§ 4.25 p.m.
§ LORD STOW HILL
My Lords, I beg to move that this Bill be now read a third time. I believe it is in accordance with your Lordships' general practice that when there are on the Paper Amendments for consideration on Third Reading the Motion for Third Reading is normally taken formally and the debate arises on the subsequent Motion, That the Bill do now pass. On the assumption that I am right in so understanding, and that your Lordships would desire to follow it in this particular instance, may 1254 I formally move that the Bill be now read a third time.
§ Moved, That the Bill be now read 3a.—(Lord Stow Hill.)
§ On Question, Bill read 3a, with the Amendments.
§ Clause 2 [Proof of breakdown]:
§ LORD STOW HILL
My Lords, Amendment No. 1 is a purely drafting Amendment. I do not know whether it would be for your Lordships* convenience if with Amendment No. 1 were taken Amendment No. 2, which is to precisely the same effect and also purely drafting. I beg to move Amendment No. 1 and, if your Lordships will allow me, to move Amendment No. 2 also.
§ THE LORD CHANCELLOR
My Lords, if no noble Lord objects I will put Amendments Nos. 1 and 2 together.
Page 1, line 23, leave out ("being a period")
Page 2, line 2, leave out ("being a period").—(Lord Slow Hill.)
§ On Question, Amendments agreed to.
§ Clause 4 [Decree to be refused in certain circumstances]:
§ VISCOUNT DILHORNE moved Amendment No. 3:
Leave out Clause 4 and insert the following new clause—
4.—(1) The respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in paragraph (e) of section 2 (1) of this Act 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.
§ (2) Where the grant of a decree nisi is opposed by virtue of this section, then,—
- (a) if the court is satisfied that the only fact mentioned in the said section 2 (1) on which the petitioner is entitled to rely in support of his petition is that mentioned in the said paragraph (e). and
- (b) if apart from this Section it would grant a decree nisi,
§ (3) For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved."
§ The noble and learned Viscount said: My Lords, this may appear to be a pretty massive Amendment, but I assure your Lordships that it is not nearly so formidable as it may appear at first sight. The changes I propose to Clause 4 could have been made by tabling three Amendments to the clause, but I thought it might be to your Lordships' convenience to see exactly how the clause would read if it were amended, so as to be able to contrast the clause as it would read with the existing clause without having to fit the Amendments into the Bill.
§ I will, of course, explain what are the changes I propose, but first may I remind your Lordships of what the present clause does. It enables a respondent to a divorce petition to oppose the petition on an entirely new ground. No matter how frequently he or she may have committed adultery, no matter how grave the cruelty proved against the respondent, and even if there has been desertion and the marriage is really at an end, the respondent can nevertheless oppose the grant of a decree nisi on the ground that the dissolution of the marriage will result in grave or other financial hardship to him or her and that in all the circumstances it would be wrong to dissolve the marriage. If he or she does that, then the court has to go into all the circumstances of the marriage, including the conduct of the parties to the marriage and the interests of those parties and of any children or of other persons concerned. Having completed that inquiry, the court, if it is of the opinion that dissolution would involve great financial or other hardship to the respondent, and that it would be wrong in all the circumstances to grant a decree nisi, must dismiss the petition.
§ That, as I understand it, is the effect of the clause as it stands. And while I doubt whether a respondent who was proved to have committed adultery on a number of occasions, or to have been guilty of great cruelty, would be able by invoking this clause to get the court to dismiss a petition—although perhaps it might be easier to do so where there is desertion—the fact remains that every time a respondent opposes on this ground 1256 there must be, as the Bill now stands, that inquiry into all the circumstances before a decision is reached as to whether or not a decree nisi should be granted.
§ So far as petitions based on the facts contained in Clause 2 (1) (a), (b) and (c) are concerned, I can see no valid reason for saying that there should be this ground for the opposing of a decree nisi. Where a petition is based on these grounds I feel that it would be much better to let the inquiry as to financial provision, as to custody, and all those matters, be dealt with after, and not before, the granting of the decree nisi. If the Bill is left as it is—and I think this is the great danger about this clause—it will give a spiteful respondent (and some respondents are extremely spiteful) ample opportunity to delay a decision on whether or not a decree nisi should be granted. Once the court has to inquire into all the circumstances of the marriage, the conduct of the parties, and the interests of any children or other persons, as the Bill stands the inquiry has to be embarked upon if the respondent opposes on this ground, and then indeed there must be some delay, and in a good number of cases a really considerable delay, in the court's decision whether or not to grant a decree.
When we discussed this matter on the last occasion on July 24 the right reverend Prelate the Bishop of Exeter, who I am glad to see in his place, said:
I have always understood, when we were discussing these things before the Bill was drafted, that these rather exceptional provisions in Clause 4 were drafted with Clause 2 (1) (e) in mind and nothing else."—[OFFICIAL REPORT, 24/7/69, col. 1138.]
That has always been my understanding, but I think it is the case that the clause as it now stands goes far wider than that. I do not know what your Lordships have felt throughout, but I have felt that the real need for a clause on the lines of Clause 4 relates really to petitions based on a five-years living apart, which is Clause 2 (1) (e). It is in an endeavour to make Clause 4 correspond with what I have always thought was the real intention behind it, that this Amendment has been tabled.
§ Your Lordships will see that under the Amendment the clause has been slightly rearranged. The power of a respondent to oppose a petition for divorce on this ground is not fettered, 1257 but where the change comes is that if this Amendment is carried it does not automatically follow that the court has to make this inquiry into all the circumstances of the marriage, but it will be bound to do so when it comes to the conclusion that the only facts on which the petitioner would be entitled to rely for the grant of a decree are the facts mentioned in Clause 2 (1) (e), the five years living apart. The court has got to come to that conclusion, and also to the conclusion that, but for this Clause 4, it would grant a decree, before it has to embark upon the inquiry into all the circumstances, et cetera, of the parties.
§ I do not think that there is any other material change which this new clause makes. I commend it to the House for a variety of reasons. I think that on the last occasion we debated it I perhaps did not make myself as clear as I should have done; but unless this Amendment is carried, I feel there is a serious risk that Clause 4, instead of proving a beneficial change of the law, will prove a weapon in the hands of respondents, and particularly spiteful respondents, whereby they can delay the obtaining of justice by petitioners, whether male or female. I do not think that in fact respondents will suffer if these changes are made, because in future, as now, after a decree has been granted on the ground of adultery, cruelty, or desertion, the full circumstances can be gone into, and they will continue to be gone into, and the issue here is whether those circumstances of the marriage really can justify the refusal of a decree when it is clear that the marriage had broken down because of adultery, cruelty or desertion, the grounds in Clause 2 (1) (a), (b) and (c).
§ At the last stage it was suggested by my noble and learned friend Lord Denning that we ought to keep Clause 4 in its present form (and I think I summarise correctly the effect of his speech) because it would now enable the court to have regard to those discretionary bars which this Bill purports to abolish. I do not think that that was ever the intention of Clause 4. I do not think that that would be any justification for keeping Clause 4 in its present form. I hope that I have made this point clear.
§ It would be right to tell your Lordships that since the last discussion in this House 1258 I have had the advantage of a very valuable discussion of this matter, not only with the noble Lord, Lord Stow Hill, but with the noble and learned Lord the Lord Chancellor, and others, and I am indeed grateful to them for having had the opportunity of doing so. I am also most grateful for having been given the help of Parliamentary counsel in the drafting of this Amendment. I hope that this is one of the few occasions when it will be said that the Amendment is; technically in order. I beg to move.
§ 4.37 p.m.
§ LORD SANDFORD
My Lords, there have on this point, throughout all stages of the Bill, been difficulties and, I believe, anxieties on all sides of the House, and we all owe a great debt of gratitude to my noble and learned friend Lord Dilhorne for having now set those difficulties and anxieties at rest. I hope that Her Majesty's Government and the noble and learned Lord the Lord Chancellor will be able to say that there are no objections to this Amendment, and that the noble Lord, Lord Stow Hill, will be able to accept it.
My Lords, in my view Clause 4 of the Bill as originally drafted and Clause 4 as now amended are utterly unsuitable for the Bill in every conceivable way. You take two people who have similar circumstances in their lives; one man is wealthy and succeeds in getting a divorce, and the other man is in a very poor financial position and fails to get a divorce. Now what on earth has that to do with a Bill which is for the reform of the divorce law? However, I say that because your Lordships are determined, and have been determined for a long time, to fill up hundreds of pages of Hansard in creating the greatest possible complications. Indeed, Clause 4, whether it is left alone or whether it is amended, will be of enormous benefit to an unmentionable profession.
§ 4.40 p.m.
THE LORD BISHOP OF EXETER
My Lords, I support this Amendment and I am grateful to the noble and learned Viscount, Lord Dilhorne, for laving tabled it. I stand by what I said in this House in July, which the noble and learned Viscount quoted. I think that Clause 4 as it now stands in the Bill 1259 makes a nonsense. As the noble and learned Viscount has said, it will mean that a person whose behaviour has manifestly been most responsible for the breakdown of the marriage will be able to put in a plea that if the divorce goes through he or she will suffer grave financial hardship. Of course, any man who has married a very wealthy wife would suffer grave financial hardship if the marriage were dissolved.
Under Clause 4 as it now stands, it would be possible to oppose almost any petition for divorce. But the new Clause 4 would be a very important clause and would give a further necessary protection to the spouse who might be divorced against his or her will. It is in the situation covered by Clause 2(1) (e) that this question of grave financial hardship is really strictly relevant, and the new clause will be a great improvement to the Bill in protecting such persons to some extent. I hope very much that the Amendment will pass.
§ LORD STOW HILL
My Lords, I greatly hope that your Lordships will feel convinced by the reasons which have been so clearly put before the House by the noble and learned Viscount, Lord Dilhorne, and by the right reverend Prelate who has just sat down. I very strongly support this Amendment which raises a very short, simple issue. Your Lordships know that if this Bill is passed into law divorce will be obtainable on any one of five grounds—if I may state the effect not with complete accuracy, but so far as I think is necessary for the purpose of this Amendment—adultery, cruelty, desertion, consent after separation for two years, and after living apart for five years with or without the consent of the party who is the respondent.
As at present drafted, Clause 4 enables a respondent, against whom divorce is claimed on any of the five grounds, to require the court to investigate whether the granting of a decree would cause grave hardship to the respondent. I respectfully submit that that is a position which cannot be justified. I should have thought, when one is talking of a case in which divorce is sought by one party, despite the wish of the other, after they have lived apart for five years, that everybody would desire that, at the request of 1260 the respondent, the court should be empowered to investigate the whole question of whether the granting of a decree in those circumstances, against the wish of the respondent, would cause the respondent grave hardship; and that, if it came to the conclusion that the granting of a decree would cause the respondent grave hardship and that it would be wrong to grant a decree, the court should be empowered to refuse to grant a decree of divorce.
But those considerations surely do not apply—they never have and they surely should not now—when the husband or the wife seeks divorce on the ground of adultery. It would be surely wholly illogical, if a respondent is shown to have committed adultery with all and sundry in the most shameless way, for that respondent nevertheless to ask the court to investigate whether a decree should not be refused on the ground that the respondent would suffer grave hardship. Similarly, if the respondent has been grossly cruel to the petitioner, it surely cannot be relevant whether the respondent will suffer grave hardship; and, equally, in the case of desertion.
But it goes even further. As Clause 4 is at present drafted, if two parties, by consent, have lived apart for two years and one seeks a divorce and the other consents to the divorce and says to the petitioner, "I consent", even then the consenting party can turn round and say, "Oh, no! I ask the court to decide whether the granting of a decree would cause me hardship." That cannot be relevant. I entirely agree with the right reverend Prelate and the noble and learned Viscount. I have always thought that the whole purpose of Clause 4 was to provide a safeguard in the case of an application for a decree by one party, despite the wishes of the other, after they had been apart for five years. That is what the Amendment of the noble and learned Viscount does, and it does only that. I respectfully submit to the House that it is a proper change which greatly improves the Bill before your Lordships' House.
§ LORD HANKEY
My Lords, I have no entitlement to be regarded as any sort of expert on this question, but I should very much like to be permitted to raise one philosophic doubt before we leave 1261 this question. The Amendment has one other effect which has not yet been mentioned. This is, I think, the only clause which enables a court to consider the interests of the children. I speak subject to correction on this point. But if the court is to consider the interests of the children only in considering a divorce under Clause 2(1) (e), are we perhaps neglecting a point which ought to be considered under Clause 2(1) (b)?
§ BARONESS SUMMERSKILL
My Lords, I am not inclined to agree with my noble friend. At the last moment, on the Third Reading of this Bill, we hear my noble friend behind me declare that he has completely changed his mind about the meaning of the clause. I remember that on the Second Reading of the Bill he spoke on the clause with equal strength and asked the House to support it as it was. I feel that what we are doing is weakening the clause to such an extent that, apart from paragraph (e), women—and obviously it is usually women who have to appeal on the grounds of hardship—will find their position very much weakened. I want to be assured by my noble and learned friend who sits on the Woolsack that this is not going to be the case. We have the right reverend Prelate the Bishop of Exeter changing his mind at the last moment, since he is supporting the new clause. He is changing his mind, as I recall that on the Second Reading he supported the Bill as it stood and did not oppose it.
THE LORD BISHOP OF EXETER
My Lords, I indicated during the Committee stage on July 24 that I favoured an Amendment of this kind.
§ BARONESS SUMMERSKILL
My Lords, I want to enter a caveat here on behalf of those women who come under the other paragraphs and who, after the petitioner has asked for a divorce, feel that their position and the position of their children should be fully investigated before a divorce is granted. I understand that if this new Clause is accepted their position will be considerably weakened.
It is quite clear to me that it is of little use my going into the Division Lobby on this Amendment against all those who supported the Bill in the first place and who now support the noble and learned Viscount who has moved 1262 this Amendment. But I express my profound misgivings that at this last moment, when so many of us have been engaged on this Bill and when the provisions of this Bill have been discussed outside the House by women's organisations throughout the country, and by lawyers of all kinds—those who are sympathetic to the Bill and those who are against it—a most important safeguard of women is being withdrawn. I want to express my very deep feeling on this matter, because when this unfortunate Bill—as it will come to be regarded by posterity—comes to be implemented, there will have been removed what I felt was some safeguard.
§ LORD REID
My Lords, I think the House can accept this new clause with equanimity. The noble Lord, Lord Stow Hill, made it perfectly clear in the earlier stages of the Bill that Clause 4 in any form can apply only in the most exceptional cases—one might say once in a blue moon, and I am inclined to think not as often as that—because it is so tightly drawn. You have got to have both grave financial hardship and circumstances which would make it "wrong to dissolve the marriage". What that means one does not know, but I think the court would be very slow to use it.
My own impression is that we are really speaking about a matter which will have the very smallest amount of importance in the future. Whether the Clause is amended or not, it will scarcely ever apply; and the difference which I think is being made by the new clause, which I agree is an improvement, is so minute that I do not really think that anybody is going to be prejudiced by it.
§ VISCOUNT DILHORNE
My Lords, may I thank those noble Lords who have supported my speech and the Amendment which I have moved, and may I shortly reply to the noble Lord and the noble BARONESS who have criticised it in certain respects. The noble Lord, Lord Hankey, seemed to think that if the existing clause was not retained, with is present width, it might prejudice the interests of children because, he said, it is the only Clause in the Bill which deals with the position of children in relation to divorce. My Lords, I think the noble Lord has forgotten Section 33 of the Matrimonial Causes Act 1965, and, if I 1263 may, I will read the first subsection of that section. It reads as follows:Notwithstanding anything in Part I of this Act but subject to the following subsection, the court shall not make absolute a decree of divorce or nullity of marriage in any proceedings begun after 31st December 1958, or make a decree of judicial separation in any such proceedings, unless it is satisfied as respects every relevant child who is under sixteen that—I will not read the whole of that section, but that indicates that the real issue here is not the question of whether the interests of the children shall be considered, because they will be under that provision if they are not under the new Clause 4 in every case. The real question here is whether a petition which is based on the grounds mentioned in Clause 2 (1) (a), (b) or (c) can be dismissed by invoking Clause 4.
- (a) arrangements for his care and upbringing have been made and are satisfactory or are the best that can be devised in the circumstances; or
- (b) it is impracticable for the party or parties appearing before the court to make any such arrangements".
The noble Baroness criticised this Amendment. She appeared to think it wrong that it was brought forward at the very last moment—at the Third Reading of this Bill. My Lords, if I may remind the noble Baroness, I raised the same issue on the Report stage, when it was perfectly proper to bring it forward. We discussed it at some length then, and I withdrew my Amendment on that occasion because there were still drafting and technical difficulties which had to be resolved. I really cannot share her view that this Amendment weakens the position of women. It really does not. Their position will remain the same as it now is if they are found guilty of adultery, desertion or cruelty. Their financial situation and all the rest of it can be gone into after the decree nisi, as it now is.
What the noble Baroness seems to want—and I really think she is alone in this—is that no matter on how many occasions adultery may have been committed by a woman, no matter how clear it may be that in consequence of that adultery the marriage has broken down, nevertheless the guilty woman (I use the word "guilty" in the sense of her being guilty of adultery) should be entitled to oppose the grant of a decree because the result 1264 of that decree, brought about by her own conduct, would be to inflict financial or other hardship on herself. I do not think that can be right, and I certainly do not put this Amendment forward with a view to prejudicing the position of women in any degree at all.
§ On Question, Amendment agreed to.
§ 4.56 p.m.
§ LORD STOW HILL
My Lords, I beg to move that this Bill do now pass. May I say at the outset that it would be churlish indeed on my part not to express my very deep gratitude to your Lordships' House for the most careful examination to which these proposals have been subjected in the course of their passage through this House—and my debt of gratitude to your Lordships will be the same whether or not, as the upshot of this debate, the Bill passes.
It is a measure which is of the utmost social importance. If I might try to pick out what are the salient features, the major changes which it introduces, I would list them as follows. First and foremost, my Lords, it replaces the present system (for which, I think I am right in saying, nobody in the course of our debates has said one single good word) by a system which will conduce much more to the dignity of divorce proceedings and to the dignity of marriage as a whole, and which will contain ample safeguards against wanton or hasty recourse to the divorce court. Every provision, I would submit to your Lordships' House, has been embodied in an attempt to secure that the parties become reconciled instead of proceeding to asking for a final decree. Every attempt has been made to introduce into the Bill opportunities for further reflection by the spouses in the hope that, however much the marriage may seem to be in danger of breaking down, nevertheless, at the last moment, it may be rescued. It does not undermine the institution of divorce: it does precisely the opposite. That is the first thing it does. The second thing that it does—
§ VISCOUNT DILHORNE
The noble Lord said that it does not undermine the institution of divorce. I think he must have meant the institution of marriage.
§ LORD STOW HILL
My Lords, I was so carried away by my enthusiasm that 1265 my logic, I am afraid, gave way to my impulse. I apologise to your Lordships' House.
The second change which the Bill introduces is what has been described as "divorce by consent". If two persons part by consent and live apart for two years, and if both consent to the pronouncing of a decree, the courts are given jurisdiction to pronounce such a decree. Surely that is right. I would respectfully submit to your Lordships that it really is almost unthinkable and really uncivilised in our community that if two reasonable, adult people come to the conclusion that they simply cannot make a success of their marriage and decide, in perfect amity and in a civilised spirit, to part; if they show by living apart for not less than two years that they really do mean to put an end to their marriage—that it is not simply a passing whim or tantrum of some sort, but that their marriage really cannot last—and if, then, by consent, they approach the divorce court, then the court should have no power ever to grant them a decree. But that is what the existing law provides. If they part by consent and both consent to a divorce, and they live apart for two years, under the existing system the court can never grant them a decree. They have, if they wish to get a decree, to resort to the disreputable subterfuge of a simulated adultery or something of that sort. I have always thought that situation a blot on civilised proceedings and the Bill puts an end to that.
Then one comes to what is possibly the most controversial aspect of the Bill; namely, the granting of a decree at the instance of one spouse, despite the wish of the other, when they have lived apart for five years. I ventured to cite at the outset of our debate the case of two people who had been apart for twenty years. Years and years before, one had formed a new union with another person, a stable union in every sense. They had lived together for years and years. They had a child, illegitimate in law, and they were drawing towards the close of their years. It was their great desire to become lawfully married. Paragraph (e) of Clause 2(1) would enable them to do so. There is no argument that I have heard—and I would respectfully submit that there can be no argument—why these two people, after being apart from their lawful spouses for years and years, 1266 should not be entitled to get married after having obtained a decree of divorce from the courts.
I suppose I should be right in saying that a number of your Lordships were anxious lest, in circumstances of that sort, cases might arise where, in particular, a wife who was divorced against her will and who was in a technical sense innocent. innocent in the sense that she had not committed a matrimonial offence, might be seriously disadvantaged in the economic sense. Clause 6 of the Bill vests in the court extremely drastic powers to prevent that happening. Those powers are much more drastic than are contained in the existing law in the Matrimonial Causes Act 1965; although all the existing powers are also retained. They are not in any sense annulled; they are supplemented by extremely wide powers now conferred on the courts by Clause 6.
My Lords, a good deal of discussion has taken place in your Lordship's House as to when the Bill should be brought into operation. After much consideration your Lordships decided that the Bill should be brought into operation in January, 1971, with a specific objective. That objective was that the House and the country should know, before the Bill actually was brought into operation, what proposals designed to improve the situation, among other things, of wives in that condition were forthcoming from the Law Commission; and that ample time should elapse before this Bill was brought into operation to enable the Government to give legislative effect to those recommendations of the Law Commission which they thought were appropriate.
The Law Commission have now reported. If I may respectfully say so, I should have thought that their Report was one of the utmost value. It examines fully the financial situation which may arise on divorce and makes very far-reaching and drastic recommendations. It is now October, 1969; and some 15 months will elapse before this Bill (if it passes into law) is brought into operation in January, 1971. Before it is brought into operation, unless some unexpected event takes place it is reasonable to suppose that there will be on the Statute Book those provisions which the Government feel appropriate as a result of the Law Commission's recommendations. One recommendation, I feel sure, will 1267 give great pleasure to my noble friend Lady Summerskill. That is the one—if she would look at page 102 of the Report—which amplifies and extends the provisions of the Act of which she has so much right to be proud; namely, the Matrimonial Homes Act, in which she played such a large part. One of the recommendations extends the provisions of that Act very drastically in favour of a spouse, nearly always the wife, who may have devoted money or money's worth to the maintenance or improvement of the real or personal property of the two spouses. I am sure that that will give her gratification. I think it a very valuable provision.
My Lords, that is the general effect of the Bill. No Bill of this sort can be perfect. It is bound to leave doubts in the minds of some Members of your Lordships' House. But I respectfully submit to your Lordships that on balance it will do very great good. If it has defects, those defects will be easily outweighed by the greater happiness it will bring to very large numbers of people and the distress that it will end in numberless cases for persons who live in the utmost unhappiness at the moment. I beg to move.
§ Moved, That the Bill do now pass.—(Lord Stow Hill.)
§ 5.7 p.m.
§ LORD SANDFORD
My Lords, I believe your Lordships will agree that the first thing to do is to congratulate the noble Lord, Lord Stow Hill, on his skill in steering this intricate and controversial measure through this House and in making the best of what is inevitably a bad job—as is all divorce—and then to thank him for his courtesy and the pains he has always taken to consult with those Members of this House who have been particularly concerned with the Bill and to go as far as it was humanly possible for him to go in meeting the points that we had to raise. I should like also to thank Her Majesty's Government and especially the Chief Whip for so arranging our affairs that we could consider this tremendously important social re-form really thoroughly and to see that proper time was devoted to it.
I cannot forbear to ask your Lordships to note and to contrast our proceedings on this Bill in this part-time, unpaid 1268 House with those in another place. We had a single, thorough, full, seven-hour debate on Second Reading, while another place had to take it in two bites, one late on a Friday afternoon and another, nearly a fortnight later, late on a Tuesday night. We took the whole of our Committee stage on the Floor of the House in three full days, with never less than 100 Members voting in Divisions and with one Division as high as 160. The other place sent their Bill Upstairs where the total votes cast in the largest Division did not exceed 16; and one day of the Committee had to be adjourned for lack of a quorum. This I find an interesting contrast between a professional paid House and an unpaid, part-time one.
My Lords, I believe that it is time now that we devoted greater attention to prevention rather than cure in this field and to our social aims rather than to the social diseases that this matter of divorce represents; more attention to the quality of married life as it is meant to be lived than to the failures in it which, to some extent, we are all unfortunately heir to. I take the context of this final debate on the Bill to say this, because, after all, the quality of life, like life itself, stems first and in the main from the quality of love between fathers and mothers.
The lesson, to me at any rate, of these important but very dreary debates that we have been having on divorce is that more positive attention must be given to love within the holy estate of matrimony. Not indeed more legislative help from us—God forbid that—but more attention by all citizens, whether specialists in the marriage guidance movement; whether professionals, like teachers, social workers or clergy; whether amateurs, like parents and grandparents. More attention must be given by all those who can help boys and girls, young men and maidens, to be what above all else they all want to be; namely, loving parents and lasting partners; more help to achieve what is after all, my Lords, the highest civic duty and the greatest joy.
§ 5.11 p.m.
§ BARONESS SUMMERSKILL
My Lords, for many years my noble and learned friend Lord Stow Hill and I have engaged in a very happy verbal combat, but this time I thought I detected a little 1269 more asperity. Nevertheless, we have come to the end of it now and, of course, neither of us bears any ill-will.
I felt very strongly about this matter because in both Houses there is a tiny minority of women, and it is inevitable that in social measures of this kind, which are concerned with the relationship of the sexes, there must often be a subjective approach. It is difficult for people always to be objective and to adopt a strictly legal attitude to matters of this kind, and I take it that that is why during these debates I have had the wonderful support of some of our Law Lords who have been able, over the years, to adopt an objective approach and a strictly legal attitude. Even at the end I was very pleased to hear my noble and learned friend Lord Reid comfort me (because he, after all, knows precisely how the courts are going to administer this Bill) and tell me that it will not make any difference in the courts when the Amendment of the noble and learned Viscount, Lord Dilhorne, is taken into account. But, my Lords, we should congratulate ourselves, because in this House we have amended this Bill in two ways, and I hope very sincerely that there will be no organised attempt in another place to reverse the decisions to which we have come.
May I briefly recall the two Amendments? The first will ensure that in those cases where a divorce is sought after two years' separation the positive consent of the respondent must be obtained. The second Amendment delays the operation of the Act until January, 1971. And, of course, as my noble and learned friend has just said, the object is to provide time for the introduction of a Bill making provision for a wife who is innocent of any matrimonial offence yet is divorced against her will.
It is this omission from this Bill that has been responsible for most of the opposition, and we have been promised over months, almost over the years, that the Law Commission would produce a document—in fact it is more than a document: it is a very thick tome—on the financial provisions in matrimonial proceedings in order that a Bill should be introduced in the coming Session which will be complementary to the 1270 Divorce Bill. In the other place, of course, if an honourable Member were to make a remark like that a Whip would leap up and say that on Third Reading Members may speak only on those matters which are actually in the Bill; but I think that in this case it is quite in order that one should speak on a Bill which must be complementary to this Bill. Despite this, I feel that we are passing this Bill blindfold or that, as The Times described it on July 2, we are taking a leap into the dark.
I cannot recall an occasion on which the Committee stage of a Bill was completed and the Third Reading given on the understanding that a complementary Bill, designed to remedy injustices, would be introduced. I sincerely hope that our confidence will not prove to be misplaced, but I have grave misgivings. I have read the draft Bill which is incorporated in the Report on Financial Provisions in Matrimonial Proceedings and it seems to me that it leaves the whole question of financial provision to the discretion of the courts. Partnership in marriage, for which the women in this country plead has not been clearly defined. It would seem that the whole issue has been blurred by a prolixity of words and this overflows into pages and pages of explanatory notes.
My Lords, I should have thought that it could be assumed that the readers of this Report were already well aware of the issues; that they were informed people; that they were attracted to it only because they were involved either in Parliamentary business which was concerned with the contents or because they were on some committee outside Parliament. Therefore these profuse explanations are a little suspicious and, frankly, they tend to create doubt as to the validity of the proposals. A measure based on equity can speak for itself; it does not need all this explanation. A Bill that calls for so much detailed explanation is not good law: it must bewilder the court which will have to administer the Act and, in consequence, justice must suffer. I believe that the chances of the first wife and her children being given justice are remote if the court is guided by the explanatory note on page 71 (and I ask my noble and learned 1271 friend to look at it), which says, in paragraph 3:It would clearly be unjust to insist on a settlement which would leave nothing for the new dependants.My Lords, if the resources of those in the lower income groups must take into account the new dependants which a man may produce after he has divorced his first wife, how can there be any chance of an equitable sharing of the goods acquired during the first marriage? The judge has got to say—I presume that in some cases he will be put in the position of having to sum up the virility of the man who wants a divorce—"How many more dependants will he have? Because I am directed that before I settle how much, what kind of share, the first wife shall have out of the resources the man has, I have to anticipate how many more dependants he may produce." This makes nonsense of the great, thick wedge of reading matter for which we have been waiting, and which has, at last, been produced. That is why I say that I have the greatest misgivings.
We have delayed the commencement of this Bill until January, 1971, in order that another Bill may be passed to provide for, and give justice in terms of finance to, the first wife. We have said—I have said it over and over again—that the woman who makes a contribution to the home in terms of services over the years should have some recompense. Although it is not she who has brought in the wages, she has in fact enabled her husband to earn wages or a salary. It is she who has cooked, worked and brought up the children, having borne them in the first place; but after fifteen or twenty years of marriage she has no nest egg. This fact has been accepted; but now this document has been produced, and we are told that the courts have not to consider what finances or goods have been acquired during a marriage but have to keep in mind that those goods should be used for the new dependants which a man may produce in another marriage. Is this just? Surely this is not what the House expected. Certainly it is not what the women's organisations expected—and they have discussed this matter ad nauseam.
Finally, I have to say that one can only deduce from this that these proposals 1272 are designed only with the well-to-do man in mind, the man who will be able to escape his matrimonial responsibilities every five years, irrespective of the innocence of his wife. Consequently, after all this debate and all the discussions as to what form this other Bill should take, it is clear that the Bill, which is to me complementary to this Divorce Reform Bill, is one that will be of use only to the wealthy man. Therefore, I say that the title, "The Casanova's Charter", remains as appropriate as ever.
§ 5.22 p.m.
§ BARONESS BIRK
My Lords, I rise to support the passing of this Bill. My noble friend Lady Summerskill says that we are passing this Bill blindfolded. This is absolute nonsense. This Bill was discussed for a considerable time in another place and has gone through this House—the noble Lord opposite pointed out the number of hours that has been spent on it—and has emerged, even though there have been compromises, as a Bill which, in my opinion and in the opinion of a majority of your Lordships, provides a far more realistic form of marriage, a far more humane and understanding approach to divorce, doing away with a great deal of hypocrisy and cleaning up the procedure and processes that now have to take place if people are to get a divorce.
My noble friend Lady Summerskill criticised the explanatory note on page 71, which says that it would be clearly unjust to leave nothing for the new dependants. What does she want? Is she against divorce altogether, or are we to have the sort of law in this country in which we say that once people are divorced they must not marry again unless they have a certain income? My noble friend is as aware as I am that this income problem applies to separation as well as to divorce. It is a most difficult task, almost at times impossible, to stretch money over two families where sufficient money is not existent.
I believe that my noble friend does far less than justice to the draft Family Law Reform Bill, from which she quoted. I think that a far more relevant quotation is from Clause 5 (1) (d), which states, for the first time in any legislation in this country, that the contribution made by each of the parties to the welfare of 1273 the family, including any contribution made by looking after the home or caring for the family, shall be taken into account. In my opinion, this is a tremendous step forward socially. It is something which, I suggest to my noble friend, she should put before women's organisations instead of, if I may say so, encouraging them to take a rather negative and unproductive view of this Bill.
If it had not been for the introduction of this Divorce Bill, as I think we are all aware, the draft Family Law Reform Bill (and it is a draft Bill, which is not before us to-day, and there will be ample opportunity for my noble friend and others of us to try to improve it, if we can, by Amendment) would not even be in the draft form it is in to-day. The plight of the deserted wife is constantly discussed, but I think we should remember the number of deserted husbands who are left to look after their children. We are apt to concentrate on fatherless families but there are also many motherless families, and many husbands and fathers who also need both social and economic help.
If we do not pass this Bill to-day, what shall we have achieved? We shall have stopped thousands of people living in illegal unions from being able legally to break up a marriage that has already broken down completely. We shall also leave thousands of illegitimate children, who cannot be legitimised. We shall do something else which to me is very important. I think that paragraph (d) of Clause 2(1) in the Bill represents the most civilised attitude towards divorce. Naturally, nobody is for divorce: I agree with the noble Lord opposite that we want to prevent it as much as we can. But we are all aware that not every marriage is going to survive, and if people do make a mistake—and we are all human—and marriages break down, surely the most civilised way of handling it is by the two parties themselves agreeing that the marriage has broken down and that, in spite of everything, they must bring it to an end.
There are so many good points in this Bill, it contains so much help for a great many people, that it is a better basis for the education of young people for marriage than the present law. I think it is far more likely to strengthen the institution of marriage than weaken it and I 1274 hope that your Lordships will pass the Bill.
§ 5.28 p.m.
§ LORD REID
My Lords, I do not desire to detain the House for long, but I should like to make one or two comments on what I think are the excessive claims made by the noble Lord, Lord Stow Hill. In the first place, he says that this Bill will replace the present system by a new one. With all deference, it will do nothing of the kind. It is perfectly true that if we read only Clause 1, it does indicate that. But fortunately—and I think we have to thank the Law Commission for this—the promoters of the Bill have been persuaded to accept other clauses in the Bill which virtually deprive Clause 1 of all effect, and 95 per cent. of the cases which come before the divorce court will go on in exactly the same way and have exactly the same result as if this Bill had never been passed. We have at least that to be thankful for, because if this Bill did what Clause 1 says it wants to do it would indeed be a disaster.
I think it is a pity that we have to have drafting of this kind. I quite see how it has happened. Those who believe in words and in theories have hung on to Clause 1: those who believe that the practical side is more important than verbiage have inserted Clause 2, thereby keeping the present three main grounds of divorce—adultery, cruelty and desertion—practically unaltered. The result is that we have a Bill which speaks with two voices. I hope that when the Law Commission or others come to consider further Bills dealing with family law there will not be this conflict in the draftsmanship and that we shall have a Bill saying clearly and precisely what is intended. But I quite see that when we have a Bill promoted by private Members of the other place (or, indeed, it might be of this House) we are likely to get this kind of jargon. It is most unfortunate, but nevertheless, I think it will do comparatively little harm.
The other point is the five-years clause. If it were not for this pernicious theory, we could have had quite a good Clause 5. I would never assert that spiteful people ought to be allowed to have their own way. But the trouble is this theory that you must have everybody alike, and have the five years separation provision no matter what the circumstances are, what is the cause of the separation or 1275 who is to blame. It would not have been difficult to draft a five-years clause which covered all the cases of which so much has been made in this House, where two apparently deserving people are kept from being married—of course, they will have been living together for years—by the spite of a discarded wife. That could easily have been provided for without making it necessary that the innocent discarded wife should be divorced by her guilty husband, with all the consequences, social and financial, which might follow from that. It is that to which I object. But it is too late now to put the matter right. We put down some Amendments, but the House did not accept them. Now we must just see how much injustice this Bill will do. It will do some justice, I agree; but it need not have done all the injustice it will do had it not been that the theorists prevailed and insisted on this universal provision. However, there it is.
Now I come to the safeguards. I entirely agree with the noble Baroness, Lady Summerskill, that the Law Commission document, able though it is, is of very little use in this connection. Where there is money to apply, it makes provision for making the best use of that money. But neither the Law Commission nor anybody else is going to be able to provide for the case where there is not enough money to cover the needs of two households, unless you take the very drastic step (which I should be prepared to take, but few others, apparently, would) of saying that the man who discards an innocent wife should regard her as a first charge on his income, and his new wife and new family as only a second charge. If we did that, of course, we should need drastic provisions for the courts to make large allotments out of the man's wages, which he would try to avoid, and a drastic system of follow-up would be required, so that the man when he disappeared or changed his employment could be traced, and thus, make it possible, as a social service, for the allotment of the discarded wife to be collected in full every week. But I am afraid there is no sign whatever that the Government or the Law Commission are prepared to do that, and unless we go as far as that we cannot safeguard the interests of the discarded wife as against the new family.
1276 Therefore, I agree that all this talk about safeguards is not going to be any good at all. It will help where there is money; but it will not help where there is no money. Therefore, we have to take it that the innocent. discarded wife is to suffer the stigma of divorce; she is to suffer financial hardship in many cases without any protection, all to bolster up this theory that breakdown ought to be a ground for divorce.
§ 5.35 p.m.
§ LORD LEATHERLAND
My Lords, this is a Bill about men and women. I have been married for only 47 years, so, as yet, I do not know very much about women. But I do know something about my noble and learned friend Lord Stow Hill, and I hold him in very high esteem as a social reformer. Our acquaintance goes back for many years. I think he will probably remember the night when we both addressed a meeting in Essex and he came home with me to my old rectory and we shared a cold chicken and a bottle of wine together. So I look upon my noble friend Lord Stow Hill as a political friend. He made a sentimental appeal on behalf of the man and woman who have been living twenty years together in an irregular union and and who want to endow that union with the sanctity of marriage. I have not much sympathy for that couple. They did not regard their first legitimate marriage with very much sanctity, and I do not think we should get over-sentimental about them at this stage.
I should like to ask my noble and learned friend a question—it is not a political question, but I have been asked the question by many members of the public—to which I am sure he will be able to give an answer. With regard to Clause 2 (1) (c), which provides that a divorce should be granted after two years' desertion, does the two years start in January, 1971, when the new law comes into operation, or does it cover any period of desertion before January 1, 1971?
§ LORD STOW HILL
My Lords, my reading of the Bill is that it covers any period, whether it starts before January, 1971, or after.
§ LORD LEATHERLAND
I thought that might be so, and I asked the question only because so many people have put it to me and I was not quite sure.
1277 I opposed the Second Reading of this Bill, not because I objected to some of the liberalising reforms that it proposed to introduce, but merely because of the financial plight of the wife who was left in the lurch. It is a fact that the Report of the Law Commission and the draft Bill which accompanies that Report make some financial improvements. But I do not think—and here I agree with my noble friend Lady Summerskill—that this is a complete remedy, because in many cases it is the second woman who will get her hands on the man's wages and on a good deal of his pension rights, and the legitimate wife will have to resort to what used to be called the National Assistance Board and is now known as the Supplementary Benefits Commission. I hardly think it is right for us to propound a moral law where the wages of sin take priority over the rewards of virtue. Nevertheless, the Law Commission's Report constitutes a considerable improvement upon the bare bones of the Bill that we had presented to us a few months ago.
I should like, however, to ask a few questions about what is to happen to this Law Commission Bill, and I presume that not my noble and learned friend Lord Stow Hill but my noble and learned friend on the Woolsack will be answering these questions. First of all, when is the draft Bill contained in the Law Commission's Report to be introduced? Secondly, will at least its full terms be embodied in the document that is put before us, or are they likely to be diluted in any way? Thirdly, will this be a Government Bill, or will it be subject to the luck of the ballot in another place? Fourthly—and I know my noble and learned friend cannot commit the House, any more than we can commit the other place—is the Government's attitude of mind towards this Bill such that they are not inclined to make any considerable concessions during its progress through both Houses? Fifthly, will the financial improvements that this draft Bill suggests be applicable to Clause 2 (1) (a), (b), (c) and (d), as well as to paragraph (e), because otherwise the ordinary, normal wife who tries to get a divorce will be deprived of very substantial advantages which might possibly accrue to those who are divorced under paragraph (e).
1278 If any concessions are proposed by the Government in this Bill—that is to say, the draft which accompanies the Law Commission's Report—then we are passing this Divorce Bill to-day without knowing exactly what we are doing. So we want a definitive pledge on this question as to whether a substantial version of the Law Commission's Bill is going to be introduced. I merely ask those questions; we are far too late in the day to indulge in any polemical argument about it, and I should be very grateful indeed if we could hare an answer to the specific points that I have raised.
§ 5.41 p.m.
§ VISCOUNT DILHORNE
My Lords, the Motion before the House is, That the Bill do now pass. The debate we have been having has been a most interesting one. It seems to me to have been very largely on a Report from the Law Commission dealing with another Bill—a Bill which is not before the House: it is in draft, but has no: been presented to Parliament. The noble Lord, Lord Leatherland, concluded his speech by asking the noble and learned Lord the Lord Chancellor a series of questions. I should have thought they were more appropriate for the Order Paper, in which case the noble and learned Lord the Lord Chancellor would have notice of them.
§ VISCOUNT DILHORNE
My Lords, if I may just finish what I was saying, I should have thought the noble Lord's remarks were more appropriate for the Order Paper, in which case notice of them would be given, than on the Motion, That the Bill do now pass. I do not want to be controversial, and I do not want to take up time by saying anything about a Report of the Law Commission which this House has not before it for consideration to-day, or that draft Bill. I will reserve my comments. I shall be very interested to see whether any machinery can be found whereby provision can be made for the first wife when the husband who has married again has not the means to support two wives.
I have risen to-day to express, simply and shortly, my congratulations to the 1279 noble Lord, Lord Stow Hill, on his success in piloting this extremely controversial measure through your Lordships' House. If it came to a Division on this Bill—and I know it will not—I am not at all sure how I should vote. There are parts of it I like; there are parts of it which we sought, unsuccessfully, to amend in Committee in the later stages. Some parts of it are good, some are not. I do not suppose for one moment that this is the last Divorce Bill which will be considered in this House. There have been many before. I remember introducing one in another place but, unlike this Bill, my Divorce Reform Bill received a Second Reading in another place "on the nod". I congratulate the noble Lord, Lord Stow Hill, for we have had some interesting debates and a very full expression of views. I, for one, shall certainly not oppose the passage of this Bill to-night, and I hope that my fears with regard to certain aspects of it will prove unfounded.
§ 5.45 p.m.
§ THE EARL OF CORK AND ORRERY
My Lords, this Bill is now most likely in its final form. I believe that it is, on the whole, a good Bill, but I also believe that it is marred by one particular flaw, which is so serious that I think it is actually dangerous. I feel this so strongly that I hope your Lordships will not think me wasting your time if I briefly explain it.
It is generally supposed that the effect and the object of the Bill are to make the irretrievable breakdown of marriage the sole ground on which a decree of divorce may he granted. This, however, is not, strictly speaking, so. What the Bill says in Clause 1 is that an irretrievable breakdown is the sole ground on which a petition for divorce may be presented to the court; and grounds for petition and grounds for divorce are not necessarily the same thing. This may sound like hair splitting, and if applied to four out of the five grounds for petition perhaps it would be; but not if applied to the fifth admissible ground, on which it would be possible to obtain a decree without proving irretrievable breakdown.
I refer, as your Lordships will perhaps suspect, to Clause 2 (1) (e) under which 1280 one may secure a decree after five years of living apart, as defined in Clause 2 (5). I am not objecting simply that a five-year separation is not proof of irretrievable breakdown. I know very well that adultery, cruelty, desertion and consent after two years of separation are not proof, either. All they do, as one of the highest legal luminaries in the land has pointed out to me, is to provide a prima facie supposition that such a breakdown has occurred; and from that point onwards it is the business of the court to investigate the facts and decide whether or not it has in fact occurred. In that respect, therefore, I am told Clause 2(1) (e) does not differ from Clause 2(1) (a), (b), (c) or (d). But, my Lords, I say, with the greatest respect, that it does so differ—and for this reason. In cases (a), (b), (c) and (d) the burden of proof is on the petitioner, who is required to satisfy the court that the marriage has irretrievably broken down; but in case (e) he is required to satisfy the court on nothing except that he and his spouse have been living apart for the last five years.
To turn that into proof, or even evidence, of irretrievable breakdown it is necessary, in my humble submission, to show some causal connection between the separation and the breakdown; that is to say, that the one either gave rise to or resulted from the other. But it has been made abundantly clear in earlier debates on this subject that a part, or even the whole, of the separation might be quite unconnected with the breakdown, either as cause or as effect. In short, the evidence that the court is empowered to ask for is not enough to prove the case. Nor has anyone asserted that it is. The noble Lord, Lord Stow Hill, has made no such assertion. Just what he has asserted I will consider in a moment, if I may, when I come to the end of my immediate thread.
Let us imagine a case in which a husband petitioner has satisfied the judge that he has been separated from his wife for five years. So far as the judge can see, the separation has remarkably little to do with any marital difficulties; but what is the judge to do? Even if the case is defended, what can he do? What can the defendant respondent do? She cannot rebut the petitioner's evidence of irretrievable breakdown, for he has not 1281 offered any, and he is not required to do so. It is hardly likely that she will be able to convince the judge that the marriage has not irretrievably broken down, in the face of the petitioner's insistence that it has and that he means to have no more to do with her.
The one small safeguard remaining to her is that contained in Clause 3(2). I am supposing that there is no question of hardship such as might arise under Clause 4. If it appears to the judge that there is "a reasonable possibility of a reconciliation" he may adjourn the case to give her a chance to bring the erring spouse back into the fold. But suppose she fails. In that event the judge has no option: he must grant the decree. "And why not?", you may ask. "Obviously the marriage has broken down." I agree that it has, but the Bill is not interested in marriages breaking down unless they have broken down irretrievably.
Your Lordships may perhaps argue that even in such a case as I have postulated it may be clear that the marriage has in fact broken down irretrievably. Perhaps it has, and perhaps the judge thinks it has, so No injustice will be done. But what are the facts before him that have led him to that conclusion? They are two in number: first, the fact that the petitioner has resisted attempts at reconcilation and is obviously determined to have nothing more to do with it, and, secondly, the corroborative fact that he and his wife have been living apart for—how long? Why, from the time when he decided to present his petition until the present moment. Any time of separation before that may or may not be corroborative also, but he is under no obligation to show that it is, only to show that the separation existed.
What then is the point of the five years if they contribute nothing at all to the evidence? Why should the period be five years? Why not three, or two? Make no mistake, my Lords: this question will be asked again, perhaps in no far distant future, in a Second Reading debate on another Divorce Reform Bill designed to amend this one. I confess that at the moment I do not see what logical arguments will be open to resist the reduction of the period of five years to a period of two years; and that will be the end of Clause 2(1) (c), because then 1282 not only will a deserted spouse be able to petition for divorce against the deserter, but the deserter will be able to petition against the deserted. That having happened, out will go also the last few words of Clause 2 (1) (d):… and the respondent consents to a decree being granted".So after two years' separation, however caused, it will always be available to either party on demand. Do I make it clear, my Lords, why I think this subsection is dangerous?
I return, as I said I would, if I may, to the assertion of the noble Lord, Lord Stow Hill, and I do so because it shows how Clause 2 (1) (e), with the definition of "living apart" in Clause 2 (5), is justified by the sponsors of the Bill. In the debate on Report stage on July 24 the noble Lord, Lord Stow Hill, said this:… supposing somebody comes and says that A and B have been apart for five years—not for one, two or three years, but for five years—and that A has approached the divorce court to ask for a decree of divorce, I should have thought that any reasonable person would say: 'Well, if there is one thing which is patently obvious it is that the marriage between A and B has broker down.' He will not start asking why they were apart for five years."—(Official Report; 24/7/69, col. 1114.)Well, perhaps I am not a reasonable person, but I am afraid that that is not what I would say. I would say, "Well, if there is one thing that is patently obvious it is that A wants to get rid of his wife." That indicates some kind of breakdown, I concede, but I repeat that the Bill is supposed not to be interested in breakdown unless it is irreparable or, as the Bill says, irretrievable. If I wanted to know how serious it really was I certainly should start asking why they had been apart those five years and what was the connection, if any, between the separation and the breakdown.
But those responsible for the Bill are not interested in that at all. I refer not only to the noble Lord, Lord Stow Hill, and to Mr. Abse, but also to the Law Commissioners and the Parliamentary draftsman. The policy on which they have based this subsection is that all the court needs to know about the separation is that it occurred. The states of mind of the parties during all or any part of the separation, and whether either of them intended to return to the other or was determined to stay away—these things 1283 are irrelevant. I think I express their attitude correctly, as they were good enough to explain it to me, but if I am wrong no doubt either the noble Lord, Lord Stow Hill, or the noble and learned Lord the Lord Chancellor will correct me.
Several noble Lords, including noble and learned Lords of Appeal, have stated their conviction, in supporting Amendments that I have put down at earlier stages on the Bill, that states of mind should count very much indeed. They would like to know, if possible, when the intention to separate—what lawyers call animus separandi—germinated in one or other of the parties. And so would I. It seems to me to be of the very pith and marrow of the matter. Why then does it not seem so to those learned and distinguished personages responsible for the Bill? I think another quotation from the same speech of the noble Lord, Lord Stow Hill, will make the answer clear. The noble Lord said:The question is: does living apart for five years, followed by an application from one of the parties to the divorce court for a decree of divorce—do those two things conjoined together—spell the breakdown of a marriage? I should have thought that in the ordinary course of affairs it is almost impossible to say that when these two situations are conjoined marriage has not come to an end".—(col. 1115.)In many cases I should find it quite possible to say exactly that. I should know that the petitioner wished to bring the marriage to an end but I should suspect, perhaps, that he was using the five-year period of separation, during some or much, or even all, of which he had had every intention of reunion, as a convenient excuse. And, as I have pointed out, the respondent has no defence.
But now here comes a strange thing. As I have quoted the noble Lord, he relies on a simple conjunction of those two factors, separation and petition. Three sentences later he says this: that it is… fairly obvious that it does not really matter why the spouses were apart; the question is whether or not they were apart, and whether their separation led one of the two to approach the divorce court and ask for a decree."—(col. 1115.)In that sentence the noble Lord has introduced a third factor, the factor of causation, the very causal connection 1284 that I asked for at the beginning of my speech and of whose absence from the Bill I complain. What is more, he is about to introduce a fourth factor, none other than a decision to part arising as a consequence of the separation.
What happens, unfortunately"—he says—is that there is a separation, one party gradually comes to the conclusion that he or she wishes for a divorce and then, after five years, asks for it; and all the court does when it pronounces a decree is to recognise that there is the pre-existing situation which has led to the breakdown of the marriage."—(Col. 1115.)But, my Lords, how are we to know that that is what will unfortunately happen? How is the court to know that, at some stage in the separation, one party gradually came to such a conclusion, if the law prevents it from taking animus separandi into account? Without having any idea of when one party came to the conclusion that he or she wished for a divorce, how can the court, in the words that I have just quoted,… recognise that there is the pre-existing situation which has led to the breakdown of the marriage"?To meet the kind of objection that I have outlined many attempts have been made to improve, by Amendment, the definition of "living apart" in Clause 2 (5). All have failed, probably inevitably, for I doubt if it is possible to produce a satisfactory definition. An Amendment might, then, have been proposed to take out the definition altogether. That might have been even worse. It would have left to the courts a power of interpretation of Clause 2 (1) (e) and Clause 2 (5) so infinitely wide that it might well have given rise to more difficulties than it would cure.
One possibility remained: that of taking Clause 2 (1) (e) out altogether. It is too late for that now. The attempt was made in Committee by the noble and learned Lord, Lord Reid, and your Lordships rejected it by 85 votes to 35. In that Division I myself abstained. I could not vote against the provision because I am inclined to approve the principle that it enshrines. I could not support it in the absence of satisfactory definitions; or perhaps I should put it the other way round and say "in the presence of unsatisfactory definitions".
1285 For the same reason, I cannot support it now, even as part of a Bill for which I have a considerable regard. On the other hand, I feel that to reject the whole Bill would be a price too high to pay for the loss of Clause 2(1) (e), dangerous though I believe it to be. So, for what I hope are perfectly positive reasons, I shall abstain again. My Lords, I have no more to say, except to express the hope that the noble Lord, Lord Stow Hill, will not think me lacking in most respectful admiration of the patient and devoted labour, if I may respectfully say so, that he has lavished upon this Bill; nor am I lacking in any way—definitely I am not—appreciation of the no less patient and unfailing courtesy which he has extended personally to me.
§ 5.59 p.m.
§ THE LORD CHANCELLOR
My Lords, I feel that if I said nothing in reply to the requests that have been made to me the House might think me discourteous. The House is, I think, well aware of the Government's position in relation to this Bill. Some of the members of the Government support the Bill; some of the members of the Government are opposed to the Bill. But, as your Lordships know, when it became apparent that there was a majority in each House who were in favour of a Bill on some such lines as these, and particularly after last Session's Bill had failed for want of time, the Government thought it would be only right to provide the time so that Parliament might be able, on a free vote, to come to a conclusion. Also, in accordance with modern practice in these cases, they provided the services of Parliamentary draftsmen. Apart from that the Government have been neutral. I have confined my interventions to cases in which it appeared to me, rightly or wrongly, that an Amendment had not been aptly worded or else was not going to achieve its object.
I must congratulate my noble friend Lord Stow Hill on the way in which he has piloted the Bill through the House. So far as credits are due, it was really your Lordships' House which started this, with the long debate on Putting Asunder, the publication of the Committeee appointed by the most reverend Primate, which came out firmly in support of the proposition that instead of having a divorce law based on the view 1286 that marriages break down only because somebody commits a matrimonial fault, we should altogether abandon that view and provide as the sole ground of divorce the fact that the marriage had irretrievably broken down.
I do not want to get involved in a long argument about a report of the Law Commission which we have not yet considered, but in answer to the observation made by my noble friend Lady Summer-skill I must remind her of what I have on more than one occasion already pointed out to her. For example, in the debate on July 15 I said to her: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.I then went on to say: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."—[OFFICIAL REPORT, 15/7/69, col. 235.]I then went on respectfully to point out that it is no good looking to me or to the Law Commission or the lawyers or anybody to provide money which simply is not there, and that the main cause of the financial difficulty of deserted wives has nothing to do with divorce; it is due to the fact that the marriage has irretrievably broken down. Therefore to that extent I can only repeat what I then said.
In reply to my noble friend Lord Leatherland, may I say that my undertaking has been that before this Bill comes into force the Government will introduce a Bill based on a Report to be made by the Law Commission about financial provisions; and in answer to his further question my reply is that the contents will, as I have said, be substantially the contents recommended by the Law Commission. It will be a Government Bill. He asked what concessions the Government would be prepared to make. As the whole history of this Government shows, it is always only 1287 too happy to consider concessions. I hope, with those who have spoken, that if this is the will of Parliament the other place may feel able to accept the Amendments which we have made here, so that this very interesting Bill may reach the Statute Book next week.
§ 6.4 p.m.
§ LORD STOW HILL
My Lords, I do not know whether, in conformity with the custom and by permission of the House, I may make a few concluding observations. May I thank those noble Lords who have made kindly references to myself. I am most grateful, and deeply appreciative of what they have said. As I have already said, I feel most grateful for the care and the objective approach with which this Bill has been examined. I do not think I can add much to the debate. May I say to the noble Earl, Lord Cork and Orrery, that I do not think I can answer his questions otherwise than by again repeating the passages from my speech which he read out and which contain the only answers that I can give. I am sorry I cannot be more explicit than that.
It would be a poor compliment to this House if we all agreed upon a measure of this difficulty. Obviously, people feel extremely strongly about it. I know how strongly my noble friend Lady Summerskill feels. She used the word "animosity". I hope she will withdraw that word: I certainly feel no animosity and I do not think she has displayed any against me.
§ LORD STOW HILL
My Lords, I am much comforted. I think one can say with complete confidence that the Bill has passed through all its stages in an atmosphere of the greatest goodwill, although of course with extreme anxiety, as it should. In those circumstances I hope the anxieties which have been expressed will be allayed when experience shows how the Bill works. I am sorry that the noble and learned Lord, Lord Reid, feels so pessimistic about what we have tried to embody in this Bill. I remember years ago in the other place when we said the same sort of things to each other across the Floor of the 1288 House as he has been saying to me this evening. I was always an optimist and I think that in his heart of hearts he is rather an optimist too, and I hope that things will work out better than he believes.
§ On Question, Bill passed, and returned to the Commons.