Divorce, Dissolution and Separation Bill [HL]

Lord Walker of Gestingthorpe Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Lord Walker of Gestingthorpe (CB)]

My Lords, I warmly welcome the Bill as the final step in the long and arduous process of getting away from the concept of the matrimonial offence, or, as the Minister put it, the blame game.

This problem has occupied law reformers and Parliament for well over a century and a half—to be precise, the 163 years since the Matrimonial Causes Act 1857. It would be a wearisome task indeed to go through every step of that history, but it is worth revisiting some of its high points, many of which were mentioned by my noble and right reverend friend Lord Harries of Pentregarth.

The 1857 Act, which first introduced divorce, properly so called, by a civil court, was opposed in this House by Bishop Samuel Wilberforce on the ground that he did not approve of divorce at all. It was opposed in another place by Mr Gladstone, then the leader of the Opposition, who very properly objected to its discriminating between husband and wife regarding grounds for divorce. A husband could petition on the ground of adultery by his wife. His wife could petition on the ground of his adultery only if it was of a particularly grave sort—involving either incest or bigamy—or if it had been accompanied by cruelty or desertion or both.

That particular injustice was not cured until 1910, but it continued to be the law that adultery was the only ground for seeking a divorce, notwithstanding the obvious attractions that that situation held as an encouragement to perjury and collusion. This was in the days when collusion, connivance, condonation and conduct conducing—fiercely overseen by the Queen’s or the King’s Proctor—were an absolute bar to divorce.

The fact that divorce could be sought on the ground of adultery and nothing else continued, astonishingly, until the late 1930s, despite its obvious drawbacks, given the amount of lying and deception that was involved. Two books published in 1934 had a great effect in moving public opinion. One was the novel A Handful of Dust by Evelyn Waugh and the other was Holy Deadlock by A P Herbert, which sold 90,000 copies and had the profound effect of bringing home to the public just what a sham divorce only on the ground of adultery had become. A P Herbert did not only write a book about it; he also stood and was elected as an independent Member of Parliament for the University of Oxford, which in those days had two seats allotted to it. In 1937 he drafted, fought for and ultimately won one of the most important ever victories for private legislation, which became the Matrimonial Causes Act 1937. That introduced the grounds of cruelty and desertion, which were enacted in 1937, consolidated in the 1973 Act, and remained until recent times.

It became apparent, however, especially after the war, that these grounds were insufficient. Many marriages were simply unhappy ones that ought to be brought to an end but were not covered by any of the grounds unless people started exaggerating their complaints of cruelty, building small troubles into large ones. As my noble and right reverend friend Lord Harries has said, this led to the emergence—particularly during the archbishopric of Archbishop Ramsey—of a concordat between the Church and the law reformers that there should be a movement towards the irreversible breakdown of marriage as the sole ground for divorce. The Act passed in 1964 aimed to do that, but although it said that the only ground was to be the irreversible breakdown of marriage, it then set out, as before, what that was to consist of: adultery, cruelty and desertion, adding only separation for two years or five years, depending on whether the respondent agreed to two years being sufficient. That Act, in a way, was three steps forward and two steps back. It introduced irreversible breakdown of marriage in theory, but in practice it added very little to the existing law.

That was the target of the Family Law Act 1996, which was brought before Parliament by my noble and learned friend Lord Mackay of Clashfern, to whom it has been a privilege to listen this evening. Part II, which was the essential part of the Act, had a curious history. It could not be brought into force at once because various trials of conciliation methods were being undertaken. The Government fell and a new Government came in. As the noble and right reverend Lord, Lord Harries, said, Mr Blair’s Lord Chancellor—the noble and learned Lord, Lord Irvine—first postponed, then ultimately decided to abandon, the whole of Part II. It was said that it would be repealed; it eventually was, but only by a statute in 2014—nearly 20 years after it was passed—without ever having been in force.

The principal aim of this new Bill is to bring back irreversible breakdown of marriage as the sole ground. It does that by completely replacing Section 1 of the consolidating Act. Whatever its drawbacks—some have been mentioned by speakers this evening—in my view it would be a great step forward. The drawbacks of the present system that it would remove are much greater than the drawbacks—serious though they are—that it may possibly entail.

In 1956 Lord Hodson, a Law Lord, said to the then sitting royal commission on marriage and divorce:

“The history of divorce is one of conflict between those who believe that divorce is an evil thing, destructive of family life and accordingly of the life of the community”—


no doubt all that is true—

“and those who take the ‘humanitarian’ view that when a marriage has irretrievably broken down it should be dissolved.”

Lord Hodson put “humanitarian” in inverted commas —or at any rate, the transcriber of his address did—which suggests that he took the traditional side in the conflict. I urge your Lordships to take a more enlightened view and to welcome this Bill.

That is all I have to say for myself, but perhaps I could be permitted to say that last night, at a very late hour, I received an email from the noble Baroness, Lady Deech, whose name has already been mentioned this evening, to say that she was in the United States. She very much regretted that she was not able to participate in this debate and sent me four pages of what she would have said if she were here. I have no intention of reading even one of those to your Lordships, but it is perhaps right to mention that she may well intervene at a later stage in the passage of the Bill to suggest that more should be done to bring the financial provision that can be made on divorce in line with the new change in the grounds for divorce. That would go some way to meeting the points raised by the right reverend Prelate the Bishop of Portsmouth and the Liberal Democrat side. However, that is a matter for a later stage.