§ 3.10 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair]
§ Clause 1 [Jurisdiction of magistrates in matrimonial proceedings]:
THE LORD CHANCELLOR moved to add to subsection (2):
(c) in the case of a complaint by virtue of the said paragraph (c), if the offence or attempt to which the complaint relates occurred within the said petty sessions area.
The noble and learned Viscount said: Under the present law, a court which convicts a person of a criminal offence—for example, an assault—that is in itself a ground for complaint for a matrimonial order, has jurisdiction to hear and determine matrimonial proceedings instituted on that ground. This is an anomalous and obsolete provision, which is abolished by the Bill. It has been suggested that the repeal of this provision, which is generally agreed to be the right course, will exclude from any remedy, theoretically at least, a small class of persons whose only ground of complaint is the conviction of their spouse of an offence under Clause 1 (c), and who have no place of ordinary residence—perhaps because both spouses travel with a circus, or work a barge, and cannot therefore go to the court of the place in which either of them ordinarily resides. The Amendment would, in such circumstances, give jurisdiction to the magistrates' court for the area where the offence took place. This seems the logical way of dealing with this very small class of case. I beg to move.
Page 3, line 4, at end insert the said paragraph.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.950
§ On Question, Whether Clause 1, as amended, shall be agreed to?
§ LORD STONHAM
I wonder whether I may bring one point under this clause to the notice of the Lord Chancellor. It is a matter which is occasioning some concern to the National Association of Probation Officers. Subsection (1) provides that an application for an order under this Bill may be made if a defendant has been found guilty—and I quote from paragraph (c) (ii):by a magistrates' court … of an offence against the complainant under section twenty, forty-two, forty-three or forty-seven of the Offences against the Person Act, 1861, being, in the case of the said section forty-two, an offence for which the defendant has been sentenced to imprisonment or any other form of detention for a term of not less than one month; …The position is that under the First Offenders Act, 1958, or, with regard to persons under 21, under Section 17 of the Criminal Justice Act, 1948, such persons shall not be committed to prison unless no reasonable alternative presents itself to the court. If such a person is so committed, then the reasons for doing so shall be stated in writing.
The subsection which I have read provides grounds for obtaining a matrimonial order where the defendant has been found guilty of a specified offence and has been sentenced to imprisonment or other form of detention for not less than one month. The effect of this, if it remains as it now reads, would be that if the defendant was a first offender, or under the age of 21, and the magistrates for that reason, did not commit him to prison, the complainant under this Bill would be left completely without redress, although the offence might have been a serious one. Conversely, there might be a case—no doubt there would be cases—where a defendant had been previously convicted of other assaults, perhaps some of them serious, on other people, and might have been committed to prison, because of those previous offences, for an assault against a complainant. It might then be that the complainant would be able to get a matrimonial order, even though the particular offence which was the subject of the action was a minor one. Those two positions arise under this subsection as it now stands. I am wondering whether the Lord Chancellor could give some consideration to that and perhaps write 951 to me, so that at a later stage, if it is thought desirable, suitable Amendments can be tabled.
§ THE LORD CHANCELLOR
I should be glad to give consideration to this point. I do not think there would be much use in my giving my views at the moment, until I have considered first of all the case which the probation officers have no doubt gathered from experience, apart from the principles which the noble Lord stated. I should like to check that with the Home Office and their experience. I am sure that the noble Lord will agree that that is the reasonable way of dealing with it. If he would communicate with me with fuller details I should be glad to study them. Then we can study what is the best method of dealing with the problem that he has raised. I am grateful to him for raising the point.
§ Clause 1, as amended, agreed to.
§ Clause 2:
§ Order by magistrates' court in matrimonial proceedings
2.—(1) Subject to the proviso to subsection (3) of section one of this Act and Ito the provisions of this section, on hearing a complaint under the said section one by either of the parties to a marriage the court may make an order (in this Act referred to as a"matrimonial order") containing any one or more of the following provisions, namely—
(b) a provision that the husband shall pay to the wife such weekly sum not exceeding seven pounds ten shillings as the court considers reasonable having regard to their respective means;
§ 3.18 p.m.
LORD SILKIN moved to add to in subsection (1) (b):
and earning capacity and all other relevant circumstances
§ The noble Lord said: This is one of a number of Amendments which have been put down by myself and some of my noble friends, and we are glad also to have associated with these Amendments the noble and learned Lord, Lord Denning. There is, I think, one factor which is common to all the Amendments which are down in my name and those of my noble friends—namely, that they are all based upon recommendations of the Royal Commission on Marriage and Divorce which was presided over by the noble and learned 952 Lord, Lord Morton of Henryton. In every case but one they are based upon unanimous recommendations, and in one case only was there one dissentient. Therefore I would claim for the Amendment that I am moving and for all the others a most respectable and even a highly eminent parentage.
§ I hope that the noble and learned Viscount will not mind my speaking generally first of all, and then coming to the merits of this particular Amendment. By speaking generally, I shall not have to repeat myself when the other Amendments are called. One would have thought that a unanimous, or virtually unanimous, recommendation of a body such as the Royal Commission on Marriage and Divorce, with such a highly eminent membership, would have carried great weight in this House, and, unless there were very strong objections and overwhelming reasons to the contrary, would have been incorporated in a Bill such as this. The reasons why they have not been incorporated, I gather, are that there has since been a report of the Departmental Committee on Matrimonial Proceedings in Magistrates' Courts and they have, for technical reasons and not at all on the merits, decided that it would not be appropriate to introduce these Amendments in a Bill of this kind. I want to examine, first, what are these technical reasons which prevent their inclusion in this Bill, and then I will come to the merits.
The reasons are set out in paragraph 4 of page 1 of the Report of the Departmental Committee, and may I say, in passing, that the Departmental Committee have done an excellent job of work. Every one of us will be grateful to them for having drafted the Bill which is before us and which, broadly speaking, Her Majesty's Government have accepted. This is what the Committee say:
Our work has been directed only to the law administered in magistrates' courts in England and Wales or by the High Court on appeal from those courts. Changes in the law applicable in the High Court under its original matrimonial jurisdiction were not within our terms of reference;"—
so presumably the Committee did not consider them—
and therefore where suggested changes involved questions common to that law and to the law administered by magistrates' courts we have not thought it right to propose that
those changes shall be made in respect of magistrates' courts in advance of their being made in respect of the High Count.
If the Committee had stopped at the first sentence and said only,"These matters are not within our terms of reference, and therefore we have not considered them", and had left Parliament with a free hand to consider these Amendments on the merits, I could have understood it. But it seems to me to be highly illogical for the Committee to go on to say that, as the matter was outside their terms of reference and they had not considered it, they thought it should not be incorporated in a Bill for the purpose of amending the law relating to proceedings in matrimonial courts. I hope that your Lordships' Committee will consider itself perfectly free, regardless of the approach of the Arthian Davies Committee, to consider each of the Amendments entirely on its merits.
§ Having said that, I want to deal with the merits of the first Amendment, and I will speak on the second at the same lime, if I may, as they deal with exactly the same point. This Amendment is based on the recommendation of the Royal Commission who made it quite clear that in their view where a magistrate is considering the means of a person against whom a maintenance order is to be made he must at the same time consider also the means of the applicant. Let us suppose that the applicant is the wife, although the same principle applies where the applicant is the husband, dealt with under a later clause of the Bill. As the law stands at present, there is some uncertainty whether, in considering the means of the applicant, the court is entitled to take into account her earning capacity.
§ Let me put a concrete case—what would be the normal case of this kind. A young wife is applying to the court for a maintenance order. She is a young woman who has been married for a short time. She has no children and no family obligations. Before marriage she was earning a wage, perhaps a substantial salary. She decides that she is not going to work now, although she is perfectly able to do so, and rests her case, as regards a maintenance order, entirely on the fact that she has no means of her own. If she has some means, that income only is taken into account: the court need not consider the possibility of her 954 being able to earn money. This Amendment is designed to enable the court to take into consideration the possibility of her being able to earn money, and the next Amendment, applies the same principle to the husband.
This is what the Royal Commission said on the subject:
If the wife is not working, it is, however, uncertain how far the court has to take into account the amount she would be likely to receive if she were earning.
The Commission's Report then quotes from a judgment given in the Court of Appeal where it was said:
Of course, if a wife does earn, then her earnings must be taken into account; or if she is a young woman with no children, and obviously ought to go out to work in her own interest, but does not, then her potential earning capacity ought to be taken into account; or if she had worked regularly during the married life, and might reasonably be expected to work after the divorce, her potential earnings ought to be taken into account. Except in cases such as these it does not as a rule lie in the mouth of a wrongdoing husband to say that she ought to go out to work simply to relieve him from paying maintenance.
Now those are very clear and, in my view, very strong words.
The question then is: why was not this point taken into consideration and an Amendment included in the Bill? The Arthian Davies Committee have given their reasons. This is what they said:
It was suggested to the Committee that under the Present law the court may not take into account a wife's earning capacity as distinct from her actual means and that the draft Bill should give express power to do this. But the Committee is satisfied that, although practice may differ, there is no such rule and that the requirement of Section 5 (c) of the 1895 Act and Clause 2 (1) of the draft Bill that the court shall have regard to the 'means' of the spouses does not preclude it from taking into account other relevant circumstances, including earning capacity.
So we get the position that the Royal Commission say the position is uncertain. The Arthian Davies Committee say that, although practice may differ, there is no rule. They do not go into the merits of the matter but rest their position on the fact that the courts have power to take into consideration the earning capacity of a husband or wife. I accept that. They have that power, and there are cases where courts have decided either way. But if this provision is desirable, as the Royal Commission think it is, and if it is something we should do, why
should we not make the law certain? Why should we have one court deciding one way and another deciding another way? I would therefore suggest to the noble and learned Viscount that, if he accepts the merits of the matter, he should not be deterred by the words of the Arthian Davies Committee from introducing an Amendment such as is on the Order Paper. The actual wording is a matter for discussion, but I have tried, in all these Amendments, to base them upon the actual recommendations of the Royal Commission.
§ There is just one other point. A doubt may arise as to whether or not a wife is in a position to go out and earn money. She may have an invalid mother or other domestic responsibilities, or she may not be in good health. Of course, if there are circumstances which detract from her ability to earn money then the court must take those into consideration, and the words in the Amendment"and all other relevant circumstances" are directed to that point. If the words"all other relevant circumstances" are not adequate to meet this particular difficulty, I shall, of course, be very ready to accept any other words. But I hope that the noble and learned Viscount will see the justice of this matter on the merits and will concede that this is a proper Amendment. I beg to move.
Page 3, line 33, after ("means") insert ("and earning capacity and all other relevant circumstances").—(Lord Silkin.)
§ LORD DENNING
May I just add a word in support of the Amendment? In the High Court the words are quite simple, whether after divorce or when the husband neglects to maintain his wife. The Court may make such order as may be reasonable or as the Court thinks just. Even on those simple words the tendency of some Judges is to say,"Oh, well, if the husband goes off he ought to maintain his wife. She need not go out to work to earn any money." There was a case of a young woman. She worked before her marriage, and the couple lived at the home of her mother's house. Then the parties separated, and the Judge said,"I do net see why she should go out to work to reduce the maintenance payable by the husband." Even in those High Court cases, even 956 when the words are simple and as wide as they are,"reasonable"or" just", there has been a tendency for Judges to say,"We do not have regard to the earning capacity of the wife. We do not consider whether she ought to go out to work or not." At all events, the position is uncertain, as the Royal Commission said, and they recommended that if it was uncertain it should be made certain.
That is even in the High Court with those simple words. But in a magistrates' court the matter is more difficult. They may award,"such sum as the court thinks reasonable, having regard to the means of the parties"—having regard to their actual financial resources; and it makes it difficult for the court to say, not only having regard to financial resources but also having regard to the wife's earning capacity.
I agree that there is quite an argument for saying that the court could look into other matters, but why not make it clear? It is more difficult in the magistrates' court than in the High Court. The Royal Commission thought that in the High Court it should be made clear. What is required here is to strike out"having regard to the means" and leave it as"reasonable" or to put in words to make clear what the Royal Commission thought and the Arthian Davies Committee thought. The Arthian Davies Committee said that practice may differ. Well, ought it not to be cleared up?
§ LORD MERRIMAN
I want to make it clear at once that I do not object to the theory that earning capacity should be taken into account. My intervention is really rather directed to draftsmanship. Both the noble Lords who have just spoken directed their minds to the case of the wife being the applicant and its being a question of whether the wife goes out to work. This Amendment deals indiscriminately with both the husband and the wife. At the risk of appearing to be dogmatic, I assert, without fear of contradiction, that there is no ground whatever for doubting that the court can take into account the earning capacity of a husband when assessing the maintenance which he should pay. Over and over again we have in the Divisional Court—I had one case the other day—cases in which the 957 husband has deliberately given up work or taken a lower paid job in order, really, fundamentally, to spite his wife and that does not go down. We say that we look at what his real earning capacity is, not at what he happens to be choosing to earn at that particular moment.
As regards the wife, I venture to say that when you are talking about the same words, the means of the party, theoretically, at any rate, there ought to be no doubt about the earning capacity which is possible being taken into account. I heard my noble friend Lord Denning refer to some doubts in the High Count. The noble Lord, Lord Silkin, read a very remarkable passage. It happened to be from a judgment by the noble and learned Lord, Lord Denning, in the Court of Appeal, and it ended with these words:Except in cases such as these it does not, as a rule, lie in the mouth of the wrongdoing husband to say that she ought to go out to work, simply in order to relieve him from paying maintenance.I maintain that if it is a proper case in which she should go out to work there is no real difference between what she is choosing to earn and what her capacity for earning is. If this Amendment can be redrafted in such a way as not to make difficulties, then, by all means, let it be; but, in my submission, it is unnecessary.
§ BARONESS WOOTTON OF ABINGER
The rule used to be that"men must work and women must weep". If this Amendment is carried it will be abundantly clear that women must now do both. I only wanted to say to your Lordships, on behalf of my sex, that our shoulders are now broad enough to carry this double burden.
§ THE LORD CHANCELLOR
I am happy to assure the noble Lord, Lord Silkin, that there is no controversy as to the merits of this Amendment in the sense that he used it; and as I understood my noble and learned friend Lord Merriman, he began by saying the same thing. The position is that there is some difference as to what is the effect of the 958 existing law. At any rate, the Morton Commission—and I include my noble and learned friend, who had great weight—expressed one view; and, as the noble Lord, Lord Silkin, made perfectly clear, the Arthian Davies Committee thought that that doubt did not exist. I confess that. I did not think there was any doubt about the matter in the High Court, because I attach so much importance to anything that falls from the lips of my noble and learned friend Lord Denning. I thought he had made it perfectly clear in the case to which my noble and learned friend Lord Merriman referred. May I remind your Lordships again of my noble and learned friend's words in Rose v. Rose. He said:Of course, if a wife does earn, then her earnings must be taken into account: or if she is a young woman with no children, and obviously ought to go out to work in her own interest, but does not, then her potential earning capacity ought to be taken into account or if she had worked regularly during the married life, and might reasonably he expected to work after the divorce, her potential earnings ought to be taken into account.I think my noble and learned friend has been too modest about himself. I cannot imagine any puisne Judge, having seen that statement of law from my noble and learned friend, not following it.
Now we are in a very advantageous position to-day, because my other quotation is from the judgment by my noble and learned friend Lord Merriman of which your Lordships have heard. It is a quotation from Ward v. Ward, which was an appeal from a magistrates' court decision in a case where both spouses were working. My noble and learned friend said:The Court does not say that that"—that is, the means of the parties—is the only thing they have to consider, nor does it say that they are to exclude all other considerations.The noble Lord, Lord Silkin, will understand that this is my difficulty—though it is something which I think we might consider further: if I am right in my interpretation of what my noble and learned friend has said, that is the law that is applicable in the High Court. Lord Silkin knows the difficulty, as does every Minister, that when you condescend to one particular there is the danger that you throw doubt about the inclusion of other particulars of the case, and I should not like anything that 959 we put in this Bill to throw doubt on the law as stated by my noble and learned friend Lord Denning. I therefore suggest that we might consider this matter further. We are all of opinion that the potential earnings ought to be within the scope of those making the order; and in view of the discussion to-day 1 think that obviously I ought to see whether I can find words which will make that clear but which, at the same time, will not throw doubt on the law as stated in the Court of Appeal. I shall willingly do that between now and the next stage of the Bill.
That is the only point, I think. Nobody has raised any question on the merits, or has suggested that the potential earnings should not be considered—whether it applies to the nobler sex, whose point of view the noble Baroness, Lady Wootton of Abinger, has just stated, or to the inferior sex, who still predominate in this House. Both points of view will be considered and we will see if we can find some words. I hope that, with that assurance, the noble Lord will not press his Amendment.
§ LORD SILKIN
I accept the noble and learned Viscount's assurance completely, and I beg leave to withdraw the Amendment. The same, in effect, applies to the next Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 2 to 5 agreed to.
§ Clause 6:
§ Interim order by magistrates' court or High Court
§ (4) Not more than one interim order shall be made by virtue of any one paragraph of subsection (1) of this section with respect to the same complaint.
§ 3.45 p.m.
THE LORD CHANCELLOR moved, in subsection (3), to insert as a new paragraph (a)
(a) the date, if any, specified for the purpose in the interim order;".
The noble and learned Viscount said: With your Lordships' approval, I think we might consider this Amendment and the following two Amendments together, because they all deal with the same point. The object of these Amendments is to meet a small but important point on
interim orders. If I may disclose its source, I may say that this was brought to my attention by the noble Lord, the Lord Chairman, in his capacity as Chairman of the Magistrates' Association.
§ As it stands, the effect of Clause 6, subsections (3) and (4), is that a court, in the ordinary course of events, may make one interim order for a maximum period of three months if they adjourn the case. The Magistrates' Association have pointed out that there are occasions when it is helpful to the court to make more than one interim order, though the successive orders may be of short duration. The consideration that lies behind the present provision is that matrimonial cases should not be allowed to drag on, with a spouse perhaps paying maintenance for months and in the end no order being finally made against him or her. This requirement is not, however, breached by making it possible for there to be several interim orders, while retaining the overall limit of three months, and this is the object of the three Amendments which I have mentioned. I am grateful to the noble Lord, the Lord Chairman for bringing the matter to my attention, and to the Magistrates' Association. I beg to move.
§ Amendment moved—
Page 9, line 24, at end insert—
(a) the date, if any, specified for the purpose in the interim order;"—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 9, line 27, at end insert"—
(ii) if the interim order is one of two or more such orders made with respect to the same complaint by virtue of the same paragraph of subsection (1) of this section, the making of the first of those interim orders."—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
Page 9, line 30, leave out subsection (4).—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.961
§ Clause 7:
§ Suspension or cessation of orders
§ 7.—(1) Where a matrimonial or interim order is made while the parties to the marriage in question are cohabiting—
- (a) the order shall not be enforceable and no liability shall accrue thereunder until they have ceased to cohabit; and
- (b) if in the case of a matrimonial order they continue to cohabit for the period of three months beginning with the date of the making of the order, the order shall cease to have effect at the expiration of that period:
§ 3.48 p.m.
LORD SILKIN moved, in subsection (1), after paragraph (b) to insert:
Provided that this subsection shall not apply when the order is made for a cause of complaint: mentioned in paragraphs (h) or (i) of subsection (1) of section one of this Act.
§ The noble Lord said: This rather complicated-looking Amendment is designed to deal with the case where a wife is applying to the court for a maintenance order on the ground that the husband is failing to maintain her. Clause 7 provides that such an order, when made, is to be suspended while the parties are cohabiting. In other words, a wife whose husband is failing to maintain her cannot get an allowance when they are living under the same roof. Now it is felt that that is a great hardship and an injustice to a wife, especially in these difficult days as regards accommodation. In many cases, of course, where the husband fails to maintain his wife she can go and live with her parents or perhaps grown-up children, or find other accommodation, abut there will be a considerable number of cases where that is not the position. It is felt that where this difficulty arises, the wife should not be deprived of an opportunity of getting an allowance.
The Royal Commission applied its mind to this question and in paragraph 1048 they said:
A point which has given us more concern is that it would be possible for a husband who failed to pay under the order to be committed to prison, at his wife's instigation, while they were living together as man and wife. We consider, however, that in practice this would rarely happen. If the husband deliberately persists in flouting the order, it is likely that this would result in his wife withdrawing from cohabitation before matters reached the stage of his being sent to prison.
§ As the noble and learned Viscount knows, the position has advanced since 962 then, because it is now possible, under an Act which was passed after the date of the Royal Commission, to attach wages. This was designed for the express purpose of avoiding the necessity for a recalcitrant husband to be sent to prison. His wages can be attached and his wife can get the amount of the allowance direct from the employers. So even this difficulty does not arise.
But in spite of the difficulty which the Royal Commission saw at that time, they declared:
We recommend … with one dissentient, that if a wife obtains an order on the ground of her husband's wilful neglect to provide reasonable maintenance for her (or the children), her husband should be liable to make payments under the order, and it should be enforceable, notwithstanding that husband and wife are living together in circumstances amounting to full cohabitation.
The purpose of this Amendment is to implement this recommendation.
I have looked at the Arthian Davies Report to see what is their reason for not incorporating this provision in the Bill, other than the general reasons which they gave in paragraph 4 and which I read out on an earlier Amendment. All they say is that:
… the Committee have not felt justified in including in the draft Bill the Royal Commission's further recommendation (115) that where an order is made on the ground of wilful neglect to provide reasonable maintenance the defendant should be liable to make payments under it, and the order should be enforceable, even if the spouses are living together in circumstances amounting to full cohabitation.
So far as I can see, they gave no reasons for differing from the recommendation of the Royal Commission. It seems to me that, in justice to a wife who really finds it difficult to leave the home, there ought to be a provision that she should be enabled to get an allowance although the parties are cohabiting.
§ Moreover, it seems hard that the wife should be required to leave the home, even if she has somewhere to go. Why should she he required to go and live somewhere else, possibly at considerable expense and possibly leaving a home which she had helped to build up and of which she might be proud, before being provided with proper maintenance? It seems to me that this is part of an archaic system and that it should be done away 963 with. Of course, if the parties are sleeping together and what might be condonation arises, other circumstances might come into the picture; but we are contemplating the case where the parties are living under the same roof in different parts of the house or in different rooms and not actually living together in the common sense of the word, but are cohabiting. In such a case, it is felt that the Royal Commission was right in recommending that the mere fact of cohabitation in that sense should not be a bar to obtaining an allowance. I beg to move.
Page 10, line 9, at end insert the said proviso.—(Lord Silkin.)
§ LORD DENNING
May I add a word on this Amendment, because here the law in the magistrates' court is different from the law in the High Court? Indeed, there is an underlying social question here, because a woman whose husband does not pay her a proper housekeeping allowance and wilfully neglects to maintain her, and they are still living in the same house, can go to the High Court and get an order for maintenance against him and enforce it. Indeed, there was a case where a husband and wife quarrelled and slept in separate bedrooms but still carried on in the same household, and the husband reduced his weekly housekeeping allowance from £11 to £7. A High Court Judge ordered him to make it up from £7 to £11 and that order could be enforced. A similar application in a magistrates' court is not possible. A wife cannot enforce an order for maintenance unless she first leaves the house and ceases to cohabit with her husband. In other words, the marriage has to be broken up before she can get her money.
This is the social question which the Royal Commission considered. Suppose, for instance, it happens that a husband, as soon as he gets his weekly pay, spends it all on the dogs or on drink and gives 10s. to his wife when he gets home. Then the wife can get an order against him for maintenance on the ground of his wilfully neglecting to maintain, but as the law stands at present, and under this Bill, she would have to leave the louse or cease cohabiting with him before she could enforce it. The Royal Commission recommended by eighteen 964 to one that she should not be bound to leave the house first. The one dissentient, Sir Frederick Burrows, was influenced by the view that it was wrong that a wife should be able to send her husband to prison. But, as the noble Lord, Lord Silkin, has pointed out, with the attachment of earnings provision, the court can get the employer to pay the wife. At all events, the Royal Commission considered this matter very carefully and by an overwhelming majority recommended it. I would support the proposed Amendment.
§ LORD MORTON OF HENRYTON
May I also briefly support the Amendment? I would just make it plain that I was not the dissentient member of the Royal Commission. I was one of the eighteen who supported this proposal and I was much impressed by the fact that it tends to keep husband and wife together and may save a home from being broken up.
§ THE LORD CHANCELLOR
I must confess that I find the arguments of the noble Lords who have spoken difficult on the widest psychological grounds and I should like to adumbrate again the other aspect of the matter. I want your Lordships all to appreciate what the position is under the Bill. The effect of the Amendment would be to exempt orders made upon a complaint on the ground of wilful neglect to maintain spouse or children from the restriction contained in Clause 7 (1), by which an order is not enforceable while the parties cohabit and ceases to have effect if they continue to cohabit for three months after the making of the order. Thus, a wife whose husband had neglected to maintain her would, under the Amendment now moved, be able to get and enforce a maintenance order against him while still living with him.
I do not think that those who have spoken so far have made clear that the Bill already relaxes the present law to some extent. At present a matrimonial order is not enforceable and ceases to have effect for three months if the parties reside together; and it was held in the case of Evans v. Evans in 1948 that this brought an order to an end in a case in which a wife set up a separate household under the same roof as her husband. By substituting in Clause 7 (1) the test of cohabitation the Bill provides that a 965 wife may enforce a maintenance order against her husband even though she is unable to find separate accommodation and leave the matrimonial home. That is a substantial relaxation of the present law and should, I believe, help in a number of hard cases.
I find the greatest difficulty in going further in the case of magistrates' courts. No one could have a greater admiration that I have for the work of magistrates. They are under my control; I have the honour to be President of the Magistrates' Association and I try at frequent intervals to go round and meet them and discuss their problems with them. My approach, therefore, is one of sympathy for, and not denigration of, their admirable work. Just consider the problem. The difficult and invidious task which the Amendment sets them is to intervene to this extent in the internal management of the household. It is not a question of where they are under the same roof, but the actual control and management of a couple who are living together. I think my noble and learned friend Lord Morton of Henryton would agree that the Royal Commission recognised, although they thought they could be overcome, the difficulties that the magistrates' courts would face, because they would have to fix a housekeeping allowance instead of payment for subsistence or a contribution towards subsistence, as at the present time.
I see great difficulty in the enforcement. While the parties continued to cohabit it would be enforceable, and it would need to be enforceable by all the normal enforcement machinery, including, as my noble and learned friend Lord Denning said, attachment of earnings, but also including committal to prison. It seems most difficult to contemplate a position in which a wife, while continuing to cohabit with her husband, should be able to threaten to send him to prison or to go to his employers and use the procedure for attachment of earnings. The answer which my noble and learned friend Lord Morton of Henryton and his seventeen colleagues in the majority gave was that by the time matters had gone as far as that—that the wife was in a position where she would have to use the machinery of enforcement—she would in most cases have withdrawn from cohabition. But that makes the 966 argument on this Amendment a complete circle, because if she is to be able to enforce while in cohabitation—that is, to be living with her husband and at the same time be able to threaten him that he will go to prison unless her housekeeping is provided—then my noble and learned friend's answer to that is:"Well, by that time she would have withdrawn from cohabitation." But if she has withdrawn from cohabitation, and there merely exists residence, this Bill enables her to take the action.
I agree with the underlying theme of the speech of my noble and learned friend Lord Denning, that it is unfortunate where you have a divergence of law, but I have to look at the machinery and the strain that we put upon it. I do not think it is fair or right to make magistrates' courts an instrument for bringing pressure on a husband cohabiting with his wife to fulfil the obligations of the marriage in the way that is suggested. I think it would be too difficult a problem and one which is not suitable for the magistrates courts' machinery. That is the view that I have formed, and I may say that I have given great attention to this matter. But, as always, I am prepared to reconsider the arguments. It would be most churlish of me if I did not reconsider the argument which the noble Lord, Lord Silkin, has put, and those advanced now and before by my noble and learned friends Lord Morton of Henryton and Lord Denning. I want to make quite clear, however, that I feel the greatest difficulty about this. I hope that the Amendment will not be pressed, but if any of your Lordships thinks that I am under any misapprehension I hope he will tell me before the next stage. At the moment I cannot advise the Committee to agree to this Amendment.
§ LORD DOUGLAS OF BARLOCH
It may be a little more difficult for magistrates to make an assessment of what is a proper sum to order a husband to pay in these particular circumstances, but it seems to me that at most it is only a difference of degree and not a difference in principle of the task which is already imposed upon them when they have to deal with claims for maintenance. I do not think it is right that that should be regarded as a decisive argument against this Amendment. If the Amendment is not accepted, let us think for a 967 moment of the position in which a wife is placed. In order to obtain maintenance she is forced to leave the home.
§ THE LORD CHANCELLOR
No. I am sorry if I have not made it clear. The wife has not to leave the home. All that she has to do is to cease cohabitation; she can remain in another part of the house. This clause has been drafted in order to prevent her from having to go out and look for another home. If she is a poor woman, I recognise that that would be a hardship, and it is expressly to prevent that from happening that the clause has been drafted in its present form.
Could the noble and learned Viscount tell me what happens to the unfortunate people who are in the position, as many people are, of having to live in the same room, anyway, because that is all the accommodation there is?
§ THE LORD CHANCELLOR
My noble friend Lord Stonehaven has put a case in which it would be difficult to decide, but the wife could go to the court and say:"I have done everything possible not to cohabit with my husband; we have divided the room into separate parts and we live our own lives." My noble friend has constructed with great skill a hard case. I am unfortunately in the position that one of my duties in your Lordships' House is to see that hard cases do not make what is in my opinion bad law.
§ LORD DENNING
If a wife withdraws from cohabitation then she can enforce her order. She has to withdraw from cohabitation to make a separate household. She can make a separate household within the same house, if it is large enough. This Amendment is to meet the case where there are not two separate households in the one house; where there is a woman living there who is cohabiting because there is nothing else for it.
§ LORD GRANVILLE-WEST
Does it not appear illogical, if one accepts the argument of the Lord Chancellor, that it is possible for a wife, the injured party, to go to the court and prove to the satisfaction of the justices that she is not able to find other accommodation and, therefore, although living in the same room with her husband, is entitled to enforce 968 the order, but yet a married woman who does everything possible to try to make a success of the married life, and tries to get the husband to behave properly, is not entitled to the benefit of the order which the court has made in her favour? It seems extremely illogical.
§ LORD SILKIN
We have had a useful discussion, and, as in so many of these discussions, the noble and learned Viscount has put one side of the question which I must admit to me is impressive. But in so doing he has rather closed his eyes to the other side. In the end we have to make up our minds whether, with all the difficulties of fixing household allowances and the difficulties of enforcement to which he has referred, we are going to leave the unfortunate wife who can find no other accommodation in the lurch and without means of livelihood. The noble Viscount, Lord Stonehaven, is, of course, perfectly right. When we come to discuss this Amendment, I think I can give the noble and learned Viscount a number of cases where married people are living in one room; and they amount to a very large number of cases at the present time. We must face up to this difficulty.
A further point to which I referred was that in most cases it is the woman who has made the home. She has built it up, she has put everything that she has into it, and it is harsh that she should have to leave that home in order to get maintenance. I do not wish to press the matter further to-day, but if I concede that the noble and learned Viscount has made some impression, and has put certain points of view of social consequence, I hope he will equally be impressed by the other side, and that we can come back to it. Perhaps we can both think again and find some way of resolving this difficulty. Perhaps it could be resolved by the method adopted by my noble friend, that where it can be shown that the wife has no possibility of finding other accommodation or something of that sort, cohabitation should not be a bar. I hope we can find some solution, because it is no solution to accept wholeheartedly the present Bill and not to face up to the problem that I and other noble Lords have put before the Committee. In the meantime, therefore, 969 I beg leave to withdraw the Amendment, but the Committee may hear about it at the next stage.
§ Amendment, by leave, withdrawn.
§ Clause 7 agreed to.
§ Clause 8 [Revocation, revival and variation of orders]:
§ 4.15 p.m.
LORD DENNING moved to add to subsection (2):
For the purposes of this subsection an act or acts of sexual intercourse between husband and wife, after knowledge of the adultery, shall raise a presumption that the offence has been thereby condoned but such presumption may be rebutted by sufficient evidence to the contrary given by or on behalf of husband or wife.
§ The noble and learned Lord said: May I, with my noble friend's permission, state the position on this Amendment? It is rather a technical one about the law of condonation. As the Royal Commission unanimously recommended that the law was wrong and ought to be altered, it encourages me to move this Amendment. I can explain it only by taking an illustration showing what the law at present is and what the Bill proposes to do, because I suggest that the Bill proposes an injustice.
§ Let me take an easy illustration of the case where a wife leaves her husband, complaining that he does not pay her enough housekeeping allowance. She leaves him and gets an order for maintenance against him, and goes back to her mother. That is a very simple case. She gets an order for £3 a week. She then falls in love with another man and commits adultery. Simple enough, your Lordships may say. In effect, she forfeits her right to maintenance if she has committed adultery, and the husband can go to the court and ask for the order to be revoked because his wife has committed adultery. That is the present state of the law. Now supposing the wife returns to the husband after committing adultery. There is the question. If she returns to the husband and resumes cohabitation with him she gets all the rights of a wife to be kept by her husband. Of course, the order is revoked, but having returned to her husband and resumed cohabitation, she has the ordinary rights of a wife to be kept by her husband.
§ But here is the point affected by the Bill. Supposing she returns for one day 970 or one hour, persuades her husband to have sexual intercourse with her and then leaves again. According to the law as it stands at the moment an adulterous wife does not get a right to maintenance simply by going back for a night or an hour, whereas, according to this Bill she will, because the law of condonation in this country at the moment is anomalous as between husband and wife. If a husband has an act of sexual intercourse with his wife, knowing that she has committed adultery, he is conclusively presumed to have condoned that adultery. Not so with the wife. If she has one act of sexual intercourse with her husband she does not necessarily condone his adultery. It depends on the circumstances. It is a very important matter in reconciliation. Often a husband may have his wife back for one day or one night, hoping that she will return. She goes off again after one day or one night, but he is held conclusively to have condoned the adultery. Many a case I have known of an adulterous wife—either wanting to get maintenance, or to get rid of her guilt—persuading her husband to have sexual intercourse with her. I have also known what I thought to be false cases of a wife saying she went to her husband's room for an hour or two, and that he had sexual intercourse with her, in order to get her adultery condoned. Because of the state of the law at the moment, that one act of sexual intercourse by a husband is conclusive condonation.
§ The Royal Commission recommended unanimously that that state of the law ought to be altered: it ought to be the same for husband and wife. If a man takes his wife back, let it be presumed that it was an attempt at reconciliation and reinstatement, but do not let it be conclusive if there was no real reinstatement. Let there be no condonation. I agree, in a way, that it is not appropriate to bring this into the magistrates' courts alone and it is not appropriate to bring it into other parts of this Bill. But when it is sought to amend the law to say that an adulterous wife who comes back to her husband for one night can keep maintenance, whereas the law at the moment says she cannot, then I suggest that, if you are amending the law you should so amend it as to not work an injustice. You should so amend it, 971 and put in a revised definition of condonation in keeping with the recommendations of the Royal Commission. In this Amendment the suggestion is that for the purposes of this subsection, which alters the law, an act of sexual intercourse between husband and wife after knowledge of the adultery shall raise a presumption of condonation, but that the presumption may be rebutted by evidence to the contrary given by, or on behalf of, husband or wife. At the moment it is synonymous in all branches of the law. There is a very great need to reform the law over this whole sphere but if you are amending one small part of it here in the magistrates' court why not bring in condonation with a rightful definition. I beg to move.
Page 11, line 43, at end insert the said paragraph.—(Lord Denning.)
§ THE LORD CHANCELLOR
This is a difficult point, as the noble and learned Lord, Lord Denning, has indicated; and here we are in the converse position, because he wants to make an alteration in the substantive law as it exists but seeks that the alteration should apply in the magistrates' court and not in the High Court. That would be the effect (I think I am right) of what he says, which, of course, is a difficult situation. May I explain how I conceive that it arises? If your Lordships will look at Clause 8 (2) you will see that it deals with the case where a court is required to revoke a matrimonial order if it is proved that the complainant in the original proceedings has committed an act of adultery. That usually, in my experience, arises where a wife had been the original complainant; she gets her order and then the husband comes back to the court and says,"Let me stop paying the order. My wife has committed adultery". The proviso states that the court shall not revoke the order if it is of opinion that the defendant in the original proceedings has condoned, connived at or conduced to that act of adultery. Again in the majority of cases the husband is the defendant in the original proceedings, and he is not, under this subsection, to get the order terminated on the ground of his wife's adultery where he has condoned that or connived at it, or 972 by wilful neglect or misconduct conduced to it.
As my noble and learned friend said, there is, both in the High Court and in the magistrates' court proceedings, a conclusive presumption that, on the part of a husband who has sexual intercourse with an adulterous wife, a single act of intercourse constitutes condonation of the adultery. The Amendment seeks to substitute for this conclusive presumption a presumption that can be rebutted by sufficient evidence to the contrary. That would make the position for either spouse more like what it is now for a woman in the same circumstances, whose single act of intercourse with her adulterous husband is considered to raise a rebuttable presumption of condonation only. It is an interesting speculation on the different social, psychological, marital positions of husband and wife that that should be so, and I am not going into it to-day. But one can see that that position, although at first sight anomalous, has a good deal of common sense behind it, in that a woman might be, in the days when they were considered the weaker sex, more likely to submit in that position. But, as I say, that is perhaps a speculative aspect.
This proposal, to which the noble Lord, Lord Denning, referred earlier, comes from the Report of the Royal Commission on Marriage and Divorce. I hope that my noble and learned friend Lord Morton of Henryton will not hesitate to correct me if I have got any nuance wrong with regard to the approach of his Commission. But in paragraphs 237 to 240 they considered the bad effect that the present law of condonation is said to have on the prospects of reconciliation, and they considered the possibility of a trial period of cohabitation after separation which should be deemed not to amount to cohabitation. After discussing that possibility (on which the Commission were not able to agree), the Report goes on, in paragraph 241:Whether or not there is to be a trial period of cohabitation, we are all agreed that it is anomalous that husband and wife should not be on the same footing with regard to the presumption of condonation which is raised by acts of sexual intercourse between them. We consider that there can be circumstances at the present time when the fact that one spouse has had sexual relations with the other does not amount to that full forgiveness and 973 reinstatement which in our view should constitute condonation. We recommend, therefore, that an act or acts of sexual intercourse between husband and wife, after the commission of a matrimonial offence by one which is known to the other, should raise a presumption that the offence has been thereby condoned, which presumption may be rebutted by sufficient evidence to the contrary.I hope that I have said enough to show that it is an extremely difficult point. I feel that, whatever the merits, it ought not to be implemented in relation to magistrates' courts while the position in the High Court (from which the example of my noble and learned friend is presumably taken) remains as at present. As I pointed out in referring to this suggestion during the Second Reading debate, it is generally suitable that they should keep in step. I know that we have just been considering the opposite point of view, but fundamentally the two things are not out of accord, because this is a very difficult branch of the law to administer, and I should have thought that if you are asking magistrates to deal with condonation, subject to rebuttal, it would be very unfortunate if they had not the guidance of the practice of the High Court, except, of course, as they would in cases of appeal. I should like the Committee to appreciate—and I hope your Lordships will believe that we have been anything but obscurantist in drafting this Bill—that it is not my intention to keep things merely because they exist. The object of proviso (b) is to bring the magistrates' court position into line with the High Court position, by reversing, in effect, the decision of the majority of the Court of Appeal in Marczuk v. Marczuk, that Section 7 of the 1895 Act required a magistrates' court to revoke a wife's order on the ground of her adultery, even though the adultery had been condoned: we are dealing with that and improving the position.
I can assure my noble and learned friend Lord Denning that in any consideration of amending the matrimonial law generally I will give the most careful attention to the point he has made, but I feel in this case that a Bill dealing with magistrates' courts should not provide that they alone should deal with this very difficult change in the law. I am sorry not to be able to accept the Amendment; but it is, I think, a very difficult point indeed, and I hope that my noble and learned friend will not press 974 it. Equally, I hope that, if there are aspects of it which I appear not to have considered, he or the noble Lord, Lord Silkin, or anyone else, will come and see me about it, and I will willingly consider it again. But after careful consideration, and as at present advised, that is the view that I have formed. I hope that the Committee will not accept the Amendment.
§ 4.31 p.m.
§ LORD SILKIN
The noble and learned Viscount has not said (if I am wrong I am sure he will correct me) one single word on the merits of this question. His objection to the Amendment rests mainly, if not entirely, on the fact that the position is different in the High Court. He has himself answered that, because on the occasion of the last Amendment he was perfectly willing that this anomaly should continue: that there should be one law for the magistrates' court and one law for the High Court. In this case he is insisting: that the law ought to be the same. I should be grateful if he would consider the justification for this Amendment on the merits. If he believes that it is right on the merits, is it not appropriate that when we have the opportunity—and it may not arise again for a long time—we should amend the law as regards condonation at least so far as magistrates' courts are concerned? After all, the great majority of domestic disputes come before the magistrates' courts rather than the High Court. Then, when the opportunity arises, as we hope it may before very long, we can bring the law in the High Court into line with the law, as it will be if this Amendment is accepted, in the magistrates' court.
I hope that the Lord Chancellor will take those points into consideration. This is the opportunity for doing what is right, if we believe it is right. It would be a great misfortune if, believing that this Amendment is a sound and proper Amendment, we did not put it into the Bill merely because of—I will not say a theoretical desire for uniformity, because it is more than that, but merely because we want to maintain uniformity in the wrong direction. Therefore, I hope that this point will be considered further. I know that the noble and learned Lord, Lord Denning, feels strongly about it. So do I. Perhaps it might be possible to have some discussions about it between now and the next stage.
§ THE LORD CHANCELLOR
Of course I should be delighted to have discussions with the noble Lord and with my noble and learned friend. The noble Lord was perfectly entitled to give me a Roland for my Oliver by pointing out the different line taken on these two Amendments. But I think it is only fair to say this—because I want noble Lords to believe that I am not making debating points or stalling on the Amendment at all. I think it is a most difficult point. On the last Amendment I think there was no doubt as to the difficulty of the magistrates' court in dealing with it. Here again, although in this case the High Court cannot deal with it, I myself think that the matter of deciding, when there has been intercourse, that there has been no condonation is a most difficult point. I hope that after my noble and learned friend Lord Merriman, with his immense experience, has heard this discussion, we can come back to this on the Report stage, or even before, and perhaps he will give us his view. I should be delighted to hear it now, but he might think it not convenient. It is a question of what is convenient to him, but I know that we should all be glad to hear the President of the Divorce Division give his view from his experience.
§ LORD MERRIMAN
Thus challenged, I should like to say a word. I can well understand all sorts of differences in procedural matters between the magistrates' courts and the High Court; but I venture to suggest that it must be wrong to change the substantive law administered by the two courts. For example, it would be absurd to have in the High Court a different definition of adultery from that which applies in the magistrates court: a different definition of cruelty and a different definition of desertion. It has been said over and over again that all those things are the same in regard to the substantive law. The substantive law about them is the same in the magistrates' court and in the High Court. This question of condonation is a fundamental matter of substantive law, and I venture to think that it would be a very great mistake to have one law for the magistrates' courts and for a different one to prevail in the High Court.
§ THE LORD CHANCELLOR
I am grateful to my noble and learned friend for responding to my appeal. I will consider everything that has been said. I will, of course, as always, consider the points. On the understanding that my noble and learned friend is entirely free to bring it forward again, perhaps he will not press the Amendment to-day.
§ LORD DENNING
In view of the assurance of my noble and learned friend, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ Clauses 9 and 10 agreed to.
§ 4.38 p.m.
§ LORD MILNER OF LEEDS moved, after Clause 10, to insert the following new clause:
§ Notice in case of adultery
§ ". Where under subsection (d) of section one of this Act a complaint is made on the ground that the defendant has committed adultery with a third person notice that an allegation of adultery has been made shall be sent by the Court by registered post to the last known address (if any) of the third person."
§ The noble Lord said: This is another effort at any rate to approximate the law applicable to magistrates' courts to the practice in the High Court. Your Lordships are aware that under Clause 1, one of the grounds on which application can be made for an order is that the defendant has committed adultery. That adultery must of course have been committed with a third party. There is no provision in the law at present relating to procedure in magistrates' courts which ensures that the third person against whom the allegation is made is given notice of that allegation. As your Lordships are aware, in the High Court there are pleadings, and the third party, possibly the co-respondent, must have formal notice of the allegations which are made against him or her. In the magistrates' court there is no such provision.
The words of my proposed new clause re precisely those which are recommended by the Royal Commission. Perhaps I might shorten the proceedings by giving your Lordships the reasons which were given by the Royal Com
mission in paragraph 1121. That may be of some service to your Lordships. It says:
It was argued by some witnesses that it is wrong that in a magistrates' court no notice is given of a charge of adultery, since it is only just that a person against whom such a serious allegation is made should have the opportunity to dispute. Moreover"—
and this is a matter which I think is very material—
there is the risk that there may be collusion between husband and wife, and it is in fact in a collusive case that it is most likely that injustice to the third person would result. Accordingly, these witnesses suggested that the person who is alleged to have committed adultery with the defendant spouse should be given written notice of the charges and should have the right to defend himself or herself against them. The Gorell Report also contained a recommendation on the same lines. Against this proposal, it was said that it would introduce an unnecessary complication into proceedings in a court of summary jurisdiction; such proceedings should be simple and inexpensive and to require service to be carried out in every case would make the proceedings complicated and costly.… It was further said that in practice there is no injustice under the present procedure; indeed quite often the identity of the third person is not known.
The Commission agreed, on the ground of delay and expense, that it would be undesirable to introduce into magistrates' courts the formal procedure operated in the High Court. Nevertheless, they thought, as they said:
That it is right in principle that a person who is alleged to have committed adultery should be allowed to defend himself. Accordingly, we recommend that notice of an allegation of adultery should be sent by the court by registered post to the last known address, if any, of the third person; that person should then have the right to appear and defend himself or herself against the charge. We consider that if this simple procedure were adopted, it would, so far as is reasonably practicable, rule out the possibility of injustice being done.
That was a unanimous recommendation on the part of the Royal Commission.
The matter was, however, further considered by the Departmental Committee under Mr. Justice Davies, and there the recommendation of the Royal Commission was turned down by a majority of 6 to 5. Five of the members of that Committee, including the Chairman, Mr. Justice Davies, were in favour of the Royal Commission's recommendation being carried out. There the reason seems to have been that:
Tripartite proceedings of this kind would alter the nature of matrimonial proceedings in magistrates' courts to an extent which would not be justified by the number of cases which in fact arise. The minority of the Committee, while recognising the force of these objections, nevertheless think that in justice to persons against whom such allegations are made these rights should be given, whatever the practical difficulties.
I submit that that is surely the right view to take.
§ I appreciate that my proposed new clause, assuming your Lordships approve it, would require some additions, amending the Bill. It would be necessary, for example, to give a third party against whom an allegation is made the opportunity to appear and probably to have legal representation and, it might even be, to appeal. But I should not myself have thought that those were sufficiently strong objections to the principle which I am trying to put forward, that a man or woman against whom an allegation of this kind is made should have an opportunity to refute it.
§ I am authorised to say that the matter has been considered by the Council of the Law Society, who approve the proposal. I have also made some inquiry from a magistrate's clerk and I am told that there would be no practical or physical difficulty in giving the notice which would have to be given in the event of this new clause being approved by Parliament. Furthermore, according to Stone's Justices' Manual, it is the practice and proper course, when an allegation is made against a wife by a husband pending proceedings, to adjourn the case for particulars to be given, preferably in writing, and to enable the wife to answer the allegation.
§ LORD MILNER OF LEEDS
Yes, that is in the case of the wife. Again, there is the case of Duffield v. Duffield,  1. All England Reports, in which it was said:Whenever a charge of adultery is made in a matrimonial matter, full particulars of the charge must be given.I understand that when a summons is issued in matrimonial proceedings and an order is asked for on the ground of adultery, it is the practice of some magistrates' clerks to inquire for particulars, 979 and where those are available to give appropriate notice to the defendant, but of course not to a third party, as I am endeavouring to provide. In my submission, this is a clause which might properly be approved by your Lordships. I admit that there are difficulties, in that the identity of the third party might not be known, and so forth, in which event notice could not be given; but this would then approximate to some extent the practice of the magistrates' courts to that of the High Court where formal notice by service of a petition would have to be given. I hope, therefore, that your Lordships will approve the new clause. I beg to move.
After Clause 10, insert the said new clause.—(Lord Milner of Leeds.)
§ 4.47 p.m.
§ LORD MORTON OF HENRYTON
I should like briefly to support this Amendment. As has been said, it is based on a unanimous recommendation of the Royal Commission on Marriage and Divorce over which I had the honour to preside, but I have not thought it necessary up to this point to delay your Lordships by speaking on Amendments merely because that is so: the Report speaks for itself. There are three separate reasons why I feel I ought to say something in support of this Amendment. The first is that not only was this the recommendation of the Royal Commission on Marriage and Divorce in 1955: but the Royal Commission presided over by Lord Gorell from 1909 to 1912, after also giving the matter careful consideration, made exactly the same recommendation. That is the first reason why I invite your Lordships to give perhaps special consideration to it.
The second reason is that the Departmental Committee which drafted this Bill did not think fit to incorporate the words now suggested in the Bill, but obviously they were by no means united. In fact, they decided it by six votes to five, one of the dissentients being the learned Judge who presided over the Committee. The third reason is that this Amendment is exactly the opposite to the case in the last, which, as my noble and learned friend the Lord Chancellor pointed out, if passed, would introduce a difference between the High Court and the magis 980 trates' court. In this case, in the High Court, if an allegation of adultery is made against a person in proceedings, he or she has the right to come and defend himself or herself against that charge. At the moment, in the magistrates' court, a person who has been accused of adultery may know nothing of it at all; and even if he or she does know of it, no right is conferred upon that person to have notice, and there is no right to appear at the hearing. I do not consider it is clear that that should still continue to be the law, and the only quarrel I might have with the Amendment suggested by my learned friend is that perhaps it does not go far enough. If it is approved in principle, perhaps that aspect might be dealt with.
The Royal Commission, to quote their exact words, said:The person who is alleged to have committed adultery with the defendant spouse should be given written notice of the charges and should have the right to defend himself or herself against them.I suggest that possibly the Amendment does not indeed go far enough, but I desire to support it because it is at any rate a step in the direction which I think is the right direction.
§ 4.51 p.m.
§ LORD MERRIMAN
I feel that I am appointing myself to a rather ungracious task in calling attention to some reasons why this Amendment should not be passed. I say"ungracious", because I am, I suppose, the last person who ought to object to the propriety of anyone charged with adultery being given notice of the charge. The noble Lord, Lord Milner of Leeds, read out the directions in Stone's Justices' Manual about the giving of notice. But may I add that those are provisions about the notice to the wife or the notice to the husband who has been charged with adultery, and they do not deal, and never have dealt, with notice to the third party.
I agree with what my noble and learned friend Lord Morton of Henryton has just said of this Amendment: that, if good at all, it does not go far enough. At present it deals only with the case where there is a complaint by wife or husband against the other for adultery. But adultery as a matter to be dealt with by the magistrates comes in on more occasions than that. For example, 981 it is an absolute bar, subject to condonation and connivance and the rest of it, to the wife's getting any order at all, whatever the nature of the complaint may be. Subject to the same conditions, it is a ground for the revocation of any order, on whatever basis the order may have been made; and, in addition to that, in charges of desertion, for example, reasonable belief in the adultery of the complainant is or may be an answer. In all those cases as between husband and wife we have insisted, and rigidly insist, on notice being given. But in spite of the recommendations of Lord Gorell's Commission in 1912, it has never been thought right to introduce notice or the right to intervene in the case of the third party.
Let me tell the Committee why I think that position can safely remain as it is. Since this Amendment was put down I have made it my business to consult all those of experience whom I have had the opportunity of consulting who have either sat with me in the past or are sitting with me in the present, and no single one of them has known of any single instance in which there has been a grievance owing to the non-citation of the third party. Of course, one of the reasons for that may be, and no doubt is, that in any case of adultery in the magistrates' court—and usually these matters are local—the wife or husband, as the case may be, calls as a witness the person who is supposed to have been the adulterer or the adulteress. In such circumstances it is impossible for him or her to say that the case has been decided, if it is decided that there has been adultery, behind his or her back, Also, of course, there are the rarer cases, but there are still the cases, in which the adulterer is called as a witness for the prosecution, so to speak. In that case, of course, there is no grievance at all.
But now we ask, or the Committee may reasonably ask,"How do we know, merely because we have not heard of any grievance, that the probability is that there has been no grievance?" I am trying to give one, I think, very good reason. Everyone knows that if proceedings before a magistrates' court, particularly in charges of adultery, are not actually the prelude to proceedings in the Divorce Court, they are very constantly followed by proceedings in the 982 Divorce Court on the same ground and supported by the fact that the order of the magistrates has been made. As has already been pointed out, in the High Court it is necessary to put in the pleadings the fact that there has been this or that order, including, of course, any order which has been based on adultery. Secondly, it is a bounden duty to serve the petition in the proceedings on the alleged adulterer, and it is open to him or her to join in the proceedings, which, as has been pointed out, is not at present the case in the magistrates' court.
I say, as a matter of practical politics, that it would not take very long to find out, if somebody had been cited as the woman named, or the co-respondent, as the case may be, and the order is pleaded in the petition and brought into the court; and for that person to say,"This is all rubbish; I never knew any thing about this. I never had arty such intimation." I think we should find out very soon if that had happened. So I do not think it is unfair to say that the fact that nobody, so far as I am aware—and I have made considerable inquiries—is aware of any case where there has been a grievance because of the non-citation of the third party is really an important pointer that this theoretically unanswerable demand has no real practicable basis; and for that reason I should myself resist the Amendment.
§ 4.56 p.m.
§ THE LORD CHANCELLOR
The noble Lord, Lord Milner of Leeds, has recognised, and my noble and learned friends who have spoken have emphasised, that the Amendment in its present form is imperfect and that we should have to go—and we are really discussing the principle whether we should go—to the extent of giving the third party notice, a right to intervene in the proceedings, to be legally represented, to call witnesses or to cross-examine witnesses called by the other parties, to address the court and to appeal. Unless one had all those provisions the mere service of notice would not help very much.
I want to deal with the matter from the practical point of view. I know that the noble Lord, Lord Milner of Leeds, has plenty of experience of that. If he will turn his mind back some 30 years (I think it is just about 30 years ago) he will recall that we did not actually 983 meet in a magistrates' court but met in a coroners' court in Yorkshire. I know that he has the experience, and therefore I should like to put the practical argument to him; and, indeed, to remind him, because I think he has the Report in front of him, of the words of the majority of the Arthian Davies Committee. They said they thoughtthat any procedure which would adequately protect the rights of the third party would complicate beyond what is reasonable the procedure of magistrates' courts and would produce difficult problems of evidence which are not suited to proceedings in these courts.Then they said that the third party would have to be given the rights which I have mentioned. But it is interesting that the minority of the Committee—and it has been rightly stressed that the minority included the learned Judge, the Chairman—while recognising the force of these objections, nevertheless thought that, in justice to persons against whom such allegations are made, these rights should be given, whatever the practical difficulties.
I think that the noble Lord, Lord Silkin, will agree that the most difficult argument to make is that"the best is the enemy of the good"; because the best is obviously so much better than the good that, once the best is stated, it always has an enormous weight. Nevertheless, I think it is profoundly true—one could call it a truism or a cliché—that the best is very often the enemy of the good. I should like the noble Lord, Lord Milner of Leeds, to consider the sort of thing that the majority of the Committee had in mind. I think they must have had in mind the difficult task which sometimes confronts the High Court in divorce cases of deciding separately in relation to each party accused of adultery whether the evidence of each alleged act is admissible and sufficient.
Take the most simple of these cases—that where you have an admission by the wife. That admission is evidence against her but, of course, is not evidence against the third party. On the other hand, once the wife is in the witness box what she says in evidence will be evidence against the other parties. It sounds simple, I hope, but if my noble friend would consider these cases, and even the classic divorce cases—I will not 984 mention any names, because I might injure or wound feelings, but there are many of them in our minds where that sort of position has arisen, and where the results of it have been written about for generations—he will find that it is a very difficult matter. It is difficult enough, I think my noble and learned friend Lord Merriman will allow me to say, in his Court, and it is difficult enough in a criminal court. But that is only the first of the problems. You would then have the question of appeals by the third party, the result, and numerous other questions which I will not consider in detail.
Now the noble Lord will remember that matrimonial proceedings in magistrates' courts are not the only proceedings in which the issue of adultery may be relevant but the paramour may have no right to intervene to rebut the charge. It occurs quite often in defamation cases. I am sure that we have all had defamation cases where that issue has arisen: and there, of course, the party who is named is not entitled to appear. It could arise, though more rarely does, in cases where the continuance of a wife's right to maintenance in accordance with an agreement, or even, I should think, a court order, is dependent on her remaining chaste and not committing adultery. So it is not universal. Of course, I merely remind the noble Lord of that; but he has the point against me that it is done in cases of adultery in the High Court and it is not done in the magistrates' court.
My first substantial answer to that is the difficulty which I have mentioned; of the complication of the issues. But there is the other point: that, while I am conceding it is broadly the same issue, the consequences are not the same. The magistrates' court does not make any finding of adultery against the third party: nor can he or she be made liable for any damages or costs, although if the third party were given leave to intervene a liability for costs must follow. There is, I think, less chance in a magistrates' court that an unsubstantiated allegation of adultery will be accepted uncontested by one of the parties to the proceedings. In divorce proceedings both parties may be anxious to secure their freedom; but in the magistrates' court the spouse against whom allegations are made will 985 have every incentive to contest the allegations.
Of course, what I say has not the weight of the speech made by my noble and learned friend Lord Merriman, but such inquiries as the Home Office and my own Department have been able to make do not indicate that there is any evidence of injustice being caused under the present law. In my own experience—it is thirty years ago now, but it was extensive at one time—almost invariably the alleged paramour was called by the party who was charged with the adultery, and I cannot remember a case where injustice was brought to my attention. That is the result of all our inquiries. Indeed—though this again is perhaps going into speculation—it might be that if the opportunity to appear, the opportunity to take part, the opportunity to incur costs, and the opportunity to appeal were given, some people might think that they were in a more difficult position, because if they did not intervene they might be held to be impliedly admitting it. On the other hand, if they do intervene there are all the difficulties and expenses which I have mentioned, apart from that which my noble and learned friend Lord Merriman has mentioned—that is, the publicity which he may incur as a party but which he might not incur as a witness. I believe that when this matter is considered it is found to be one of those examples where the a priori arguments sound most formidable but where, when you have tested them inductively by the stern aspects of common sense, it is found that it would really make for too difficult a procedure. I would therefore ask the noble Lord not to press this Amendment.
§ 5.10 p.m.
§ LORD SILKIN
I have listened to this discussion with an open mind on the subject. If it were true that, ever since the Gorell Committee first sat, not a single person has suffered a sense of grievance, then obviously, whatever the theoretical case for this may be, there would be no point in altering the law for this purpose. But how can anybody say that not a single case has arisen where a person has suffered injury or where he had not a grievance? How is it possible for even the noble and learned Viscount's colleagues to say that?
§ LORD SILKIN
The noble and learned Lord is entitled to say that, but where does it get us? The noble and learned Lord says that he and his friends have never heard of a case. That does not mean that there is not a case. They are pretty common in the courts. Let us see what we are talking about. A husband comes before the court and alleges that his wife has committed adultery with X. X is never given any notice that this is going to be alleged against him. The husband may be justified or he may not, but surely in the name of common justice, X is entitled to know. He may or may not desire to come to the court, but at least he should be: informed. It may be that in the vast majority of cases the accused person will not take advantage of his right to go before the court, but if he does desire to do so to deny the allegations, it seems to me that, difficult as the consequences may be—and I appreciate to the full what the noble and learned Viscount has said about the complicated machinery—he ought to be entitled to do so.
After all, the consequences to X may be very serious. He may be a married man with a family in a small community, and when this gets about it may result either in the break-up of his marriage or in rendering it unhappy, with the wife suspicious that he really has committed misconduct with somebody else. Whatever the disadvantages may be, he ought to be given notice of the allegation against him and told that he has the right to intervene. The mere fact that certain people cannot produce a case where there has been a grievance seems to me to be inconclusive, and certainly no guarantee that such cases will not arise in future. Therefore I feel that we ought not to close the door entirely at this stage. We ought to look at the matter again. It may be that my noble friend will be able to produce cases of persons who have suffered a grievance. I think that he has been rather taken by surprise, though he can speak for himself, by the suggestion that there are no such cases or that such cases cannot be found. I must say that I am astonished to hear it.
§ LORD CITRINE
As a layman may I ask the noble and learned Viscount the 987 Lord Chancellor, first, whether the Royal Commission were unanimous on this point, and whether they had evidence before them which would show that in fact grievances of this kind existed? Secondly, what remedies are there now for a third party who feels aggrieved? Suppose his name is mentioned in court and he considers that he wants to make an appearance, what remedy has he now for doing that? Thirdly, is the noble and learned Viscount making the case that the volume of work that would be involved as a consequence of this Amendment would be extensive?
§ THE LORD CHANCELLOR
If I may answer the noble Lord's point with regard to the Royal Commission, I think that they were unanimous.
§ LORD MORTON OF HENRYTON
The Commission were unanimous, but the question was asked whether we had evidence of cases of hardship. I confess, frankly, that I do not remember. There was a vast volume of evidence. I think I remember that it struck all of us that it was rather obvious that a man should not be condemned for having committed adultery without being able to say anything about it, but I cannot remember any instances of hardship being given.
§ THE LORD CHANCELLOR
I cannot remember the finding being based on evidence. My recollection of it, but I should not like to be tied down to it, is that it was based on an a priori argument. With regard to the remedy, I can only give the noble Lord an account of what happened on Merseyside. No doubt it will not be any the worse to the noble Lord, Lord Citrine, because it comes from there. I cannot remember a case where adultery arose (and in those days, 30 years ago, adultery generally arose on cases of revocation of orders, where the wife had an order and the husband came back at her by saying she was committing adultery) in which it was not the almost invariable practice for the wife's solicitor to call the man against whom the allegation was made. It was theoretically possible not to do it, but in all cases that I happen to know about, that was what happened.
§ LORD CITRINE
But if the man was not called, had he any remedy by 988 which he could get his point of view stated and his reputation defended in court?
§ THE LORD CHANCELLOR
No, he had not. My answer is an entirely practical one. I cannot remember a case in which he was not called; but, of course, theoretically it might happen. The smaller the community and the nearer all the people concerned live together, the less chance there is of some kind friend omitting to tell the man about it. That usually happens. I do not want to make any false point to the noble Lord. This is entirely practical: the other thing could happen, and there is nothing the man could do. I wonder whether the noble Lord would remind me of his third point.
§ LORD CITRINE
The third point was whether the noble and learned Viscount contemplated, if this Amendment were carried, that it would involve any considerable volume of work being placed on the courts.
§ THE LORD CHANCELLOR
It is not so much a question of the volume of work, because in my view the same witnesses would be heard whether the third party, the alleged paramour, was appearing independently or not: it is the quality of work. There is the same position in the Divorce Court as there is in criminal cases where there are two defendants: that you have great difficulty, in distinguishing what is evidence against, say, the wife alone, what is evidence against the wife and the paramour, and what is evidence against the paramour alone. I think there will be increased difficulty in the cases, but I do not suggest increased volume, because, as I say, my experience has been that the relevant evidence has been called on behalf of the other party against whom the adultery was alleged.
§ LORD MILNER OF LEEDS
I cannot help feeling that the noble and learned Viscount is not quite so certain of his ground in this case as he was 30 years ago in the other case to which he referred and of which I have pleasant recollections. It is a curious thing, but your Lordships will have observed that there has not been, either from the noble and learned Viscount or from the noble and learned Lord the President of the 989 Divorce Division, a single attack on the principle that when an allegation of this sort is made against an individual he should be given notice of it and the opportunity to refute it. The argument has been that no single case of a grievance has been known. That is the very essence of my complaint: that if no notice is given of the fact that a complaint is going to be made against the third party, then clearly a great number of third parties may not know that the complaint has been made.
That being the case, it is obvious that a grievance may not have come to the notice of the noble and learned Lord who presides over the Divorce Division or of the noble and learned Viscount. But there are such cases, and one knows from one's own experience that things are sometimes said in courts, in newspapers and so on—things which, given notice, one would have been able to refute; but for one reason or another it was not always desirable or possible to give notice. The fact that there is no case which can be brought forward at the moment, and that the Royal Commission had no instance before them, does not seem to me a reason why the principle that notice of a serious allegation of this sort, which might have a serious effect on a man's or a woman's reputation, should not be given. I must say that I was a little surprised at what the President of the Divorce Division and the noble and learned Viscount said: that it is customary, or frequently the case, that the paramour should be called by the defendant. That is how I have understood it.
§ LORD MILNER OF LEEDS
I cannot conceive that that is possible except in a minority of cases. The plaintiff alleges adultery as a ground for obtaining an order against the defendant. Is the noble and learned Viscount suggesting that the defendant should prove the case against himself or herself by calling, his or her paramour? Surely not.
§ THE LORD CHANCELLOR
I can only say it is my experience that the person charged with adultery always called the paramour and went into the box and said that no such adultery ever took place.
§ LORD MERRIMAN
And I added the case in which the paramour was called for the prosecution, so to speak. That is a rare case, of course; but to be called for the defence is usual.
§ LORD MILNER OF LEEDS
I can understand the plaintiff or the prosecutor calling the paramour in certain instances, and I can conceive that in those cases, where the paramour knows that the allegation has been made, the paramour may appear to dispute it. Is that not a very good reason for notice being given in every case where this allegation is made? However, I do not think I ought to put your Lordships to the trouble of a Division. I will, with your Lordships' permission, withdraw the new clause, while reserving my right to put it down again at a later stage of the Bill if after consideration I think it desirable.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Appeals]:
§ THE LORD CHANCELLOR
This Amendment corrects a slip in the drafting by which the right of appeal against the refusal of a magistrates' court to revoke an order which exists under the present law was not carried into the Bill. I am sorry that that should have been the case, but this Amendment will rectify the matter. I beg to move.
Page 14, line 46, after ("of") insert ("or a refusal to revoke").—(The Lord Chancellor)
§ On Question, Amendment agreed to.
§ Clause 11, as amended, agreed to.
§ Clauses 12 to 15 agreed to.
§ Clause 16:
§ "drug addict" means a person who, not being a mentally disordered person within the meaning of the Mental Health Act, 1959, is notwithstanding, by reason of the habitual taking or using, otherwise than upon medical advice, of any drug to which any of the provisions of the Dangerous Drugs Act, 1951, for the time being applies, at times dangerous to himself or to others, or incapable of managing himself or his affairs;
§ "habitual drunkard" means a person who, not being a mentally disordered person within the meaning of the Mental Health Act. 1959, is notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor, at times dangerous to himself or to others, or incapable of managing himself or his affairs;"991
§ 5.27 p.m.
§ LORD MILNER OF LEEDS moved in the definition of"drug addict" in subsection (1) (c) to leave out"managing" and insert"controlling". The noble Lord said: I venture to suggest that the various Amendments on Clause 16 might conveniently be discussed together. I understand that my noble friends are agreeable and, with the permission of the Chair and if it is convenient, that is what I propose to do. The main question arises on Amendments Nos. 14 and 17. There, as your Lordships will appreciate, the proposal is that an addition shall be made to the present definition of"drug addict", in the one case, and"habitual drunkard", in the other.
The short point is this. The Royal Commission pointed out that to obtain an order on the ground that the other spouse is an habitual drunkard or a taker of drugs, the definition in Section 3 of the Habitual Drunkards Act, 1879, must be satisfied. That definition was quoted in paragraph 1028 of the Report, which says:
'Habitual drunkard' means a person who, not being amenable to any jurisdiction in lunacy, is notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor (or the habitual taking or using, except upon medical advice, of opium or other dangerous drugs within the meaning of the Dangerous Drugs Acts, 1920 or 1923), at times dangerous to himself or herself or to others, or incapable of managing himself or herself, and his or her affairs.
The Royal Commission thought that that test as to what constituted an"habitual drunkard" was too stringent for the purposes of these matrimonial proceedings, and they recommended
that the definition should be widened to include the case of the man or woman who by reason of constant drinking or drug-taking renders life intolerable to his or her spouse.
Here, again, the Gorell Commission, in I think 1912, received evidence to the same effect—that the definition had proved unsatisfactory—and they also recommended an extension on the lines suggested by the Royal Commission.
§ This Amendment is in pursuance of a recommendation of the Royal Commission, and of course the arguments in respect of both the drug addict and the habitual drunkard are more or less similar. The possibilities are that an habitual drunkard comes home, probably 992 late at night when the wife has gone to bed—or it may be the husband who has gone to bed, although more often I imagine it would be the wife—and vomits over the bed or in the room, or commits some other disgusting practice to such an extent that, in the opinion of a magistrates' court, it would be intolerable for the spouse to continue living with him. That conduct would not, according to the present law, go so far as to be thought to be cruelty in the opinion of the court. That would appear to be a strong reason why this definition should have the words proposed in the Amendment added to it. One cannot conceive of anything more disagreeable or intolerable—if a better word cannot be found—than to have a husband or a wife either a drug addict or an habitual drunkard, who conducts himself or herself in such a fashion as to make life with him or her intolerable. That should be a proper cause on which an order could be made.
§ Your Lordships will observe that I have an Amendment on the Paper suggesting changing the word"managing" himself or herself, to"controlling" himself or herself. I suggest that"control" is the more appropriate word. One does not"manage" oneself; one"controls" oneself. One"manages" one's affairs. Therefore, my suggestion is that we should leave out"managing" and insert"controlling" in the two definitions where those words appear. I hope your Lordships may think it right to give an additional ground for a maintenance order where, by reason of the taking of drugs, in the opinion of the court continued cohabitation is intolerable and, in the second case, where by reason of habitual intemperate drinking of intoxicating liquor continued cohabitation is intolerable.
§ I notice that in one particular argument it is said that magistrates might take different views in different courts. Of course, that applies to everything. In my view, that is not an argument in which the Departmental Committee can have had much confidence, because obviously magistrates have different views as to what constitutes cruelty, as no doubt do different courts and different judges. Once the principle was established by precedent, the law would become reasonably well settled, and I think 993 justice would be done in cases where hitherto it has not been done. I beg to move.
Page 18, line 8, leave out ("managing") and insert ("controlling").—(Lord Milner of Leeds.)
§ LORD DENNING
May I add a word on this group of Amendments generally, because the definition in the Bill of"drug addict" or"habitual drunkard" dates back to 1879? It makes a man a drug addict or an habitual drunkard only when he is dangerous to himself or others, or is incapable of managing his own affairs. The Royal Commissions of 1912 and 1955, and even Mr. Justice Davies's Committee, all recognised that that definition was so stringent that many hard cases were unprovided for, and it is now almost a dead letter. The cases which it does not provide for are the cases where a man is not dangerous but revolting, and where he comes home and is sick all over the bedroom floor, or the case of the wife who has her secret drinking cupboard and makes herself a thorough nuisance in the place. They are not dangerous or incapable but simply revolting or a nuisance. As both Royal Commissions pointed that out, and as the definition is a dead letter, what is the use of keeping it as it is? Why not put in the recommendation of the Royal Commission, namely, that if his conduct Is such as to make life or cohabitation intolerable—whatever the exact form of words does not matter—no person can reasonably be expected to continue with conjugal life in those circumstances. Why should not the definition be amended in that way?
The only objection stated by Mr. Justice Davies's Committee was that it might receive different interpretations in different courts. That is the sort of trouble one always has to put up with. Different courts may give different definitions of cruelty, and even when dealing with dangerous driving different courts may give different interpretations. That is the sort of thing which in the administration of the law you cannot overcome. But broadly and generally it works. Therefore, I would suggest that this definition which has been criticised by two Royal Commissions, which dates back to 1879, and is a dead letter, should be amended.
§ LORD MERRIMAN
I wish to add a few words. I will not say anything on the point which I have no doubt my noble and learned friend the Lord Chancellor will deal with, as to whether it is apt, in the case of this limited Bill, to take the opportunity of altering words which are of more general application. Nor am I proposing to deal at all with the question of the habitual drug addict. So far as I can remember, I have had no experience of that in the 26 years I have occupied my present position.
I should like to say a word about the habitual drunkard. Noble Lords who advocate this Amendment are, if I may be colloquial,"shinning up the wrong tree." Indeed, my noble and learned friend Lord Denning provided me with the very cue just now, which was one that I proposed to use myself. The place for this question of rendering continued cohabitation intolerable is when the case of expulsion from the home by intolerable conduct, or the case of cruelty, arises. That is the proper place for it. When I am confronted with a case where the wife or the husband says that he or she has been expelled from the home by intolerable conduct, and we get this nauseating bedroom scene (which I will not describe again, but which has been quite rightly described as revolting) or any case in which the wife says she has been expelled from the home by the husband's conduct, I contrast two passages, one in Lord Astor's judgment in a well known case about a pig man, and the other a saying of my predecessor Lord Asquith, that the conduct complained of must exceed the ordinary wear and tear of conjugal life.
My predecessor Lord Merrivale stated it in one sentence, which, oddly enough, was perhaps unconsciously quoted by my noble and learned friend Lord Denning just now. It is that where there are such conditions, a reasonable wife being so treated by an unreasonable husband, could not be expected to proceed with the conjugal life. In the revolting circumstances described, I should not myself be prepared to hold that they were the ordinary wear and tear of married life, but that they exceeded that, and I should be prepared to hold that the conditions were such that the wife could not be expected to proceed with the conjugal life. That is where this 995 particular Amendment should come in. But it is not necessary for that purpose.
§ THE LORD CHANCELLOR
I think that this is an extremely difficult point. I am grateful to all noble Lords for their contributions on it, and frankly I should like to consider it again. It is interesting that the sentence immediately preceding the one which my noble and learned friend Lord Merriman just quoted, from the judgment of our dead friend Lord Merrivale is this:Is it right to say that the conditions imposed on the wife were unbearable for her or any other wife, conditions which it was not competent for a reasonable husband to set up?The importance of that is this: if you go as far as"unbearable" or"intolerable"—and I do not think there is any difference between the two words—you are getting into the field which is already covered by cruelty or constructive desertion.
If you do not want to go as far as that, I think you have to find some new words; and that is the difficulty. And that is what I think the Davies Committee had in mind when they said, on page 27:On the other hand, the Committee thought that if a less stringent test were to be introduced it would have to be some such test as that recommended by the Royal Commission and ought to relate to the effects of the drunkenness or drug addiction on the feelings of the spouse in question; the result would be to create a new cause of complaint of which the essential ingredient would be a degree of suffering caused by either of two selected kinds of behaviour which are not necessarily the same as, and possibly fall short of, cruelty. The Committee thought that, even if the Legislature were to stop short of taking what may be regarded as logically the next step of extending the new cause of complaint to suffering caused by other kinds of behaviour, there would be a danger that any form of words adopted to define the new cause of complaint would tend to receive different interpretations in different magistrates' courts.I have read that in order to complete the quotation, but it is the first part which I emphasise, not the second part, because courts will always form different views as to particular circumstances. That does not frighten me. But what does frighten me is, are you going to make it a subjective test dependent on the wife? If so, it has really to be something short of intolerable or unbearable to improve the position. I find that there you are not getting close to but moving 996 in the direction of incompatibility. Obviously, especially with regard to drink (I hope I am not just making a debating point; I do not intend to) the difference between women's reactions to the various stages of taking drink are extraordinary. I think it is a fair point. There are some who are incredibly annoyed and hurt by what others would think was merely a cheerful state. There are these variations. Therefore, I find great difficulty in getting a clear conception, if one approaches it from the subjective point of view.
On the other hand, I am equally open to the difficulty which my noble and learned friend, Lord Denning, mentioned, and which indeed the Arthian Davies Committee referred to: that the existing provision is almost a dead letter. Therefore, I should like to have another try—I do not promise to be successful—at getting a better objective definition. I am quite prepared to consider that. We have had a most interesting debate on what I think is a very interesting psychological and social problem. I hope the noble Lord will not press it this time, but again I should be grateful if anyone has any suggestions, and I promise that I shall try my best to get a better definition, although it is so difficult a subject that I cannot promise to be successful upon it. Perhaps upon that assurance we might leave it at this stage of the Bill.
§ LORD SILKIN
I think that the noble and learned Viscount has met the position quite satisfactorily. He has raised matters which do deserve further consideration. It is, in fact, creating a fresh matrimonial offence, but I believe there is justification for doing so. I think that in the present law there is a gap. I agree also that the effect of habitual drunkenness may vary both in its manifestations and in its effect on the other spouse. What we want to do is to deal with the case where the habitual drunkenness—and habitualness must be an element in the matter—is such that it is affecting the other spouse in such a way as to make it impossible to continue. I agree that different spouses will react differently according to whether the manifestation is cheerful or melancholy or something in between. I think it is a matter where we all ought to think again, and therefore I would ask my 997 noble friend to agree to the suggestion that the Amendment be withdrawn at the present time.
§ LORD MILNER OF LEEDS
I am much obliged to those who have taken part, and certainly to the noble and learned Viscount opposite. I ask leave to withdraw the first Amendment and do not propose to move the remaining Amendments to the clause.
§ Amendment, by leave, withdrawn.
§ Clause 16 agreed to.
§ Remaining clauses and Schedule agreed to.
§ House resumed.