commission in preparing the Bill, for which I must thank especially Mr. Niall Whitty who was of great help to me in explaining a complex issue about which until then I knew very little.
I have immense sympathy for those hon. Members and others outside the House who have serious moral objections 768 to divorce, and I am sure that outside this Chamber one could have a lengthy discussion about the moral theology of the matter. But, as legislators in this Chamber, we are not here to go into that kind of moral theorising. This is an issue which affects people basically. One of the most moving experiences that I have had since becoming a Member has been to receive correspondence from all corners of Scotland, all of it, with the exception of one or two letters, from people desperately keen to see the divorce law of Scotland changed.
I have received letters from people living in the depths of misery and, in their view, in the depths of deprivation because of the strictures of the present law. I think, for example, of the poor woman who wrote to me saying that she had been married for many years to someone whom she described as "a drunken monster" and whom she had been forced to leave. She wrote to me, knowing that it was only a year or two before she passed the age of child bearing, saying "Please do something to help me get married again so that I may have the possibility of bringing up a family."
That is the kind of situation that we are discussing today when we debate the reform of Scotland's divorce law. We are not here to theorise or to indulge, rather like medieval philosophers, in an argument about moral theology. We are here to deal with the problems of a growing number of people.
I must make it clear that in no sense does this Bill seek to break up marriages. That is not its aim, and I hope that no one will represent that as being its aim. The aim of the Bill is to make provision for those whose marriages have already broken up and who are no longer married in any meaningful sense. I hope to be able to refer to that later in my speech.
For the benefit of hon. Members who have not had the chance to go through the Bill as carefully as I have, perhaps I may explain the situation as it is presented in the Bill. I have said already that in recent years there have been other attempts in this House to change the divorce law of Scotland. In another place, equally, there have been attempts. Lord Selkirk's Bill completed its passage through the other place yesterday and 769 presumably is now on its way here, if it has not arrived already. Perhaps for the benefit of hon. Members I should make the point that Lord Selkirk's Bill was exactly the same as this Bill.
There have been eight attempts since 1970 to change the divorce law in Scotland. There is at least one hon. Member present today who was responsible for introducing one of those Bills not many years ago, namely, the hon. Member for Aberdeen, North (Mr. Hughes). No doubt several others will be present later. While those unsuccessful attempts were being made by Scottish Members, more successful attempts were being made elsewhere.
Not only has there been a change in the law in England and Wales, but in other Commonwealth countries the law has been reformed—in New Zealand and Canada in 1968, Nigeria in 1970, Jamaica and Tanzania in 1971, Ghana, Trinidad and Tobago and Hong Kong in 1972, St. Lucia in 1973, and Australia in 1975. Those countries share a similar heritage to that of Scotland and England. There has been divorce reform in recent years in several European countries—for example, in France and Italy. A measure similar to this Bill is under way in Western Germany. We are therefore talking not simply about Scotland going it alone and breaking new ground but catching up in this important respect with many other countries, not least England and Wales.
I should like to deal with the clauses in the Bill in view of the importance of the change which we hope to effect. The main changes are effected by subsections (1) and (2) of Clause 1. Subsection (1) provides that the sole ground on which divorce may be granted in future will be that the marriage has broken down irretrievably. However, irretrievable breakdown is not in itself, legally speaking, a triable issue. Subsection (2) sets out five fact situations from which alone irretrievable breakdown is to be inferred. Three correspond to the old matrimonial offences of adultery, cruelty and desertion. In addition, breakdown is to be inferred by a two-year separation if both spouses give positive consent to the divorce and five years' separation if one spouse unilaterally seeks divorce.
770 There might be logical quibbles about the juxtaposition of irretrievable breakdown with something which corresponds to the old matrimonial offences, but let us not be too theoretical. Let us bear in mind that for ordinary people it is necessary to have the two together—the idea of irretrievable breakdown and the idea that the other fact situations comprise irretrievable breakdown. Various criticisms may be made, but they have little content and we should, as reasonable legislators, reject them.
First, the Bill codifies with amendments not only the main existing statutory grounds for divorce of cruelty and desertion but the common law ground of adultery introduced by the Scottish courts as long ago as the 1560s, which has never been a statutory offence, though it has been much modified by statute.
We therefore have in the Bill for the first time a comprehensive statutory code of the main rules of the substantive law of divorce in Scotland—a measure which in itself considerably simplifies the statute book. In this situation, it seems right that the unifying principle which underlies all the factual situations justifying divorce should be clearly stated and emphasised in the Bill. That is what subsections (1) and (2) of Clause 1 achieve, and if they explicitly recognise a modern and humane justification for the retention of the old grounds of divorce in Scots law, I do not see why people should complain.
Secondly, it can hardly be doubted that if the pursuer goes to the trouble of raising a divorce action relying on the defendant's adultery, behaviour justifying non-cohabitation, or desertion, the marriage can be said to have irretrievably broken down. The Scottish Law Commission made that point in paragraph 6 of its Report, which reads:Every action of divorce is now brought because a marriage has irretrievably broken down, though not on the ground of the breakdown. Marriage being, as a minimum, a partnership, it is enough that one partner maintains irretrievable breakdown for the breakdown to be a fact, however strenuously and sincerely it may be denied by the other partner. It is hardly possible to explain the motives of a sane pursuer who petitions the court to dissolve a marriage which in his view is still viable. Whoever was to blame (or if no one was to blame), however disgraceful the conduct of either of the partners may have been 771 (of if one virtuous person has merely got tired of another), the litigation demonstrates that there is one partner who has decided that the partnership must be dissolved. This is the rationale of the application to the court.Later the Report states:The pursuer determines the fact of the breakdown by refusing to forgive a 'matrimonial offence' or to overlook incurable insanity; the court will, as a general rule, dissolve the partnership if, and only if, the specified event it proved to have occurred. The court does not enquire whether there has been irretrievable breakdown; the raising of the action would, if such enquiry were called for, be sufficient evidence of thatIt follows that in all the situations specified in paragraphs (a), (b) and (c) of Clause 1(2) we can be sure that irretrievable breakdown has occurred. It does not always follow that a divorce will be granted on proof of those facts.
Public policy requires the retention of certain defences, such as connivance, in case parties encourage each other to commit adultery to avoid the two-year minimum period which is stipulated in Clause 1(2)(d). Public opinion would also insist that something more than the mere fact of litigation was required to infer irretrievable breakdown. There are other reasons, but chiefly for those reasons we should reject the argument that it is inconsistent to fuse together the old matrimonial offences and the new principle of irretrievable breakdown.
I wish briefly to examine the main provisions of the Bill. The five fact situations are set out in Clause 1(2) and all provide concrete evidence additional to the fact of litigation that the marriage has irretrievably broken down. Clause 1(2)(a) provides that irretrievable breakdown is to be inferred from proof of the defender's adultery. Some may argue that it is not possible to infer irretrievable breakdown from a single act of adultery as opposed to a continuous adulterous association. Clause 1(2)(a), however, is based on the view that the choice must be left to the aggrieved spouse. As the Morton Report said:he may feel that it would be impossible to resume married life with his adulterous spouse after the commission of one act of adultery.Moreover, it would hardly be right to prescribe in a statute specific minimum acts of adultery which would justify divorce.
§ Clause 1(2)(6) preserves the defender's "cruelty" as one of the "facts" from 772 which breakdown is inferred, but avoids use of the label with its implications of malice and culpability which, even under existing law, are no longer appropriate. People will no longer defend divorce actions unnecessarily to avoid being branded as "cruel".
§ Clause 1(2)(c) retains the Scottish concept of desertion with the modification that the prescribed period is reduced from three years to two years. Unlike English law, the prescribed period is reckoned forward from the initial desertion, as it has been since 1573, instead of backwards from the raising of the action, as it is in England and in paragraphs (d) and (e) of Clause 1(2). Clause 1(2)(c) resolves a much litigated doubt, which an Act of 1964 failed to resolve, about whether the pursuer must be willing to cohabit throughout the prescribed period. The pursuer need not be willing to cohabit throughout the two-year period, but he or she must have been so willing at the initial desertion and must not have refused within that period a genuine and reasonable offer to resume cohabitation.
§ Clause 1(2)(d) and (e) bring about the major practical changes in the law. Separation becomes a fact from which breakdown is irrebuttably presumed. The two-year period under paragraph (d) applies where both of the parties positively agree to the divorce. Where the defender refuses his consent, the period is increased to five years.
§ It must not be thought that Clause (1)(2)(d) introduces divorce by consent. It is just as much the period of separation as the consent itself which raises the inference of breakdown. The period in Clause 1(2)(e) is shorter because the consent of both spouses gives additional evidence of breakdown. Paragraph (e) enables the spouses to obtain divorce without resort to arranged adultery, perjured evidence, gross misrepresentation of the other spouse's conduct and other subterfuges about which the lawyers amongst us will know a great deal more than myself.
In Scotland about 95 per cent. of divorces are undefended. If both parties want a divorce they will obtain one. That was recognised some 20 years ago by the Royal Commission on Marriage and
Divorce. Paragraph 70, a much quoted passage, reads:
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.
§ Since 1954 the annual divorce rate has risen from 2,270 or thereabouts to over 7,000. It would seem that the comments of the Morton Report are even more valid today. Clause 2(1)(d) will enable a married couple to obtain a divorce openly instead of by subterfuge. Clause 1(4) enables the Court of Session to make rules of court allowing the defender to indicate his consent to the court in writing.
§ Clause 1(2)(e) is more controversial, and arguably makes a more important change in the law. It provides that after five years' continuous separation the marriage can be dissolved at the insistence of one spouse despite the objections of the other. The paragraph will allow many stable illicit unions to be recognised, and permit the innocent children of such unions to be legitimated by their parents' subsequent marriage. I think that all hon. Members will agree that that is one of the most sad aspects of the existing law. The divorce figures to which I have referred suggest that there will be a growing problem if nothing is done.
§ Clause 1(2)(e), as read with. Clause 1(5), is based on the view that, if irretrievable breakdown is established, the marriage should be dissolved, even though one party does not consent, but only if grave financial hardship is not caused to that party. This latter safeguard is provided by Clause 1(5), under which the defender may oppose the grant of decree on the ground that a decree would cause him—or more probably her—grave financial hardship. This safeguard gives the maximum possible protection. Where a 774 husband sets up home with the other woman, and, as often happens, finds that he cannot afford to maintain both households, financial hardship already exists. A subsequent divorce can hardly increase that hardship. The only likely effect is that it may deprive the wife of a widow's pension.
§ Clause 1(5) represents the most that can be done in the Bill to protect a wife divorced against her will from the loss of a prospective widow's pension. In a minority of cases where the husband has substantial capital assets, the court can grant the wife an increased capital sum under Clause 5. Other solutions may be possible, but it would seem premature to anticipate the forthcoming report of the Occupational Pension Board, which, I understand, is examining the topic as part of a wider remit to promote sex equality in occupational pension schemes. Its report is expected within the next two or three months.
§ Clause 2 is designed to encourage the reconciliation of parties who might be involved in divorce proceedings. Clause 2(1) enables the court to adjourn an action to enable the possibility of reconciliation to be explored. Subsections (2) to (4) facilitate reconciliation by enabling parties to come together for trial periods of limited duration without the pursuer losing the right to obtain a decree of divorce if the attempt fails.
§ Clause 2 achieves about as much as can be achieved by mere legislative rules to promote reconciliation. I understand that many will be disappointed that the Bill does not go further in that direction, but in considering the clause three points must be borne in mind. First, the best way to promote reconciliation is by developing the marriage counselling services provided by voluntary organisations, and perhaps the local authority social work departments. The Government already give grants to the Scottish Marriage Guidance Council and the Scottish Catholic Marriage Advisory Council, although it is a shock to learn, as I did yesterday, that well over £1 million is spent on legal aid for divorce in Scotland while the Scottish Marriage Guidance Council received only £7,120 in the year 1974–75. Local authorities give grants and assistance in kind by making premises available to such organisations.775
§ Second, none of the things that might be done to promote reconciliation requires legislation. The Morton Report and the Morrison Committee, which reported on the Probation Service in 1962, both considered that Scottish probation officers should undertake marriage counselling. It was considered that legislation to enlarge the function of the Probation Service would be needed, but with the introduction in 1971 of generic social work and the assumption by regional councils under the Social Work (Scotland) Act 1968 of a general duty to promote social welfare, this legal barrier seems to have been removed. The Bill is therefore silent on this point.
§ Third, Clause 2 does not take account of the important new distinction which has been drawn in the past two or three years between reconciliation, meaning the reuniting of husband and wife, and conciliation, meaning assisting the two parties to deal with the consequences of the established breakdown of the marriage by helping them with such ancillary issues as finance and custody of the children. This may be effective during divorce proceedings when attempts to reunite the spouses are not. It is perhaps time that more attention was devoted in Scotland to ancillary issues conciliation, but here again legislation does not seem to be necessary.
§ Clause 4—this is very important—brings the law on judicial separation into line with the new law on divorce, upon the view that judicial separation is best regarded as a lesser form of divorce for those such as myself who have moral or conscientious objections to divorce.
§ Clauses 5 to 7 deal with the financial aspects of divorce and with aliment. Clause 5 enables the court to make orders, on or after divorce, awarding financial provision in cash by periodical allowances or capital sums, or varying the ante-nuptial or post-nuptial settlement. The main change is effected by Clause 5(1), which re-enacts the pursuer's right to apply for financial provision. More important, for the first time it gives the defender a similar right. The latter change is possible consequential on the introduction of irretrievable breakdown.
§ When an insane person is divorced under Clause 1(2)(b) or Clause 1(2)(e), or when a wife is divorced against her will, under those provisions, he or she 776 should be allowed to apply for financial provision. But Clause 5(1) effects an improvement to the existing law, which seems desirable quite apart from any change in the existing grounds for divorce. Under existing law, a wife may be technically guilty of a matrimonial offence and yet not be wholly or mainly responsible for the breakdown of the marriage. For example, she may have been deserted by her husband and, because of loneliness, have committed adultery in the course of a passing affair before the expiry of the three-year period. It is right that she should be able to claim financial provision if she was not mainly responsible for the breakdown of the marriage.
§ Clause 6 re-enacts existing judicial powers to prevent evasion of claims for financial provision on or after divorce, and extends the scope of those powers to the protection of claims for aliment during marriage.
§ Clause 7 amends the power of the court to award aliment during marriage. It will enable a wife to claim aliment where the parties are living apart by agreement to obtain a divorce under Clause 1(2)(d). It gets rid of the requirement that the wife must be either willing to adhere or have reasonable cause for living apart, but it gives an "innocent" husband a defence if he changes his mind and wishes to take her back.
§ The guiding principle adopted in the Bill has been to make only such changes to the existing law of financial provision and aliment as are necessary following the amendments to the grounds of divorce effected by the earlier part of the Bill. Further improvements in this sphere are no doubt necessary, but I do not regard the present Bill as an appropriate vehicle for making wide-ranging changes in this technical field. I understand that the Scottish Law Commission is about to publish, in March or April, a detailed consultative memorandum on aliment and financial provision and intends to consult interested bodies throughout Scotland on their proposals for reform.
§ These are the main points of the clauses. I stress that I do not regard them as having been framed simply to make Scots law the same as English law on this subject, though that has been 777 one of the criticisms levelled at me personally in the weeks leading up to my introducing the Bill. The facts of history demonstrate that this cannot be the case. For upwards of 300 years Scots law was ahead of the divorce law in England and elsewhere. Since 1560 Scots law has allowed divorce on the ground of adultery, without distinction whether the man of the wife was pursuing the case. Again, since 1560 divorce has been available in Scotland by judicial decree. It was not until the mid-nineteenth century that such advantages were available under the law of England.
Professor A. C. Holden, of Otago University, New Zealand, in a booklet referred to:
factors such as the leavening of Scots in every State, familiar with a more liberal divorce tradition.
He was comparing that situation with Commonwealth countries such as New Zealand.
§ Whatever the opponents of this measure may think, it does not represent a retreat from an unyielding and fundamentalist Scottish attitude on the subject. On the contrary, it allows Scots law to recover what it has recently lost—namely, leadership in a sensible civilised approach to divorce.
§ The Bill introduces positive and forward-looking requirements. I referred earlier to some of the abuses which the Bill should remove. I mentioned arranged adultery, perjured evidence, gross misrepresentation of the other spouse's conduct, and similar subterfuges. I wish to address my concluding remarks to that aspect of the Bill.
§ Opposition to the Bill is often expressed in the following way: "If you change the present divorce law, you will challenge the stability of family life, and hence the fabric of society itself". In the first place, we are not trying to attack family life but seeking to make provision for situations where family life has already ceased to exist. I do not think there is any valid objection in that respect.
Secondly, there is a danger involved in the present position. The danger lies in the fact that if the law is not observed and people go to great lengths to circumvent its provisions, that in itself
is a danger to society. I conclude by quoting Lord Cooper, one of the greatest defenders of Scots law and Scots legal traditions this century. He said:
Unless a system of law and legal administration is maintained in a state of high efficiency and allowed to develop freely… the rule of law in that country will inevitably languish; and it will be the ordinary citizen who is the victim.
§ Mr. Deputy Speaker (Sir Myer Galpern)
Before calling the next speaker, I must tell the House that I am in some difficulty in trying to maintain a balanced debate. Of those who wish to catch my eye, I do not know who are in favour and who are against. Therefore, I hope that any hon. Member who wishes to take part in the debate will let me know on which side he seeks to argue, and in that way I hope to maintain a balanced discussion.
§ 11.36 a.m.
§ Mr. Robert Hughes (Aberdeen, North)
I should like to begin by congratulating the hon. Member for Argyll (Mr. MacCormick), first, on his good fortune in the Ballot and, secondly, on his great personal courage in steering this Bill through the House. I have seldom heard a non-lawer deal with a legal Bill in such a competent fashion. I know from experience how difficult it is to present these legal difficulties and complexities in a manner recognisable to the layman.
In the past four or five years there has been a great change in the climate of opinion in Scotland on divorce. There is today a much greater understanding of what is involved and of the kind of human difficulties we seek to remedy by producing such a Bill. Therefore, I was delighted when the hon. Gentleman asked me to consent to be one of its sponsors.
In 1971 I had similar good fortune in the Ballot and brought forward a like Bill. I hope that this afternoon we shall see a much different result, because my efforts and those of my sponsors were unsuccessful: otherwise we should not be discussing this legislation today. In 1971 we could not obtain all-party support. This Bill has the support of every political party in Scotland represented in this House.
We must recognise, as was emphasised by the hon. Gentleman, that divorce was 779 recognised in Scotland far earlier than in any part of the United Kingdom and even before the United Kingdom was in existence. It is often said in discussions that Parliament is insensitive to public opinion. I am not sure that that is true. It may be that what happened in 1971 reflected public opinion at that time; public opinion may not have been ready for a change. Indeed, I had many letters at the time to the effect that Scotland by that measure would merely be hanging on England's coat tails. My correspondence has now changed. Its tone now is to the effect that it is wrong that England should have advantages denied to Scotland. It is a curious anomaly flowing from separate legal systems.
There is widespread support for the changes proposed in the Bill. People recognise that we are dealing with human frailty and difficult human relationships. In such circumstances no law can lay down how people should behave. One can have moral values and believe that within the marriage institution couples should behave in the best spirit, but no law can ever regulate human relationships.
I have had heart-rending letters from people who have lived apart from their spouses for 30 years and who have been unable to form any other stable relationship because of great moral considerations. They have had great reservations about "living in sin" while still being married and often refuse to have anything to do with divorce.
It is often said that by seeking reform of divorce law we are making it easier for divorce to happen and are guilty of a fundamental attack on the institution of marriage. The hon. Member for Argyll has made it perfectly clear that from his standpoint there is no question of any attack on the institution of marriage. It may well be that one thing that comes out of the Bill is a strengthening of the institution of marriage.
The law as it stands is that one act of adultery can lead to divorce. It also means that where there is a possibility of a reconciliation, people often have to proceed quickly to divorce, because if they salvage the marriage and it breaks down later, if they try to use that act of adultery as a cause for their action, they are asked why it is that after all this time 780 they find that particular action so bad that they cannot possibly live together. It may be that in that respect we shall get a strengthening of marriage.
§ Clause 2 recognises the need for reconciliation. It is as well to face this, because an hon. Gentleman may say later that Clause 2 is simply window-dressing and means nothing. It may well be that by the time a divorce reaches the courts the marriage has split asunder so badly that reconciliation is impossible. The fact that reconciliation is possible means that when people are beginning to think about a divorce—when they go to their solicitors and when they are in difficulty—reconciliation will begin at that early stage. It does not begin when a case reaches the courts—that is only the end product.
§ It is impossible and unrealistic to expect that we can compel a marriage that has obviously broken down to be reestablished. There is no way in which we can force people to live together if they genuinely desire, after perhaps years of dreadful experience, not to do so. We certainly should do the institution of marriage no good whatever if we tried to perpetrate a fiction, or if we said that all we should be concerned about were the trappings of marriage and a little certificate. That does not build a marriage—it is simply a recognition in law that a marriage exists.
§ If we are to help people in Scotland to live together and to re-establish their lives out of what is often great personal tragedy when marriage breaks down, we should give the Bill our wholehearted support. I hope that the House will give it a Second Reading.
§ 11.43 a.m.
§ Mr. T. G. D. Galbraith (Glasgow, Hillhead)
I congratulate the hon. Member for Argyll (Mr. MacCormick) on his good fortune in the Ballot and also on his courage, despite many reservations because of his religious views, in giving us this opportunity to discuss the vexed question of how a marriage should be dissolved. I can scarcely think of a matter more worthy of discussion in this House. Last Session, however, simply because we would not agree to the Bill going through without debate, the hon. Member for Western Isles (Mr. Stewart) and myself were subjected to a degree of 781 arm-twisting and attempted character assassination at the instance of the hon. Member for Edinburgh, East——
Mr. Robin F. Cock (Edinburgh, Central)
It was Edinburgh, Central.
§ Mr. Galbraith
I apologise to the hon. Gentleman. The hon. Member for Western Isles and myself were subjected to a degree of arm-twisting and attempted character assassination at the instance of the hon. Member for Edinburgh, Central (Mr. Cook) which I would not have believed possible of a Member of this House to other hon. Members had I not experienced it myself.
I realise that our procedure, particularly on Fridays at 4 o'clock, is not very clear to the public. One professional man—I believe he was a solicitor—wrote to me complaining because I had not explained why I was opposed to the Bill. However, the whole trouble last Session was that no hon. Members could give their views either for or against the Bill.
I want to make a suggestion through you, Mr. Deputy Speaker, on this aspect of the matter. It would be preferable if hon. Members who were not willing to allow a Bill to go through "on the nod"—as I certainly was not willing for this Bill or any other Bill of this nature and character to go through "on the nod"—were to shout "Debate" rather than "Object", because a debate is all that an hon. Member can demand.
§ Mr. Deputy Speaker
The hon. Gentleman has made an observation that the procedure at 4 o'clock is not clear. It is abundantly clear according to the present Standing Orders. The hon. Gentleman suggests an alteration to the procedure, which is entirely different.
§ Mr. Galbraith
I believe, Mr. Deputy Speaker, that you and I agree. My phraseology might not have been clear but neither is our procedure clear to the public. It is perfectly clear to hon. Members, but some hon. Members sometimes make use of the fact that it is not clear to the public. It was in order to avoid that difficulty that I made the suggestion. I realise, Mr. Deputy Speaker, that you are not the proper authority to whom such a suggestion should be made. Nevertheless, I wanted to ventilate my view that at 4 o'clock we should say 782 "Debate" if we do not wish a Bill to go through "on the nod", because by the rules of this House a debate is all that an hon. Member can demand.
As for the remarks of the hon. Member for Edinburgh, East——
§ Mr. Galbraith
Yes, Edinburgh, Central. I am sorry, I got it wrong again. However, at least I got the right side of the country. I naturally understand the hon. Gentleman's enthusiasm for his Bill and his feeling that the end justified any means to secure its passage. I am sure that the hon. Member for Aberdeen, North (Mr. Hughes) and the hon. Member for Fife, Central (Mr. Hamilton), who is absent at present, felt exactly the same sense of frustration in the past, yet they accepted the situation without comment and I am sure that they were wise to do so.
We are present in this House not to question each other's motives or to seek to denigrate perfectly respectable arguments on purely personal grounds. If we are to do our job properly, we must examine carefully and critically, as well as sympathetically, in accordance with our own view of what public interest requires, whatever proposals are put before us.
That was what Burke meant when he said that hon. Members offered their judgment. It is the unfettered expression of that personal judgment which alone gives this place its value. I hope that the House will not think I am unduly stuffy in saying that, but I am sure that if we can approach the Bill in a spirit of mutual regard, if not of actual agreement, we shall, even in this highly emotional and apparently contentious matter, be living up to the noblest traditions of Parliament and be serving our country well.
Having got that off my chest, I turn, with good humour and fairness, I hope, to the Bill. The hon. Member for Argyll has wasted a great opportunity. If there is to be any justification for a separate Scottish legal system, we should look at each problem with fresh eyes and not simply follow what is done in England. It is especially ironic that the hon. Gentleman, who is a member of the Scottish 783 National Party, should be so barren of ideas of his own that all he can do is to imitate an out-of-date and imperfect Act of the English. [Interruption.] I cannot understand why hon. Members laugh. Surely we can do better than that for Scotland if we try. After all, it is eight years since the English debated the matter in two Second Reading debates and 26 sittings of the Committee. I hope that in that respect we shall not attempt to do better than the English. Yet not only has no advantage been taken of the English experience during this period, but people in Scotland have been led to expect something entirely new and revolutionary.
Marital breakdown, we are told, is now to be the only ground for divorce. That sounds very advanced. At the same time it sounds rather nice and comforting, because no one has the least idea what it means. However, like so much else that is offered by the Scottish Nationals, almost nothing new will happen in practice. In confirmation of that view I refer to my predecessor as Member of Parliament for Glasgow, Hillhead, the distinguished Scottish judge Lord Reid. He gave it as his opinion in the debates on the English Bill—and today's Scottish Bill is largely a copy of that—that there would be almost no change and that the old grounds for divorce would still have to be proved. Lord Simon, during the Committee stage of the Bill in another place, said that the Bill would work just as well if a completely nonsensical word such as "abracadabra" were inserted in place of "marital breakdown". I ask the hon. Member for Argyll to try it. He will find that it is quite true.
The Bill is thus a bit of a sham. The old accusatorial confrontation is to be retained, the public hearing of what is essentially a private and personal matter is to continue and the demeaning queues in Parliament House are to be allowed to grow longer. Despite all the publicity about a new era of civilised kindness—"civilised" was the word that the hon. Gentleman used in his speech—nothing is done to introduce a more humane procedure.
§ Mr. Galbraith
The hon. Gentleman really must wait and let me develop my argument. I have given him some grounds on which I hope that he—and he is a very advanced, progressive fellow—will seek to get amendments into the Bill which will remove this dichotomy, this dual approach, which is part of the trouble of what is wrong with it.
I was saying that despite all the publicity there will not be a more humane procedure. Nor is it even likely that relief will be brought to more than a tiny number who are unable to obtain it under the existing laws. The rocketing rise in the number of divorces is proof of how productive the present system is.
The only real change introduced by the Bill is that those who are unwillingly held to a marriage will now be able to get out of it after five years of living apart. That is the only real change. Unfortunately I did not hear the whole of the speech of the hon. Member for Aberdeen, North, but I think that this is what he was instancing. Here we always have instanced the case of the man who has left his wife, set up home with another woman and had a family but who cannot, without the co-operation of his wife, marry again and so legitimise his children. That is what we are always told. I believe that this problem would be better solved by getting rid of the whole concept of legitimacy. It is out of date. It does not belong to the present day. That is how that aspect of the problem should be dealt with.
However, leaving that aspect on one side, what one discovers as a result of this change is that, while the right to repudiate can bring relief to one partner, it often brings sadness to the other, so that the total of human happiness is not increased. This is what so often happens with well-intentioned reforms. In helping one class of person, we damage another class. Who is to say who is the more meritorious or deserving of our 785 sympathy? Is it the woman, ageing and alone, and after a lifetime of loyal devotion divorced against her will, or is it the man, happily coupling each night with a new and more alluring partner?
The hon. Member for Aberdeen, North may laugh, but this is a situation that occurs time and again. I have no doubt that it is the deserted party who most deserves our sympathy—and who until now has obtained it, because until now marriage has been regarded as a contract. The present tendency, however, which the Bill recognises in this respect, but not throughout and everywhere, is to regard marriage as a relationship and not a contract.
§ Mr. Galbraith
I wish that the hon. Member for Renfrewshire, West (Mr. Buchan)—I hope I have got his constituency right—would stop making his interventions. I am trying to make a serious speech. If the hon. Gentleman feels as he appears to feel, let him leave the Chamber and go into the lavatory and express himself there.
However sorry we may feel, therefore, for the pathetic figure of the repudiated spouse, under the Bill we must sadly accept that a marriage relationship which is not a mutual and voluntary relationship is not a marriage at all. That is the great change that the Bill introduces. Perhaps it is not spelt out in the Bill as clearly as it might be. There are various elements of the older attitude which are inappropriately retained and which I hope that the hon. Member for Renfrewshire, West will endeavour to remove, such as the requirement to prove adultery or cruelty. However, the essence of the change introduced by the Bill is to remove the structure of contract as the support of marriage and to regard marriage as a willing human relationship depending for its permanence not on contractual obligations, as in the past, but simply on personal volition. I do not think that that, by itself, is sufficient.
Human nature is essentially frail, and if the structure of contract is to be removed something else must be put in its place as a support, otherwise I am afraid that the permanence of marriage, with all its social values, particularly the upbringing 786 of children, will become even less secure than it is today. The growing number of divorces shows how fragile it is already. We are almost up to the 10,000 mark—or, at any rate, we shall be if the Bill is passed. This growth is not due solely to a change in social attitudes, which now regard as acceptable conduct which previously was unacceptable.
Another reason, I believe, is that a generation or so ago, when a marriage was in difficulty, support for the continuance of the relationship was often found in the influence of the Church or the attitude of other members of the family, as well as in the social outlook of those days. I have no doubt that because of those influences many marriages which were in no sense real unions continued. But I have equally no doubt that many other marriages, which under present conditions would quickly come to grief, were then, because of that support from the family, the Church and the social conditions of the day, helped through the period of crisis and thereby saved from avoidable disaster.
It is in this respect that the proposals in the Bill are utterly deficient. Doors are to be opened and divorce is to be made easier. There is nothing necessarily wrong in that, but by itself the opening of doors is not enough. A spiritual vacuum is created in which there is no help, no guidance, no encouragement or no sense of obligation—just freedom to walk out, which may not be what is really required in every case. Therefore, in the present social climate many divorces may take place which might have been avoided if the necessary support was made available when the relationship first came under strain.
I am informed by Dr. Jack Dominian, who is a recognised authority on the problem of marriage breakdown and whose book I advise those such as the hon. Member for Argyll to read, that the salvage figure could be as high as 30 per cent. if help were given in the right way and at the right time.
The concept which I have in mind is quite different from the reference to reconciliation in the Bill, which will achieve precisely nothing and which is more an exercise in public relations than a serious attempt to grapple with the problem of reconciliation. The Bill, in 787 fact, is a charter for peace after war, when what is really needed is a procedure which may prevent a misunderstanding escalating into war. On the international scene great efforts are made to prevent such escalation taking place, so why should we not make the same efforts on the home front?
Divorce is no longer just a matter that concerns individuals. It involves the whole community now far more than ever before. An avoidable breakdown in the relationship between a husband and wife is always immensely sad. Always children lacking either a father or a mother in the home—not nearly enough has been said about children, and I hope that in Committee the hon. Gentleman will say something about that subject—suffer a sense of deprivation.
But no longer are these simply, as they were before, personal disasters. As the number of single-parent families grows, so also the burden of subsidising an increasing divorce rate mounts all the time. Already it costs approximately £300 million each year to support single-parent families, and this is before the implementation of the recommendations of the Finer Committee, which will greatly augment this figure. Therefore financial prudence, as well as the claims of human happiness, point to the need for something far more creative than just the "open door" proposals in the Bill, in imitation of the English.
I should like to see Scotland a pioneer in this field. I hope that the many Scottish National Party Members here will follow me and will make this Bill into something which will enable Scotland to be a pioneer in this field, pointing the way to something better, more humane, less legalistic in approach and more constructive in results.
What I have in mind is an organisation based on the Finer Committee's concept of the family court, or family centre as I prefer to call it. I realise that the right hon. Lady the Secretary of State for Social Services has said that the Government cannot afford this for England, and I accept that, but why not try out the idea for Scotland? Surely the whole justification for a separate legal system and a separate administration is that in Scotland we can carry out experiments at a fraction of the cost for the country as a whole. Then, if the 788 idea works, it can be applied to the rest of Britain; and if it does not work we can try something else.
In contrast to this concept of a family centre, under the Bill as it is now drafted the disenchanted party may still have to prove adultery—the hon. Member for Argyll admitted that—and still have to twist innocent facts in order to prove cruelty. How much better and cheaper my idea would be. Think of the savings in legal fees, now getting on for £1½ million a year. The hon. Member for Argyll gave a figure of £1 million but I think that it is getting on for £1½ million. How much better it would be if all the irrelevant facts no longer required to be proved and if the disenchanted spouse were able to go to the family centre instead of visiting a solicitor. I would remind the House that solicitors are like soldiers. They are skilled in offensive and defensive tactics rather than in the problems of emotional conciliation—I use the hon. Gentleman's own words.
How much better if, instead of visiting a solicitor, the disenchanted spouse could go to the familiar family centre, which is used all the time by the community for all sorts of family purposes, and could there state informally and privately that she wanted a divorce. This fact would be noted, and from that moment the two-year period or whatever it was—I would prefer it to be a little longer—would start to run. There would be no need to allege adultery, to prove cruelty or even to leave home as the Church of Scotland's scheme unnecessarily requires. All that would be needed would be the simple statement, confirmed every three months, that one did not wish the marriage to continue. That would be only the first step.
Then the social workers would offer their services. I should like to make consultation with them mandatory, though perhaps that should apply only where there were children. Two years would thus be available for reviewing the situation, and that would be a far better way of helping and strengthening marriages than the present accusatorial system because, as I say, once the parties get into the hands of lawyers they are in their slit trenches.
Reconciliation and the saving of marriage would be only one aspect of the work. Preparing the parties to face up 789 to the consequences of divorce would be equally important. It is one thing to want a divorce; it is quite another thing to accept it without shock when it has taken place. While divorce may end the marriage relationship, where there are children a new parental relationship is required, which is particularly difficult for the former marriage partners to adjust to without help because of its unnaturalness.
To sum up this is not a very honest Bill. I am sorry to say so, because the hon. Gentleman made a good speech. Nevertheless, it is not a very honest Bill. It pretends to introduce a new humanity and it ends up for the most part with the old accusatorial situation. As Lord Dun-park has said, the Bill is trying to ride two horses at the same time by paying lip service to irretrievable breakdown while retaining the existing matrimonial offences as evidence of that breakdown. I urge, instead of this mixed bag of high-sounding phraseology and unnecessary recrimination, that the mere passage of time should be the deciding factor—the passage of time combined with the repeated confirmation at regular intervals of the desire to end the marriage, the passage of time during which the social services, if they do not save the marriage, could at least provide the divorce, particularly if there were children, with a better start.
In divorce, as in marriage, expectations do not always accord with reality, and both marriage and divorce require a period of preparation if adjustment to the new status is to be successful. The provision of this help I regard as the most hopeful safeguard for the sanctity and preservation of marriage. Admittedly, to set up such an organisation would be a difficult job for a private Member to undertake. But why should the Government stand aside in such a vital issue as this? It is not as if moral matters of this sort are always left to private Members. I see that the Under-Secretary of State has what I would call a Mona Lisa smile. That is what people think it is but in reality it is simply the ministerial smile. It means nothing at all. I have seen it many times. I can almost see the hon. Gentleman getting the excuses ready and saying that moral matters of this sort are always left to private Members. Lord Butler's Street Offences Bill which re- 790 moved prostitutes from the street is a good example of the Government acting in a moral area when they thought it was socially desirable to do so.
Let the Government—the hon. Member for Argyll and I can now join together and attack the Government—show a sense of responsibilty. What is wanted in a progressive society is not only a mortuary for dead marriages but a curative hospital service for sick marriages and even a preventive service that may help to eliminate the trouble at the start, just as inoculation has largely rid us of diphtheria. We also need the provision of a research service that will identify the cycle of emotional deprivation which, as my right hon. Friend the Member for Leeds, North-East (Sir K. Joseph) illustrated a few years ago, so often lays the seed in one generation that causes marital failure in the next generation.
Let us by all means open the gate in the interests of personal freedom, but let us also show ourselves to be a caring and responsible society by providing at the same time the help, support and understanding without which that freedom will be a sham, bringing neither stability to marriage nor happiness to those who need it most.
§ 12.12 p.m.
§ Mr. Robin F. Cook (Edinburgh, Central)
It gives me genuine pleasure to follow the hon. Member for Glasgow, Hillhead (Mr. Galbraith). I remember all that passed between us in the House 12 months ago and the 10 successive occasions on which he objected to these proposals on the ground that the Bill required a debate. I only hope that when those who were concerned about the delay which has been caused come to read today's Hansard they will feel that the 12-month delay was worth while.
I am sorry that the hon. Gentleman felt obliged to begin by raking over the coals of what happened last year. I confess that over the past 12 months I have acquired considerable affection for the hon. Gentleman, which perhaps can be likened to the way that Milton in the course of "Paradise Lost" came to have considerable affection for the Prince of Darkness. One always ends up with that kind of symbiotic relationship with one's opponent. Nevertheless, despite that affection, I confess that I cannot agree with 791 much of what the hon. Gentleman has said. I should like to deal with one or two of his comments which, in my view, attacked the Bill unfairly and without foundation.
As I recollect, the hon. Gentleman drew a vivid contrast between the deserted and lonely wife left at home and the husband who divorced her after five years, having left her to cohabit every night with a younger woman. Frankly, such a situation exists only in fantasy. If the hon. Gentleman visits the Library and consults the figures for England, where there has been such a provision for a number of years, he will find that last year more women than men resorted to the five-year clause. The fact is that women often find themselves in the situation where they are totally innocent of the marriage breakdown but in the eyes of the law they are guilty.
I recollect that 12 months ago, when I tried to introduce a Bill, I received a large number of letters from women in Scotland who were precisely in that position. They had left their husbands because of cruelty and neglect and often because of battering. Like many women who are battered, they concealed the fact that they were being cruelly treated by their husbands, and they were ashamed to let their friends and relatives know about it. Therefore, there was no evidence and there were no witnesses to the fact that they had been ill-treated. When they left their husbands it was said that it was they who had deserted. In the eyes of the law they were guilty and, therefore, they were unable to obtain divorce under the present provision of the Scottish law.
I have letters from people who have been separated from their husbands for 10 or 11 years without succeeding on any grounds to get a divorce. It is nonsense to suggest that these women are in any way to blame for the situation they are now in. I believe that to try to import the whole question of guilt or innocence into the breakdown of what is not a fixed or written contract with subsections and footnotes but is a human relationship, is perhaps a rather false and archaic way of viewing the situation.
The hon. Gentleman also referred to single parents. It goes without saying that every social worker must be extremely concerned about the growth in 792 the number of single parents. However, I counsel the hon. Gentleman not to pin the blame solely on the divorce laws. A high proportion of single-parent families are not divorced and do not intend to seek divorce.
I should like to revert to the Finer Report. It is a pity that the hon. Gentleman did not inform the House that the Finer Report, at great length and in a full chapter, argued the need for reform of the Scottish divorce laws because the present state of the law leaves the woman, who is generally the single parent who lives with the children, in an extremely weak position to enforce her legal rights, especially in connection with the collection of maintenance payments. I am sure that, if hon. Members reflect on some of the cases which they have dealt with at their surgeries, they will agree that there is a clear and compelling need to improve the Scottish law of diligence and the enforcement of these payments.
If we mention to the Scottish Law Commission that the present situation is inadequate and that most women cannot enforce maintenance payments and if we ask it what can be done, it will say that until it knows the future of the Scottish divorce law it: cannot introduce a law of diligence. It will say that reform has first to be introduced.
It is of sincere regret that the House, by delaying the move towards reform of Scottish divorce law, has in turn delayed a move concerning the enforcement of maintenance payments which could reduce the cost of £300 million to which the hon. Gentleman referred.
I turn to the comments of the hon. Member for Argyll (Mr. MacCormick). I congratulate him on the disinterested way in which he put what he conceived to be a Bill of importance to the nation before his own personal scruples. He also deserves to be wholeheartedly and sincerely congratulated on the lucid manner in which he introduced the Bill. I only hope that by the end of the debate I shall also be able to congratulate him on having succeeded where so many other hon. Members have failed.
There is also a rather ironical aspect because, given his political views, the hon. Gentleman is introducing a Bill which essentially is designed to bring Scottish law into line with English law. The hon. 793 Gentleman dealt with that matter ably and well. I have discussed this matter with many people in Scotland who feel strongly that the law should be brought into line. Undoubtedly one of the prime impetuses for that feeling is the general sentiment that the law as it affects individuals within a united country, should be broadly comparable and similar. That is one of the main reasons why there is strong public feeling in favour of this reform. I am committed to preserving the unity of the country. I find that sentiment most encouraging and heartening.
The hon Gentleman was right to spell out that the case for reform is based not only on an argument for uniformity but on the argument that the present law is inadequate. If the Scottish law was adequate, no one would argue that we should change it simply for the sake of making it the same as English law. Indeed, I think that the hon. Member for Hillhead also agrees that the present law is clearly inadequate.
Some of the letters which I received last year were from individuals who had been separated from their husband or from their wife for over 20 years. In one instance I received a letter from a man who had been separated from his wife for 36 years without any prospect of divorce under the existing provisions of the law. It is preposterous that we provide no legal remedy for people in this position. I do not believe that we in any way weaken marriage by recognising that such a marriage is dead. On the contrary, we weaken marriage and make a mockery of it by pretending that a couple who have been separated for such an inordinate time are in any sense married. In fact, what we do when we insist on keeping such a couple married in name is to make the law appear an ass because it refuses to recognise what all who know the couple can see for themselves.
Moreover, as the hon. Member for Argyll underlined by his reference to making legitimate the products of illicit unions, we must remember that two-thirds of those who are divorced subsequently remarry. There is a paradox here in that, by easing the process of divorce, we increase the number of happy marriages rather than the reverse, because those who are divorced are then 794 able to marry other persons with whom they have subsequently formed unions.
However, I emphasise that the prime reason behind the need for this reform is not that it will make divorce easier for certain sections of the community. I do not believe that there is anything in that point. Indeed, I should be surprised if there were a substantial effect on the divorce rate as a result of the Bill. The figures for the increased rate of divorce over the past two or three years reveal the astonishing fact that there is substantial similarity between the increase in Scotland and that in England. There is no evidence whatever in the movement of the rate of increase in our two countries to show that it is a change in the law which results in divorce. What produces the increased rate of divorce is the changing nature of our society, the pressures which produce marital breakdown and so on. That is the real reason, and not the state of the law.
§ Mr. Galbraith
Would not the hon. Gentleman agree also that another factor contributing to the increase is that no support is given to marriages when they run into difficulty? Is it not a weakness of the Bill that it does not adequately deal with that side of the problem?
§ Mr. Cook
I readily agree that we wish to see more support given to those who find themselves in difficulty in their marriage and who wish to rescue it, but, if I may say so, the hon. Member for Argyll dealt with that very fully and ably. It is not fair to say that that aspect of the matter is not covered by the Bill. For example, the Bill would improve arrangements for conciliation and reconciliation. It would make it possible for people to come together on a trial basis in a way which is not open to them under the present law. Moreover, it would provide for the court, to some extent, to try to achieve reconciliation, though I am sceptical about whether that is the best way of achieving it.
If the hon. Member for Hillhead is seeking an expansion of facilities for marriage counselling and reconciliation, the best place for that is not in a Bill to reform the law of divorce. It is a quite separate matter. If I may add a personal view here, I suggest that one is starting at the wrong end of the stick if one thinks of trying to save marriages by changing 795 the law of divorce or, on the other hand, by failing to change the law of divonce. One is not starting early enough even in the provision of counselling when a marriage runs into difficulties. We ought to look at the very beginning, since the truth is that, if we want to increase the number of happy marriages, we can best do it not by making divorce more difficult or keeping the law as it is but, I suggest, by making it just a little less easy for people to get married in the first place.
It is an enormous paradox that our society is removing pretty well every constraint against getting married. It is extremely easy now for people to get married quickly, and perhaps without adequate preparation, only to find thereafter that divorce, the other side of the coin, is far more difficult and can be undertaken only with the help of lawyers. I agree entirely with what the hon. Member for Hillhead said about lawyers.
§ Dr. Jeremy Bray (Motherwell and Wishaw)
I am sure that my hon. Friend will pursue in Committee the important and interesting points which he has made, but I wish to put a question to him before he leaves the subject of the relative increase of divorce in Scotland as compared with England. This is a matter which I have discussed with him, and I wonder whether he will inform the House of the relative proportion of divorces in Scotland, which is, I think, somewhat lower than that in the United Kingdom, and is, therefore, a relevant factor in our consideration of what can be done for conciliation and reconciliation.
§ Mr. Cook
My hon. Friend is quite right. The rate of divorce in Scotland is slightly lower than that in England. It is not as low as it used to be, but it is none the less still lower. However, it is worth noting that during the past two years the rate of divorce in England has more or less levelled off—there has been very little increase over the past two years—whereas, as we all know, the rate of divorce is showing a dramatic upsurge in Scotland, and if that trend continues, with or without reform of the law, we shall quickly reach the crossover point. However, I do not use that as an argument against reconciliation, as I know my hon. Friend will at once accept.
796 The prime argument for reform is not that it would make divorce easier for any particular section but that it would make divorce more civilised for all who are involved. Here I take up a point made by the hon. Member for Hillhead when he rightly criticised the Bill for still retaining references to adultery, cruelty and desertion. It retains those references not as instances or proof of guilt but as criteria for marital breakdown. This is a meaningful distinction, and the hon. Gentleman underestimated its nature.
Morevover, the Bill does more than simply introduce, as the hon. Gentleman suggested, the five-years' separation clause. It introduces in addition the two years' separation clause, and, as we know from experience in England, there are many people who would like to go for the two-years' separation even where other grounds exist. They prefer that route for personal reasons which are readily understandable, since it provides a simple and straightforward method of achieving divorce without the parties needing to accuse one another of sin and guilt, and without the need for them to make public what went wrong in a marriage relationship which, of course, always remains an intensely personal thing.
That is an important feature of the Bill—in my view, probably the most important—and I can tell the House, having spoken over the past 12 months to many couples who have been through the process of divorce in the courts, that I have yet to find one who felt satisfied that the law had worked well and provided a dignified and appropriate end to what had once been an intimate personal relationship. The Bill goes some way towards meeting that need.
Since there seems to be wide agreement on the principles of the Bill, I hope that the House will forgive me if I turn now to what may be regarded as a Committee point. In my view, it is time we laid down a marker as to jurisdiction of the High Court in divorce matters. I believe that it is time we started to consider whether many minor divorce cases, if I may so call them, could be devolved—we are living in a time of devolution—to the sheriff courts. I am sure that my hon. Friend the Under-Secretary will 797 be sympathetic to the case for devolution.
For my part, I am not yet convinced of the case for such a change. I admit that the High Court has an expertise which is worth retaining, and there are also pragmatic arguments in present circumstances, since the sheriff courts are already overburdened with work. Moreover, I am not impressed with the argument that such a change would make the process cheaper, since my suspicion is that the legal profession will always manage so to manipulate the fees that it will cost the same.
Nevertheless, I am moved to ask why anyone in any part of Scotland who wants a divorce—whether in Aberdeen, in the other side of the country or even in the islands—has to come to my constituency to get it. It does not seem to make any sort of a priori sense.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
Will the hon. Gentleman acknowledge, however, that many people in distant parts of the country prefer to have their divorce heard in Edinburgh rather than in their local community?
§ Mr. Cook
I accept that entirely, but I am sure that it is not true of everybody living in Glasgow or, for that matter, in Aberdeen. I should not wish to make it compulsory that all who live in Lerwick, Stornoway or other remote parts should have to go to the sheriff court, where inevitably there would be greater local publicity, but I think that the option should be there, certainly for those who live in the more heavily populated parts in the West of Scotland.
There is no particular logic in carrying through such a reform as part of a change in the nature of the law, and in any event it would impinge heavily on Government administration since the Government are concerned directly and centrally in the running of the courts. However, as I say, I think it important to put down a marker in this Second Reading debate so that the matter may be considered further, either in Committee or on Report, and it would be helpful to know the Government's thinking on the question.
It is my firm impression, having spoken to many hon. Members and to people 798 outside the House, that there is a broad consensus behind the Bill. There is no question but that the Bill moves along lines supported by public opinion and supported by all the organisations involved in the divorce law. Without doubt, the House should give it a Second Reading.
I acknowledge some of the criticisms made of the Bill by the hon. Member for Hillhead, and I wish in no way to suggest that it will be a perfect reform, that it will be a reform immutable for all time or that change will not be required 20 years from now. Obviously, all law relating to personal matters of this kind has to move with the nature of society, and I readily acknowledge that one decade or two decades hence this House or a Scottish Assembly will have to reconsider the position. None the less, there is no doubt that the Bill represents public feeling now. It will make a modest and sensible improvement in the divorce law which will be of assistance to many people in Scotland who find themselves caught up in marital breakdown, and I earnestly hope that the House will give to the Bill today the Second Reading which it ought to have had long ago.
§ 12.30 p.m.
§ Mr. Hector Monro (Dumfries)
My brief comments will be made easier because of the clarity with which the hon. Member for Argyll (Mr. MacCormick) presented his Bill. Those who find themselves in trouble with their marriage would do well to read what the hon. Member said, because he set out with great fairness what his Bill seeks to do and the changes that are contemplated within the proposals.
I have no pleasure in listening to a debate on a subject of this nature or in contemplating the results that may flow from the Bill. I hope that an increase in divorce that might stem from the proposals will not be substantial. I accept that there are a number of cases where divorce is merited under the proposals and that we should approve of divorce where marriage has been broken down for years and where no steps to end it can be taken under the existing law.
I believe firmly and sincerely that one should not lightly take the vows of the marriage ceremony or those of civil contract. To do so would be totally against my instincts. I fear that the 799 Bill might reduce the solemnity and meaningfulness of marriage and subsequently the importance of bringing up children. If all things were equal, I would not approve of making divorce easier than it is at present, but, as with almost everything that we discuss in the House, all things are never equal. Year by year and decade by decade, resistance to moral principles and the acceptance of the permissive society become more prevalent. I was a little disappointed that the hon. Member for Argyll said that the Scots started it all in the sixteenth century. Today I am talking in terms of the world and not particularly of the United Kingdom.
Law and order, homosexuality, abortion and marriage have all been the subject of change in the last 10 to 12 years. I begin to wonder when we shall call a halt and stand on the principles in which people believe and for which they have respect. The pass has been sold long go in this matter. The English Act has now been in force for some years. It is ludicrous to have one law for England and Wales and another for Scotland. Although people can change their domicile, it is not always easy to do so and it can be expensive. It is possible for Scots men and women to move to England and eventually obtain a divorce under the existing law.
At one time the English, and others from the Continent, went to Gretna Green to be married, but now even the advantage of being married in God's country has gone and there is no need to go to Scotland to be married. The Scots are now going to England to obtain a divorce. The differential between Scotland and England in terms of marriage and divorce should not exist, and I am glad that it has been removed for marriage. It is therefore illogical to continue the existing situation.
On practical rather than on moral grounds I must accept that the Bill should proceed, and I do not intend to oppose it. But I accept the Bill with a heavy heart.
The hon. Member for Argyll and my hon. Friend the Member for Glasgow, Hillhead (Mr. Galbraith) have clearly staled what the Bill will do. My hon. Friend the Member for Hillhead has pointed out the deficiencies which, in his view, must be improved or considered 800 in detail in Committee. I am not actually volunteering to serve on the Committee, but I am sure that through amendments proposed by the Bill's promoter, its opponents or the Government the Bill will emerge in a form which will merit general respect in Scotland. We shall then have parity throughout the United Kingdom on an important moral issue. As the hon. Member for Edinburgh, Central (Mr. Cook) said, we are in the long term perhaps legislating more for happy marriages than for the sad circumstances of divorce.
I do not want it to be thought that in the future divorce will be easier to obtain or that the sanctity of marriage will be less important tomorrow than it is today, because I belive that we must uphold the moral principle of marriage more than ever before. This is a world in which we tend to break things down rather than hold firm to those principles which we regard as important. That is my message. I shall not oppose the Bill and I wish it well in Committee. It hope that it will emerge as a measure of which all Scots will be proud.
§ 12.37 p.m.
§ Sir John Gilmour (Fife, East)
I echo some of the words of my hon. Friend the Member for Dumfries (Mr. Monro). Like him, when we debated the matter in 1971 I was against making a change in the divorce law. I have now changed my mind for much he same reasons as he has outlined. It is now easier for those with means to change their domicile than it is for the average citizen.
I am slightly worried because the Bill establishes the principle that the breakdown of marriage should be the reason for divorce, but in Clause 1 adultery is given as a reason for divorce. That is an anomaly and I wonder whether it is necessary. Perhaps that should be considered in Committee. While there is obviously a need to provide in the breakdown of marriage for contested and uncontested divorces, should we not be able to find some distinction between those marriages that break down also immediately after they have taken place as opposed to those that break down after a period of years?
I wonder whether those who have gone into matrimony for a second or third time after divorce should be dealt 801 with under the same provisions as those seeking divorce after matrimony engaged in only once. I hope that these matters can be considered in the Committee.
We should recognise that we are making considerable changes. My hon. Friend the Member for Glasgow, Hill-head (Mr. Galbraith) seemed to be saying that we were not. I looked up our last debate on this subject. The then Lord Advocate, now Lord Wylie, said:If this legislation gets on to the Statute Book it will so alter the whole basis of divorce law in Scotland that substantial changes in the rules of court would be involved, and the earliest date at which this legislation could operate would probably be 1st January, 1972."—[Official Report, 22nd January 1971; Vol. 809, c. 1514.]The Bill provides that the law should become operative three months after it gets on the statute book. I hope that the Minister will tell us how quickly the Bill could become law.
I emphasise again that if we gave any impression that we are cheapening marriage, that we were going to bring it into disrepute by this Bill, we should be doing a great disservice to the background of the family, which is the background of our civilisation. I hope that the Bill will get a Second Reading and that in Committee hon. Members will improve it and ensure that everything is done to preserve marriage rather than breaking it down.
§ 12.41 p.m.
§ Mr. Norman Buchan (Renfrewshire, West)
It would be churlish if I did not congratulate the hon. Member for Argyll (Mr. MacCormick) on the Bill. It is not unknown for me to spend a good deal of time in this House attacking members of the Scottish National Party, and that situation, unqualified, will remain a general principle. But it would be wrong not to congratulate the hon. Gentleman on his courage in bringing in the Bill, for I know his own position and his views. He has done a service to the House and to Scotland. Despite everything else, I am able to distinguish the individual from the principles and policy of the SNP.
One must say of the Bill, "About time". First, it is a bad situation in a single country without borders to have 802 different laws of divorce. Such a situation can be exploited in a way in which it should not be exploited. Secondly, Scottish law has in many ways in the past been more kindly. The hon. Gentleman referred to the 1560 law, which was in advance of the law of Europe and of England at the time. For example, it used the term which I prefer, "love child", to that of "bastard". Now in Scottish law we tend to use the term "bastard", but the "love child" of the old days was a kindlier and gentler term, symbolic of an attitude of Scottish law which is not so obvious today.
The hon. Member for Glasgow, Hill-head (Mr. Galbraith) referred to me. I do not want to cross swords with him, but he has it absolutely wrong when he accuses the hon. Member for Argyll of trying to replace the concept of a contract by the concept of a relationship. A marriage is either a relationship or it is nothing. The cruellest way to regard a marriage is to regard it as a contract. When I was a Minister at the Scottish Office, the hon. Member for Hillhead once said to me that we should have heavier penalties for crimes against property than for crimes against the person because, after all, a person was only an extension of property. I did not and do not accept that. Nor does the Bill. The Bill accepts that if a marriage does not have a relationship which will prosper, we cannot expect it to prosper merely because it is a contract.
§ Mr. Galbraith
The hon. Gentleman must have misunderstood me. I tried to say that marriage used to be regarded as a contractual relationship but that that was no longer the view of most people today, and that the Bill would change that contractual relationship of marriage into a personal volition relationship. There is no difference between the hon. Gentleman and myself, but I also said that, while that was the fundamental basis of the Bill, it still retained something of the old contractual features.
§ Mr. Buchan
The hon. Gentleman cannot say that the Bill ends regarding marriage as a contract while saying at the same time that it retains the contractual basis. It must be one or the other. The Bill says that there are aspects of statute law, which have either been associated with guilt or with innocence in the past, 803 which will of themselves give validity and proof on the question of irretrievable breakdown. That is where the alteration is taking place.
Yesterday, we saw some of the tragedy of having proof or otherwise of guilt dragged through the court in Edinburgh in distasteful proceedings involving a mother and others. Such a display is harmful to all involved and is of advantage only to the lawyers. I agree that it is ludicrous that people should have to travel to Edinburgh when they do not wish to do so and that it should have to be done at such a level of court. All that will be quite unnecessary if we can once establish that the basis of a marriage is agreement, and that the basis of a divorce should be the ending and irretrievable breakdown of that agreement. Far from cheapening marriage by putting it on that basis, the Bill enhances it. Marriage is cheapened only when it is seen as a contract and as binding. That is not real marriage. Marriage continues only, and is genuine only, in a true relationship.
I welcome the provisions for the encouragement of reconciliation. I do not know why the hon. Member for Hill-head attacked the hon. Member for Argyll on that matter, because the Bill goes out of its way for the first time to introduce the concept of reconciliation. It does it again in a rather gentle Scottish way by making sure that if things happen in the meantime they will not necessarily of themselves be taken as statutory proof that cohabitation, as it were, is continuing and must be taken as proof of no irretrievable breakdown. The hon. Member for Argyll has dealt with this aspect extremely well. He has recognised that a relationship is the basis for marriage and is solving the problem in a proper way by dealing with it in advance and in a continuing way.
Scotland will welcome this Bill. There are always shifts in public opinion. Previous attitudes have been that such legislation would leave the way open to the philanderer, but all that nonsense has passed. The Bill merely gives expression to, but does not go beyond, a convinced opinion that the law was an ass and had to be changed. The hon. Member for Argyll is assisting us to change it, and I thank him.
§ 12.49 p.m.
§ Mrs. Margaret Bain (Dunbartonshire, East)
As the sole woman sponsor of the Bill, I want to make some comments from the woman's point of view, concentrating on Clause 1(2)(e) and Clause 1(5).
The hon. Member for Glasgow, Hill-head (Mr. Galbraith) referred to the idea of the Bill being a Casanova's charter. That criticism was levelled against the English Act when it was going through Parliament. It was so described in another place. Presumably, this stemmed from the belief that the philandering husband would treat his wife like an old car and trade her in for a newer, more sinful model. But statistics do not bear out that pessimistic forecast about the English Act.
In 1971 and 1972 in England and Wales, more of the five-year desertion divorces were granted to husbands than to wives, but in 1973 and 1974 more were being granted to wives. In 1974, of 15,845 divorces granted for five-year desertion, 7,648 were to husbands and 8,197 were to wives. Therefore, it cannot be said that Clause 1(2)(e) is a Casanova's charter or that it discriminates against women or, indeed, against men. One of the aspects of the clause that I like is that an empty shell of a marriage can be buried without discrimination. On that basis, I welcome it.
§ Clause 1(5) is a financial safeguard. Wives are more likely than husbands to suffer financially from divorce. I am not just talking about the problems of ensuring the payment of ailment, although that is an immediate problem. Despite recent moves towards sex equality, particularly in employment, it is still women who stay at home and look after the family and the home. As a result, their employment pattern is chequered. They are less likely than men to be members of pension schemes or to have worked sufficiently long to guarantee that they will have a personal pension sufficient to support them in later life. Generally, women live longer than men, anyway, and the wife relies to a certain extent on her widow's pension being supplemented by a pension to which her husband has contributed. Therefore, understandable anxiety exists about the position under Clause 1(2)(e).805
§ Clause 1(5) writes in certain safeguards. However, three things must be stressed. Against the financial hardship of wives must be weighed the public interest in ending marriages which have irretrievably broken down, in legitimising the children of stable illicit unions, and in recognising reality.
§ Secondly, Clause 1(5) allows a court to refuse divorce if the financial hardship suffered by the wife would be grave. So if a wife is middle aged, has lost out in career promotion and is unlikely to be able to take up further employment, the court could refuse divorce on the basis that she would suffer hardship. I do not think that this clause would be used frequently by the courts, but it is an important safeguard.
§ I shall not mention many ways in which this could be operated. As my hon. Friend the Member for Argyll (Mr. MacCormick) stated, the Occupational Pensions Board is looking at the matter and we greatly hope that we shall have some ideas, if not solutions, from the Board by the time the Bill goes into Committee. I suggest, however, that the clause should be welcomed by women, because it goes as far as possible to safeguard them within the context of the Bill.
§ 12.52 p.m.
§ The Under-Secretary of State for Scotland (Mr. Harry Ewing)
I intervene briefly to indicate the Government's broad sympathy with the principles embodied in the Bill and to express the hope that the House will accord the Bill a Second Reading.
I also wish to join in the congratulations that have been tendered to the hon. Member for Argyll (Mr. MacCormick). One thing that I pride myself on is that I never withhold praise or credit where they are due. Today I do not withhold praise from the hon. Gentleman. I recognise the special difficulties which he faced in selecting a subject for legislation following his success in the Ballot. I mention three points from the hon. Gentleman's speech, not in a critical fashion—I mention one in a lighthearted fashion—but only because I think that they are worthy of mention.
It was strange that almost at the beginning of his speech the hon. Gentleman 806 said that the Bill "would affect the whole of Scottish society". I hope that is wrong and that the whole of Scottish society is not desperately waiting to take advantage of the Bill.
I enjoyed the way in which the hon. Gentleman, who is such a bulky figure whom I always admire, picked his way lightly through the allegation that he is bringing Scottish law into line with English law. I agree with my hon. Friend the Member for Edinburgh, Central (Mr. Cook) that the hon. Gentleman handled that point very well.
On a much more serious note, I must say that I was very concerned to hear the hon. Gentleman say that it was not the business of the House of Commons to concern itself in legislation with morals and ethics. I profoundly disagree. This is why I agreed so strongly with the profound speech of the hon. Member for Glasgow, Hillhead (Mr. Galbraith). I believe that hon. Members present today have the feeling that they are dealing with a Bill of which none of us will ever have to take advantage—in other words, we feel secure in the knowledge that our marriage and family background are, as far as we can be certain, secure.
Given that background, it is important to recognise the difficulties that were outlined by the hon. Member for Hillhead. I share the view that the position of children and the breakdown that occurs in family life should be paramount considerations in any thinking on the reform of divorce law. After the breakdown of a marriage, the husband and wife can adjust themselves, albeit over a period of time: they are adults and they can adjust; the damage is caused to the children.
So often on the subject of licensing law I say that I have believed throughout my life—it is not my intention to bare my breast today—that one of the greatest assets any nation can have is family life. That is why it is essential that we work very hard to preserve family life.
I recognise the genuine and helpful suggestions made by the hon. Member for Hillhead, particularly the suggestion that we should set up family centres to help marriages which are floundering but which could be saved. I am sure that the hon. Gentleman will recognise my difficulties in replying to that suggestion off the cuff. However, I say without qualification that the suggestion has a great deal 807 of merit and I am interested in it as a citizen.
The Bill raises sensitive issues on which there are opposing views cutting right across party lines, as has been evidenced by events in the past year. These views are sincerely held. I have never criticised any hon. Member for taking the opposite view to what I will describe as the popular view on the reform of the divorce laws.
The Government respect and recognise the views of those who feel that any relaxation of the divorce laws represents a weakening of the marriage bonds, but they believe that the present law, with its continuing emphasis on the concept of guilty and non-guilty parties, may not reflect the views of the majority of people in Scotland. This is why we are particularly pleased that the Bill provides an opportunity for the whole question to be debated fully and for an indication to be given of the extent of support for reform that exists in the House.
If the House chooses to give the Bill a Second Reading, the Government will discuss with the Opposition through the usual channels the provision of Committee time through the setting up of the Second Scottish Standing Committee. That is a commitment which I give the House.
A good deal was said about the need for reconciliation procedures, and this is a view which I share. It is an open question whether formal conciliation attempts, at whatever stage they may be applied, would have any really marked effect on the divorce rate. Conciliation was considered fully by the Finer Committee on One-Parent Families. The Committee said that it was not known whether the higher rate of divorce meant that more marriages were breaking down, or merely that more breakdowns were coming to court.
It also said that divorce might be being resorted to more readily because it was now more socially acceptable and because of the improvement in the status and earning capacity of women. The Committee recognised the limitations of the court of law in reconciliation and suggested that this was a rôle for the welfare services rather than for the courts, although it recognised that the kind of family court which is recom- 808 mended—and the hon. Member for Hill-head, laid heavy emphasis on this—would remain alive to any sign that any reconciliation was possible and would take steps, probably involving referral to an outside agency, which seemed most likely to procure it.
Many people, including me, take the view that to have the best chance of success reconciliation efforts must be started at a stage before any court action. It is generally accepted that once a court action has begun the attempts to effect a reconciliation are that much less likely to succeed. Therefore, the best known agencies for this kind of work are marriage guidance councils, which are fully accepted as appropriate referral agencies by social workers, general practitioners, health visitors and the Churches and, as the hon. Member for Argyll said, these councils receive grants from the central Exchequer and from the local authorities.
I turn to the financial provisions following a divorce. The Government are quite clear that it would be completely inappropriate to include in this Bill any measures of this kind at a time when the Scottish Law Commission is on the point of issuing a detailed consultative memorandum on this very subject.
Financial provision is tied very closely to the question of divorce, but it also raises questions which can be answered only after the most exhaustive study. That is the purpose of the Scottish Law Commission's forthcoming consultative document and as a Government we consider that it would be better to await the consultative document and then see how the matter evolves from there.
I now turn briefly to the likely effect of the Bill on the Legal Aid Fund. If the Bill becomes law, it is probable that there will be an increase in the divorce rate in Scotland. Realistically, we all accept that, certainly in the early years, there will be an increase in the divorce rate. This will lead to a corresponding increase in legal aid costs in those years. But it is just not possible to quantify accurately what those increased costs are likely to be. Again, we all accept that there will be an increase in demands on the Legal Aid Fund.
I deal finally with the substantive point raised by my hon. Friend the Member for Edinburgh, Central (Mr. 809 Cook) and others about the possibility of taking divorce actions from the High Court—the Court of Session—to the sheriff courts level. I do not deny that there are persuasive arguments in favour of having divorces in the sheriff courts. Whatever we may say about the legal profession, there is no doubt that it would be cheaper and that for many people it would be more convenient in terms of travel. These are accepted arguments. Again, there is no doubt about them. However, there are two practical aspects of the question which in the Government's view make it undesirable to have any change of jurisdiction as part of this Bill.
First, there is the important consideration that at a time of change it is clearly desirable that there should be some unity of interpretation based upon experience, and this points to the clear advantages, at least for the present, of leaving jurisdiction with the Court of Session. Secondly, there is the difficulty that to give jurisdiction to the sheriff courts would result in a substantial increase in the work loads of those courts which they would find it very difficult to absorb, and the Government woud not wish to place any additional load on the sheriff courts which would have a detrimental effect on their general efficiency.
As the Scottish Law Commission pointed out in its memorandum to the Finer Committee on One-Parent Families, the soundness and weight of the arguments for conferring divorce jurisdiction on the sheriff courts cannot be tested without detailed examination of those questions. Such an examination is likely to be successful only if a number of searching preliminary inquiries are carried out and if there is adequate consultation with those who know most about the Scottish judicial and legal system. The Government's view for the present, therefore, is that it would be wrong to include such a major change in this Bill, that being the transferral of divorce actions from the High Court to the sheriff courts, despite the two advantages that I indicated such a change would have.
The hon. Member for Fife, East (Sir J. Gilmour) asked whether it would be possible, as indicated in Clause 12(2), for the Bill to become operative three months 810 after it became an Act. I can advise the House that we have already warned the Court of Session of the rules that will have to be changed and the situation that will have to be met should the Bill become an Act. Therefore, we are confident that three months after the Bill becomes an Act the provisions of the new Act will become operative in Scotland and that there will be no difficulty in this respect.
I am sure that the hon. Member for Dumfries (Mr. Monro) summed up the feelings of us all. I do not think that any hon. Member takes any great pleasure from passing this legislation. Being politicians, we all realise and know the difficulties facing many families throughout Scotland because of the shape and form of our present divorce laws. Being realists, we accept also that those laws have to be brought up to date and modernised to take care of those difficulties.
But I am sure that I am expressing the wish of the whole House—certainly I am expressing my own wish—when I say that I hope that when this new legislation goes on the statute book it will not bring about a decline in social standards in Scotland. That is one pitfall that we must avoid at all cost. We all hope that this new divorce law will take care of the very difficult cases to which so many hon. Members have referred during this debate, but that we shall still prize and have uppermost the preservation of family life.
§ 1.8 p.m.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
I intend to make only a brief contribution to this debate, both because the arguments have been well debated already by the many hon. Members who have spoken and also because my voice, which is at present quavering, might disappear totally if I attempted to do otherwise.
I ought perhaps to begin by declaring an interest, having in the past few years participated in several hundred divorce actions in the Court of Session—I hasten to add not as a party, but as counsel for one or other of the parties concerned. I feel that the matters that we are considering today are of considerable importance both to the legal profession and to the public as a whole.
811 Clearly, the Opposition, like the Government and like all the other parties, take no official party view on this Bill. However, I know that I speak for all my hon. Friends when I say that we welcome this opportunity to debate the measure before us today.
I wish to pay a special compliment to my hon. Friend the Member for Glasgow, Hillhead (Mr. Galbraitht). He vindicated completely any suggestion that his opposition to previous measures was the result of any blind reaction and made it clear that it was because of his own very special belief that a more humane and sensible alternative could be put forward. His contribution today has been of profound importance in analysing the background to the subject of the breakdown of marriage and the priority which should be applied in considering what alternatives may be put forward for consideration by the House.
We must also be grateful to the hon. Member for Argyll (Mr. MacCormick), who has presented his Bill successfully and succinctly. It is ironic that a member of his party should have introduced the Bill, because it emphasises that in the sphere of personal laws, as in so many others, it is undesirable and unnecessary that we should have in this small island separate legal status for different members of our community.
In the past few years the consequences of a legal system for Scotland separate from that for England and Wales have led to the Scottish courts interpreting the criteria for awarding decrees much more flexibly than would ever have been the case in previous years. The courts have had to stretch the interpretation of statutes, and witnesses have had to stretch the presentation of their evidence. Clearly, that is unhealthy and undesirable. Because it concentrates not on artificial criteria but on the simple logical criterion of whether there has been an irretrievable breakdown of the relationship between the parties, the Bill presents a much more sound and sensible basis for determining the relationships between individuals.
Our greatest concern in Committee must be to deal with the financial considerations and the responsibilities of the court concerning the children of the marriage. Although adults can often adapt themselves to the changed circumstances created by divorce, if the matter 812 is not handled with humanity and sense the children may suffer lasting scars resulting in serious damage to them not simply through childhood but throughout their lives.
Though none of us would approve in principle allowing a marriage to be ended against the wishes of the person whom we consider to be the innocent party, if the parties have lived apart for up to five years it cannot be seriously argued that the marriage has done anything other than break down, and it cannot be in anyone's interest to perpetuate it for reasons of rigidity or because of the non-availability of evidence. Although it is often argued that the vast majority of people who wish to obtain a divorce can get one without difficulty, it has not been possible in a number of cases, not because the grounds have not existed, but because witnesses have not been available to speak to those grounds.
Many incidents in married life which cause breakdown take place only in the privacy of the home, with only the husband and wife being present. In Scotland, where, unlike England, corroboration is required to provide sufficient evidence to entitle the court to grant a decree, the non-availability of a second witness or of corroborative evidence has often led to a solicitor advising his client that, without perjured evidence, there would be no possibility of the court granting a decree. Although the court can adopt a flexible approach and help the pursuer to find evidence, if no evidence is available to corroborate a completely honest and trustworthy pursuer the court often, reluctantly, refuses a decree. We must solve this problem.
The Bill marks the end of a long struggle to enable the House to give due consideration to the merits of Scottish divorce law reform. I am sure that it will receive the approval of the House and that when it is enacted many people throughout Scotland will begin to bring together the tattered remnants of their relationship and build their lives in a way which will depend on the strength of the marriage ties and contract and not an artificial series of legal controls which have borne little relationship to the realities of their lives for many years. I give my full support to the Bill, and I am sure that the vast majority of hon. Members will do likewise.
§ 1.16 p.m.
§ Mr. George Reid (Clackmannan and East Stirlingshire)
I shall contribute only briefly to the debate, since seldom can there have been introduced a liberalising measure commanding such widespread, cross-party support among Scottish Members. I wish to make three points dealing with the delays and difficulties experienced in introducing previous Divorce (Scotland) Bills, the undue hardship and misery thereby caused to countless thousands of Scottish people, and ways and means of strengthening this measure to make it more comprehensive.
I congratulate my hon. Friend the Member for Argyll (Mr. MacCormick) on introducing the Bill and on his forensic skill in presenting his case. It is an open secret that when he won fourth place in the Ballot he agonised long and hard about what he should do. He has undoubtedly done the right thing. But should measures of this magnitude be dependent on luck in a lottery? If there has ever been a well established case for Scottish law being brought back to the Scottish people through the agency of a Scottish Parliament, it is the long and sorry story of six years' delay in introducing a measure such as this.
§ Mr. Robert Hughes
I hope that the hon. Member will include in his strictures the fact that in the past, especially in 1971, the delay was caused as much by the failure of Scottish Members to be present to carry through the measure as by anything else.
§ Mr. Reid
I accept that. Similarly, the English measure was passed only with the support of Scottish Members.
It is over six years since the divorce law was reformed for our friends and neighbours south of the border ending the medieval concept of the matrimonial offence, of "hotel divorces" and of people having to parade their innocence, guilt and sin before a judge. I am glad that England has achieved reform. But there is a curious paradox in that the Scottish attitude to divorce has traditionally been more liberal, with the reformed Kirk Sessions bringing in more humane divorce measures from the 1560s. Only now are we beginning to see a glimmer of hope at the end of the tunnel.
The tragedy of the last six years is that Scottish law may have been brought into 814 disrepute. Given the more flexible approach of some judges in the Court of Session, it is probable that thousands of Scots men and women have tended to misuse the law to achieve a divorce.
Some have committed adultery not because they wished to do so but simply to provide evidence for the other party. As the hon. Member for Edinburgh, Pent-lands (Mr. Rifkind) said at a Women in Media conference in Edinburgh, cases have gone to the High Court in which no matrimonial offence has occurred but one party was so desperate that he or she committed perjury, running the risk of serious punishment in the courts. Clearly, it is unsatisfactory that the law should drive people to taking such extreme courses of action to obtain their legitimate domestic rights.
Any hon. Member could quote from his mailbag of the past two or three months letters illustrating the great human suffering caused by the state of Scottish matrimonial law. I wish to refer to three people who have been to see me in my constituency during that time. Their cases are typical, although I shall give only thumbnail sketches of them. The first concerns a professional woman of 42 years of age who, 14 years ago, left her husband after 18 months, not of marriage, but of violence and abuse. She cannot remarry because her husband refuses her a divorce and has recently said that revenge is a dish which is better eaten cold. That is a situation which requires change.
The second example is the case of a youngish woman who deserted her husband some eight year ago after repeated violence in the home as a result of his excessive consumption of alcohol. Her nose was broken, her jaw was smashed and she was kicked when pregnant. But being a quiet Scots soul, she told neither relatives nor neighbours. Therefore, no corroboration was available in court. She endured her humiliation privately and so had no witnesses. That too must change.
The third example concerns a perfectly respectable man of 52 who after 26 years of marriage walked out. There was no violence in the home. The marriage had, he says, run its natural course. He claims that is was impossible for him and his wife to live together. It is a clear case of a marriage having broken down. The 815 man concerned has now moved to England, where he hopes to establish domicile. He intends to obtain a divorce in England and to remarry shortly.
Those are thumbnail sketches of cases which have come to my notice in my constituency, but they establish the reasons for a reforming measure being supported by the Church of Scotland, the Scottish Law Commission and the Law Society of Scotland.
Although I back the Bill, I have some reservations. I do not know whether its proposals are sufficiently radical and comprehensive. I am in agreement with many of the points which have been advanced in the past week by the Scottish Legal Action Group. Although they may sound like Committee points, I shall canvass them briefly so that my hon. Friend the Member for Argyll and the Lord Advocate may consider them before the Bill is considered in Committee. I feel that to mention them now will encourage wider public debate in Scotland.
First, where the evidence of irretrievable breakdown is absence of cohabitation for two years and where the defender consents, it should be possible for evidence to be given by deposition without obliging the pursuer and witnesses to appear in court, provided that there are no children under 16 and there is no dispute as to financial provision. Secondly, where a divorce is sought on the same facts as those on which a decree of separation has already been granted, it should be possible to enable evidence likewise to be given by deposition, provided that the same conditions are fulfilled. Thirdly—and this is the most important point—there should be concurrent jurisdiction in divorce actions, whether or not defended, between the sheriff courts and the Court of Session, subject always to a power in sheriff courts to remit cases of special difficulty to the Inner House of the Court of Session for decision, and to a power in either party to request the sheriff on cause shown to remit the case to the Outer House of the Court of Session for decision. Lastly, as a public declaration of the importance attached by Parliament to saving marriages and of support to solicitors who attempt to do so, solicitors acting for pursuers in actions of divorce should be required to certify that they have dis- 816 cussed the possibility of reconciliation with their client and given particulars of organisations qualified to assist in reconciliation.
The Minister has indicated that, as seen from the Treasury Bench, there are difficulties in introducing such measures. Their establishment might mark the end of the two-tier system in Scottish law. What is so special about that system? If advocates are maintained only by collecting fees in divorce actions in the High Court, that is no justification for the system either in practice or in morality. It is most unsatisfactory that an individual facing a divorce action in Glasgow should first have to go to a Glasgow solicitor, who then has to brief an Edinburgh solicitor, who then briefs counsel in Edinburgh. The whole matter could be much more cheaply and expeditiously dealt with in Ingram Street in the first place.
Is it wrong—I note that the Lord Advocate is twitching somewhat—to suggest that such major reforms should be introduced in a matrimonial measure, reforms which by implication might change the whole legal system in Scotland? I have some sympathy with that argument, but if it has taken six years in Scotland to bring about the reform of the divorce law, how much longer will it take to shift divorces from the Court of Session to the sheriff courts? If we do not do it now, when will it happen? If such a shift took place, there would be a considerable saving of legal aid resources and they would be shifted to more needy cases.
I welcome my hon. Friend's measure and I congratulate him on introducing it. At the same time, I think it could be strengthened. I believe that measures can be taken to minimise the strain, hardship and expense which divorce parties currently experience in Scotland. Simultaneously, much of the expense that is met from public funds could be saved.
§ 1.25 p.m.
§ Lord James Douglas-Hamilton (Edinburgh, West)
I shall be brief as perhaps I am one of the last Back Benchers to speak in this debate. As an advocate I must take issue with the hon. Member for Clackmannan and East Stirlingshire (Mr. Reid) when he suggested fusion of the legal profession. I think that the argument the hon. Gentleman put forward will be met by strong opposition from 817 both sides of the legal profession. Furthermore, any attempt to have divorce actions heard by the sheriff courts while a major upheaval is taking place in the legal system would give rise to great concern among many Scots, who feel very strongly that marriage is a sacred institution, certainly at this monent in time.
The hon. Gentleman was correct when he said that since January 1970 seven divorce law reform Bills for Scotland had been introduced and that only one had had a Second Reading. It seems that the history of the Bill serves to highlight the need for a Scottish Assembly. Although Scotland may have less than 10 per cent. of Britain's population, we need more parliamentary time allocated to us. This Bill is a good case in point. There is not sufficient parliamentary time when Scottish Bills become of importance and relevance to a large number of Scotsmen.
The hon. Member for Argyll (Mr. MacCormick) should be congratulated on introducing the Bill. He tested Scottish opinion through the agency of the Express. He discovered quite conclusively that more Scotsmen wanted this Bill more than any other at this moment. I think it should go on record that divorce law reform is supported by three great Scottish institutions. First, the Scottish Law Commission, at the request of the Lord Advocate and the Secretary of State for Scotland, has worked hard on this subject and has drafted the Bill. Second, the Law Society of Scotland, in a recently issued document, has confirmed that its council has long felt that marriages which are already dead in all but name should be dissolved and with the minimum of bitterness between the parties.
The Law Society points out that at present a spouse must depend upon the matrimonial offence of the other. That creates a situation in which one spouse is presented to the court as blameless and the other as guilty. Of course, we all know that in many cases guilt is apportioned to both sides. It seems that the real question is whether the parties live amicably together in the fullness of married life, which makes marriage so worth while. If they cannot do so, the marriage gradually become an empty shell.
I have been involved as a lawyer in many defended divorce cases. It was 818 brought home to me most clearly that many people, however much lawyers might be hardened to it, feel that the parties who have to go through every single discreditable episode in their married life find it both a sad experience for all concerned and that it leads to the inflicting of many scars. Is it not preferable to move away from the concept of fault towards that of irretrievable breakdown?
The hon. Member for Argyll quite rightly said that we were not in any way trying to copy English law. I wish to make it clear that where Englishmen can obtain divorce by writing to the courts or signing affidavits, that would be unacceptable in Scotland.
The third institution which strongly supports the reform of Scottish divorce law is the Church of Scotland. In 1968 a working party was established, and its report was presented by the General Assembly on behalf of the Social and Moral Welfare Board. It recommended that apart from incurable insanity, which should be retained as a separate ground for divorce, the breakdown of the marriage should be the sole ground for divorce. It also recommended that separation for at least two years should be the sole evidence of such a breakdown.
The working party went further than the hon. Member for Argyll. The report was sent to 58 presbyteries throughout Scotland. I must mention to any English Members who are present that it was the General Assembly of the Church of Scotland which inherited the procedures of the old Scottish Parliament, and it operates extremely democratically. In this case 36 out of the 58 presbyteries accepted the working group's main proposition. Its proposals were endorsed and slightly modified by the General Assembly in 1969, and submitted to the Secretary of State. He was asked to deal with divorce law reform as quickly as possible and as an urgent priority.
So three great institutions in Scotland—namely, the Scottish Law Commission, the Law Society of Scotland and the Church of Scotland—have all recommended divorce law reform. There are some who take the stern Christian attitude that divorce in all circumstances should never be tolerated. I can only repeat what F. E. Smith said when he 819 made the most powerful speech of his life on this subject. He ended by saying:I do not believe that the Supreme Being has set a standard which 2,000 years of Christian experience has shown human nature in its exuberant prime cannot support.
§ Mr. MacCormick
By leave of the House, I thank all those who have contributed to the debate. I also welcome the remarks by the Minister setting out the Government's position, and I trust that in Committee he will take into account the views put forward by all parties.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills.)