§ 3.9 p.m.
§ LORD STOW HILL
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Stow Hill.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE LORD DOUGLAS OF BARLOCH in the Chair.]
§ Clause 4:
§ Decree to be refused in certain circumstances
§ 4. The respondent to a petition for divorce may oppose the grant of a decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage; 141 and if the respondent does so and if apart from this section a decree nisi would be granted, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would be wrong in all the circumstances to dissolve the marriage it shall dismiss the petition.
§ For the purposes of this section hardship shall include the loss of the chance of acquiring any thing which the respondent might acquire if the marriage were not dissolved.
LORD GRANTCHESTER moved Amendment No. 26:
Page 3, line 36, at beginning insert ("(1)").
§ The noble Lord said: This Amendment, as also are Amendments Nos. 29 and 32, is a redrafting Amendment consequential on Amendment No. 34, so I am informed that I must deal with all the Amendments together—that is to say, Amendments Nos. 26, 29, 32 and 34.
§ The Bill before us enables a petitioner to insist on a divorce after five years' separation, subject only to certain financial conditions. A great many people in this country choose a marriage service which has a dual character, the one of religious significance, the other a civil contract; and the sacrament of marriage or the marriage covenant (I am sure I can so describe it and satisfy all the right reverend Prelates) precedes the registration of the civil contract.
§ Once again I must emphasise that we are dealing in this Bill with compulsory divorce. I suggest that there are people who, in spite of the disappointment and suffering, conscientiously believe that they are not free to take the way out which is indicated in this Bill. This is because of the commitment they entered into at the time of their marriage, which they regard as having sacramental importance, or involving obligations which are something more than a contract between the parties. Without amendment, the possibility arises that such a person will not even enter an appearance to a suit for divorce rather than become a party to proceedings of which he or she does not approve. A non-responding party (if I may so call the respondent in such a case) will then be forcibly labelled with the status of a "divorced person", and if the petitioner is the husband, the wife's claim for maintenance will be an- 142 nulled. This will be true whether or not some other provision is made for her in her absence. I do not think I need labour the reason for this Amendment except to point out that the plea I have suggested is of course quite optional and nobody need plead conscientious objection. Conscientious objection is a well-established principle in this country.
§ On this dual aspect of marriage there is one comment I ought to make. This Bill illustrates the dilemma caused by too close an identification between Church and State. In this case it was rather more noticeable because prominent churchmen took the lead in advising the State; the State did not accept some of the recommendations and we have seen the result in the Divisions in which the right reverend Prelates have taken part, as I think they have only agreed among themselves in one Division. May I ask the right reverend Prelates who voted in favour of this Bill whether, having accepted the principle of breakdown of a marriage as the test for divorce, they wish to modify or qualify the words of the marriage service? Do they perhaps propose that when anyone goes to church to be married they should keep in their minds the maxim quantum in me est? Or do they propose to introduce a "service of release" from the obligations of the marriage service? I believe this is the difficulty in which people who are being forcibly divorced will find themselves. I hope the supporters of the Bill will feel able to accept this Amendment and also those which are consequential upon it. I beg to move.
THE LORD BISHOP OF LEICESTER
The noble Lord, Lord Grantchester, has certainly proposed an Amendment well calculated to tie up the right reverend Prelates in knots. At first it appears very attractive and I speak as one, curiously enough, who voted against the Bill on the Second Reading, largely because of my inherent dislike for compulsory divorce based upon a sufficiently long period of bad behaviour on the part of one of the two spouses. But I am afraid I cannot possibly agree with the Amendment that has been put before us because I think it contains a number of fallacies that have to be looked at carefully before it can possibly be accepted.
In the first place, we in the Church do not for one moment treat civil marriage 143 as being of less binding quality than religious marriage. It is a common belief that this is so, but as a matter of fact even in religious marriage—marriage with a religious ceremony—it is not so much the Church that is marrying the couple, any more than it is the registrar who is marrying a couple in a civil marriage: they are really marrying each other. This is the basic understanding of marriage. And the difference between civil marriage and religious marriage is not in the obligations that are accepted, the one to the other, but in the atmosphere in which these obligations are accepted and, as some of us like to believe in the spiritual resources which are available to the parties, if they seek them and use them, in the maintenance of their marriage. Therefore, the idea that we should welcome a distinction in binding quality between religious marriages and civil marriages is a false one.
A further point which has to be faced is that in these days it would surely be quite impracticable to allow the divorce laws to be controlled by what might be thought to be, at the best, a conscientious objection, or at the worst a subterfuge. I do not think it would really help the religious understanding of marriage if there was such an easy way out of the divorce position as this Amendment would allow. The more one thinks of it, really, the more impracticable it is.
We are still in the position where considerably more than half the marriages in this country are in fact religious marriages. There are half the marriages in the Church of England alone, and if all the marriages are taken into account in the other Churches the percentage is a very high one. What the noble Lord is proposing is that this Divorce Reform Bill should apply only to a comparatively small section of married people in the country. I cannot believe that the House had any such idea in mind when it supported this Bill in the first place. We certainly do not intend—or, at least, I know of No intention—to modify the words of the vows, either in the religious or in civil ceremonies. Everybody knows there is a dilemma here. Marriage to be marriage has to be undertaken with permanence in mind, but for very many years, certainly since 1857, this country has decided that there must be machinery 144 for dealing with breakdowns. Therefore, I resist the blandishments of the noble Lord and say that I, from this Bench, could not support the Amendment.
§ 3.20 p.m.
§ LORD STOW HILL
I cannot add anything to what has been said so very clearly and so very convincingly by the right reverend Prelate on the religious aspects of the question which is raised by the noble Lord's Amendment. I wonder, however, whether the noble Lord has considered the practical consequences of the Amendment he has put down. He spoke of a Bill which provides for compulsory divorce. I do not recognise that as a very apt name for divorce after five long years. But let us suppose it does provide, inter alia, for compulsory divorce. The noble Lord's Amendment applies to all the sub-headings contained in Clause 2 (1). It would apply to the divorce on the ground of adultery, on the ground of cruelty, on the ground of desertion, even where the grounds were two years' separation, with consent by the respondent.
The noble Lord's Amendment would have the result that in all these cases, in addition to the case where the petition for divorce were founded on five years' separation, the respondent could raise this conscientious objection. I should have thought that that would be a completely unacceptable result; that if a wife or husband sought divorce on the ground of profligate adultery by his or her husband or wife, the wife or husband respondent should have it in his or her power completely to put an end to the proceedings by raising this religious scruple. I should have thought that nobody could accept that that was a conclusion—I hope I do not speak disrespectfully of the noble Lord—that could be said in any way to correspond with common sense.
The right reverend Prelate also used the word "subterfuge", which I should like to borrow from him. I imagine that what he had in mind was that it is so difficult to test whether a scruple advanced by a respondent in any of these sets of circumstances is or is not sincere. One of the main objections against the present system is that it plays into the hands of the dishonest and unscrupulous petitioner. The noble Lord's Amendment, I should have thought, played 145 directly into the hands of the unscrupulous respondent. The respondent may have been guilty of all sorts of deplorable behaviour and can then say he or she has a religious scruple to the pronouncing of a decree of divorce. The more dishonest he or she is in advancing this scruple, the more convincingly he or she does so, the more difficult for the court to do justice in the individual case.
Therefore, I would submit that, even where you have an honest respondent who advances a genuinely felt scruple, the result would be completely unacceptable to public or humane opinion in a very large number of cases, including cases of five years' separation, but particularly in the case of adultery or desertion or cruelty; and that, in addition to that, the proposal of the noble Lord offers every inducement to the unscrupulous respondent, who for perhaps utterly malign reasons wishes to obstruct the pronouncing of a decree for conduct which would merit such a decree, to do so. For those reasons I ask the Committee to say that the noble Lord's Amendment, if he presses it to a Division, ought to be rejected.
§ LORD GRANTCHESTER
We are perfectly used to judge conscientious objection. If the noble Lord read my Amendment a little more carefully he would see that the respondent has to satisfy the court about the conscientious grounds, and certainly this would not apply in any of the other cases to which he referred because in those cases he would not satisfy the court of the conscientious objection. So it would apply only to the cases where there is what I call compulsory divorce.
The right reverend Prelate spoke of civil marriage being of no less importance than religious marriage. He may think that; but he need only look at the Preface to Putting Asunder by the most reverend Primate the Archbishop of Canterbury to see that he takes a very distinct line between civil contracts and marriage in church. I am quite prepared for the courts to judge on the breakdown of a marriage contract as a civil matter. I still ask the right reverend Prelate to tell me who is to judge the breakdown of a marriage when it is looked upon as a sacrament or a covenant.
THE LORD BISHOP OF LEICESTER
I do not know how far the Committee will want us to get drawn into the subtleties of religious discussion in this matter, but I can only say that it is possible for religious people and religious communities to have deep and most sacred convictions about their relations with each other, and, as they would say and I would say, before God, without always claiming that those sacred natters shall be embodied in full in the law of a society which has become pluralist. I want to be very careful about the way in which I put this and not to yield at all from what I said myself in the debate on Second Reading, but I think the fact that one voted against the Second Reading of the Bill itself does not absolve one from taking a rational and sensible view about the practicalities at the Committee stage.
I wonder whether my noble friend has considered the matter in this way. I recognise his deep religious conviction, but is this Amendment really a religious Amendment at all? It seems to me that the effect of this Amendment—and I rather thought the right reverend Prelate had made this point—is to set up two different kinds of marriage contract: on the one hand, the civil contract, which, like all other contracts, when circumstances demand it, can be dissolved; and another kind, which can never be dissolved at all, which is not a contract at all—it is a nonsense. My noble friend is not really safeguarding anyone's religious scruples. He is asking us to consider setting up two different kinds of marriage, and I hope he will think about that carefully before deciding to press it to a Division.
I did not intend to say anything on this; and I have an urgent appointment and cannot stay very long. But in reply to what my noble friend Lord Henley said, I should like to make one point which I do not think has been quite appreciated by those who have criticised my noble friend Lord Grantchester. I personally feel that, if an Amendment of this kind is not passed—I am not in the least defending its particular wording; I do not know what its results would be—a serious amendment will have to be made in the marriage service in the Church of England. I have been trying to draft 147 one (it is not for me to draft on my feet) and, taking the example of the noble Earl, Lord Jellicoe, who the other day invented a pair of people by the name of Victor and George, I have drafted this:I, Henry, take you, Catherine, to be my lawful spouse, for better or for worse, for richer or for poorer, in sickness or in health, for a period of five years, or as one of us shall decide thereafter, not to be so or not.For the moment, that is as far as I can get, but I cannot see that the marriage service could go on in the words in which it will go on if this Bill in its present form goes through. I will not go any further in this matter now, but I shall hope to say something about it later on when I am less preoccupied and when your Lordships possibly have time to consider the rather deeper implications which I think are in this Bill but which some of us have not realised.
§ On Question, Amendment negatived.
§ 3.32 p.m.
BARONESS SUMMERSKILL moved Amendment No. 27:
Page 3, line 38, leave out ("grave").
The noble Baroness said. I beg to move the Amendment which stands in my name and that of my noble and learned friends. The Amendment is to delete the word "grave". But may I in the first place remind the Committee of that part of the clause which is related to this Amendment. Clause 4 reads:
The respondent to a petition for divorce may oppose the grant of a decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship … and that it would in all the circumstances be wrong to dissolve the marriage.
§ The purpose of this Amendment is to delete the word "grave", and I think in the first place we must ask ourselves the question: why should an innocent spouse have to put up with hardship which is short of grave? After all, what is she considering when she makes an appeal to the court? She is making an appeal not only for herself, on the grounds of financial hardship, but also for her children. Therefore, how is "grave" to be interpreted by the court? I do not believe that it is right to fetter the court in this way, particularly when there are children involved. It is one thing to give 148 judges a wide discretion to deal with the individual case within the framework of law; it is quite another to expect them to decide how much hardship is too grave for a woman to bear when there is no framework of law on the point at all.
§ The degree of hardship from which a woman would suffer depends on her capabilities, her temperament, her resilience, her possession of good friends and good relations who may help her financially. All these factors could affect her financial position, and if this word is left in the Bill each case will of course call for the most detailed investigation. In consequence, I fear that we may have many different interpretations throughout the country. We shall have women treated in a different way in different courts. We shall have women treated in a different manner in each different part of the country.
§ I am inclined to think that some people regard the woman who is involved in a divorce case to-day as in this particular position, as something of a cosseted creature. This is because, I suppose, there is so much publicity about the emancipation of women. But as I said to your Lordships the other night, all women are not emancipated at all in the sense of the popular Press. The principle of equality cannot eliminate the fact that it is a woman, and not a man, who becomes pregnant as a result of sexual intercourse; and for the most part it is the women who have the care of the children. There is no equality in that. The scales are weighted against these women in these cases. But they would not have it otherwise. Guilty women in divorce courts fight to look after their children. The judges in these days are wise enough to know that a woman might be guilty in other ways, but generally she is the best person to care for her children. Generally these women have had many years of marriage before the divorce comes along. Those years may well be years of economic struggle, and the later years of economic ease or greater economic ease. The wife who has played her part in that early struggle is entitled to her share of the greater ease, especially as her strength and attractiveness may have diminished.
§ I would remind the Committee that even to-day a judge in the courts will look at a woman and say to himself, whether he says it to her or not, "She is not bad looking; therefore another 149 man will come along." That is the deplorable thing, and I know that none of my noble friends would do such a thing! But a woman is still treated a little as though she were in the cattle market; and therefore men have said, "Her looks are important; her energy is important; and if all these have diminished in consequence of her working for that first man, bearing his children, rearing his children, then of course her value in the marriage market has diminished". I bring this before your Lordships because again I emphasise—I ask you to forgive me if I repeat myself—the importance of the fact that this woman has helped to earn the wage or salary of her husband during the years of her married life, by reason of the fact that she has worked in the home and has brought up the children. And, of course, by the same reasoning, she is entitled to a widow's pension which stems from her husband's contribution as much as by her labour in the home over the years.
§ As I say, I have mentioned this matter on other occasions. To-day, I should like to present another aspect for your Lordships' consideration. The marriage we are talking about is dead and past resuscitation, and the wife in hard, practical terms becomes redundant—and a redundant worker at that. Is the question asked: will a man suffer grave hardship before his redundancy pay as a worker is established? This analogy is surely apposite. I repeat that it will be difficult for the respondent to prove grave hardship because the petitioner can retort, "In a Welfare State you can get supplementary benefit, and meals at school for the children". I presume that in some courts it might be said, "Well, if the woman can do that, surely we cannot say that she is suffering from 'grave' hardship." Although the respondent may lose her entitlement to a widow's pension, will the court regard this as a "grave" hardship? If it has been thought necessary to put this word "grave" into the Bill, it indicates that the sponsors anticipate that wives will suffer "grave" hardship. I would say that this proves our contention that this Bill will inflict hardship on the first important family. If, however, it is argued that this Bill introduces adequate safeguards, financial and otherwise, to protect these respondents, particularly those wives divorced against 150 their will, then the word "grave" should be deleted.
§ I agree that this is of course a subjective test. One person may think he—or she—is suffering from "grave" hardship, another may not; judges are human beings, and what one may think "grave" another may not. I would say that when lawyers are advising clients they should be able to advise then with some degree of certainty, and we are now discussing the word "grave" of which throughout the country there will be different interpretations. I believe that if legislation is vague and uncertain, it is bad legislation. We have been told repeatedly that Clauses 4 and provide ample financial safeguards, but unless "grave" is omitted the application of this clause will be very limited indeed. Of course, by including the word "grave" only a few cases need be heard, but I do not suggest that this rather harsh interpretation has occurred to the sponsors.
§ I hope your Lordships will give this careful consideration because this is a very important matter to these women, and I wish to emphasise that if the respondent is to have a safeguard of any substance at all then the word "grave" should be removed from the Bill.
§ BARONESS STOCKS
I should like to support the Amendment. I do not think the word "grave" adds anything important to the Bill. In fact in some ways it makes it a little more difficult, because hardship that is grave to some people is not grave to others; and if the word "grave" is inserted it opens the way to all sorts of discussions on interpretation. I think the Bill would be far better without the word "grave", and I beg the noble Lord, Lord Stow Hill, to accept the Amendment.
§ 3.44 p.m.
§ VISCOUNT DILHORNE
The noble Baroness, Lady Summerskill, has performed a useful service by drawing our attention to the language of Clause 4 and particularly to the use of the word "grave" in this sentence. The language is, "grave financial or other hardship" so as I read it—and I shall be interested to know if the noble Lord, Lord Stow Hill, reads it this way—the other hardship which may bring this Clause into operation need not be a grave hardship.
151 It does seem to me rather curious that the promoters, by the insertion of this word, should underline that the financial hardship has to be grave when the other hardship, whatever it may be, need not be grave at all. I would ask the Committee to consider this word against the background of the clause as a whole. I am one of those (and I think the majority of the Committee are, too) who feel that if any provision such as paragraph (e) of Clause 2 (1) is contained in the Bill then it necessarily follows that adequate provision must be made in the Bill for securing the position of the wife who is divorced without her consent after five years' separation.
I have put down an Amendment to leave out this Clause in its entirety because, while I should not object to a provision of that sort, I think that either this clause ought to be limited to that; or that a provision of this kind ought to be inserted in Clause 6, which deals with Section 2(1)(e). Under Clause 6 power is given to the court to refuse to make a decree absolute unless certain financial provision is made—and we shall come to that later. Clause 4 starts what is to me an entirely novel principle. Under this clause a petition can be dismissed, the decree can be refused, not only in a case coming within Clause 2(1)(e) but in relation to any case, whether it be under (a), (b), (c), (d), or (e) of Clause 2 (1). Is there any need for that?
I should like your Lordships to consider whether, if the principle on which we are now to work is the irretrievable breakdown of marriage, it really is tolerable or acceptable that when such a breakdown has been proved—and it may be proved by proof of adultery; the husband going off and living with a mistress, or the wife going off and living with a lover; when that has been proved—and may be that illicit arrangement has come to an end—that at the request of the respondent the whole circumstances will be gone into, and there will be a major inquisition?
This clause contemplates not a minor inquisition, to which the noble Lord, Lord Henley, drew attention in our other debates. There will be a major inquisition into all the circumstances at the request of the respondent, because the clause provides that if the respondent opposes the grant of a petition on these 152 grounds, the court shall consider all the circumstances.
At the end of that major inquisition the clause provides that the petition shall be dismissed not on the ground that the marriage has not broken down but on the ground, as it could be, that the adulterous respondent has or will have suffered grave financial or other hardship and that it would be wrong in all the circumstances to grant the decree. Surely the right procedure is the present course: that after a decree has been granted because of adultery, questions of maintenance are gone into thereafter. What is proposed here is something quite new over the whole field: that a divorce can be refused if the respondent invokes Clause 4, and invokes it satisfactorily.
The noble Baroness, Lady Summerskill, drew attention to the possibility of widely varying interpretations being given to the word "grave", and I think there is force in her observations. But when the word "grave" is joined, as it is now in the clause, with "grave financial or other hardship" and "that it would be wrong in all the circumstances", what is to be the test of wrongness in this connection? It seems to me that no guidance is given in this clause as to the weight to be put on that word, and therefore there are likely to be widely varying applications of this Clause in different parts of the country by the different judges who have to apply it.
We have got rid of the old discretionary bars—condonation, connivance, and so on. One question I should like to ask the noble Lord, Lord Stow Hill, is this: is this use of the words "wrong in all the circumstances" meant to bring back, by a sort of side wind, the application of the principles which have been so clearly established in relation to those matters? Because if it is not. then one gets to the position that, although a divorce can be refused on the ground of financial or other hardship, and on the ground that the judge thinks it is wrong in all the circumstances, it will not be possible for the court to refuse a decree where the respondent has connived at. perhaps promoted, adultery on the part of his wife and where—and one gave the instance—having lived for some time on her immoral earnings, he then wants to get rid of her and divorce her.
153 I know I have gone a little further than concentration on the word "grave", which the noble Baroness criticised, but I wanted to relate that criticism to the principles which lie behind this clause. I think this Committee would be right to examine the wording and scope of this clause very carefully. I hope that the noble Lord, Lord Stow Hill, will at least say that he will look at it very carefully again; and I hope, too, that he will say that he will marry this clause (perhaps that is not the most appropriate word to use on a Bill of this sort) with Clause 6 and limit its scope to applying to cases under paragraph (e). I do not myself think there is much need to apply it to cases under paragraph (d), because presumably if the woman or man who is respondent is going to object under Clause 4, he or she will not give consent so as to bring paragraph (d) into operation. For myself, I think that the Bill would be much improved if Clauses 4 and 6 were married together and the scope of this clause was confined to paragraph (e) at least, and possibly paragraph (d).
That is apart from the main question raised on this Amendment; namely, as to the insertion of the word "grave". While I can see the idea behind that, I myself would think that the inclusion of that word puts too heavy a burden in the cases to which this clause should apply—that is, paragraph (e)—on the respondent who is being divorced against her will.
§ LORD REID
I rise at this point because I am in total disagreement with my noble and learned friend Lord Dilhorne on this issue. He has very skilfully made a speech on his own Motion, to leave out Clause 4 altogether—a speech which has no relation whatever to the present Amendment. Therefore, I wish to say that I trust that the Committee will wait until Clause 4 is debated, on the Motion whether it should stand part, before expecting a full reply to the noble and learned Viscount. I hope to demonstrate on the next Amendment that it is quite vital to retain Clause 4, and that it cannot be married to Clause 6 in the way in which my noble and learned friend seems to think it can.
I merely wish to say at this stage that I shall oppose to the utmost any Motion to leave out Clause 4, but that does not 154 mean that Clause 4 is tolerable in its present form. The noble and learned Viscount disagrees completely with the point of view of the sponsors of the Bill in this respect. They might have taken the view which he does, that once you get the breakdown of a marriage you brush aside all questions of hardship unless they are financial and you leave it at that. That, fortunately, is rot the view of the sponsors. If it had been, they would not have put anything about financial hardship in this clause at all; and I am surprised that my noble and learned friend goes so much further than the sponsors of the Bill do against the interests of women who will have hardship inflicted upon them if this clause does not go forward.
Let me come to the subject matter of this Amendment—because I think there is a good deal to be said about it. This provision has been put forward by a great many of those who defend this Bill as a main safeguard for the wife who may admittedly, in certain cases, suffer hardship if a divorce goes through. My purpose is to show that it is a paper safeguard; that it has no real content at all. Therefore I hope that those noble Lords who support paragraph (e) only if some safeguards are to be attached to it will realise that this Clause in its present form attaches no safeguard of any materiality at all, and might as well not be there in its present form. Bat two simple Amendments, this and the next, will give the clause teeth, and I venture to think that that is what is necessary.
In the course of these debates we have been told, "Trust the judges. The judges will be able to do justice". Certainly trust the judges—if they are allowed to do justice; but, as I hope to demonstrate in one moment, this clause forbids them to do justice in 99 cases out of 100. There are two objections to it. One is that it ties two quite different things together and makes it necessary to prove both before you can get any relief. That is a matter which I shall try to deal with in the next Amendment; but in this Amendment the first thing you have to prove is "grave" hardship. If it is unjust to inflict grave hardship, why is it just to inflict hardship which is less than grave? That is the issue. Those who support the present phraseology must say, if they are going to be 155 logical at all, "I think ordinary hardship does not matter but grave hardship does".
I leave it to the noble Lord, Lord Stow Hill, to explain by what process of thought the sponsors of the Bill have reached that, at first sight, astonishing conclusion. I do not think they can really have intended to put in such a very strong word as "grave". Even where the word "severe" has been used—and I shall give your Lordships an instance in a moment—the courts have held that that prevents them from doing justice. I shall give a concrete instance—and "grave" is a much stronger word than "severe". I have not the slightest doubt, looking at the way in which words of this kind have been interpreted in the past by the courts, that if we leave in "grave" hardship the only case in which the courts will feel entitled to take notice of the hardship will be a case of the most unusual and extraordinary character—one case in a thousand. If the Promoters of the Bill intend this to have any general application, they must either leave out the word "grave" or find some word which is much less strong in this context.
I say that the inclusion of this word prevents a court from doing justice, and whether it is intended to do that or not I do not know. Let me, because I think it might be useful, give an example of a case where a less powerful word was used. Your Lordships will be acquainted with the way in which legal aid works. Assisted plaintiffs very often sue small men who are just above the appropriate limit and who cannot get legal aid for their defence. In one such case three years ago the defendant was a small haulier who had a backyard, and the plaintiffs were two boys who had broken into the yard, found some flammable material there, taken it out, set fire to it and burnt themselves. They then sued the unfortunate small businessman. The boys got legal aid. It cost the businessman £271 to win his case. Then, your Lordships will hardly believe it, the boys got legal aid to go to the Court of Appeal; and the Court of Appeal brushed the case aside, they did not even listen to the counsel for the respondents. The result was that again a considerable sum was expended by this man. That is the reason why I brought this case to your Lordships' attention.
156 The Act says that if it is just and equitable that the unassisted defendant should recover his costs from the Legal Aid Fund, then he is to get them, subject to the exception that in the courts of first instance he must prove that he has suffered severe financial hardship by reason of having to defend the case. The Court of Appeal held that it was just and equitable to give this man his costs in the court of first instance. But although he is a very small man—he suffered the expenditure of £270 that he could ill afford—still there is no severe financial hardship on him. That illustrates the difference between what is "just and equitable" and what is "severe financial hardship"—and "grave" financial hardship is much worse.
Accordingly, it is no good proving—if the Bill stays as it is—that it is just and equitable that notice should be taken of this: you have got to go much further; you have to prove that grave financial and other hardship will ensue if the divorce goes through. I venture to think that this will require a great deal of justification and I look forward with interest to the intellectual process by which the noble Lord, Lord Stow Hill, proposes to justify it.
§ BARONESS GAITSKELL
When I have to pit my own prejudices against the noble and learned Lord who has just spoken, I have no hesitation; but when I have to argue with him about legal matters I do not feel on quite such safe ground. Before I come to my noble friend's Amendment, I should like, somehow, to clear the air about the whole aspect of hardship in divorce. No one will say that after a divorce neither of the parties are going to suffer some hardship. Here we are not considering the cad, we are not considering the bad woman, we are considering two resonably decent people who want a divorce, or one of whom wants a divorce after five years. If we leave out the word "grave", what are we left with? We are left with the sentence: It would be wrong in all the circumstances to dissolve the marriage.
What does that mean? What does it amount to, this vague phrase open only to every subjective test? Much has been said this afternoon about the fact that interpretation will be very varied. But is not interpretation to-day varied? Do not judges to-day have to decide alimony?
157 Do they not have to decide to-day what the man has to pay for the children? All these things have to be decided to-day. They will be decided, if the Divorce Bill goes through, in exactly the same way. I hope that everyone in the Committee believes that the judges are competent to do this; that they will try not to be subjective whatever they feel about divorce reform. Whereas if dissolution results in grave financial or other hardship to the respondent with the following comprehensive definition of hardship, this makes legal sense and justice. I agree that my noble friend's one consistent example of great hardship in divorce is one of the saddest cases; but it is not the only one. There are many others. They are just as painful and, in a way, as unjust. To leave out "to dissolve the marriage" makes a complete nonsense of the clause. It makes it meaningless, full of vagueness and ambiguity.
So I am utterly opposed to this Amendment. Surely ordinary hardship can be interpreted. I cannot see that this particular Amendment applies to all the other cases. As my noble friend has always given this one case, I should like to read out a small portion of a letter which I have received which gives the other side of what I call a decent divorce case where two people are decent and still want a divorce. It says:I and the gentleman I hope to marry one day have been waiting 12 years. He sends each week £9 to his wife just for herself. He might not have to send quite so much by law standards but with my earnings, if and when we marry, we should be able to manage and it would not be fair to send less with the cost of living always rising.After that she says:After all these years of hoping and praying to be able to marry and be together all the time seems like a dream, even if we could not afford for me to give up work and have a family.That is the other side of divorce. Although I do not plead it all the time, and I agree that my noble friend's example is a very sad one, I still think there are many other sides.
THE LORD BISHOP OF LEICESTER
I cannot speak for my brothers on these Benches, but for myself I am ready to support the Amendment moved by the noble Baroness, Lady Summerskill. I feel that this clause does really apply 158 sensibly only to the five-year compulsory divorce case. I do not feel it really fits the others, but assuming that in some way a tie-up can be made, we come to the question: Should it be "grave hardship" or should it be "hardship"? We are doing something new in our divorce laws in allowing a divorce of this kind and I think we must face the fact that society has entered into a contract with the two people who have married. Whether they were married in church or in a register office, in entering upon their marriage they felt that society, a larger group, was in some way defending and protecting them in this new relationship.
Now, for the first time, we are proposing that society shall withdraw from its obligation of maintaining this marriage even though one of the parties is, from the ordinary point of view, innocent and guiltless of any offence. Therefore, in that situation I think society has to lean over backwards in order to see that no possible injustice is done which can possibly be avoided. As the noble Baroness, Lady Gaitskell, has said, I think there can be an argument about hardship; but I think we shall simply have to wait and let these words develop an agreed meaning in the course of time. Between "grave hardship" and "hardship", I am prepared to vote for "hardship".
§ 4.10 p.m.
§ BARONESS BIRK
I should like to speak against the Amendment. It seems to me that if this Amendment is carried it would be quite catastrophic for the whole Bill; it would be a most retrogressive step. As the noble and learned Viscount, Lord Dilhorne, said when speaking to his own Amendment, this would apply to all grounds for divorce and not just the new ones in this Bill. With respect, I think that the contribution made by my noble friend Lady Summerskill was an argument against Clause 2 (1) (e) and not really connected with this Amendment at all. If this Amendment were carried it would leave the whole matter so wide open that divorce could be refused on almost any grounds. Throughout the debates on this Bill we have heard that it would be quite unfair to leave: he Bill, or the Act as I hope it will become, too wide open, and unfair to the judges who have to interpret it. If that is so, and I accept that it is it seems to me quite 159 wrong and irresponsible to remove the word "grave".
The noble and learned Lord, Lord Reid, asked why it would be just to inflict hardship which is not grave. Of course it is not just to inflict any hardship at all, but we are all aware as was said by my noble friend Lady Gaitskell that there is hardship in every marriage break-up of this kind. When discussing this matter we should remember that this is a "long-stop" clause. The clause that deals with the provision of as good financial and other arrangements as possible is Clause 6.
In my reading of Clause 4 regarding "grave financial or other hardship" I would apply the word "grave" to other hardship" as well. It has been argued the other way, but that is the way I read it; and unless I am wrong from a legal point of view, I think that is the way it should stand. The only way in which the clause can be interpreted—and it is a difficult clause to interpret—is that the hardship to the respondent in dissolving the marriage would be substantially greater than the hardship to others by refusing to do so. This seems to me something which is very extreme and which should be called in only in a minority of cases.
We have to consider that a great deal of real hardship comes at the point of separation and during the years of separation. Under the provisions in this Bill the divorced wife will, in many cases, be better off than the separated wife. I speak as a magistrate who sits in a matrimonial court. I appreciate that that is a very humble position compared with the position of noble and learned Lords who speak on the provisions in this Bill. Magistrates have not the power to make financial dispensations but it would be possible under this Bill if money was available.
In the Matrimonial Homes Act 1967 which my noble friend Lady Summerskill introduced, and which did so much for the separated or deserted wife, she made it possible to ensure that a wife is not left without a roof over her head. My noble friend has said that if legislation is vague and uncertain, it is bad legislation. I would only say that if you take out the word "grave" from this clause, you will make the legislation 160 more vague and uncertain. I wish that we could dispense with this clause altogether, and I can see the arguments for that, but if we bring in the other new clauses and create a new climate of opinion and a new attitude to divorce, I think that it would be difficult to dispense with the clause. On that point I agree with the noble and learned Lord, Lord Reid. But, for goodness' sake, if we are going to have the clause let us retain the word "grave" because that is absolutely essential.
§ LORD LEATHERLAND
I am afraid that my noble friend Lady Birk was in error when she said that my noble friend Lady Summerskill's Matrimonial Homes Act guarantees a wife a roof over her head. It does nothing of the sort. It guarantees a wife a roof over her head until she gets a divorce. When she is divorced the protection afforded by what is known as the F form ceases. She cannot be turned out of the house so long as she remains a deserted wife; but the moment she obtains a divorce she loses that protection and may be turned out on to the street—and my noble friend who drafted the Bill is confirming my interpretation of it.
§ BARONESS BIRK
Is it not true that now, much more so than before, when divorce proceedings take place that matter is taken into consideration? Is it not brought up in many cases that, because of what has happened before, the wife remains in the home? It may not be that it is legally argued but that occurs in practice.
§ BARONESS SUMMERSKILL
May I put both my noble friends right? The 1967 Act says that the wife can, if she is separated, remain in her home, provided that she has established her land charge, as the noble Lord says. In the event of divorce, she is no longer her husband's wife and therefore the home becomes his property. Her only chance of remaining in the home is to appeal to the court, and only in its discretion—here, again, it depends on how the members of the court are feeling—will the court allow her to remain there. There is no certainty of any kind.
§ BARONESS BIRK
I think that my noble friend would agree that the court is more likely to use its discretion when the wife has been in the matrimonial 161 home up to the moment of the divorce than it would have done before the passing of the 1967 Act, when the wife would not have been in the home at all.
§ LORD LEATHERLAND
When two women are arguing, a poor man must give way occasionally. My noble friend Lady Birk talked about legal provision, and that particular legal provision which enables a deserted wife to lodge a land charge on what is known as Form F. That guarantees her possession of the home just like a Rent Act tenant, so long as she remains deserted. A provision to continue that possession beyond the divorce does not appear in this Bill and therefore her line of argument cannot be advanced. When a wife is divorced by conscription and not of her free will she can be turned out of the house along with her children. That is a state of affairs which I am not going to defend in this Committee, liberal-minded as I am over many other aspects of divorce dealt with in this Bill. What we have been hearing this afternoon, I fear, is more sympathy for the adulterer and the deserter than for—I will put the words in quotation marks to please people—the "innocent wife" who happens to be deserted and then divorced. We hear little about her.
In this Bill we have introduced an entirely new consideration, the principle of divorce by conscription. Whatever views we may have held in the past about a divorce which is entered into freely, they do not now apply. It is the fact—and here I agree with my noble friend Lady Gaitskell—that when a divorce takes place there is hardship: sentimental hardship, physical hardship and, very frequently, financial hardship. But when we are interpreting this question of financial hardship whose claim is to come first? Is it to be the claim of the adulterous woman with whom the deserting husband is living, or the claim of the lawfully wedded wife? I feel that the lawfully wedded wife should have some claim here. Any claim that she makes on the husband who has deserted her is now to be restricted considerably if the word "grave" remains in the Bill. We have to consider the position of the deserted wife. She has given up her job, which may have been a progressive occupation leading to promotion and a decent remuneration in the future. She gave it 162 up willingly because she wanted to marry the man but she may have been left with children and may not be able to take on another job. Looking after two, three or four little children is a full-time job, so she is committed to the rearing of those children until they have grown up and left school.
I know that there is a sort of class argument in this, because in certain spheres of society the children can be sent away to expensive prep. schools: they can be sent to Harrow, to Eton, and to places like that. But in the ordinary family the wife has to look after these children. As I say, she is tied to the task of rearing the children until they are fit to leave school and enter into employment themselves. I feel that she has to have generous recognition of maintenance during that period. Afterwards, when the children have gone out into the world, it is an entirely different matter. I say that the claims of the lawful wife should come first and the claims of the adulterous woman should come second. I do not like using words like that, but these are the words that are in the Bill. I feel that anything that acts to the detriment of the lawful wife should not find a place in this Bill, and that is why I object to the inclusion of the word "grave".
§ BARONESS BIRK
May I ask the noble Lord whether, if there is not sufficient money to make the sort of provision he wants, he would rather see a divorce stopped? Is he proposing that we have one law for the rich and one law for the poor; that we go back almost to the old days of divorce? Is that what he is saying? Could he make that clear?
§ LORD LEATHERLAND
I am being henpecked all the afternoon. There are cases where the earnings of a man may not be sufficient to maintain two families; that is understood. It frequently is the case, and that was confirmed by the figures which the noble and learned Lord the Lord Chancellor gave us the other day. I say that the first claim on the man's earnings should come from hi; lawful wife. If the adulterous woman has to be supported on the side she can go to National Assistance where she will be generously treated.
§ LORD HODSON
May I say a word about this Amendment moved by the noble Baroness, Lady Summerskill, to which I put my name? I suggest that 163 the noble Baroness, Lady Birk, and the noble Baroness, Lady Gaitskell, are making rather heavy weather about this. Surely what the noble Baroness, Lady Stocks, said was perfectly sound. You do not do any good by adding the word "grave" to the word "hardship". I am not a believer in adjectives. The word "hardship" is good enough by itself. The noble Lord, Lord Reid, has really shown how foolish it is to try to differentiate between the two as if you were trying to justify hardship and say "grave hardship" would not do. You get into the most awful verbal difficulties.
At the risk of appearing frivolous, may I remind your Lordships of a book that I read when I was at school, Short Stories by P. G. Wodehouse? One story described a case in a State of American where cruelty was a ground for divorce. It had to be very grave cruelty, however, and the wife succeeded only because she was able to prove that her inhuman husband insisted on her dog having the leg of a chicken instead of the wing. That is the sort of nonsense one begins to think about when one considers the implications of adjectives like "grave". I ask the Committee to accept this Amendment which is a very simple one and, to my mind, makes the clause at any rate less foolish than it would otherwise be.
§ 4.24 p.m.
§ LORD STOW HILL
May I at the outset try to deal with some of the issues that are hotly disputed? In the first place, I thought my learned friend Lady Birk was quite right—and I would have thought, with respect, quite obviously right—in saying that in line 46 of Clause 4 the expression "grave" applies not only to financial hardship but also to other hardship". I am again much relieved to see the noble and learned Lord, Lord Reid, nods. It is always a great relief to me when I find he is on my side.
The second matter to which I would address myself is this. I have carefully studied the Matrimonial Homes Act 1967, and I thought it said perfectly plainly that where there is a divorce the court has a power. There are two sections, Section 2 and Section 7. I do not want to take up the time of the Committee but this matter has been so hotly disputed that anybody who offers a view 164 on it should say on what section he relies. In Section 2 (2) of that Act the court is given a discretion to give protection to the wife after a divorce; and that does prevent her and her infant children from being turned out on the street, as the noble Lord behind me suggested.
§ LORD LEATHERLAND
As my noble and learned friend has referred to me, I would point out that there is a difference between the right that she enjoys to the house as a deserted wife and the discretion which may be, or possibly may not be, exercised in her favour when she is a divorced woman.
§ LORD STOW HILL
I am content that the matter should be left to the discretion of the court. I believe that that discretion would be fairly exercised. In relation to houses which are not rent-restricted houses the courts are given ample discretion, and I have not the smallest doubt in the world that if fairness required it they would give that protection in the exercise of that power which they are explicitly given by subsection (2). I cannot help thinking it was a little unfortunate that positive assertions were made in some parts of the Committee to a contrary effect.
When one goes to look at Section 7 one finds that it deals with rent-restricted premises and I suppose applies to the great majority of premises in this country. There again, explicit power is vested in the court to give protection to the wife. The Act does not apply to council houses. I took some trouble to find out what normally is the position there. I believe I am right in saying that the position is this. Of course it is entirely a matter for the local housing committee, subject to the guidance of the members of the council who are deputed for that purpose, to decide what is to be done in any individual case where there is a divorced woman who is in occupation of a council house. I am told—though I cannot vouch that it is absolutely accurate—that the practice of local housing committees up and down the country is to vest the tenancy, in the event of a divorce, in that one of the two spouses who has the children with him or with her.
I really do start out, if I may say so, with a slight protest against what seems 165 to be a desire to inject into this discussion the idea that there is any likelihood of the divorced wife being thrown out into the street. In the case of houses not within the Rent Restrictions Act, it is left to the court, and the court has specific power, in the case of houses which are within the Rent Restrictions Act. In the case of council house homes the practice, I am told, is that the local authority housing committees give the divorced wife or the divorced husband, according to which has the children, the tenancy of the council house. Therefore I should have thought that that particular situation was perfectly satisfactory.
I owe a great deal to my noble friend Lady Summerskill for her skill and persistence on an earlier occasion though I wish that it had been applied in a slightly different direction on this occasion.
§ LORD STOW HILL
This Bill represents a balance. As I tried to emphasise on Second Reading, it represents the hard-fought-out result not only of the thinking of the Archbishop's Group, the analysis of the Law Commission, and now the prolonged thinking of the other place; it is a delicately balanced system which emerges. I say with real sincerity that if this Amendment to leave out the word "grave" is carried, and still more if the next Amendment (which would not require there to be both grave hardship and a wrongness in pronouncing a decree) is carried—if either or both of those Amendments are carried it will absolutely wreck this scheme.
§ LORD STOW HILL
I was certainly coming to that, if the noble and learned Lord will have some patience. That was a considerable part of my argument. I would emphasise that we are now faced with the position of whether or not we wreck the scheme. If these Amendments are carried, it will be much better to go back to the old system.
How is the Bill supposed to work? First. I venture again to remind the House of what I said when making my Second Reading speech, that it is utterly unrealistic to think that we are concerned 166 only with ladies over 50, with a large number of children, who have never committed adultery; that all husbands are evil, and that no ladies under the age of 50 are ever divorced. When I hear the reasoning of brilliant minds, I sometimes marvel at the flights of abstraction to which they can soar, remote from the problems that perplex ordinary mortals. This is one of those cases. People are divorced at all ages. The figures your Lordships have had earlier in the course of these debates show that the great majority of women are divorced when they are well under 40—very well under 40—and it is only a small fraction who are fortunate enough to be over 50 when they are divorced. That is the first matter we have to get into perspective.
Secondly, if I may respectfully do so, may I protest at the division of married people into women who are "legally innocent" and men who are "trying to take advantage of their own wrong". The mere fact that a woman ha; not committed a matrimonial offence does not dub her necessarily, for all purposes and in every context, as innocent as the driven snow. She may be tainted with all the sins of Dante's calendar and still not have committed adultery as one of them.
Therefore, I would ask the Committee to consider what is the human problem with which we are confronted. In that human problem there are a large number of people who have been waiting for years and years to establish a lawful union in place of the illicit union, in which they have been living, with children born of that union, who are obstructed simply and solely by the malice of the spouse left, perhaps, years age—10, 20 or 30 years ago—who has no desire other than to obstruct the happiness of the spouse whom he has left and of the spouse's new partner. And there are husbands who are most anxious, if they have lived apart from their wives for five or ten years, to go on living separately. It may be the last thing they want to do, to enter into another union. We have to remember that we are dealing with a large variety of cases.
How is it then that the Bill approaches this complex situation? First, Clause 6 makes special provision for paragraph 167 (d) cases, where there is divorce after two years by consent, and for paragraph (e) cases, where there is divorce after five years without consent. That special provision (I am sorry to remind the Committee) is contained in Clause 6, which your Lordships will be examining later. So that when the court has one of those cases before it, its first preoccupation under Clause 6 is to see whether the financial provisions are in the court's view reasonable and fair, or the best that could be made in the circumstances. That is the first hoop through which the petitioner in those circumstances must pass.
Having passed through that, there is what I would describe as a "long-stop" safeguard in Clause 4, which is applicable not only in cases of divorce on grounds of two or five years' separation but also in cases of divorce on any other ground. If a husband or wife complains of the adultery of his or her spouse, the court has still to look at Clause 4 and see whether, notwithstanding that the complaint is amply made out, and that the wife may have committed adultery with everything in trousers within ten miles, or the husband with everything in skirts within 20 miles, the safeguard in Clause 4 ought to be provided.
It applies also to cases of cruelty. In spite of the fact that a husband has been viciously and consistently cruel over years, the court has to address itself to the question whether, under Clause 4, this "long-stop" safeguard should be regarded as applicable or not. It is equally so in the case of desertion. It applies, surprising as it may seem, even in the case of divorce by consent after two years. Under the terms of the Bill the court still has to go through the motions of asking whether grave financial and other hardship would be caused to the husband or wife divorced and whether or not it would be wrong in the circumstances to dissolve the marriage.
§ LORD REID
I am afraid that the noble Lord has not read his Bill. If he will look at the beginning of Clause 4, he will see that it says:The respondent may object to the granting of a decree.How in the world the respondent is going to do that, if it is divorce by consent, passes my comprehension.
§ LORD STOW HILL
Exactly: I quite agree. I absolutely agree with the noble and learned Lord. That is a difficult thing to conceive. But so anxious were the framers of the scheme to see that there could be no case in which a party could go away, grieving that he or she had been divorced when a divorce should not have been granted, that they have provided that, even if the parties consent, they can still come and complain that Clause 4 should result in no decree being granted. It shows how far the framers of the Bill have gone. They could not have gone farther than they have gone in Clause 4. I am most grateful to the noble and learned Lord for pointing this out. I lean on it.
Consider the sort of circumstances which might result if my noble friend's Amendment were adopted. Hardship is a wide term. A doting husband may keep a wife in perfect luxury in an expensive flat in Mayfair, Lord her with furs and spend on her far more than he can afford. Then he discovers that she has been committing adultery with all sorts of people and she has to go from her luxury flat in Mayfair to a bed-sitter in Paddington. That is hardship—everybody would agree. It would be hard for the unfortunate lady who got caught out. If the Amendment were accepted and the court thought that it was hard for the lady to have to go to a bed-sitter in Paddington, the court could say, "No divorce". Clearly this Amendment would be utterly fantastic.
Clause 4 is meant to apply, and ought to apply, only in the rare case. The noble and learned Lord, Lord Reid, mentioned one case out of a thousand. I do not know whether this is the right percentage. I would profoundly express the hope that it would be only in very rare cases, when the grounds are fully made out, that the court would think it right to act under Clause 4. But it is left to the judge to decide, in individual cases, looking at all the circumstances, whether he should or should not do so. That is so certainly in cases under paragraphs (a), (b) and (c).
Let me make a comment on paragraph (e). I have drawn the attention of the Committee to the fact that Clause 4 says that the courtshall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave financial or other 169 hardship to the respondent and that it would be wrong in all the circumstances to dissolve the marriage it shall dismiss the petition.In the next paragraph the court is enjoined to take account of, as one of the ingredients in hardship, such questions as whether a wife would lose her widow's pension if a divorce were pronounced. I should have thought it was only reasonable that in the paragraph (e) case—where there probably is a second union and probably children of the second union who are not legitimate; where there is a second wife or husband, to whom the husband petitioner or wife petitioner is devoted and with whom he or she may have been living for 20 or 30 years—as the clause enjoins, the positions of all these people should be considered.
The interests of the lawful wife or the lawful husband who is divorced should be regarded as pre-eminent, and should be considered in preference to the interests of all those other people, only where it can be said that he or she has sustained grave hardship—not ordinary hardship; not going to live in the bedsitter, but grave hardship. The Clause is perfectly properly drafted in setting out grave hardship, coupled with wrongly synchronising dissolution as being the only circumstances in which clause should be brought into operation. It has been said that if "grave" is introduced, you introduce uncertainty. I should have thought the opposite is the case. It is easier for the courts to pick out cases where there is something exceptional in the way of hardship, something that is really grave, and that it is wrong in all the circumstances to dissolve the marriage, rather than to ask them to answer the broad question whether there is hardship.
For those reasons I urge upon the Committee the undesirability of this Amendment. It will wreck the Bill. There is no such power under the existing law and unless it is sparingly exercised it cannot possibly be acceptable to public opinion. There is adultery, cruelty and desertion. Under this new power only in the rarest case should the court be called upon to refuse a decree. In most cases a decree should follow. Existing powers for the respondent to ask for alimony, maintenance and periodic payments which are now contained in the Matrimonial Causes Act 1965 are pre- 170 served. That should be adequate in nine cases out of ten. In those circumstances, I ask the Committee to reject the amendment.
§ VISCOUNT DILHORNE
I have listened to the noble and learned Lord with the greatest attention, but in all seriousness I do not follow how the omission of the word "grave" from this clause can possibly be said to be wrecking the Bill. It does not seem to me to make sense. The noble and learned Lord has treated us to a very interesting speech which bore a certain similarity to a Second Reading speech, and I do not wonder about that. I was criticised by the noble and learned Lord, Lord Reid, for referring to this Amendment in its context of the scope of the clause. My withers are quite unwrung about that. One of the difficulties with this Clause is that it tries to cover too wide a field.
The noble and learned Lord, Lord Stow Hill, has said that the clause as it stands applies to all the grounds of divorce mentioned in Section 2 (1)—adultery, cruelty, desertion, consent after two years, and the five years living apart. Assuming for a moment that the addition of the word "grave" makes a difference, if you are going to give the respondent to every single petition the right to oppose the petition on the grounds stated in Clause 4, that indeed would be a very major departure from our present law and would, I think, lead to the possibility of a great deal of uncertainty in the operation of the Bill.
One point I raised—and I raised it deliberately—to which the noble and learned Lord did not refer, was whether this particular clause should be limited in its operation to paragraph (e). I know my noble and learned friend does not agree with me, but that is not wholly uncommon even on the Bishops' Benches. If it were limited to that, you would not be running all those risks by leaving out the word "grave"—if the inclusion of the "grave" really adds anything. Indeed, when you are dealing with paragraph (e), where the divorce is after five years' separation against the consent of the other party, I should have thought it right to say that there should be power in the court to refuse a decree if it involved hardship, but I am not at all sure that the same argument can rightly be applied where the breakdown of the 171 marriage is due to the commission of a matrimonial sin which is proved.
That is why I suggested to my noble and learned friend that he should look at the possibility of confining Clause 4 to paragraph (e). You would then leave the financial and other provisions to be made as they now are by orders of maintenance and so on, but you would not refuse a decree for divorce on adultery being established or cruelty being established merely because "grave financial" or just "financial" hardship had been shown to be suffered by the respondent to that petition. I should have thought that that would have been right, and I suggest to the noble and learned Lord that if he followed that suggestion it could not be said that the omission of the word "grave", if it adds anything, really has a wrecking effect on the Bill.
I have proceeded so far on the basis that it is possible to distinguish between grave hardship and other hardship. The noble and learned Lord gave an example of the lady who had to move from the West End to somewhere else to live. He said with the greatest positiveness that that was not grave hardship. I am sure the lady would regard it as such.
§ VISCOUNT DILHORNE
Yes, I know, but where is the line drawn between "hardship" and "grave hardship"? You are looking at it subjectively; the lady in question would say it was grave hardship. The noble and learned Lord thinks it is hardship. Different courts will draw the line between "hardship" and "grave hardship" in different places. I do not think that definition is tenable. I can quite see why the noble Lord, Lord Stow Hill, does not leave it at "hardship" with the clause covering the whole of Clause 2 (1). He thinks it might be used too much. If he would limit Clause 4 to the Clause 2(1)(e) case he could safely do it without the adjective "grave" being included and without running any risk. I may not have made myself clear when I spoke before, but that is what I had in mind. I did not want to divert attention from the Amendment of the noble Baroness by referring to other matters in this clause, but I do not think we could usefully consider this Amendment unless 172 we considered the scope of the Clause itself.
§ LORD STOW HILL
I always read with the greatest care all the speeches made in this Committee, including those of the noble and learned Lord. I should not like to offer any hope that I shall be convinced by what he has said. May I remind the Committee that one is not considering the words "hardship" or "grave hardship" in isolation. One is considering the composite phrase which I should have thought conveys a reasonably clear impression of the sort of thing the courts would have to look at:grave financial or other hardship … and"—I emphasise the word "and"—that it would in all the circumstances be wrong to dissolve the marriage".The court is looking at the rare case where there is substantial hardship and also has to consider that it would be wrong in all the circumstances to dissolve the marriage.
§ 4.50 p.m.
THE LORD BISHOP OF LEICESTER
I hope the noble and learned Lord, Lord Stow Hill, will not forget something he said in Second Reading debate; that is, that even without Clause 2 (1) (e) the Bill would be a viable Bill, and that he would contemplate losing the whole of that without absolute distress of mind. It seems strange, if that is so, that he should be so distressed by the possible omission of the word "grave" in this particular clause. I should like, if I may, without impertinence, to say how much I agree with the noble and learned Viscount, Lord Dilhorne, that this is totally inappropriate as applied to all the cases other than those under Clause 2 (1) (e). We are really back on one of the main points of the Bill. As was pointed out in the Second Reading debate, by trying to avoid the matrimonial offence, it was difficult to leave a matrimonial standard. The plain fact is that if these various signs of breakdown—such as adultery, cruelty or desertion—have been proved, it is quite ridiculous then to bring in Clause 4 and say that, in spite of all these things, if there is grave financial hardship a decree may not be granted.
I know that the noble and learned Lord, Lord Stow Hill, said that this was a sign of the extreme care of the proposers of the Bill to provide for every 173 possible circumstance. But I cannot help feeling that it is a sign of some little accident in the drafting, because it is so clearly put in to placate those who feel that it is wrong to divorce a man or woman when he or she has done nothing wrong, in the matrimonial sense, except to be deserted for five years. That is still a problem in many people's minds, and I feel that Clause 4 was put in to safeguard that particular situation. I should like to see Clause 4 related to Clause 2(1)(e), and then we should really know what we are talking about.
§ LORD STOW HILL
I rise once more to correct a slight misapprehension in the mind of the right reverend Prelate as to what I said. If I may say so, I did not say that I should not be grieved if paragraph (e) was left out. On the contrary, what I said was that if it was left out the rest of the Bill would survive. But I said also that I thought it was a fundamental clause to the Bill; and I think it would be a tragedy to leave it out.
§ Baroness SUMMERSKILL
We have had a full debate, and I am sure that every aspect of this Amendment has been
§ well ventilated. I hope the Committee realise that I was talking about the thousands of ordinary housewives who might be affected. I rather regret that my noble friend sought to ridicule this by illustrating it with the lady with her furs living in a mansion and going to a bed-sitter. I must confess that I had not thought of this particular kind of woman suffering any hardship in any way. That kind of woman can always manage her own life, and the Casanova with her can help her. What I am talking about is the thousands of ordinary women who will be affected.
§ All I want to say, in summing up, is that I leave the Committee to consider what has been said by the noble and learned Law Lords, who have had a wealth of judicial experience. They have come to the Committee to-day to tell us, from their experience, that if this word "grave" were left in they would find it very difficult to administer the Act at all.
§ 4.58 p.m.
§ On Question, Whether the said Amendment (No. 27) shall be agreed to?
§ Their Lordships divided: Contents, 70; Not-Contents, 95.175
|Aberdare, L.||Ebbisham, L.||Maelor, L.|
|Ailwyn, L.||Eccles, V.||Margadale, L.|
|Alport, L.||Elliot of Harwood, Bs.||Morris of Borth-y-Gest, L.|
|Auckland, L.||Emmet of Amberley, Bs.||Mowbray and Stourton, L.|
|Audley, Bs.||Erroll of Hale, L.||Moyle, L.|
|Balfour of Inchrye, L.||Falmouth, V.||Phillips, Bs.|
|Barrington, V.||Fortescue, E.||Reid, L.|
|Boston, L.||Grantchester, L.||Rockley, L.|
|Bourne, L.||Granville-West, L.||Rusholme, L.|
|Brooke of Ystradfellte, Bs.||Gray, L.||St. Oswald, L.|
|Carnock, L.||Grenfell, L.||Sandford, L.|
|Citrine, L.||Gridley, L.||Sandys, L.|
|Clitheroe, L.||Grimston of Westbury, L.||Sempill, Ly.|
|Conesford, L.||Henderson, L.||Simonds, V.|
|Cork and Orrery, E.||Hodson. L. [Teller.]||Sinclair of Cleeve, L.|
|Craigavon, V.||Ilford, L.||Stocks, Bs.|
|Craigmyle, L.||Kilmany, L.||Stonehaven, V.|
|Daventry, V.||Kinloss, Ly.||Summerskill, Bs. [Teller.]|
|Denham, L.||Leatherland, L.||Templemore, L.|
|Derwent, L.||Lincoln, L. Bp.||Teviot, L.|
|Dilhorne, V.||Longford, E.||Tweedsmuir, L.|
|Douglas of Barloch, L.||Lovat, L.||Wellington, D.|
|Drumalbyn, L.||MacAndrew, L.||Wells-Pestell, L.|
|Abinger, L.||Aylestone, L.||Blackett, L.|
|Addison, V.||Balogh, L.||Bowles, L.|
|Amulree, L.||Beaumont of Whitley, L.||Brock, L.|
|Annan, L.||Beswick, L.||Brockway, L.|
|Archibald, L.||Birk, Bs.||Brown, L.|
|Buckinghamshire, E.||Hirshfield, L.||Ruthven of Freeland, Ly. [Teller.]|
|Burton of Coventry, Bs.||Holford, L.|
|Byers, L.||Hughes, L.||Sainsbury, L.|
|Champion, L.||Inglewood, L.||St. Davids, V.|
|Chorley, L.||Jacques, L.||Shackleton, L. (L. Privy Seal.)|
|Clwyd, L.||Jessel, L.||Shepherd, L.|
|Cranbrook, E.||Kilbracken, L.||Silkin, L.|
|Crowther, L.||Killearn, L.||Snow, L.|
|Denning, L.||Kirkwood, L.||Sorensen, L.|
|Dinevor, L.||Lindgren, L.||Stamp, L.|
|Donaldson of Kingsbridge, L.||Listowel, E.||Stow Hill, L. [Teller.]|
|Douglass of Cleveland, L.||Llewelyn-Davies of Hastoe, Bs.||Strabolgi, L.|
|Effingham, E.||McLeavy, L.||Strang, L.|
|Evans of Hungershall, L.||Merrivale, L.||Strange, L.|
|Falkland, V.||Merthyr, L.||Strange of Knokin, Bs.|
|Faringdon, L.||Morrison, L.||Strathcarron, L.|
|Foot, L.||Noel-Buxton, L.||Swanborough, Bs.|
|Gaitskell, Bs.||O'Hagan, L.||Taylor of Gryfe, L.|
|Gardiner, L. (L. Chancellor.)||Plummer, Bs.||Taylor of Mansfield, L.|
|Geddes, L.||Popplewell, L.||Vivian, L.|
|Gifford, L.||Raglan, L.||Wade, L.|
|Gladwyn, L.||Rathcavan, L.||Wakefield of Kendal, L.|
|Goodman, L.||Redesdale, L.||Walston, L.|
|Hawke, L.||Ritchie-Calder, L.||Willis, L.|
|Henley, L.||Robertson of Oakridge, L.||Windlesham, L.|
|Hill of Wivenhoe, L.||Rosslyn, E.||Wise, L.|
|Hilton of Upton, L.||Royle, L.||Wootton of Abinger, Bs.|
On Question, Amendment agreed to.
LORD REID moved Amendment No. 28:
Page 3, line 39, leave out ("and") and insert ("or").
§ The noble and learned Lord said: I shall submit to your Lordships that the case for this Amendment is a good deal stronger than the case for the last Amendment. I do not in the least mean to say the case for the last Amendment was not strong, but the case for this one appears to me to be cast iron. I shall explain why. The noble Lord, Lord Stow Hill, said in what I thought was a very ingenuous fashion that in the first place a delicate balance had been maintained in framing this clause. In the second place, he said it would hardly ever apply. How you can have a delicate balance and produce something that will really never apply in practice I do not understand.
§ I wish to point out the appalling consequences that will follow if this Amendment is not passed. A good deal was said at various earlier stages in the Bill about what would happen in future if the petitioner has been guilty of infamous conduct. This is the only way of stopping him from getting his divorce. If the noble Lord can find another way, I certainly have not found it. Let us suppose the petitioner is a well-to-do man, and he is guilty of quite scandalous or infamous 176 conduct. Everybody from the days when this subject first came into wide public notice agreed that such a person ought not to get a decree.
§ What is to happen in this situation? You have to have two things combined before this clause can be operated. The judge has no power to refuse a decree be-because the petitioner was scandalous in behaviour, unless he can also find that the divorce will cause grave hardship to the respondent. Therefore, you are going to have one law for the rich and one law for the poor. In the case of the scandalous behaviour by a man who cannot make the matter good for his divorced wife financially, it may be that the court will stretch a point, if necessary, and make this clause apply, and refuse him his decree.
§ If this Clause is to stand in its present form, the court is quite powerless unless the two things combine: grave financial or other hardship and scandalous conduct. Is that really the intention of the Promoters of this Bill? Under the existing law it is perfectly possible to deal with cases of scandalous conduct under the law, but all these safeguards have been wiped away. We simply have adultery without any of the qualifications that are traditionally associated with a petition for adultery, connivance and the like. That is the main qualification, of course, but paragraph (e) also may raise the question of scandalous conduct. If a man has driven the woman out of his 177 house by the most scandalous conduct, under paragraph (e) at the end of five years he can still come along and say, "The marriage has broken down. It is true it is not only my fault, but I behaved in a way that was quite monstrous. Nevertheless, I am entitled to a decree because I am sufficiently well off to ensure that my wife does not suffer hardship". If that really is what the Promoters of the Bill want, that is what they are going to get, but I submit that this Committee ought not to make it possible for a man who can provide for his wife, to come in under the five years' rule and say, "True it is that I drove her out of the house, I behaved in the most disgraceful way, it is a public scandal if you like, but five years have elapsed and you cannot stop me because I have made some financial provision for my wife". If that is what the majority of this Committee want, I doubt very much whether many people outside this House will agree with it. I beg to move.
§ BARONESS GAITSKELL
I want to make only a short comment, on the lines of the remarks I made the other day. When we have a debate of this kind we ought to have a large notice put up in this Chamber, "Beware noble and learned Lords on the Cross Benches!" I have heard several noble and learned Lords to-day who oppose this Bill argue strongly to take out all the safeguarding provisions, and this seems to me to be just legal wriggling. I simply do not understand it at all.
§ LORD CONESFORD
Since the noble Baroness says that this is a characteristic of the noble and learned Law Lords, I think it is worth pointing out that it was also the reason why the most reverend Primate the Archbishop of Canterbury said he was unable to support this Bill in the Second Reading debate.
§ LORD STOW HILL
My noble friend Lady Gaitskell suggested that there should be a notice posted when noble and learned Lords were present. I cannot agree with her, because it seems to me, if I may respectfully say so, that the brilliant lawyer is the most cogent argument for our jury system—and this is a matter for our jury system. This is not really a matter for the abstruse brilliance of subtly argued legal concepts. It is a matter of common sense, and I should 178 have thought, as in so many junctures of our daily life, a jury is much the best tribunal to deal with it, and I should have thought this was a matter not for lawyers but for laymen.
What is the choice before this Committee as a result of this Amendment, if it is accepted? It seemed to me during the Second reading debate that one thing everybody was agreed about was that if there was anything more ridiculous than the discretion statement it was hard to find. I see that the noble and learned Lord agrees, and I am much relieved. The old 1857 doctrine was that if both parties behaved scandalously, probably no divorce, but if one party committed one act of adultery, divorce certain. I thought that was a conclusion that nobody could stomach, and as I understand it, the noble and learned Lord, Lord Reid, encompasses as one of his objectives the possibility of going back to that. That is what he seems to be saying because he wants the clause to read:that the dissolution will result in grave financial or other hardship to the respondent or that it would be wrong in all the circumstances to dissolve the marriage".I thought he wanted that dichotomy of those two circumstances because he wanted it to be the law that if the petitioner had behaved badly and had himself committed adultery, the courts might think it wrong to grant him a divorce and would be under an obligation to dismiss the petition. I thought that was what he was asking.
§ LORD REID
I tried to be rather brief and obviously I did not make myself intelligible to the noble Lord. Throughout our debates over the last three years there has been frequent reference to the profligate—the man who has behaved in such a way that it would be indecent to grant him relief. I am not talking about the ordinary type of case at all. I am talking about the extreme case (and such cases do occur) where a man would never get a decree under the existing law—he never petitions for it because he knows he would never get it—but where, thanks to the way in which the drafting has been done, if he waits five years, it does not matter how shocking the way he has behaved may be to the public conscience, he would. Even last Friday we had the example of the man who had put his wife on to the streets, and having separated 179 for five years he turned round and said, "Five years have elapsed; it is perfectly true that I did the most shocking thing to bring about the break-up of the marriage, but that does not matter a bit".
§ LORD STOW HILL
If the wife who was put out on to the streets under the terms of this Bill were afforded no remedy, I would agree that there is much to be said for the noble and learned Lord's argument, but quite obviously I should have thought that the wife who was put out on to the streets could ask for a divorce on what I believe are called grounds of constructive desertion, so that she is given the right to ask for a divorce if she wants to.
§ LORD STOW HILL
I know perfectly well that the noble and learned Lord is talking about the petitioner. I thought we were all agreed, as we were substituting breakdown, that the more fault there was on both sides the more reason there was for putting an end to the legal bond. I thought that was the whole basis of the scheme, and it is one that I respectfully commend to the Committee as having extreme value.
I was talking about the wife because I said quite clearly that it would be an outrageous situation if the Bill was so drafted as, in the case of scandalous conduct by the husband, not to afford the wife a ground, if she chose to exercise it—and I emphasise, if she chose to exercise it—to ask for a decree. If she does not, and the parties are apart for five years, whatever the husband did before the five years began I cannot for the life of me see what public interest or private interest or human interest or common sense interest is served by keeping those people together. That is something of a digression, and I apologise for it, but I was led on to it by the noble and learned Lord.
If I may now return to the question before the Committee, I do not want to repeat myself but the question is, should the court have to look for grave hardship 180 and also wrongness in the pronouncing of the decree, or should it have to look at one of two things, either grave hardship or circumstances which show that it was wrong to pronounce a decree? I strongly prefer the former, which is the form of the existing Bill. May I say why? The position surely is that when the unhappiness of divorce descends upon a family it is not normally only two people who are concerned; a number of other people are concerned. There may be children of the marriage. Also, when there is a divorce after five years' separation, in the normal course of human affairs as both parties probably will have sought the companionship of somebody else with whom they have been living for some years, there will also probably be children of one or both of the new unions. Even where the respondent, whether wife or husband, may not have committed adultery, and even although the petitioner may have committed adultery in setting up an illicit establishment, the clause as drafted contemplates that the petitioner's interest is not to be wholly disregarded.
It is drafted upon the basis that it is utterly unrealistic—and, I would suggest, inhuman—simply to look at the case of the "innocent" respondent—"innocent" in inverted commas—and to disregard the situation of the petitioner, the situation of the lawful children, the situation of illegitimate children, the situation of the second wife. If one is talking in terms of justice—and I would add humanity—one ought to consider the case of all those people. Those who are in an illicit union may in general moral terms have at least as strong a case as, if not stronger than, those who are not tarred by an illicit union. Therefore, what the clause does is to require everybody's interest to be considered, their conduct and the circumstances at large, including the financial situation, and also the question of any retirement or widow's pension. All these things have to be considered.
The scheme of the Clause is this. It may be found that the respondent, be it husband or wife, would be subjected, if there were a decree of divorce, to grave hardship, non constat that necessarily, therefore, because he or she will suffer grave hardship, that should prevail in the balance. Others may have suffered grave hardship as well. Probably, as I 181 have said on more than one occasion, the illegitimate children will suffer grave hardship if they are not legitimated. That slur, which still is bandied about, however much it should not be and however wickedly unjust it is, is a grave hardship, unsettling to children and growing young men and women, and unsettling when they are grown up; and it causes resentment. That is also grave hardship and should be considered. Under the clause as at present drafted, the court is required, first, to ask whether there is grave hardship endured by the respondent and, if it answers the question in the affirmative, to go on and ask the further question: there being that grave hardship, is it right to treat is as of greater importance than perhaps the grave hardship endured by a whole lot of other people concerned in the situation? Only if the court answers those two questions in the affirmative is it forced and enjoined to refuse a decree, to apply this extremely drastic remedy which finds no place in our existing law at all.
Something was said on the last occasion on the question of uncertainty. I think it most unfair to ask judges to answer the isolated question: Is it wrong to divorce these two people? That will lead to uncertainty up and down the country. It is easier to answer the question if the judge is being asked whether it is right in the given circumstances, grave hardship being shown to the respondent, to regard it as out weighting any other hardship endured by other people concerned. I hope your Lordships will say that those two questions should be correlated and the court asked to answer both of them. I am sure that it would be much easier for the court to do that than to answer the second question in isolation from and independently of the first.
§ LORD GOODMAN
The noble and learned Lord, Lord Reid, said that our failure to pass the previous Amendment was unfortunate and that failure to pass this Amendment would be catastrophic. I think he said something to that effect. I would say that we have already reached decisions in this matter which, if he is right, are catastrophic. What he is seeking to do is to revive an issue which has to my recollection already been voted on twice. We voted on the matter on Second Reading, and we voted on the 182 matter when we decided, deliberately and after very full debate, that we would accept the provisions of Clause 2(1)(e) in this matter. It does not seem to me that the position is improved by labouring the point time and time again, because this Amendment would not even be particularly appropriate to the purpose the noble Lord seeks to achieve. It would leave the position where the court would have power to refuse to grant a decree without any definition at all of the circumstances in which it was to do so. It would be at large to grant a decree.
The noble Lord said that it would be wrong to grant a decree to a man who had behaved scandalously. There is no guarantee at all that if this Amendment is accepted the court would limit its application to those cases or regard it as appropriate to apply it in those cases. It seems to me that to take a clause which is primarily intended to have financial implication—and there is no doubt that Clause 4 was intended as a longstop Clause in the general scheme of legislation related to the financial provisions of this Act—and to seek to introduce there a means of going back on our tracks on decisions we have already reached, is not particularly helpful to the debate or likely to leave the Bill in a very healthy condition if we adopt it.
If we adopt this Amendment we shall have very grave confusion, absolute doubt in any case whether a decree is going to be granted. The one thing we want is certainty. I believe that any petitioner in relation to divorce law, or any other branch of the law, is entitled to know with reasonable certainty what is going to be the outcome of launching a petition. If this Amendment is accepted, no one would ever know in any circumstances whether, having considered all the evidence, the judge might still say that in all the circumstances it was not appropriate to grant a decree. I venture to borrow the noble and learned Lord's own words: I think it would be catastrophic if we were to adopt this Amendment.
§ LORD DENNING
I would only say that this is a niggling little Amendment which should not take up the time of your Lordships'. It is contrary to principles voted on already. In a parallel field of legislation, the Rent Restriction Act, we have "hardship" and "what is reasonable". Equally, here, we should 183 have hardship and whether it is wrong or not that the marriage should be dissolved. I would oppose this Amendment.
§ LORD REID
Up to date I think a good many of those who have supported paragraph (e) have done so on the footing that it should not be regarded as a universal rule. But if this Amendment is refused then it does become a universal rule. If it is the will of the Committee that, no matter what the circumstances may be, parties who have lived apart for five years are to be entitled to have a divorce, or rather that one of them is entitled to have a divorce, however badly he or she may have behaved, then that is the decision of the Committee. I had thought that there were a good many members of the Committee who wished paragraph (e) to be a general rule but not universal. I appear to be wrong, and it may be that the Committee wishes that it should be the universal rule.
§ BARONESS SUMMERSKILL
I must confess that I approached this matter in an entirely different way. I thought that if we lost the Amendment on "grave", then the respondent should be enabled to argue her case on hardship. It seemed to me that if this Amendment were accepted, what we were doing was to give this woman who was now left without the opportunity to argue the case that her position was grave—because it would not be accepted—an opportunity to explain exactly and precisely what her financial affairs were, what the position of the children was and so on. I still do not see, if this Amendment is not accepted, how the respondent, under the terms of this clause, is to be enabled to argue her case. Of course it would certainly be very grave, if the judges found, when it was interpreted in some places, that the wording of the clause was such that she had no right to do this. I would ask my noble friend whether he has considered this. I think that in another place most eminent lawyers argued a similar Amendment along the same lines, that unless these words were changed the respondent who was unable to prove that there was grave hardship would be denied an opportunity to argue the case at all on financial grounds.
§ LORD STOW HILL
My noble friend has asked me a question, which is my 184 only reason for intervening. I have considered it most carefully. A respondent has every possible opportunity to argue, in the first place, that she has suffered hardship, and in the second place that it would be wrong. The doors are as wide open as they can be for her, and there is nothing in the least which excludes her from presenting her case in the fullest possible way with the clause drafted as it is at present.
THE LORD BISHOP OF LEICESTER
I thought that one of the arguments adduced at earlier stages in the discussion of this Bill was that there were some circumstances which would be so scandalous or so much against the public interest that there ought to be some clause that would enable the court to decline to grant a decree; and that would have been provided if the word "or" were used here, so that the clause would read:or that it would in all the circumstances be wrong to dissolve the marriage".But if we stick to these words, the only circumstances to be alleged are those related to the financial or other hardship. I think there is a difference there, because it is necessary to prove both.
§ LORD STOW HILL
Yes, you have to prove both and under the second heading can adduce whatever you think it proper to establish that it would be wrong. I hope no judge would say that he thought it wrong for the reason suggested by the right reverend Prelate, but certainly he could look at that and take it into account if that were urged.
§ LORD DOUGLAS OF BARLOCH
Would my noble friend explain that a little further? As I understand this clause, in order that the respondent should succeed he or she has to prove both things, that there is grave financial or other hardship and that in the circumstances it would be wrong for the court to grant a decree. Both of those matters are an obligation if this Clause is to be invoked.
§ LORD DOUGLAS OF BARLOCH
I understood my noble friend to say that the second ground could be put forward even if there was no grave financial or other hardship.
§ LORD STOW HILL
I am sorry if I conveyed that impression; I certainly did not mean to do so. I thought that I was arguing that it would be open to the respondent (let us take the wife) to say to the court two things: first, "I have suffered severe financial or other hardship"; and, secondly, "Look at all the circumstances: anything you think relevant—the behaviour of my husband, and all the rest of it." And she would say to the judge or to the court: "Make up your mind whether, in view of all that, taken together with other circumstances in the case it would not be wrong to say that there should be a decree here." It is wide open to her—or him, in the case of the husband—to urge whatever she or he thinks, and the judge thinks, is relevant to the determination of the question whether it would be wrong to dissolve the marriage.
§ VISCOUNT DILHORNE
May I put just one question to the noble Lord? As I understand—he will correct me if I am wrong—he is saying that the respondent (let us assume the wife), will be able to bring forward any circumstances which make it appear to be wrong to dissolve the marriage; but she will be able to do so only if she can show also that there is some grave hardship. So the case might conceivably arise where the respondent could say that because of the conduct of the petitioner, "It would be entirely wrong to dissolve this marriage, but I cannot say there is any hardship, be it grave or otherwise." In such a case, the judge would have to say, "I cannot make any use of Clause 4." Is that really what: is intended?
§ LORD STOW HILL
Certainly. In that sort of situation probably the words "other hardship" would be applicable—"Other grave hardship". It would not be a question of financial hardship. But the clause specifically enjoins the judge to look at everything. The conduct of the parties is specifically mentioned. Therefore I should have thought that the inquiry upon which he may be asked to embark by the respondent is as wide and as reasonable as it can be, and that if one disjointed these two questions one would leave the thing completely at large and produce a result entirely contrary to that desired. What is sought by this Clause is to substitute breakdown for the 186 matrimonial offence; and the court is told: "Look at the situation and ask yourself, considering everybody's conduct and the hardship that will be endured by anybody concerned, should this decree be pronounced or not?"
§ BARONESS SUMMERSKILL
May I ask my noble friend absolutely clearly, because I should like to see this in Hansard, whether, if this Amendment is not carried, the respondent, despite the fact that she is not subject to grave hardship, will have an opportunity in every court to explain precisely what her financial circumstances are in order to show that there is hardship?
§ LORD STOW HILL
I should have thought it was as plain as it could be that she can say, "I assert that I am subjected to grave hardship". She can then say, "The hardship of which I complain is a financial hardship, and in order to establish that I am subjected to grave financial hardship, I proceed to deploy the circumstances of my financial position. These are they, and I ask you, the court, to infer that that does constitute on my part grave financial hardship". She can also say that she will be subjected to other hardship, and deploy the circumstances upon which she bases that assertion. She must also say why, in her contention, it would be wrong in all the circumstances to dissolve the marriage. That leaves the door wide open for a consideration, as the clause enjoins, of the conduct of the parties.
§ BARONESS SUMMERSKILL
I have listened to every word that my noble friend has said, but he has not answered my question. He has not said that she would have an opportunity to explain her financial hardship. He said "other hardship" but not "financial hardship" apart from "grave".
§ LORD STOW HILL
May I say as explicitly as I can that the answer to the noble Baroness's question is: Yes. she would have that opportunity. I thought I had said that.
§ LORD DOUGLAS OF BARLOCH
There is no doubt at all that the respondent, whether the husband or the wife, will have the opportunity of putting forward all this before the court. But when the respondent has done so the court is limited by the words of this clause, which 187 require the court to find two things: first, that there is grave financial or other hardship, and, second, that it would be wrong in all the circumstances to dissolve the marriage.
THE LORD BISHOP OF LEICESTER
May I ask one further question? Would the noble Lord, Lord Stow Hill, say whether he can imagine any circumstances in which it would be wrong to dissolve the marriage apart from those alleged by the respondent?
§ LORD STOW HILL
That is a wide question. I would certainly hope—and I say so with the utmost seriousness: first, if there is adultery proved, plus a determination on the part of the petitioner not to go back to the respondent; second, if desertion is proved; third, if cruelty is proved; fourth, if two years plus consent is proved; fifth, if five years without consent is proved. Once the procedure specified in Clause 6 with regard to financial provisions has been gone through I should hope that the court would only in rare cases think that it was wrong to pronounce a divorce. I can conceive such cases. There might be a wholly disastrous situation arising on the part of the husband who had been deserted by the wife, and the court might say that, for one reason or another—psychological, or whatever it might be: the effect on his mind—it would be wrong at any rate then to pronounce a decree nisi without prejudice to his being able to come to the court again on a later occasion. So I do say, and assert positively, that I would hope that when those circumstances are shown it will be rare indeed for the court to refuse a decree.
§ LORD CONESFORD
But the court could not ever refuse a decree in those circumstances, which is the right reverend Prelate's point. I shall find myself in great difficulty if this Amendment is pressed to a Division, for this reason: that I think there is great force in the point put forward by the noble Lord, Lord Goodman—namely, the uncertainty that this Amendment would introduce. It would introduce great uncertainty. On the other hand, I think it worth pointing out that the refusal to accept this Amendment is the precise reason given in the Second Reading debate by the most reverend Primate the Archbishop of 188 Canterbury, why he was unable to support the Bill. We are not now talking about something unimportant.
§ LORD REID
I realise that there are deficiencies to the approach to this matter and that it may be better to frame something before the Report stage which would associate this more closely with paragraph (e) which we are all thinking about. On that basis I think it would be better to try again on Report. I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 5.41 p.m.
LORD STOW HILL moved Amendment No. 33:
Page 4, line 4, leave out ("thing") and insert ("benefit").
§ The noble Lord said: This is a drafting Amendment, perhaps of some importance. The object of the three lines in which my Amendment occurs is to make it certain that in assessing the question whether the wife has sustained grave financial hardship or otherwise, the court will take into account the possibility that, if she is divorced, she will lose a widow's pension. As the clause reads at present the relevant words are "acquiring any thing", those last two words being separated. The "thing" to my mind (and I should have thought to the minds of most people) connotes a solid, tangible object, like a table, and I wanted to make it quite certain that the object which was in the minds of those who sponsored the Bill is achieved, and that a right, an intangible right, such as a widow's pension, was included. Therefore, I seek to substitute for the word "thing"—which might connote a table—the word "benefit" which would certainly include, I should have thought, something like a widow's pension. I beg to move.
§ LORD DOUGLAS OF BARLOCH
I wonder whether this Amendment does in fact meet the aim which my noble friend has in view. Is it correct that the courts will say that the word "benefit" includes "thing"? I feel a little surprised at this doctrine. There may be precedents for it—I do not know—but the word "benefit" to my mind does not seem to connote a tangible thing at all.
§ VISCOUNT DILHORNE
May I say a word before the noble Lord replies.
189 I am not sure that we are not trying to get far too brief in these Bills. I am not sure that "benefit" will include "any thing", and I would suggest to the noble Lord that when it comes to Report he should consider putting in the words "acquiring any benefit or thing", as an alternative, to make quite sure that both are covered.
§ VISCOUNT DILHORNE
Or "right". I think it is trying to make it too short, and I think the provision loses clarity by changing just the one word. More than one word is needed.
§ LORD STOW HILL
Of course, I will look at it again. My main object was to make certain that the words included an intangible right, such as a widow's pension. I thought, with respect, that certainly that would be included, but as there is a doubt in the noble and learned Viscount's mind and my noble friend's mind, of course I will look at it again and see whether I have it right. Meanwhile, I beg to move, de bene esse.
§ On Question, Whether Clause 4, as amended, shall stand part of the Bill?
§ VISCOUNT DILHORNE
We have had a long discussion on this clause, and I think that most Members of the Committee would think that not a moment of it has been wasted because it has been, and is, a very important Clause indeed. The noble Lord, Lord Shepherd, may perhaps take a different view judging by some of the interjections he made, but then I think he is still affected by the fact that he once held the office of Chief Whip and had to get the business through quickly. Be that as it may, I would hope that the noble Lord, Lord Stow Hill, will give serious consideration to what has been said in the course of the debates on this clause. The noble and learned Lord, Lord Reid, said at the outset of this debate that he was in favour of this clause being included in the Bill. He has now described a failure to get one Amendment made as almost verging on catastrophe. I rather agree with him about that. There are other defects in it as well.
I hope the noble Lord will consider very seriously two points, the first being 190 whether it would not be far better to restrict the scope of Clause 4 to Clause 2(1)(e). It is very interesting, listening to the discussions on these later Amendments, that everyone has spoken as if Clause 4 applied only to Clause 2 (1) (e). It could not apply to Clause (2)(1)(d), as the noble Lord has said, because a person who consents to a divorce is not going to be the person who objects to a divorce being granted; the two are inconsistent. One need not bother about that. The real issue is whether this particular provision should apply to Clause 2(1), paragraphs (a),(b) and (c).
I would say, with great respect to my noble and learned friend, that it is not the case that on a decree granted for those causes—adultery, desertion and cruelty—the respondent cannot in these days, under our existing law, get maintenance after the decree. That will continue. The question at issue here is whether a decree can be refused, when it is based on adultery, cruelty or desertion, on the ground of grave financial or other hardship, et cetera. I do not think it is right or logical if the decree is based on those grounds that it should be refused under Clause 4. I do not think it is necessary. You would find then that you have the irretrievable breakdown of marriage, the adultery, the cruelty, or the desertion, and then you are giving power to the court to say that for matters wholly unrelated the decree must be refused. I do not think it is right. The Bill would not suffer at all—I say this in all seriousness to the noble Lord—if Clause 4 were confined to paragraph (e).
There is one other aspect I want to put to the noble Lord. I am very worried about the position where adultery has been promoted, if you like, by the petitioner's conduct, and so on. I was not sure whether the words "wrong in all the circumstances" were meant to cover that; but it is quite clear from what the noble Lord has said, and when he shook his head earlier on, that the inclusion of those words is not really intended to resurrect the bar of condonation, connivance, and so on. I suggest to the noble Lord that there ought to be a provision in this Bill giving the court power to refuse a decree, even though the grounds made out in paragraph (a) (b) or (c) are established, if the circumstances attending that divorce, and the conduct of the petitioner, 191 are scandalous, irrespective of the question whether or not any hardship, grave or otherwise, can be proved by the respondent. If the conduct of the petitioner is scandalous, the powers of the court ought not to depend upon whether, under Clause 4, the respondent objects to the granting of the decree.
The noble Lord may say that I am reviving, or seeking to revive in some other form, the discretionary bars. I am not at all sure, if he said that, that the comment would not be justified. However, I would ask him to consider, between now and the Report stage, whether you ought not to have an unfettered discretion in the court to reject a petition where the conduct of the petitioner is responsible for the breakdown of the marriage and where the conduct is so scandalous that it offends all sense of decency that a decree should be granted.
I say here and now that I am not going to press this to a Division. I put down this Motion to leave out Clause 4 to enable a general discussion to take place upon it. In the light of the discussion we have already had, I do not think it is necessary to cover all the ground again; but it raises the most serious issues, and I hope that the noble Lord will take a little more conciliatory attitude, perhaps—I am not saying that in any offensive fashion—towards the views expressed by some of us who want to see a Bill but who feel grave disquiet about this particular provision and one or two others.
§ BARONESS GAITSKELL
As a non-lawyer, I should like to understand what the noble and learned Viscount has said, but it has simply confused me. For me, the simple words of this clause have lost all meaning. Here is a clause which deals with an issue that has been monopolised by those who oppose this Bill—concern about hardship, financial or otherwise, to the respondent. It goes further, as has been said so often, and requires consideration to be given to all the circumstances, including the interests of any children or other persons who may be concerned. But does this satisfy the noble and learned Viscount? It does not. What appears to a non-lawyer as a most carefully-drafted, humane clause which should dispel the fear of many women—the kind of women of whom my noble friend Lady Summerskill has spoken 192 —that the Bill is a licence to grant divorces, is suddenly turned into a tangled skein, a legal skein, which no one who is not a lawyer can unravel. As I have said, words have lost their meaning, and I cannot interpret this in any common-sense way. The Bill must be understood not only by lawyers but by the general public. It is not just a document the meaning of which has to be unravelled by lawyers, with the greatest respect to them.
§ LORD SILKIN
I am very glad that the noble and learned Viscount is not proposing to press his Motion to delete Clause 4, because I think it would have been nonsense in all the circumstances to leave out the clause even if it were possible to marry it, as he said earlier, to Clause 6. But I agree with him that this clause could be invoked as regards any of the grounds for divorce, and I think the noble Lord, Lord Stow Hill, said so. I think he made a point of the fact that this question of grave hardship could arise under any of the other heads, apart from paragraph (e). But I find a little difficulty in understanding the expression used in Clause 4, "and that it would be wrong in all the circumstances". This is a very vague expression which has to be interpreted by the court. Is it intended to cover only financial circumstances, or is it intended to cover other circumstances; and if so, what? In an earlier discussion I raised the question of an admitted adulterer—one who makes a practice of it. regularly and blatantly—petitioning for divorce against his wife on the ground of one act of adultery, and I said that, in that case, under Clause 2 (1) (a) the court would be bound to grant a decree. Are the words that I have just quoted from Clause 4, "that it would be wrong in all the circumstances", meant to cover that kind of case? If they are, why can we not say so in plainer terms?
I think my noble friend has agreed to look at this again. I hope that he will look at Clause 4 generally, to see that it really covers all the contingencies which have been brought out in this discussion and particularly a case where the conduct of a petitioner is so contrary to all decency that it would be wrong to grant a divorce on his petition. I hope my noble friend will be willing to do that. I understood him to say that he is going to look at the clause again. I certainly hope 193 that he will look at it from all points of view and will try to make clear what he means by the words, "wrong in all the circumstances"—whether it is intended to go beyond financial hardship, and whether it is intended to cover all other kinds of hardship, in equity and justice.
THE LORD BISHOP OF LEICESTER
In legislation in some other countries, I think, the phrase "against the public interest" has been used to cover one reason why decrees might be refused. I understand that in this country there is considerable distaste in many quarters for this phrase because, for one thing, it puts the judges in the very difficult position of having to decide what that public interest is. I had imagined that this phrase "wrong in all the circumstances" was a kind of English equivalent of "against the public interest". I think this is an extremely difficult matter to define and get into focus. It is quite obvious that even adultery oil the part of the petitioner cannot now be a reason against giving a divorce, because we are saying that the breakdown of a marriage is to be the sole criterion.
But I believe that somewhere in the community there is a desire to register the interest of the community, of society, in maintaining some kind of standards; and as the very basis of divorce under Clause 2(1)(e) is a failure to maintain the marriage standard, there is a desire that there should be some expression on the other side. Whether that can be married into the phrase, "wrong in all the circumstances" I do not know, but I imagine most of us would feel that there are some kinds of behaviour which are so far from what is right that it should not be open to those who so behave to benefit from the State because of their wrong-doing. That, I think, is the concern that some of us have, that there should be some phrase of this kind written into the Bill, even though at this time it is very hard to say exactly what content it would develop in the course of the years.
§ LORD GOODMAN
Perhaps I may say just a word on this clause, because I have great sympathy with the view expressed by the noble Baroness, Lady Gaitskell, when she said that we seemed to be talking this out of clarity into obscurity. I think this is a perfectly clear 194 provision. I also think it is a quite admirable provision. I do not think it is in the least intended to import into the Bill some right on the part of a judge to refuse a decree because of the monstrous behaviour of the petitioner. That is net the intention. I think the intention simply is that in certain cases there will be exceptional financial hardship. Such cases will be rare.
The case I thought of was one in which a man's wife might have been left a substantial legacy and it might emerge that that legacy could be given to his wife only at the date of the death of the testator or the date of the death of a particular beneficiary; that if there was a divorce there could only be one such bequest, and that she would lose the legacy on account of that divorce. It would then be for the judge to recognise that there was a financial hardship. He might decide that because of the amount of the legacy and the family circumstances it was a grave financial hardship and, therefore, under the clause he was, exceptionally, entitled to refuse a decree although he was satisfied that Clause 6 had its provisions recognised and well dealt with. Nevertheless this was a "long-stop clause"; and because of that loss of benefit, he is entitled to refuse a decree. However, because this is a very serious matter, there is still given to the judge the opportunity to reflect over the whole matter and to say, "Although there is a grave financial hardship I have also to be satisfied in all the circumstances of the case that it is right to take the exceptional and rigorous step of refusing a decree." In short, those words are designed not to enable him to make it easier to refuse a decree but to enable him to make it more difficult to refuse a decree, to consider more weightily whether it is appropriate to refuse a decree even though there is financial hardship.
This is very well considered. It seems to be a clause that entirely meets the circumstance that a decree can be refused; but only after the judge has decided, first, that there is grave financial hardship and, second, that in all the circumstances, notwithstanding the existence of the grave financial hardship, he considers it right to refuse a decree. I cannot think of more intelligent legislation to deal with these provisions.
§ LORD STOW HILL
May I say that I agree with the noble and learned Viscount that we have had a very useful discussion on this very important clause. I will, as I would in any event, re-read all the speeches that have been made with the utmost attention and interest. My noble friend Lord Silkin said that I have promised to look at it again. From old experience, I am suspicious of that phrase. I do not know exactly what it means. I consider it the whole time. I hope that my noble friend is not thinking that I am undertaking to come back with a changed clause. Of course I will consider the arguments. The noble and learned Viscount accused me of being not sufficiently conciliatory. May I say that the more cogent the arguments of my critics seem, the less conciliatory does the sound of my reply generally become. He should not draw any conclusion from that, except that his arguments were arguments I thought of great force, as were arguments of other noble Lords.
On the question of conduct, I should have thought that the noble Lord, Lord Goodman, was right. It is difficult to strike the right balance. It is not for me to prescribe what considerations a learned judge in considering those words would regard in individual cases as relevant. But I should have thought that some approach on this basis might be at any rate the sort of path he would follow in his reasoning. I should have thought that one prime consideration is that when people behave in a beastly fashion to each other they should be separated, both legally and in every other sense. That seems to me at any rate—I am not trying to prescribe for anyone else—to be an overriding consideration. I know that it is distasteful to think that somebody who has behaved in a disgraceful fashion can come forward and put that behaviour as ground for getting his request—I do not say for obtaining relief, but for getting his request of the court. It seems to me that one must weigh those two considerations against each other.
I have ventured to point out that the Bill is so drafted that when the petitioner is guilty of reprehensible behaviour, then that, almost always under the terms of the Bill, affords the opposite partner a ground for asking for a divorce from him or her. So it is not as if it is only one-sided. Disgraceful behaviour pro- 196 vides a remedy to the other partner to the marriage.
I go back to my basic standpoint: it seems to me that the whole philosophy of this thinking is that when you find two people not only do not get on together but are behaving in a manner towards each other which everybody would deplore, that is not a reason for keeping them together; on the contrary, it is a strong reason for separating them. It seems to me that the words "'grave' financial hardship" and "that it is 'wrong'" about correctly reflect that balance in their position. But it will be a matter for learned judges to interpret those words, and no doubt case law will develop on them as decisions are given and tested in the Court of Appeal and in your Lordships' House from time to time. I would hope that a workable scheme of tests would gradually emerge which would be accepted in general by public opinion as being appropriate to the difficult situation that the judges will have to deal with. I hope that the clause passes.
§ VISCOUNT DILHORNE
The noble Lord has not said anything about confining the clause to the grounds set out in Clause 2(1)(e).
§ LORD STOW HILL
Of course, the noble and learned Viscount made that point cogently. I will not say that I am convinced, because this is a finely balanced scheme. I think it would be perhaps not inappropriate to say this. Of course, this House must come to its own conclusions; this House is completely and absolutely independent. But when one has in mind that this particular scheme has been the product of so much anxious thought over so many years your Lordships may think it is perhaps justifiable to be rather more reluctant to alter a basic feature of the scheme than one might be when dealing with a less considered scheme. Of course I will reread the speech of the noble and learned Viscount with great care and attention.
§ Clause 4, as amended, agreed to.
§ Clause 5 [Power to rescind decree nisi in certain cases]:
§ 6.7 p.m.
BARONESS SUMMERSKILL moved Amendment No. 35:
Page 4, line 11, leave out ("the petitioner misled the respondent") and insert ("the respondent was misled").
§ The noble Baroness said: I beg to move the Amendment standing in my name. On other occasions I have been (shall I say?) twitted with always putting the woman's case more forcefully than I put that of the man. If one can assume in this Amendment that the petitioner is male, I think one could argue that the male in this case has rather aroused my maternal instinct. I have put down this Amendment to some extent to protect him. On other occasions I have expressed certain misgivings with regard to the provision which permits divorce after two years' separation on the ground that it seems to me unwise to encourage easier divorce at a time when we have reduced the age of majority from 21 to 18. I have felt that we should have allowed that to work out perhaps for a few years because by introducing a Bill of this nature we have put additional responsibility on the shoulders of the young man. However, it is done.
§ All that one can do now, when legislation of this kind comes along, is to utter warnings that such-and-such a thing might happen if Amendments are not introduced. I have said that high wages, not only for the girl but also for the youth, will undoubtedly encourage them to get married. I have reminded the House before that young people, badly housed in the first place, and immature, will quarrel very easily. In the family when the young people get married their little quarrels will become the subject of family gossip; and no doubt there will be some ill-disposed person, either in the family, or a neighbour or a friend, who will remind the young couple that they only need two years' separation in order to dissolve the union and go back to mother or, at least, get away from the alliance which they are perhaps too immature to appreciate.
§ With this picture in my mind, it seems to me that it would be very easy to mislead an emotional young person who has failed to adjust himself to marriage in the first years. It will be seen in Clause 5 that if it can be proved that the petitioner has misled the respondent then the decree can be rescinded. I feel that pressure other than that of the petitioner could be brought to bear on the respondent. When a girl is upset she wants to go home to mother and all kinds of 198 people will explain to her how she can get a release. I think it will be agreed that "All the world loves a lover"; provided that he or she is young and attractive. Our popular newspapers feed the curiosity of the public regarding the tiffs and quarrels of young married people who are in the news. Similarly in the home, too often family friends regard the married life of young relations, with its early trials and tribulations, as calling for advice and interference. Therefore, I feel that we should recognise that the pressures to be brought to bear on the respondent will not be only those from the petitioner. Other people may well mislead the respondent.
The clause says that at any time before the decree is made absolute it can be rescinded if the court
is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding not to object to the grant of a decree".
§ That is very wide, and I feel that this Amendment should be accepted because it may be that the petitioner himself did not in the first place want a divorce, but the family gathered round and caused the trouble. The family may have misled the respondent and common sense demands that this Amendment should be accepted. The words in the clause are "intentionally or unintentionally about any matter". But many people may have misled the respondent in the first place. I should like to hear what my noble and learned friend Lord Stow Hill has to say about this, because in his experience of the law he must have come across many cases during which he gazed on the young couple and wondered whether it was mother-in-law, or father-in-law, or friends or relations who were responsible for upsetting the marriage in the first place. If this is so I think that the Amendment should be included in the Bill.
§ BARONESS BIRK
I have some sympathy with what has been said by my noble friend. On the face of it, it looks as though it would be a more flexible and compassionate thing to accept the Amendment. But what worries me is that once we get to the point of divorce it is a matter between the two parties; it is not a matter between families or other people. It seems to me that the point 199 at which anybody might have been misled, or where these things should have been brought up, is covered by Clause 3 and the requirements about reconciliation and going into the whole case. I do not think that this should be translated into Clause 5.
When we have got to the point of a divorce the matter must be between the husband and wife. Acceptance of the Amendment would make it very confusing, increase the area of conflict and make it more difficult to effect a reconciliation. If we accept the Amendment shall we get a situation in which the judge will have to hear a whole string of witnesses and families will be bickering and fighting with each other? That is my feeling about the matter, but I should like to hear the views of my noble and learned friend.
§ 6.15 p.m.
§ LORD STOW HILL
I would offer the advice to the Committee that this Amendment should be rejected. My principal reason is that it seems so extraordinarily unfair. What we are dealing with is a situation in which husband and wife have been separated for not less than two years. They have "lived apart"(to quote the words in the Bill), and one seeks a divorce and the other consents to that divorce being pronounced. That is the situation. The Committee will remember that Clause 2 (6) requires at the outset that regulations must be made which will ensure that a person who has to decide whether or not to consent to a decree will have full information to enable him or her to decide. The original words were "does not object", but the word is now "consents". So one has a situation in which the wife or husband, whichever is the respondent, ex hypothesi has intimated consent.
I should have thought that the clause was rightly drafted because it provides that if the petitioner has misled the other party a decree can be rescinded only if the petitoner is responsible for the misleading. My noble friend Lady Summer-skill would widen that to provide that it need not be the petitioner who has misled the respondent; that it may be anybody who has misled the respondent, and that the misleading may have taken any possible form. How in the world can it be said to be fair to the petitioner to make him responsible for the fact that some 200 third party, or some circumstance over which he may have absolutely no control whatever, may have produced a misleading impression in the mind of the respondent? It seems to me that it is extremely unfair on the petitioner.
Make the petitioner responsible for what he or she does, and for utterances or communications which emanate from the petitioner. But to expect a petitioner to be present to safeguard a respondent in all circumstances against misleading information from any source seems to me most unfair. After all, the petitioner and respondent will have been separated from each other for two years. They may be in different parts of the country. It cannot be said to be fair to the petitioner if he is expected to be present when the mother-in-law, or some other relative, brings pressure on the respondent or tells the respondent something which may be inaccurate or misleading.
Take an individual case. Suppose that a petitioner goes to extreme trouble to set out, most accurately, in very big type, in a letter three pages long, precisely what will be the effect on the respondent if the respondent consents to a divorce; and that the respondent does not trouble to read more than the first paragraph or page of the letter and, in consequence of not reading the letter as a whole, obtains a misleading impression. The effect of the Amendment would be that the unfortunate petitioner would have to suffer for that and a decree could be refused. I respectfully submit that that cannot be a sensible result. A petitioner should be responsible for the impression which he or she produces; and for no more. If the respondent is subject to some malign influence from some other source, so be it; that is bad luck on the respondent.
After all, whether they are 18, 19 or 25, respondents are pretty well able to look after themselves in these days. We have now jumped from considering the case of a wife of 50 to considering that of a wife of 18. I should have thought that neither of them would be quite as open to being misled as my noble friend thinks; but if they are misled by something in which the petitioner has no part, the petitioner cannot be blamed for it. I ask the Committee to reject the Amendment.
§ BARONESS SUMMERSKILL
I have No intention of pressing this Amendment. 201 It seems to me that a case could be put for it. As for being unkind to the petitioner, I thought I was rather protecting him and I hope it will not be thought that I was being cruel to this young man. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Clause 6:
§ Financial protection for respondent in certain cases
§ (2) The court hearing an application by the respondent under this section shall consider all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first; and notwithstanding anything in the foregoing provisions of this Act but subject to subsection (3) of this section, the court shall not make absolute the decree of divorce unless it is satisfied—
- (a) that the petitioner should not be required to make any financial provision for the respondent, or
- (b) that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.
§ (3) The court may if it thinks fit proceed without observing the requirements of subsection (2) of this Section if—
- (a) it appears that there are circumstances making it desirable that the decree should be made absolute without delay, and
- (b) the court has obtained a satisfactory undertaking from the petitioner that he will make such financial provision for the respondent as the court may approve.
LORD REID moved Amendment No. 37:
Page 4, line 21, leave out ("thereof") and insert ("hereof").
§ The noble Lord said: My noble and learned friend Lord Dilhorne has asked me if it is in order to move this Amendment on his behalf. It is very simple. The purpose is to ask the noble and learned Lord, Lord Stow Hill, whether there is a misprint in his Bill. My noble and learned friend Lord Dilhorne thinks that the word "thereof" ought to be "hereof" on line 21. I have read the thing and I am bound to say that I am in doubt as to which is meant, so perhaps the noble Lord will tell us which it is.202
§ LORD STOW HILL
I was equally in doubt, but on reflection I feel that possibly the Amendment improves the text and I am very glad to accept it.
§ 6.21 p.m.
LORD REID moved Amendment No. 38:
Page 4, line 41, leave out from ("fair") to end of line 42.
The noble Lord said: This is another facet of the controversy which has occupied us on a number of occasions, and since I do not wish to repeat arguments which have been repeated so often I propose to be brief. But I think this does show, in a somewhat striking form, the difference of approach between those who have been voting one way and those who have been voting the other way. Subsection (2) provides that there is to be no decree unless the court is satisfied—I leave out paragraph (a):
that the financial provision made by the petitioner … is reasonable and fair"—
that is all right—
or the best can be made in the circumstances.
That is an admission that it is proper to grant decrees under paragraph (e). I think this particular matter must again be limited to paragraph (e), because it cannot apply to others.
§ Is it fair, is it proper, that the new ground of divorce in paragraph (e) should be used when it is necessary, in order to grant the decree, to reach a result, which is neither reasonable nor fair to the respondent? We have been told—and we shall have a little more to say about it in, I hope, only a few minutes—that the Government are going to introduce a measure which will ameliorate the position of respondent wives. There is also a proposal, I think, to better the maintenance system, both as to what is awarded and how it is recovered. There are also to be, what is regarded as urgent, matrimonial property regulations on divorce; and we hope—some of us, perhaps, without too much expectation—that the Government will in the course of some little time produce something that will make the lot of the respondent more tolerable. Therefore it ought not to be necessary very often to use the part of this subsection which I wish to leave out; namely, the part which 203 authorises the making of a decree although something less than fair and reasonable is all that the court can do.
§ I should have thought that when a new ground of divorce is being introduced, as is being done under paragraph (e), it is wrong to introduce it at the expense of somebody who cannot even be treated fairly and reasonably. But this is a matter which has been argued before. I think that our respective views are pretty well known. Those who support the Bill say: "Never mind whether it is fair or reasonable to the respondent or not; it is much more important to put these people asunder because they have been living apart for five years. Public interest demands that." On the other hand, I can say, and a number of other noble Lords can say, "You really cannot introduce a new ground of divorce at the expense of admitted injustice to a number of people who are perfectly innocent—admitted injustice because you are going to do something which is neither fair nor reasonable, so far as they are concerned".
§ I am not going to expand the argument. There it is. I have no doubt that the noble Lord, Lord Stow Hill, will point out that this applies to other grounds of divorce apart from paragraph (e). I quite agree that where you have other grounds of divorce (it does not apply to paragraph (d), because that is on consent, but if you have (a), (b) or (c)) it has always been the case that there is no need to make it just and reasonable for the respondent. If the respondent has chosen to commit an offence she cannot then ask that she should have a just and reasonable award. But where you have somebody who admittedly has committed no offence at all (and here, I agree, is the crux of the controversy), is the mere fact that her husband turned her out of the house five years ago sufficient to justify granting a divorce at her expense when you cannot make a provision for her which is even fair and reasonable? I beg to move.
§ VISCOUNT DILHORNE
As my Amendment No. 39 proposes the same, but with the addition of certain words, I should have thought, if my noble friend would agree, that it might be for the convenience of the Committee to consider both together.
§ LADY RUTHVEN OF FREELAND
I wanted only to ask the point of this Amendment. If a husband and wife have been living apart for five years, presumably both of them have sufficient to live on. If the wife is the innocent party, or is so described, she presumably is earning her own living, or has had financial arrangements made for her by the husband who has deserted her, or she is being kept by somebody else and may be asking for the divorce. I do not see any point in going on with this question. She, the deserted wife, has already got some financial arrangements made for her.
§ LORD REID
Probably not. What has probably happened is that the husband has deserted her and refuses to pay maintenance; and she, either because she is not a very forceful woman or for some other reason, goes on National Assistance and has been living on public assistance for the best part of five years. Then the husband tries to divorce her. Is it right or is it wrong that she should be entitled to say: "You are not going to divorce me until you do better now than you have been doing during the last five years"?
§ LADY RUTHVEN OF FREELAND
It must mean, if a man is earning a small income, that he is not going to be able to produce any more than he has already given up, or that she has been forced to earn her own living or to go on National Assistance. I cannot see the point of it.
§ VISCOUNT DILHORNE
I would have said, in answer to the noble Lady, that if the circumstances were as she suggested then Clause 6 would not apply at all, because there would be no application under Clause 6. I should have thought that Clause 6 was strictly necessary. There is a horrible contrast between the words, "reasonable and fair" and the words, "the best that can be made in the circumstances". I think one has to approach this on the basis that very often it is the separation that is the cause of the financial loss and the hardship; and that is there irrespective of what the conditions may be in this Bill. Indeed, in some cases the provisions of this Bill might help the deserted wife who could perhaps refuse her consent to a divorce after two years' separation unless adequate provision was made for her.
205 I put down this Amendment to leave out these words because I think that they are an unfortunate contrast to the preceding words, "reasonable and fair". In considering what is reasonable and fair, the court must surely have regard to the circumstances of the parties and I should have thought that that would have been sufficient. However that may be, there is one thing I should like to see written into this Bill—that is, that what I may call the Clause 2 (1) (e) wife, the wife who has been separated for five years, should not suffer any financial loss as a result of a decree being given against her. That may or may not be practical. I would hope that it would be and that the courts would be able to see that it would be.
A deserted wife may be in receipt of a very small income. She may get something from her husband. I think that the fact that a divorce granted against her is going to make her circumstances more impoverished than they ought to be ought to be ground for the refusal of a decree. So far as I can see, that principle is not enshrined in the Bill. We have talked about hardship and greater hardship as a ground for refusing a decree. In that connection, if I may respectfully say so to the noble Lords, Lord Stow Hill and Lord Goodman, I think that they are both guilty of putting the cart before the horse. They said that the court had to look at Clause 6 and that Clause 4 was the "long-stop" provision. It is the other way round. Clause 4 is the clause on which a respondent can rely in seeking to oppose the granting of a decree and that comes first. If a decree is granted, then under Clause 6 the respondent may be able to obtain a court order that the decree should not be made absolute.
However that may be, I should like to see written into the Bill—although this may not be the right place—a clear and unambiguous statement that a Clause 2(1)(e) wife shall not suffer financial loss as a result of being divorced against her consent, and that if it is going to mean financial loss, that should be a bar to the decree being granted against her.
§ THE LORD CHANCELLOR (LORD GARDINER)
I do not know whether I can help the Committee, but this Amendment proposed by the noble and learned Viscount, Lord Dilhorne, gives rise to 206 some serious considerations. The phrase "or the best that can be made it the circumstances" started in the consensus reached between the Committee of the right reverend Prelate the Lord Bishop of Exeter and the Law Commission. It is still there, after 80 hours' discussion in another place. I suppose that this Bill has been more discussed clause by clause, line by line, word by word, than any other. I apprehend the reason it is still there is that if these words are not in the Bill there is one law for the rich and another for the poor. A man can do no more than his best.
The noble and learned Viscount said that the words were unnecessary because, in judging what was reasonable and fair, a court would look at the position of both parties. He had not perhaps in mind, but the Law Commission naturally had very much in mind, the existing legislation and case law. The noble and learned Viscount will agree that the court assumes, whether rightly or not, that when Parliament legislates, it has in mind the existing law. The noble and learned Viscount may not have in mind that in Section 30 of the Matrimonial Causes Act 1965 the court is required not to make a decree absolute unless it is satisfied that arrangements for the care and upbringing of every child under the age of 16 have been made and are satisfactory "or the best that can be devised in the circumstances". I suggest that if this phrase is left out here, a court would assume that there is intended to be some difference between the two Acts.
While it would be much better if a boy went to Eton, for example, if his father cannot afford it then that is the best he can do. If these words are left out here it will be assumed that there is a different standard intended and it will be no answer to say that this is all that a man can do. If these words are not left in the Bill, the Committee will end up with one law for the rich and another for the poor.
§ LORD DENNING
We have had this very consideration before the court today of what is reasonable in all the circumstances for a child. It is something we can understand and judges will apply it. I hope that your Lordships will not accept this Amendment. The clause says that there may be circumstances in which the petitioner is not required to 207 make any financial provision for the respondent at all. There is no objection to that. Next, it says that the court shall see that the financial provision made by the petitioner is reasonable and fair. To whom? What about the petitioner and the woman with whom he is now maybe living? Is the court to consider what is reasonable and fair for them? Then there is the question of what is reasonable and fair for the woman who is being divorced. I think that in this situation the words "the best that can be made in the circumstances" are wide enough. But they must be construed as the noble and learned Viscount suggests, that there must be financial provision to see that the respondent does not suffer financially at all.
§ VISCOUNT DILHORNE
I am afraid that the noble and learned Lord has misunderstood me. The effect of my Amendment—and I do not think that the noble and learned Lord the Lord Chancellor dealt with it—is that of an extra "long-stop". The fact of a decree being made absolute should not of itself bring about financial loss to the respondent. That is all.
§ LORD DENNING
If that is so, I must ask your Lordships to agree that it is much better to have the words, "the best that can be made in the circumstances". We have only to look at the position after the decree absolute. During the previous five years, the woman may not have been getting anything because the couple have been separated over the five years. I must say that if this provision is taken out, it may create a handicap to the proper operation of Clause 2(1)(e). If it is kept in, it enables the court and the judges to do what is best in all the circumstances. Every day in regard to maintenance we consider the financial circumstances of every party, what the man can afford, and the like. It is very desirable to keep this wide power in the court to do what is best in all the circumstances, and I hope that your Lordships will not accept this Amendment.
THE LORD BISHOP OF LEICESTER
I was attracted by the Amendment of the noble and learned Viscount for one or two reasons. We were told so often during the Second Reading debate that it was not the divorce that caused hardship but the original separation and that 208 the legal enactment was of comparatively small importance. Here that point is clearly taken. The financial hardship that is guarded against is based on the divorce itself and not on the personal relations of the couple concerned. I think that many of the objections that have been raised by those who dislike the Bill are dealt with by the Amendment. We have gone a good way through this Bill now, and those who thought it was going to be very much modified during the Committee stage must, I imagine, be having second thoughts. I think I am right in saying that there has been only one serious alteration so far. That does not surprise me; I never thought there would be. This is one of the last points at which we might make a difference and I rather hope we shall seize the opportunity.
§ VISCOUNT DILHORNE
In answer to my noble and learned friend, Lord Denning, I think he has misunderstood the purport of this Amendment. I am not saying that the court should not have power to do what they think best in all the circumstances. This is the clause under which in certain circumstances the court has power to refuse to make a decree absolute. That is what we are concerned with. Are we going to take the position that the woman who is divorced against her will not only will not be better off in consequence but may be worse off financially? I am not talking about the prospects she may lose but she may actually be worse off. I should not think that that was an acceptable proposition. It is for that reason that I put down these words as a long-stop provision, in the jargon we have been using to-day, to say that whatever else you can do under this clause, the innocent woman—that again is a phrase that has been used—who has been separated for five years should not be penalised financially by the granting of a divorce to her husband. I quite see that this may not be the right place in which to put that provision. The noble and learned Lord the Lord Chancellor said that this was a different question. I think it is, but I think it is an important one and may affect people's views as to whether this Bill should reach the Statute Book. It would be really awful if, having given this right to compulsory divorce, there should be added to it the possibility that the spouse who does not consent will be financially prejudiced and suffer 209 financial loss as a result of the giving of the decree.
§ THE LORD CHANCELLOR
In replying to (he noble and learned Viscount, the effect of this Clause is (is it not?) that the decree cannot be made absolute unless the petitioner proves that the respondent will not suffer any financial loss in consequence of the divorce. May I ask how any petitioner could prove that in the case of a respondent, a girl of 29, the divorce could not cause suffering? It depends upon what happens. She will probably re-marry, but this is not an inquiry which any court can come to a decision about, and therefore the petitioner would never get his decree.
§ VISCOUNT DILHORNE
I was not looking at it in that way at all. I was not looking over the future life of the respondent. That was not my concept at all. This Amendment may be imperfectly drafted—I am prepared to concede that—but supposing the respondent, at the time of the decree nisi, has a certain income. I want to guard against the effect of the decree nisi being made absolute automatically reducing that income. I do not want to look at what is going to happen to the respondent in later life, but if as a result of the decree being made absolute she suffered a diminution of income that would be wrong. It is a much narrower proposition and may not be correctly expressed, and all I wish to ask is that some consideration should be given to it. It would be intolerable if that was the consequence.
§ BARONESS BIRK
I should like to speak against both the Amendments and support what the noble and learned Lord, Lord Denning, and the Lord Chancellor have said. What worries me is that, whereas Clause 4 is something that the court can consider, in spite of the noble and learned Viscount, Lord Dilhorne, calling this a long-stop clause, surely Clause 6 is mandatory. If one of these Amendments is carried, does it mean that we are putting into operation one law for the poor and one for the wealthy? The court will have no choice whatever if, under my noble friend Lady Summerskill's Amendment, the provision is "not reasonable and fair," or under the noble and learned Viscount's Amendment, the respondent will not suffer financial loss. If, as the noble and learned 210 Lord the Lord Chancellor pointed out, the best that can be done in the circumstances is the way the law now operates so far as children or infants are concerned, then it seems to me that it would be absolutely wrong to try to amend this any further. It seems to me that not only is it quite clear, but it makes very good sense. It is a humane clause, because how on earth can you get blood out of a stone? If the money is not there you cannot get it.
In addition, Clause 6 (2) covers the age, health, conduct, earning capacity and financial resources. Again, it take: into account all the things that we are not able to take into account in cases of separation so that in many cases the deserted wife will be better off being divorced than when she was separated.
§ LORD GOODMAN
I cannot help having considerable sympathy with the Amendment proposed by the noble and learned Viscount, Lord Dilhorne. This is probably the most important provision in the whole Bill. We are introducing an entirely novel principle into our divorce law, that a completely innocent party may be divorced. We have decided to accept this principle, and therefore it behoves us to see that absolute justice is done. I am wondering whether it is not possible to introduce into this Bill something by way of a statement of intention that at least in the ordinary way benefits which are to be received by the divorced wife shall not be less than the benefits she is receiving at the time of the divorce. I do not think, with great respect to the noble and learned Viscount, that his wording will do, precisely for the reasons which the noble and learned Lord the Lord Chancellor has stated. One does not take into account possible changes of circumstances such as re-marriage. Some declaration of intention would be highly desirable and would be reassuring to us in taking a decisive step of this kind to show that we were approaching it responsibly and were not unconscious of the position of a woman who had done no wrong and was divorced against her will.
§ BARONESS SUMMERSKILL
I am inclined to agree with the noble Lord, Lord Goodman. It is quite clear that these words are obnoxious. Although my noble friend says that they are used in other Statutes, the words in this context are 211 obnoxious. I said on Second Reading that the words,reasonable and fair or the best that can be made in the circumstanceswere surely a contradiction in terms. However, it could be argued that the words "reasonable and fair" cover in a practical sense "the best that can be made in the circumstances". But when we put "or" between them we are assuming that it is something that is not reasonable and fair.
I think that the great difference between us—and it does not mean that some of us are pleasant people and some unpleasant people—is the weight we attach to the standard of living of the wife who has been compulsorily divorced and the standard of living of the family which, after all, were the cause of her rejection. I have the greatest admiration for the noble and learned Lord, Lord Denning. In the past, he and I have collaborated on certain things and I always felt that I could rely on his support when he whispered in my ear, "Edith, it is all right by me". But he says now that we have to think of everybody, the petitioner and the woman he is living with. That is his approach. My noble and learned friend Lord Denning is a very humane man. There are of course people whose prejudices one way or the other weigh very heavily.
My noble friend keeps telling us that he finds it difficult to take these words back and think of a new form of words. But if he could think of something along the lines of the views expressed by the noble Lord, Lord Goodman, this would be helpful. He must realise that it is in this context of the rejected, innocent wife, who objects to being compulsorily divorced (your Lordships must be sick of hearing me say this), and who has served the family for many years, that we have the use of these words, "the best that can be made in the circumstances". Therefore, I would ask my noble friend whether he could not approach this once more and think of something which is fair and reasonable and would do more justice than appears in the Bill to the woman who is redundant.
§ BARONESS GAITSKELL
I should like to give one short example which was mentioned to me about this clause to 212 illustrate the difficulties. This is the example. A man has gone off with another woman and set up house with her. For many years he has given his wife, let us say, £3 a week. This goes on until he reaches retirement. He is not a rich man, and when he reaches retirement he cannot go on paying the £3 a week that he has been paying for all those years. The case comes to court, and the court decides that he must pay a nominal sum of is. a week. This may not be reasonable or fair, but it is the best that can be obtained in all the circumstances. I think that this case which has been mentioned to me illustrates some of the humane difficulties that we come up against.
§ LORD REID
I think that what the noble Baroness has just said re-emphasises what my noble and learned friend Lord Denning has said. The difference between us is this. As he says, when he is administering this matter he gives equal consideration to the discarded, innocent wife, and to the second wife, who is by no means innocent. I think that what those who oppose this want to see is—
§ BARONESS BIRK
Would the noble and learned Lord allow me to interrupt to ask a question? He referred to the second wife as being "by no means innocent". I wonder how he would explain that? Does he not believe, with the great body of opinion, that men who are enticed are enticeable, and that those who are seduced are willing to be seduced?
§ LORD REID
It is rather difficult to hear the noble Baroness from where I am sitting and I am not sure that I caught what she said. But I have said before, and I say again, that we are primarily concerned here—and I think the noble Lord, Lord Goodman, agrees—with the woman who has done nothing wrong, and who could not have been divorced under the existing law, but who we are now deciding ought in the public interest to be divorced against her will. She deserves protection. Not all, but most of the supporters of the Bill seem to admit that. What protection is she to have? According to those who have supported the Bill up to date, and according to my noble and learned friend Lord Denning, she comes in on an equal footing with the woman who has set up 213 house with the husband who has discarded his wife, and both of them, apparently, are treated equally. And I am not sure that in some cases the approach is not this: "How much do the husband and his new mistress require, and how much is left for his real wife?". As I say, I am not sure that that is not the approach; but it ought not to be the approach.
If this Amendment is carried, there will have to be a reasonable and fair provision for the discarded wife without taking into consideration, on an equality with her claims, the claims of the second family. She will get the first claim; she will be entitled to what is reasonable and fair. That does not mean what is adequate; it means what is reasonable and fair in all the circumstances. I am not asking for adequate maintenance. I know that in many cases there is not enough money for that. What I am asking for is something reasonable and fair, looked at from her point of view. The situation must not be complicated by saying, "But you must also look at it from the point of view of the man and his second family. He cannot afford very much, and therefore his wife must manage with whatever is left in all the circumstances". The conflict is there. I say that the first wife ought to come first. Others say that they ought to be on an equality, or that the new family should come first. I cannot agree with either of these.
§ 6.55 p.m.
§ LORD STOW HILL
My answer to the question is that it all depends on the circumstances. I think that, with the consent of the Committee, we are discussing two Amendments in one. Let me first address myself to the Amendment in the name of the noble and learned Viscount, Lord Dilhorne. As my noble and learned friend the Lord Chancellor pointed out, one has to see what the noble and learned Viscount has put on the Marshalled List of Amendments and the new words that he wishes to insert in subsection (2) (6) are:and that the respondent will not suffer financial loss in consequence of the making absolute of the decree.With a lawyer of such great distinction, one must look at the words that he has deliberately chosen; and I should have thought that those words can mean noth- 214 ing else than that what the court has to decide is that there is to be no decree unless she will never be worse off through-out the whole of her life.
§ VISCOUNT DILHORNE
The noble and learned Lord need not spend time dealing with that. I quite agree that the wording might be capable of that interpretation. But I thought that the debate we have already had made it clear, at least to most members of the Committee, that I was not suggesting this. What I was suggesting was that the decree should not make her financially worse off at the time the decree is made, and should not involve a loss of income to her then. That is the point the noble Lord must deal with, and not another one.
§ LORD STOW HILL
What the noble and learned Viscount is asking us to do is to discuss an Amendment which he has not put on the Marshalled list, which is utterly different from the wording that he has chosen, and which at some time hereafter may be on the Marshalled List. If it is, we can then discuss it. But his present words are perfectly clear and explicit, and they require the court to undertake the inquiry that my noble and learned friend the Lord Chancellor indicated—an utterly impossible inquiry.
§ VISCOUNT DILHORNE
The noble and learned Lord can spend time in dealing with something which is not the correct meaning. The meaning of my words on the Marshalled List of Amendments does cover the situation I suggested. It also goes wider than that which I intended to cover. The noble and learned Lord said a few moments ago that whenever he got indignant it was because he was pressed by the weight of the argument. I can only assume that that is the consequence now.
§ LORD STOW HILL
I can assure the noble and learned Viscount that this is one exception. As he says, his wording does go wider. However, if the noble and learned Viscount says that this is not what he means, that he means something different, then we shall have to wait and see what he does mean. What he means I do not know. Does one have to examine the position every three months from the divorce, six months from the divorce, a year after the divorce? With the greatest respect to the noble 215 and learned Viscount, I honestly do not think that he has quite clarified his mind on what he does mean. I do not myself even accept the principle of his Amendment. After all, it would apply equally to a husband as to a wife.
Suppose there is a husband who has married a rich girl, and that a fortnight after their honeymoon he says to her, "I am afraid I find your countenance utterly displeasing. I only married you for money". And suppose that he then proceeds to say: "Let's 'talk turkey'. You pay me £2, 000 to keep my rather disagreeable presence from you, and I shall be perfectly happy. Let me give you a little word of business advice. Don't waste time on trying to catch me out committing adultery, because to a man like me, who does not want to earn his living, no adultery is worth £2, 000 a year." Is it the noble and learned Viscount's intention that that man, having received £2, 000 a year for five years, should then be able to hold up the making of a decree unless he goes on receiving £2, 000 a year? That would be an utterly fantastic result. I should have thought that, whatever the noble and learned Viscount means, if he is looking for a period of three months to succeed the divorce, or ten years to succeed the divorce, in neither case could it be said to be remotely acceptable.
I think the noble and learned Lord the Lord Chancellor instanced a case of a girl of 24 years of age. She is separated from her husband, and the question of divorce arises after five years of separation. She can make her living. The husband goes on, has a very splendid career and makes an enormous amount of money. Is there any reason why over the years her income should increase with his? I should have thought the answer was, absolutely none. I think the approach is quite wrong. A husband is not like a freehold or a block of shares. Just because you marry you are not entitled to enjoy the revenues and dividends from a husband forever, or even for a long period of time.
Divorce is a great misfortune which alters the position between the parties. Imagine saying to a young girl emerging from the church porch on the arm of her newly-married husband, "Congratulations, dear madam. So long as you do 216 not commit adultery, or any other matrimonial offence, you may write into your balance sheet this income-earning asset whose arm is linked in yours in perpetuity." It is utterly fantastic. Marriage should not be so used. That is writing it down; that is prostituting the idea of marriage. I ask the Committee not to approach it in that spirit at all.
Surely, the right thing is to say, "The breakdown of marriage is a tremendous misfortune; let us do what we can to make the position of the two parties as tolerable as it can be in the circumstances". As has been said over and over again, where there is money that is perfectly easy because the court, under Clause 6, is given the power to refuse to make a decree absolute unless the husband or the wife—it applies both ways—makes a reasonable and fair provision. As has been asked, what is one to do in the very large number of cases where that is not possible because the husband has not an adequate income to provide for the wife on those lines? I should have thought this—and I hoped that I should have my noble friend Lady Summerskill on my side, for we have chosen a form of words which was much in favour of the unfortunate wife. I say this because the figures, which I went to some trouble to get, show that when the breakdown takes place in the case of families of modest incomes, in the vast majority of cases what unhappily takes place as a result of the breakdown, not as the result of any divorce, is that the unfortunate wife is obliged to have resort to the Supplementary Benefits Commission. She draws what is necessary for her maintenance from that Commission. It is dreadfully sad that this should be so, but it is so. It is not the divorce which produces that result; it is the breakdown that produces that result.
What you are considering when considering a case under sub-paragraph (d) or (e) is a case in which ex hypothesi the parties have been apart two years or five years, as the case may be, and in some way the wife has been subsisting. In the vast majority of cases it is supplementary benefits that are providing either the whole or a large part of the wife's maintenance. With the words which are borrowed from Section 33 of the 1945 217 Act, as the noble and learned Lord the Lord Chancellor has pointed out, what the court can do is this. Supposing it has before it a case of a woman who has been living apart from her husband for five years, and has been receiving either no maintenance from him or next to no maintenance. There may be a court order with which he has not complied, or she may not have bothered to get a court order, thinking it was a waste of time.
Then, at the end of five years, he comes before the court and asks for a decree of divorce. If the words:
"… or the best that can be made in the circumstances" are retained in the Bill, what the judge can say to him is, "You have been paying your wife nothing or next to nothing for five years. You can do better than that. Your wages have increased or your position has improved. You have received promotion. You can do much better than you have been doing over these five years, and I decline to make the decree absolute until you do make an arrangement to do the best you can, in the circumstances, to the best of your ability". That is to the interest of the wife, not otherwise. I should have thought those words ought to be kept in for the very reasons that the noble and learned Lord, Lord Reid, has in mind: it is in her interests, not the reverse. The noble and learned Lord shakes his head, but, with respect, I do not agree with him. In that kind of case, where she has been getting nothing, and the husband can do better than that, the Court can say to him, "You do better than that".
§ Therefore, I would ask the Committee to reject the first of the two Amendments on that ground, if for no other. It means divorce for the man who has money, and no divorce for the man who has not got money. I would ask your Lordships to say that the wording chosen is the best in the circumstances. After all it has been in existence already for four years, since the 1965 Act was passed.
§ VISCOUNT DILHORNE
Having known the noble Lord for many years, I always know that the greater the length at which he speaks, and the greater the indignation he appears to have, the greater his feeling that he is really on very weak ground. I am sorry that he accepts the proposition that a wife can be divorced against her will after five years of separation, and can suffer financial loss immediately upon that happening. I think that is undesirable. I was supported in the views I expressed by the noble Lord, Lord Goodman. Maybe the words of my Amendment were wider than that. I made quite clear what they were intended to cover, and that is the usual custom of this House.
The noble Lord spent a lot of his time answering a case that had not been made, but he at least made it clear that, in addition to divorce against consent, he contemplates that the person divorced can be inflicted with financial loss.
§ 7.10 p.m.
§ On Question, Whether the said Amendment (No. 38) shall be agreed to?
§ Their Lordships divided: Contents, 41; Not-Contents, 69.219
|Abinger, L.||Durham, L. Bp.||Massereene and Ferrard, V.|
|Ailwyn, L.||Emmet of Amberley, Bs.||Monson, L.|
|Albemarle, E.||Falmouth, V.||Morris of Borth-y-Gest, L.|
|Auckland, L.||Gray, L.||Mowbray and Stourton, L.|
|Barrington, V.||Grenfell, L.||Reid, L.|
|Beatty, E.||Grimston of Westbury, L.||Sandford, L.|
|Boston, L.||Hodson, L.||Sandys, L.|
|Bourne, L.||Kennet, L.||Sempill, Ly.|
|Brooke of Cumnor, L.||Killearn, L.||Sinclair of Cleeve, L.|
|Brooke of Ystradfellte, Bs.||Kilmany, L.||Somers, L.|
|Carnock, L.||Leatherland, L.||Stonehaven, V.|
|Conesford, L.||Leicester, L. Bp.||Summerskill, Bs. [Teller.]|
|Denham, L.||Lincoln, L. Bp.||Templemore, L.|
|Dilhorne, V.||Longford, E. [Teller.]|
|Addison, V.||Archibald, L.||Birdwood, L.|
|Amulree, L.||Balogh, L.||Birk, Bs.|
|Annan, L.||Beaumont of Whitley, L.||Bowden, L.|
|Brockway, L.||Hilton of Upton, L.||Sainsbury, L.|
|Brown, L.||Hughes, L.||St. Davids, V.|
|Burden, L.||Jacques, L.||Segal, L.|
|Burton of Coventry, Bs.||Kilbracken, L.||Selkirk, E.|
|Byers, L.||Kirkwood, L.||Serota, Bs.|
|Champion, L.||Lindgren, L.||Shackleton, L. (L. Privy Seal.)|
|Cole, L.||Llewelyn-Davies of Hastoe, Bs.||Shepherd, L.|
|Cranbrook, E.||Lloyd of Hampstead, L.||Silkin, L.|
|Denning, L.||McCorquodale of Newton, L.||Sorensen, L.|
|Dinevor, L.||Milner of Leeds, L.||Stocks, Bs.|
|Evans of Hungershall, L.||Morrison, L.||Stow Hill, L. [Teller.]|
|Falkland, V.||Mountevans, L.||Strabolgi, L.|
|Foot, L.||Noel-Buxton, L.||Strang, L.|
|Gaitskell, Bs.||Ogmore, L.||Strange, L.|
|Gardiner, L. (L. Chancellor.)||O'Haggan, L.||Strange of Knokin, Bs.|
|Gifford, L.||Plummer, Bs.||Swanborough, Bs.|
|Gladwyn, L.||Raglan, L.||Taylor of Mansfield, L.|
|Goodman, L.||Ritchie-Calder, L.||Upjohn, L.|
|Granville of Eye, L.||Ruthven of Freeland, Ly. [Teller.]||Wade, L.|
|Hawke, L.||Willis, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 6, as amended, agreed to.
§ Clauses 7 to 10 agreed to.
§ Clause 11 [Short title, construction, commencement and extent]:
§ 7.20 p.m.
§ LORD STOW HILL moved Amendment No. 41A:
Page 6, line 34, leave out subsection (3) and insert—
("(3) This Act shall come into operation on the first day of January 1971.")
§ The noble Lord said: I think the Committee will agree that this is an important Amendment. It is inspired by a desire to go as far as possible to meet anxieties which have been expressed in the course of the debates on this Bill. The situation is that at the moment my noble and learned friend the Lord Chancellor has intimated that he has it in mind to introduce legislation dealing with matrimonial property. So far, I think I am right in saying that he has stated that it would be his intention, if this Bill becomes law, not to bring it into operation under the powers conferred upon him by Clause 11 of the Bill until he has presented his proposals with regard to the legislation to which I have referred. By "presented", I do not know whether he had in mind a White Paper, or whether he meant on First Reading or in what manner he contemplated making known his proposals to the House. But whatever form he had in mind, obviously that simply goes to the first version, as it were, of the proposals he would place before the House.220
Many speakers, in this House and in another place, have intimated their strong desire that the exact nature of the proposals that the Lord Chancellor has in mind should be known and fully ascertained before the powers conferred in this Bill are brought into operation. That is the reason, I think, why Amendments Nos. 42 and 43 are down, which propose in effect that there should be an Affirmative Resolution before the Bill is brought into operation. I and those who have been promoting the Bill have given very careful thought to this problem, to try to see whether we could meet the anxieties in some form which seemed to be practicable, and the result of our thinking is contained in the Amendment I now move, to the effect that
This Act shall come into operation on the first day of January 1971.
§ The object of that is as follows. The effect of the Amendment would be that the whole of the rest of this year, 1969, the whole of the next Session, in 1970, would elapse before the Bill actually comes into operation. That surely gives ample time for my noble and learned friend to prepare his proposals and to put them before both Houses of Parliament and for them to go through all the stages in both Houses. In consequence, before this present Bill is brought into operation, if my Amendment is accepted, the Lord Chancellor's proposals would have been passed in both Houses, Amendments which were thought necessary would have been proposed and carried, and an Act would emerge in its final form which would be before the public and would be operative to do such justice as can be done under its terms 221 before this Bill comes into operation, and before the first decrees of divorce are pronounced under its terms.
§ If I may just say a word with regard to the alternative proposals which are on the Marshalled List but have not yet been moved—namely, those to the effect that the Bill's operation should be, as it were, suspensory and should depend upon the passing of Affirmative Resolutions—the objection that I would respectfully urge to those are as follows. It means that the many people up and down the country who are depending upon the passing of this Bill into law to regularise their positions will be kept in a period of suspense for a time which may last nobody can say how long. It would be, I submit to your Lordships, cruel to keep them in that position if it can possibly be avoided. I have had letters almost of reproach since I tabled this Amendment, saying, "Try to do your best to get this Bill into operation as soon as possible", and being rather critical of the proposal which was bruited over the weekend, that the operation of the Bill would be deferred until January 1, 1971.
§ I hope that the critics of the Bill who are anxious about the Lord Chancellor's proposals will feel that the provision has gone a long way, I hope I can say, to meet their desires. At least the Amendment I propose will ensure that by the time this Bill comes into operation the Lord Chancellor's legislation will be final and complete, will have run through the gauntlet in both Houses of Parliament, and will have been improved and changed in accordance with the arguments raised as it passes through its various stages. It is for that reason that we have thought, after careful consideration, that it would be right to put down the Amendment for which I contend, and I greatly hope that those who share the anxieties to which I have referred will feel that it really does go at any rate a good way to meet the feelings of apprehension that they entertain. I beg to move.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (LORD STRANG)
I ought to inform the Committee that if this Amendment is agreed to, I shall not be able to call Nos. 42 and 43.
§ THE LORD CHANCELLOR
I am not able wholly to agree with the account which the noble Lord has just given 222 of what I said. I do not propose to express any opinion on the merits of this Amendment or any of the remaining Amendments, but merely on the factual position, which is this The Bill itself provides that itshall come into operation on such day as the Lord Chancellor may by order made by statutory instrument appoint".In connection with another Bill which was then before the House the undertaking I gave was that I would not make such an order until legislation based on the Law Commission's proposals had been introduced next Session—not had become law, but had been introduced. I anticipate that I shall receive the Law Commission's Report with draft clauses later this month. I cannot, of course, say whether a Bill will be introduced at an earlier stage next Session or later. I suppose it might be any time from November, although I suppose it would not be after May in the ordinary way.
Quite apart from that, as I explained on Second Reading, the Bill cannot be brought into force until rules have been made, because a number of clauses provide for rules. Rules have to be made by those in my Department, which is very small, but I said I think on Second Reading that I was just making rules under a Bill which had received the Royal Assent in October, so that had taken about nine months. We should in the ordinary way allow at least six months from the passing of the Bill to the making of the rules. With the burdens which are in my Department at the moment, I should think it is probably more likely to be nine months than six. So if I were asked when in the ordinary way, if this Bill were passed this Session, it would come into force, I would say, with luck, January, and more probably Easter.
§ VISCOUNT DILHORNE
I am sure that the Committee is grateful to the noble and learned Lord the Lord Chancellor for that intervention. I think everyone appreciates the difficulties there can be in making rules and the time it can take. I am also grateful to him for stating in the clearest terms the assurance he gave—and it is of course the only assurance he could give—that he would introduce his proposals for legislation. What does that mean? I am not being critical of the noble and 223 learned Lord. It means that, complying with that obligation, this Bill, if it is passed through both Houses, could be brought into force before the proposals the Lord Chancellor is going to introduce have reached the Statute Book; there might be a gap.
What has absolutely astonished me is that the noble Lord, Lord Stow Hill, should say with such absolute confidence, in the light of his experience of the process of legislation, that the Bill which is going to be introduced by the Lord Chancellor will have passed through all its stages and be in operation by January, 1971. One really cannot speculate, as the noble Lord knows, as to the course legislation will take. One can hardly speculate as to the length of this Parliament.
If perchance the legislation was not placed on the Statute Book by January, 1971, again we should have the awkward gap. That is what a lot of us want to avoid. Surely, there is nothing unusual about requiring an Affirmative Resolution. Why is it not possible for the noble Lord to go as far as that? I would have thought there was great advantage in it from his point of view, in that if the Bill introduced by the Lord Chancellor should get speedy passage to the Statute Book, if the rules are speedily drawn, then it might be possible to introduce this Bill long before January, 1971. Why should that door not be left open? If, on the other hand, it takes much longer to get the Lord Chancellor's Bill enacted, it seems to me that there is a strong case for postponing the operation of this Bill. That can be done by delaying the introduction of an Affirmative Resolution.
The noble Lord, Lord Henley, at an earlier stage of the discussion about an Affirmative Resolution, seemed to suggest that it would mean reviewing the whole content of the Bill. It would not, of course. There would be one debate on the Resolution, which could not be amended, and the Bill could not be amended; but at least we should be able to see what the position was at that time. If the Bill of the Lord Chancellor was passed, having been found satisfactory, that Affirmative Resolution would not be likely to be debated. On the other hand, it might be pointed out that there 224 were some defects in it and there might be a short debate; or it might be said that as adequate provision had not yet been made it should not be passed, and we should vote on that. It provides for control by this House over the course that this legislation should take, and I strongly recommend to the noble Lord that he should give further thought to this because I believe he can go a little further than he has already.
There is another reason why I hope he will not press his Amendment tonight, and why I shall not move mine if he does not. I should like him to consider the possibility that the whole Committee is worried about the financial position of the wife divorced against her will. Our Amendment is really designed to cover the position of those who come within Clause 2(1)(e). An alternative possibility, which I hope the noble Lord would seriously consider, is to provide that different parts of this Bill could be brought into force at different times. For example, we could have Clause 2(1), paragraphs (a), (b) and (c), brought in at a different time from Clause 2(1)(e), and Clause 6 in so far as it relates to Clause 2(1)(e).
I think that is worth doing, because I suggest to the noble Lord that it will go a long way to allay the anxiety which many people feel in regard to ensuring that the financial provisions for divorced wives are in force in fact, and not as a matter of speculation depending upon the Parliamentary timetable and the Government timetable, and many other matters before these particular provisions of this Bill take effect.
§ 7.35 p.m.
§ LORD SANDFORD
I think it might be for the convenience of the Committee if all three of these Amendments to Clause 11 are considered together, though I would hasten to say that it is not my present intention to move my Amendment, Amendment No. 43, to-night, but to put it down again in a modified form, modified if need be in the light of this debate, for consideration and decision at a later stage. First of all, as to the date January 1, 1971, for the purposes for which I am putting forward my Amendment, I do not in the least object to this date as the date to aim at for the introduction of this legislation. I think it is an entirely practicable date. 225 I think that by January, 1971, the particular things that must be done, and all the things which I am going to suggest in a moment ought, if possible, to be set forward, can be tackled within that time scale and by that date.
However, I would submit to the Committee that the bare sentence proposed by the noble Lord in his Amendment No. 41A standing on its own will not, in my view, suffice. There are three important reasons why I think it is not enough. First of all, I believe that experience has shown that Her Majesty's Government have not always in the past taken sufficient responsibility for implementing social reforms that have been introduced by Private Members' Bills. I think all the indications are that this time they will.
Good reasons have been put forward, notably by the noble and learned Lord the Lord Chancellor, right at the outset of the Second Reading debate, why it is that a Private Member is introducing this Bill rather than Her Majesty's Government, and why a Private Member is carrying through legislation of this kind. We well understand those reasons. But the reasons for that are also all the more reason for Her Majesty's Government considering their responsibility under this Bill for making due preparation for the day of the Bill's commencement, and for ensuring, so far as they possibly can, that once the Bill is on the Statute Book it will work well.
On this occasion Parliament must take particular care because this Bill is of such a far-reaching nature. That is one reason why I support the noble Viscount, Lord Dilhorne, in what he has just said in support of his own Amendment. But my second reason for not being content with Amendment No. 41A, as it stands, is that I believe that social reform by legislation alone is not enough; and that social reform by legislation alone, moreover, leads so easily to badly distorted priorities.
Throughout this most thorough Committee stage we have been discussing divorce; but, of course, all the time we have also been thinking of marriage, and quite rightly so. I am among those who think it is high time that our divorce laws were improved, and I greatly welcome this attempt to improve them, and to move away from the whole con- 226 cept of matrimonial offence which was the task originally set the Archbishop's Group. And I believe it would be terrible if this advance (if an advance can be made) in the burying of broken marriages is not accompanied by a parallel and complementary advance in building marriages firm enough not to break down under the great strain under which they exist to-day.
In the Second Reading debate I sought to remind your Lordships how absurd our priorities in public expenditure have already become. Millions of public pounds are being spent each year in dealing with the wreckage of broken marriages. One-tenth of £1 million alone is being spent in the building and repairing of them. One of the effects of this otherwise not bad Bill will be to distort these priorities still further. More will be spent on divorce, more will be spent on divorced wives, and more will be spent on neglected and deprived children.
Of course, I do not for one moment begrudge any of that, but surely this can only make sense at all if at the same time steps are taken to build better marriages, to forestall and, if possible, to prevent the breakdowns from which all this wretched misery flows. Therefore, I say, let the Government look at these priorities and, before January 1, 1971—there is plenty of time—present proposals to Parliament for bringing these priorities into better balance.
I hope this will not be taken as an invitation to Her Majesty's Government and to Whitehall to interfere in spheres that are outside the responsibility of Government. But surely Her Majesty's Government can, and should, as part of their responsibility under this legislation, stimulate others to greater efforts. I am thinking particularly of the churches, in which, as the right reverend Prelate reminded us, a half—or perhaps even two-thirds—of these marriages are solemnised. I am thinking also of schools, and particularly parent-teacher associations. Surely, through the action of the Government these can be urged to put more resources, more imagination, and more effort into helping young men and maidens to prepare themselves better for marriage; to immunise themselves more effectively against the grosser absurdities about sex and love that are bandied about by the advertising men 227 and the mass media; and to come to the responsibilities of marriage and parenthood with a deeper understanding of what marriage is about. That is my second reason for the kind of Amendment that I propose, and my reason for supporting the noble and learned Viscount, Lord Dilhorne.
My third reason for wanting to supplement Amendment No. 41A is this. I believe that Parliament has a duty not only to scrutinise and to amend the legislation that is brought before it by Government and by private members, but also to ensure that the time and the context for its introduction are right. As your Lordships will know, there are a number of ways of ensuring this timeliness. The mandate given to a new Government by the electorate is one of them. When that mandate is clear and fresh Parliament may, as it were, be fairly ready with the green light, but in this case it is not clear. There is no mandate, fresh or otherwise, for this legislation. Furthermore, this is legislation by a Private Member's Bill that is more far-reaching than most Bills introduced by the Government. In these circumstances, I believe that it is not only appropriate but the positive duty of Parliament to retain firm and close control of a Bill of this character until absolutely satisfied that all is set for its introduction. This procedure would not necessarily hold up the Bill at all, and it would go a great way to ensure far greater success for its operation. At any rate, those are my three purposes in putting down this Amendment, and saying that I propose to put it down again, in a modified form, for your Lordships consideration at the Report stage.
§ LORD LEATHERLAND
I propose to address myself directly and very briefly to the three Amendments that are before us. I do so with my mind on one part of the Bill only, Clause 2(1)(e), which deals with what I call the "conscripted divorce" where one spouse can say to the other spouse, "I have have had enough of you. We have been five years separated; clear out!" I am opposed to Amendment No. 41A which has been proposed by my noble friend Lord Stow Hill. I seem to find that the next Amendment, No. 42, is more in accord with my 228 own feelings. Before we finally start to operate this Act, we must know everything that can possibly be known about the financial facts of the situation. Unless we have those facts, in putting this Act into operation we shall be buying a pig in a poke.
It is not enough to say that the noble and learned Lord the Lord Chancellor and the Law Commission will make their views known to us. There is no guarantee that those views and that Report of the Law Commission will be enacted. There may be a different Lord Chancellor by that time—although I sincerely hope that there will not, as we have the best Lord Chancellor to-day that we have had for a good many years. There may be a different House of Commons, with a new body of Members, whose views on this question are quite different from those of the hundred or so Members in the House of Commons who have promoted and pushed through this Bill. There may be a differently constituted House of Lords (we may know this on Thursday), and the attitude and the complexion of thought of the new Members of the House of Lords and of the House of Commons may be quite different from that of the two Houses as they are constituted to-day.
We have a definite pledge from the noble and learned Lord the Lord Chancellor, an honourable pledge, honourably given; but we have had pledges about legislation in the past. We had a pledge about the Parliament Bill. What has happened to that? We had a pledge about the Trade Unions Bill; and what has happened to that? It may well be that the noble and learned Lord the Lord Chancellor and his diminutive staff will be busily engaged over the next three months on drawing up a vital constitutional Bill, so we have no guarantee that the facts about the finances will be known to us by January 1, 1971. Therefore I should like the date of its coming into operation to be left more flexible.
We have to accept the fact that the Bill has now been passed. Those who are in favour of the Bill are pleased; those who are only partly in favour of it are perhaps disappointed. But Parliament, in a democratic way, a constitutional way, has given its approval to the measure. But one thing Parliament has 229 not given its approval to yet is the financial factors, which will form a very important part of this legislation. I say that we must wait until we have seen those financial factors before we press the button to bring the Bill into full operation.
§ 7.47 p.m.
§ BARONESS SUMMERSKILL
I rise with the same sense of disappointment that has been expressed by my noble friend. I think I stood in this place in 1967, during the debate on the Queen's Speech, when there was talk of a Divorce Bill in the year; and I said then that I hoped that the Government would not think of introducing a Divorce Bill that embodied a provision whereby the innocent wife was divorced compulsorily before they had introduced a Bill dealing with finance and matrimonial property. I have been to the Law Commission, and I have been to meetings of all kinds; and half-promises have been given for a long time. Yet here we are, in July, at the end of the Divorce Bill, without any specific undertaking. I think this is extremely disappointing. The women's organisations have been meeting all over the country for two years, and I would say to my noble friend behind me that some of the most important representations were made by the National Joint Committee of Working Women's Organisations, which represents the Labour Party and the trade unions. They made representations to my noble friend the Lord Chancellor, and to the Law Commission, and asked what we have been asking for: that if a Divorce Bill of this nature is to be put through, then, pari passu, there must be a Bill making provisions for the wife who is compulsorily divorced against her will.
It will be recalled that at the beginning of the year Mr. Ted Bishop introduced in another place a Private Member's Bill called the Matrimonial Property Bill; and that subsequently it received substantial support there on Second Reading. Shortly afterwards, Mr. Bishop informed me that he and the other sponsors had agreed to withdraw the Bill on the undertaking given by the noble and learned Lord the Lord Chancellor, that similar legislation would be introduced by the Government to safeguard the woman divorced against her will. This was at 230 the beginning of the year after Mr. Bishop had been fortunate in the ballot and had had tremendous support in the House—which surprised me—for the Matrimonial Property Bill. He withdrew it at the beginning of the year because, as I say, of this undertaking. At the beginning of the year he wrote to me and said:The result of the withdrawal is bound to mean that we get the legislation we want much earlier, and those who have been worried about the possible financial effects of the Divorce Bill have been given new assurances.We are now approaching, effectively, the end of the Session, and it is not surprising that the women's organisations have been waiting, somewhat impatiently, to learn the details of the Bill—and still we know nothing. I confess that I expected my noble and learned friend to reveal this on Second Reading, for so much of the criticism of this Divorce Bill has been concerned with the failure to protect the woman compulsorily divorced against her will; and it only we had been told this, the energy, the time of us all, the writing and the speeches would have been saved. The expression "the cart before the horse" has been used time after time.
It was with surprise and profound disappointment that I heard my noble friend say (and I am sorry that I have to say this, because he would agree with me that I have been patient: heavens! I have never been so patient in my life as during the last two or three years, waiting for this measure) on Second Reading, when I thought we would be told the details, that the Chairman of the Law Commission had written simply saying:All we can do in our promised Report is to extend the powers of the court to make financial orders, thereby affording greater protection than at present to other deserving parties, whether petitioners or respondents. Accordingly those who will principally benefit are those who might be divorced under the present law rather than those who, for the first time, may be divorced as a result of the Bill"—that is, this Bill. So these recommendations that we have been patiently waiting for from the Law Commission came to nothing. Promises of this kind were made last year; and really I feel that my language is not too strong when I say that the women's organisations will regard this is a betrayal unless the undertaking given to the sponsors of the Matrimonial 231 Property Bill at the beginning of this year is honoured, and both Houses of Parliament are afforded an opportunity to approve the proposals to improve the financial position of divorced wives before the Divorce Bill goes into action.
Now it may be thought that I have misinterpreted the position. May I therefore remind your Lordships of the view expressed in The Times on July 2? May I quote a few lines from the leader? They said:The difficulty is that the Divorce Reform Bill is being considered on the understanding that the law on family property and the financial provision for divorced people will shortly be amended, but nobody has known just what the new law would be. Without that knowledge legislation on divorce would simply be a leap in the dark".They went on to say:What recompense would there be for the woman who on divorce would lose her right to a widow's pension later on? What rights would she be given in the family home, in which all their savings may have been sunk?Then:To provide a little more precision Lord Gardiner was able to quote from a letter to him from Mr. Justice Scarman, chairman of the Law Commission, on the recommendations that the Commission will make for reforming the law on matrimonial property and the financial arrangements for divorced people. But, useful and encouraging though this was, it amounted to little more than a letter of intent in fairly general terms. To know how valuable the safeguards would really be one would need to see a Bill in draft or, better still, on the Statute Book".Speaking strongly like this is something that is not very pleasant to me. I have been extremely patient, and the women of this country have been patient. To-day, we have seen go through its Committee stage a Bill which will make profound differences to the whole institution of marriage. All that the women have asked is that in the event of this Bill being put into operation there should be on the Statute Book at the same time provisions which have been promised them over the last few years but which have not been forthcoming. Therefore, I ask your Lordships to ensure that the promise is kept this time and to see that this Bill is not introduced, even on January 1, 1971, without financial provisions.
THE LORD BISHOP OF LEICESTER
I think that perhaps I might render my last service in this 232 debate as Court Chaplain to Queen Boadicea in this particular campaign. There have been deep emotional tides moving through this debate, although we have been concerned with the minutiae of the Bill. The two particular tides, which have been often in conflict, are a tide of compassion for those who are in this difficult position and are wanting to regularise their marriages as soon as possible; and, on the other hand, a tide of compassion for those who are likely to suffer emotionally or financially through the coming into force of this Bill. But the one point on which everybody has been agreed, I think, is that the financial provisions must be the best possible in all the circumstances. That has arisen partly because those who knew that they could not prevent, perhaps did not want to prevent, the passing of this Bill felt that they had a duty to ensure the best financial arrangements, and partly because there were those who felt that if they did not provide for those arrangements the Bill itself would be open to criticism and would perhaps be looked on as in some sense a moral lapse in the life of our country. So I would favour the strictest conditions that we can arrive at, and an Affirmative Resolution of both Houses of Parliament would seem to me to be the most definite way of ensuring the widest measure of agreement.
If I may say just one word in response to the words of the noble Lord, Lord Sandford, about the positive side, we may feel that, in these matters, what Government can do on the positive side is very limited. I myself feel that the example and influence of our public figures, those in the world of the theatre, of films and of sport, have a much greater responsibility even than Governments. But I would of course support the noble Lord in hoping that everything positive will be done, not necessarily during these next few months but as a permanent element in our national policy, to lay the best possible foundation for stable marriage. I always take comfort myself in thinking that it is nature itself that provides by far and away the best support for stable marriage, and we would do well to remember that, in spite of all our provisions, still only about 8 per cent. of our couples in fact need the provisions over which we have been taking such trouble in this debate. But all that we can do in the way of sound and wise 233 education and good example is of infinite value.
§ LORD GOODMAN
It might perhaps be useful if I say what I want to say very briefly before the noble and learned Lord the Lord Chancellor speaks, because I am wondering whether the noble Baroness, Lady Summerskill, may not have got hold of the wrong end of the stick. If I may take up the historical parallel of the right reverend Prelate, I think that in this case the scythes on her chariot wheels have been hacking at her friends rather than at her enemies. It seems to me that it might be very advantageous to the Committee if all three of these Amendments were to be withdrawn and if the matter were to be given some thought, and possibly some explanation, before the next stage of the Bill, because L think we are under a rather serious misapprehension about what the Bill is going to do.
As I understand it, this Bill is not going to do anything prejudicial in financial terms to the parties to divorce legislation. We must remember that every day divorces are taking place under four of the grounds which are contained in the Bill, and that the petitioners in those cases are receiving their financial arrangements under what are now apparently regarded as not very adequate powers and provisions on the part of the judges This is happening to-day. It has nothing to do with this Bill. If, to rectify that situation, it is necessary to have amending legislation, that legislation should be hurried through as rapidly as possible. That position will not be brought about by this Bill. It is happening by the workings of the ordinary divorce laws.
Under this Bill, if it were in operation, we should duplicate the existing four cases which are already happening; leaving, certainly, the inadequate financial provisions already in existence awaiting the new legislation, and adding two grounds for divorce, paragraphs (a) and (e), for which perfectly adequate provisions are to be found in the self-contained code in the Bill. In short, we shall leave the old situations unchanged, unimproved and unrepaired, awaiting the legislation, but we shall introduce the two new grounds with perfectly satisfactorily self-contained provisions in Clause 4 and Clause 6. It seems to me, therefore, that there would be no damage caused 234 to anyone by introducing this Bill tomorrow. The damage is brought about because, apparently, it is considered that the existing cases of divorce which are now passing through the courts are being dealt with with inadequate powers vested in the judges. That damage can only be rectified by producing these new provisions as rapidly as possible.
I think there is a considerable risk in attaching a particular date to this Bill—not on the grounds that have been advanced in this debate: that we may not see financial provisions and therefore a lot of innocent people will be damaged by it. I hope I have demonstrated that No innocent people will be damaged by the introduction of this Bill. But the risk is that we shall be bringing in legislation in the characteristic hurry that has been associated with so much of the legislation that we have had to introduce in recent years. It must be wise, with important domestic legislation of this kind, to take our time about it; to see what other people have done; to look at other systems of law; and not to have to do it according to some urgent time limit. It seems to me, subject to further explanation from the Government and from the noble Lord, Lord Stow Hill, that these Amendments could very usefully be withdrawn. We could hare an 'explanation from Lord Stow Hill at some appropriate time (perhaps this evening) as to why my view of the matter is wrong. It may be totally wrong; but it seems to me to be the position at this moment. If that is so, I can see no objection and no damage to anyone in the introduction of this Bill to-morrow. The damage will be caused, in many ways, by not introducing the Bill. But No injurious effect will follow from the introduction of this Bill. But on the other hand, if it is thought that the general law of divorce in relation to maintenance and financial provisions is inadequate, then, clearly, with the utmost speed consistent with a reasonable possibility of decent legislation, changes should be brought about.
§ BARONESS GAITSKELL
Before the noble and learned Lord the Lord Chancellor speaks, may I make this point about the way the debate has gone on? One is following the right reverend Prelate who has suggested that those who are in favour of the Bill are taking the 235 side of the new family, and those who are against this Bill are taking the side of the abandoned, divorced wife. This is utterly untrue for most of us. Personally, I feel just as strongly—and I say this with all humility—about the abandoned wife as does my noble friend Lady Summerskill. Therefore I would say to my noble friend Lord Stow Hill that perhaps he should withdraw his Amendments; that we should look at this, and I hope that perhaps the noble and learned Lord the Lord Chancellor will give us a stronger assurance about the legislation that he is proposing to bring forward about the marital property financial arrangements.
§ THE LORD CHANCELLOR
In view of what my noble friend Lady Summerskill has said, I think I ought to say a few words with regard to finance. I have done my best to make it plain to my noble friend, and so has the Chairman of the Law Commission, that it is no good relying on a financial provisions Bill to do much that is not already in this, the Divorce Reform, Bill. The arrangements affecting financial provision which the courts can make at the dissolution of a marriage can be improved. It is for the purpose of improving them that the Law Commission is engaged in producing the financial provisions Bill. That would be necessary in their view whether the Divorce Reform Bill is passed or is not passed.
As the Chairman said in the letter which the noble Baroness read out, he wanted to make it plain that those improvements would in the main apply to people whose marriages were now being dissolved. This Bill itself contains Draconian powers which no petitioner has ever had before. At the moment, if you can prove that your spouse has committed adultery or cruelty and you have done nothing wrong yourself, you are entitled to a divorce; the court has no discretion. Now, under Clause 4 and for the first time, in every such case the court will have a discretion, if it thinks that there is on the other spouse's side severe hardship and that it would be wrong to dissolve the marriage, to refuse a decree. This is a power in favour of the wife that the courts have never had before. Then, of course, so far as the five-year rule is 236 concerned—and here again is something that the courts have never had before—the court can say: "I am not going to grant a decree unless you take out a policy which will provide the same amount for your wife as she would have received by way of a pension if the marriage had not been dissolved". That is of vital importance and a Draconian power, because in most cases that is the only thing that the wife loses.
I wish that my noble friend would appreciate—I am sure she must, if she thinks about it—that it is no good looking to me or to the Law Commission, or to the lawyers or to anybody, if in the 118, 000 maintenance order cases to which I referred on Second Reading 87 per cent. of the orders are made against men earning less than £15 a week and 43 per cent. are made against men who are earning less than £10 per week. It is no good saying, "I am waiting for the Lord Chancellor, or I am waiting for the Law Commission". It is absolutely useless to think that any change that law can make can mean that the deserted wife is a position in which one would like to see her. Almost every time that a marriage is dissolved, whenever married people break up, they are both going to lose financially. It is always cheaper to live together; they are both going to suffer financially. But as my noble friend will remember, out of those 118, 000 cases, 14, 000 have had their marriages dissolved and the others have not. This does not make any difference. It is not the divorce which causes the hardship; it is the breakdown of the marriage. The only way in which a divorce puts the woman into a worse financial position is if there is loss of pension. It is that to which the exceptionally Draconian powers contained in this Bill are directed.
I therefore say again, as I have said before, and as the Chairman of the Law Commission has said before do not think that there is going to be anything in a Bill on financial provisions which means that a woman who is the wife of a low wage earner and whose husband has unfortunately deserted her and who has been in that position for five years is going to be put, by anything the law can do, in the same financial position that she would have been if they were still living together.
§ BARONESS SUMMERSKILL
The noble Lord the Lord Chancellor has addressed his remarks to me. If, as I understand it, little more is going to be done than we see in this Bill, why was pressure brought to bear on Mr. Bishop in January to withdraw his Matrimonial Property Bill on the promise that something better would be introduced much earlier—which Mr. Bishop described in his letter to me and all the women's organisations as a glorious victory?
§ THE LORD CHANCELLOR
I am not responsible for what Mr. Bishop wrote to my noble friend. I certainly did not tell him that it would be better; indeed, I told him the exact heads under which the Law Commission proposed to report.
§ 8.10 p.m.
§ VISCOUNT DILHORNE
I hope that the noble Lord, Lord Stow Hill, will respond to the suggestion of the noble Lord, Lord Goodman. I do not agree with Lord Goodman's view of this Bill, but I think there is something here which it would be useful to discuss, to see whether we can reach agreement, rather than spend time devoting a considerable amount of controversy to something which is rather intricate and on which I should hope we might be able to reach an agreement. Therefore, if the noble Lord will withdraw his Amendment, which we are not discussing now, I will not move mine, which we were discussing, together with the other Amendment, and I think that the noble Lord, Lord Sandford, will not move his; and then that will conclude the proceedings in Committee.
§ BARONESS BIRK
May I say one word on the question of delay? I agree so much with what was said by the noble Lord, Lord Goodman. He raised the question of whether we had gone deeply enough into the whole question of divorce; and whether the Bill should be delayed on that ground. I will not refer to the other ground, of family property, with which the noble and learned Lord the Lord Chancellor dealt so admirably. I cannot see that there is any case for delay. In fact, I think that the Amendment by my noble friend Lord Stow Hill, proposing the date of January 1, 1971, is rather too much of a delay for my taste when I think of the backlog of people who are waiting for a divorce.
238 I do not wish to delay the Committee, but this matter has been raised by the noble Lord, Lord Goodman, and by the noble Lord, Lord Sandford. Nearly fifteen years ago the Royal Commission on Divorce reported. In 1964 the most reverend Primate, the Archbishop of Canterbury appointed a small Group. In 1966, the Group's Report, Putting Asunder, was published. This was referred to the Law Commission, who reported on it in Field of Choice, in November, 1966. The matter was debated in your Lordships' House in November, 1966. In 1967, the Church Assembly, by a large majority, wanted the breakdown of marriage as the only ground for divorce. Then there was the agreement between the Archbishop's Group and the Law Commission. In the Parliamentary Session 1967-68 there was a Bill, practically on the same lines as this Bill, which was certainly finalised in another place; and it was only through lack of time that it was not passed. It seems to me that on these grounds we may say that the matter has been examined, re-examined, investigated and discussed in the country.
I take issue with my noble friend Lady Summerskill because, despite the admiration that I have for the women's organisations, I do not think that they completely represent the great majority of women in this country. We know that the great majority of women who will be in any way affected by the provisions in this Bill are not in the financial or property-owning class. They will still be better off under the provisions of this Bill.
This does not mean that I do not think on this point (I am with my noble friend) that we should have proper family property laws in this country so that there would be a proper recognition and division between husband and wife, whether they are living together or separated, and the wife would be entitled to property, or whatever there may be to divide, as of right. I agree with this. But we must remain aware that this does not affect the majority of women, and I think that to delay this Bill would be disastrous. Thousands of people are waiting to get a divorce. For goodness' sake let us get on with it! I feel that by putting down a date, my noble friend Lord Stow Hill, has gone as far as many of us feel that we could go. A number 239 of concessions have been made, and compromises have been agreed; and I, like many others in your Lordships' House and in another place, would like to see this Bill on the Statute Book.
THE LORD BISHOP OF DURHAM
I wonder whether, quite briefly, I might make what may seem to many an extraordinary, if not an incredible, suggestion. I do it in the hope that it might be considered if the kind of consultation occurs which has lately been mentioned. If we set this Bill in the widest social context, taking something of what the noble Lord, Lord Sandford, was saying on those lines, and making these kinds of reforms, do we not need to take the widest possible perspective of the social responsibility of our legislation? As I see it, the real difficulty is: where is the money to come from for the wife who is divorced against her will, and for whom the husband cannot make provision,? This is the case of the husband who has no money and no property—what was referred to earlier in the debate as "the law for the poor". That, I think, is the real difficulty.
Where can we get any guarantee whatever, in the case of poor people, that the wife divorced against her will will have money, without necessarily going through the ordinary channels of social security and so on? This is the end of what I have to say and the incredible suggestion. Would it be absolutely incredible to think that the State, having agreed to irretrievable breakdown as the criterion for divorce, should in suitable cases match that with State provision for a wife who is discarded in that way, without her having to go with the general case of people who have to apply for National Assistance? I should be grateful if those considering these financial possibilities could look into that suggestion, incredible and extraordinary though it might be, so that the wife of a poor husband could, as of right, get some finance from the State which has decided—it may well be in its wisdom—to have this new outlook on divorce and the way of obtaining it.
§ LORD STOW HILL
I have listened carefully to the various views which have been expressed from various quarters. It seems to me that, quite plainly, I should ask leave to withdraw this Amendment so that the matter may be recon- 240 sidered. I do so on the understanding that my noble friend Lady Summerskill, the noble and learned Viscount, Lord Dilhorne, and the noble Lord, Lord Sandford, will not persist in their Amendments.
§ Amendment, by leave, withdrawn.
§ Remaining clause agreed to.
§ Schedules agreed to.
§ House resumed: Bill reported, with the Amendments.