Power of Court in Certain Circum- Stances to Order Person Guilty of Adultery to Pay Lump Sum.

Orders of the Day — Law Reform (Miscellaneous Provisions) Bill – in the House of Commons at 12:00 am on 10th April 1970.

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(1) Where in any proceedings for divorce or judicial separation either spouse alleges that the other has committed adultery with any person, then, if there is a child of the family, the spouse making the allegation (hereafter in this section referred to as 'the applicant') may include in his or her petition or answer an application for an order under this section against that person.

(2) Where such an application is made, then, subject to the provisions of this section, on granting the decree of divorce or judicial separation or at any time thereafter (whether, in the case of a decree of divorce, before or after the decree is made absolute), the court may order the person against whom an order under this section is sought to pay a lump sum of such amount as the court thinks fair and reasonable in all the circumstances.

(3) The court shall not make an order under this section unless it is satisfied that—

  1. (a) the person against whom the order is sought committed adultery with the spouse in question knowing that that spouse was married;
  2. (b) the adultery caused or contributed to the breakdown of the marriage; and
  3. (c) notwithstanding any order under section 1, 2, 3 or 4 of the Matrimonial Proceedings and Property Act 1970 (orders for maintenance pending suit, financial provision for party to marriage, etc.) made, or likely to be made, in favour of the applicant or a child of the family, the applicant has suffered, or is likely to suffer, as a result of the breakdown of the marriage, financial loss which, if an order under this section is not made, is likely to cause hardship to a child of the family.

(4)Where the court makes an order under this section it may direct to whom or in what manner the lump sum is to be paid or applied and may direct that that sum or any part thereof be settled for the benefit of the children of the marriage, the applicant and the other party to the marriage or any one or more of them.

(5) Where the court decides to direct a settlement, it may direct that the matter be referred to one of the conveyancing counsel of the court for him to settle a proper instrument to be executed by all necessary parties and may, if it thinks fit, defer the grant of the decree in question until the instrument has been duly executed.

(6) No order made under this section in proceedings for divorce, and no settlement made in pursuance of such an order, shall take effect until the decree has been made absolute.

(7) An order made under this section shall be included among the orders to which section 16 of the Maintenance Orders Act 1950 applies (which section specifies the orders enforceable under Part II of that Act).

(8) The Matrimonial Causes Act 1967 as amended by the Matrimonial Proceedings and Property Act 1970 (which confers jurisdiction on county courts in certain matrimonial proceedings) shall have effect as if this section were contained in Part I of the said Act of 1970.

(9) In this section the expressions 'child of the family' and 'the court' have the same meanings as they have respectively for the purposes of Part I of the said Act of 1970.

(10) Subsection (7) above shall extend to Scotland and Northern Ireland.—[Mr. Abse.]

Brought up, and read the First time.

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

I beg to move, That the Clause be read a Second time.

The Bill alters some of the legal consequences that could flow from the breakdown of a marriage. However, I believe that we have no right, when rearranging those consequences, to think only in terms of husbands, wives and co-respondents. We have a duty to concern ourselves as well, and, indeed, perhaps primarily, with the total family situation. It would be wrong if, in making alterations to the law, however desirable they may be, we added in any way still further to the grim load which already falls upon the worst victims of a marriage breakdown, that is, upon the children.

Our repugnance to the historical routes of the action that has laid for damages for adultery must not so overwhelm us that we do not see some of the positive help for children which wise judges have been able to extrapolate out of the existing squalid substantive law and out of the present miserable evidential processes. The gains which have so painfully been wrested for the children of broken marriages out of this bad law should not be swept away out of an over-zealous passion which may exist for reform.

Rather, I suggest, we should seek to consolidate and to extend rationally all the aid which may be financially possible to be given to children of a broken marriage. They, alas, suffer enough misery, and I am sure that the House would not wish needlessly to add financial insecurity to emotional insecurity. The Clause seeks to translate that aspiration positively into legislative terms.

The Clause gets away completely from the barbarous concept that a husband should be compensated for the fact that the co-respondent has had sexual intercourse with his wife. The notion that a woman is a chattel is undoubtedly offensive, and it is not surprising that women's organisations want such a devaluation of human personality to cease. But all hon. Members will, and should, be aware that the women's organisation, as has been made clear by the National Council of Women in its letter to hon. Members on the Standing Committee which considered the Bill, does not want the abolition of the action for damages for adultery without its replacement by an action in the sense of the Amendment.

The Clause does not claim to have any excessive merit, as part of its attraction, that it is a deterrent to the wealthy interferer with those financially poorer couples who may find themselves the object of a predatory intervention. In saying that, I do not want to be interpreted as saying that I share totally the belief of the Law Commissioners, who appear to take what I regard as an unusually, for them, light view, when they put forward this suggestion: Another argument sometimes put forward is that the risk of liability to damages deters would-be adulterers, but we do not believe that, in practice, this can often be a risk that is weighed or that, if it was, it would often deter. I do not altogether share the view of the Law Commissioners. It is true that many criminologists, penologists, and reformers have a justifiable scepticism about the deterrent effect of punishment upon criminals, but philandering businessmen, lascivious accountants, and even, if I may say so, promiscuous lawyers, are far more calculating creatures than criminals. They count the cost, very often, of their indulgences. Oft-times, indeed, their interest in money is more compulsive than their interest in sex, and my professional experience certainly leads me to believe that the ardour of the wealthy lover oft-times evaporates with extraordinary speed when he understands that he is courting not only an attractive wife, but a heavy action in damages from an irate husband.

11.15 a.m.

Although I put forward that view, it is not the essential argument, by any means, which I am seeking to deploy to invite the House to support the Clause. Nor do I rest my argument upon the basis that an allegedly guilty man or woman should be punished. The whole purpose of the recent Divorce Reform Act was to emancipate the law from such notions, at least to some extent. But in some marriage breakdowns it is not always a case of half a dozen of one, and six of another. It is often a case of one third of a dozen of one, twice two of another, and four of yet another.

More than one or two people can be responsible for the breakdown of a marriage, and often when a third party is involved three parties are partially responsible. I believe that the community would find it an affront if, when financial means are available, not all three parties shared the financial responsibility for what is to take place in respect of the financial future of the children.

If a wealthy woman employs a chauffeur and, by her conduct, contributes to the seduction of the chauffeur, a married man with, let us say, three children, and this is a factor leading to the breakdown of his marriage, it seems to me to be wholly wrong that such a rich woman should be regarded as totally immune, and not in any way be liable to be called upon by the court to make any contribution for the three children of the marriage who have lost a father.

If we were not to make any alteration in the Bill, we would find that all that the wife of such a chauffeur could do was to sue for maintenance from her husband, who might still be a chauffeur, who might still be a "fancy boy", but who might have little means to help the wife to create the conditions in which those children, now fatherless, could at least have something like economic security.

I suggest that it would be quite unacceptable to the community if we could have a situation in which a wealthy man could intervene in the same way in a marriage, knowing that the woman was married, and persistently have adultery with the woman, and knowing that he would be completely exempt from any financial responsibility for the children of the marriage.

I do not want a Bill which would be regarded as an open sesame to some rich philanderer who, with complete immunity, would be able to cruise past the factory gates in his leather-upholstered Rolls-Royce and importune away the prettiest wife and mother at the works, with diamonds and, doubtless, some "Black Magic". If she were only a wife, it may be said that the husband is well rid of such a mercenary creature, and it can well be said that it is no part of the duty of the law to protect her from her folly, or indeed to protect the husband from his lack of judgment in marrying her.

But she may not only be a wife: she may be a mother. In that case, do those who sponsor the Bill expect the community to believe that in such circumstances the children should not only be left motherless, but without the funds to enable them to have the care and succour of a paid substitute mother, as they could have if the philandering rich man was called to account?

I do not regard the citing of such matters as being extravagant. It is not as if cases do not constantly come before the court in which events of this type occur. I noticed in a recent article on the issue by Mr. Adam Hopkins, in the Sunday Times, that he cited a case in which a wealthy man with a Rolls-Royce took a wife and mother away to do the rounds of the night clubs and the court, in the end, decided that the interloper should not only have to pay the heavy costs which he paid out at the night clubs for his whims, but should be called upon to pay £3,000 for the benefit of the children of the marriage which he had helped and contributed to destroying.

I quoted to the Standing Committee a recent case in which I was instructed. I observed how a judge, in giving damages, found against a man and wisely ordered that payment should be made for the benefit of the children—because there were three children and the eldest, a girl of 18, was giving up her job, to act as a substitute mother to look after the two younger children.

The judgment, in my view rightly and wisely, was that the man who had intervened and contributed to the taking of the wife should make a payment for benefit of the children, so that the total family income should not be so reduced that the girl of 18, who was giving up her job, could not only suddenly have severe limitations placed upon her whole style of life, but would also have to suffer, as would the family otherwise, a severe financial loss.

I do not think that it can be said that there is any danger of injustice occurring if the Clause in the form in which I put it before the House is adopted. It will be noted by the House that the court would not be able to make any order against a man or a woman under the Clause unless it was satisfied that the person against whom the order was sought committed adultery with the spouse in question knowing that the spouse was married.

There is no question of its being argued that we are perpetuating a law by which a man who unwittingly slept with a married woman—unwittingly in the sense that he did not know she was married—could be called to account. What we say in the Clause is that if a person knowingly commits adultery with a married spouse and it can be shown that the adultery caused or contributed to the breakdown of the marriage, in those circumstances, if there is a child of the family and it can be shown that to give an order under the usual regulations against the husband or the wife would still leave the child to suffer financial hardship—only if those strict conditions are observed—it will be possible for the court to make an order for damages.

It cannot surely be argued that any injustice could take place, nor can it be argued that there is any question of distinguishing between a wealthy promiscuous woman and a rich promiscuous man. The Clause makes it clear that, if either of such people acts as the interloper in a marriage, and, as a consequence, contributes to the breakdown of the marriage in the view of the court, it will be open for an order to be made for the children in either circumstance.

Adultery is certainly not an involuntary act. Since sexual intercourse requires two people, it would, in my view, be very droll if the law pretended that it was a feat capable of being performed by a solitary man or a solitary woman. Since that does not correspond to the social realities and to the facts, I regard it as desirable and necessary that the children should have a priority. In those rare cases—rare, fortunately, they are—where, as we well know, it is possible for money to be able to make and be a susbtantial aid to alleviate the consequences of the breakdown, I believe that the law has no right to abdicate and say that this is too complicated or too difficult.

One of the objections which, I have noted, were adumbrated by the Law Commissioners to this limited retention which is claimed for damages founded upon proof that a third party contributed to the breakdown of the marriage is that it would be illogical—illogical, it has been suggested, because marriages can be broken, it is said, not only by lovers and mistresses, but by mothers-in-law. Indeed, the Law Commissioners, being particularly ingenious, went on to suggest that marriage could be broken by familiar but impotent wealthy interlopers, or that a marriage could be broken even by an exclusive religious sect which persuades a wife to leave her husband.

All that is quite true, although some might find the deployment of such arguments a little extravagant. Because, however, the law cannot provide for every nuance of human behaviour, that cannot mean that it should provide for none. It is surely a poor argument if the argument is that it is illogical and untidy. It is a poor argument indeed that children should suffer unnecessary financial deprivation to ensure that tidy and obsessional lawyers are not upset.

In divorce proceedings, we all know that there is certainly no novelty in restricting damages to where there is proof of adultery. Adultery is definable. It is capable of proof, and its commission with the knowledge by the participant that the other partner is a married spouse ensures that the new Clause could be used only against a wilful interloper reckless of the consequences of his or her action to the children of a marriage.

Mothers-in-law may be unwitting nags and religious fanatics, they may be sincere and a little mad, but rich lovers and wealthy mistresses do not jump into marriage beds either absentmindedly or with any pure intentions.

11.30 a.m.

I do not believe that this House or the other place would wish to pass legislation which could be interpreted as weighted in favour of the wealthy lover or the rich mistress as against the financial needs of the children. Any argument that this new Clause would clog the courts with cases is absurd. The lawyers know that the number of cases claiming damages for adultery are few and, faced with the evidential needs laid down within the new Clause in subsection (3)(a), (b) and (c) such claims for damages would be very much fewer.

If the Clause is accepted it would apply only where there are children of the marriage. I accept that probably the number of children who would benefit as a result would be small, but the help that the law, as distinct from social work and social insurance, can give to children of a broken marriage is little enough. The commendable efforts by the Law Commission to review the arrangements for the care and unbringing of such children, even though it had the aid of Mr. John Hall, of St. John's College, Cambridge, have been extraordinarily unrewarding.

Therefore, I ask the House to say that in this narrow sector, where there is a wealthy third party involved, the law can, and should, assist. I would suggest that in many cases it would be regarded as offensive if, in our desire to sweep away anachronisms embedded within the law we should with our eyes open undoubtedly do a grave injustice to children of a broken marriage.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. Before the hon. Gentleman sits down, does he wish to say a word about the other Amendments?

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

Yes, Sir. I am obliged. All the other Amendments are consequential and have been put in to make quite certain that we can tidy up the Bill if the original New Clause is acceptable to the House.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

On a point of order. Three of the six Amendments are not purely consequential.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. We will be discussing them now.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

On a point of order. This is not upon the merits. Three are not consequential.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. The hon. Gentleman can make that point in debate.

Photo of Mr Charles Doughty Mr Charles Doughty , East Surrey

I ask the House not to accept this new Clause. The Bill deals with a number of what might be called legal anomalies, breach of promise and matters of that sort which it is desired to sweep away. One of these anomalies is the action for damages for adultery in a divorce petition, a relic of the old days and actions for criminal conversation. I almost thought, listening to the hon. Member for Pontypool (Mr. Abse), that I was back in the days of that type of action. If this Clause was inserted in the Bill we would be abolishing actions for damages for adultery, on the one hand, and perpetuating them, on the other.

Although the hon. Member tried to confine his actions to that glorious pic- ture so often portrayed in the halls of the theatre, where the rich seducer seduces the innocent young wife, the wording of this Clause applies to everyone. Anyone can say that the person who broke up the marriage by his or her intervention and adultery is a rich man, or woman, or ought to be, and, therefore, he or she will make a claim for damages. This House should not pass Acts of Parliament which abolish something, on one hand, and perpetuate it, on the other.

For that reason alone I ask the House not to accept the Clause. There are many other reasons. There is a good old saying that hard cases make bad law. I entirely agree with the hon. Member that it is a hard case when a rich adulterer, male or female, seduces a not-very-well-off husband or wife, but those are the romantic cases and the introduction of the leather-studded Rolls Royce does not carry the matter any further. If we alter the whole law to deal with the very few hard cases we would be responsible for making a bad law.

The damages are for the benefit of the children affected by the intervention, possibly, of another person into the marriage. As the Law Commission said, and as the hon. Member has accurately read out, there are so many other matters which can affect the break-up of a marriage. The rich adulterer and seducer may be only the last straw and may have very little responsibility at all, yet can find himself with a large claim in damages to be settled upon the children.

The children may not be aware of the fact at the time but, this being a cruel world, people will not hesitate to remind them that their education, their dowry, whatever it may be, is a result of their father's, or mother's, adultery on a previous occasion. I do not believe that children should have that particular advantage, if advantage it be, in future. Therefore, Clause 4 of the Bill, which abolishes such actions completely, should remain intact.

There are other points that I could raise, but those which I have dealt with are sufficient grounds for rejecting the new Clause. Combined, they are an even stronger argument and I hope that the House will reject the new Clause.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

As the hon. Member in charge of the Bill, perhaps I can say that the hon. Member for Pontypool (Mr. Abse) raised the same subject in Committee and that a great deal of sympathy was expressed for his objectve by hon. Members.

Although the Amendment then introduced was considered by me to be quite unacceptable for a number of reasons, technical and non-technical, I promised, in view of the feeling in Committee, that I would go into the matter seriously with the Law Commission to discover whether it was possible to draft an Amendment or new Clause which would remove the objections and would not create many more anomalies and difficulties than those which it was intended to remove.

I have done this. I have spent a considerable time examining the matter and have met the Law Commission and discussed the matter fully. As an experiment, the Commission produced a draft which would remove some of the objections, but having done so neither the Commission nor I regarded the outcome as satisfactory. We still believe that there are serious objections inherent in the proposal which cannot be removed. In the light of this, it was and still is the view of the Law Commission that the complete abolition of damages is the most desirable course. It would not, therefore, be right for me to introduce a proposal on those lines.

It was suggested that this was a matter for the House of Commons to decide, as a matter of social policy. It will be remembered that in the Commission's reports on the abolition of damages it is said that it would prefer—and believes that that is a desirable objective—a complete abolition of this anachronism. If it concedes that this involves not only principles of law, but important matters of social policy, then such matters should be ultimately decided by this House. Therefore, provided the House did not think it a matter of social policy, it suggested an alternative for the complete abolition.

The same applies to the new Clause. The Commission believes, as I do, that it would not be well to accept the Clause for reasons which have been so well stated. It is ultimately the responsibility of the House to decide on matters of social policy. If the House felt differently from the Law Commission, it should discuss the matter, as it is doing, and come to a decision.

Accordingly, I approached my hon. Friend the Member for Pontypool, told him the position, and suggested that he should table a new Clause for discussion today to enable the arguments on both sides to be deployed and for the House to reach a decision. My hon. Friend has had valuable technical assistance in tabling his Clause, which does not have what I would call the technical objections of the first new Clause tabled in Committee. None the less, there are objections inherent in it, and they should be outlined.

While the new Clause proposes equality between men and women in their rights of action by giving this remedy to wives as well as to husbands—at present, a husband can sue for damages for adultery, but a wife cannot—the Commission suggested that if there were any retention of damages in any form the rights given to either side should be equal. The anomaly between husband and wife is a reflection on the barbarous nature of the remedy itself, which was based on the husband owning a wife as a sort of chattel and therefore being able to obtain damages for the defilement of his property. This is why, for so many years, equality under the law has never been given to the wife in seeking the same remedy.

On the other hand, if we provide equality for men and women, we must face the practical position that it might considerably increase the number of cases coming before the courts, and no one can tell to what extent. It has been suggested—I do not know whether it is right or wrong—that in these matters women are more vindictive than men and that if they were deprived of a husband they might, sometimes with justifiably strong feelings, decide to bring the matter to court. It is felt that there might be a multiplication of cases of this kind.

It is true that the Clause is directed at a very limited and restricted target—the wealthy adulterer who breaks up the marriage of a person in modest circumstances. But, by its very nature, however the Clause is drafted, it is bound to affect a much wider target. Even though the prospects of success in a case of this character may be small, they do not prevent husbands or wives, and particularly wives, from bringing cases to court and thus increasing the burden imposed on the courts.

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

Is it not a fact that actions for damages for adultery can already be brought in innumerable cases, but that as a result of legal advice they are rarely brought? Why should my hon. Friend therefore assume that the number of cases would be multiplied?

11.45 a.m.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

The different factor introduced by the Clause, which is right in principle, is that women would be able to do that. Nobody can tell what the effect of multiplying the number of causes would be. This is the essential difference. I agree that claims for damages for adultery are a very small fraction of the number of petitions brought.

The divorce law reform which comes into operation on 1st January next year revolutionises the law of divorce. My hon. Friend the Member for Pontypool played a distinguished part in getting the Act on the Statute Book. Prior to it, a divorce petition was based exclusively on the matrimonial offence, with one exception—adultery, desertion, cruelty, and the like. With the coming into operation of the new Act, that will cease to be the case, and the granting of a divorce will be based exclusively on the breakdown of marriage.

Matters relating to adultery are merely incidents in the breakdown, one of the items associated with it, but the essential test is whether the marriage has broken down. I need not set out all the reasons for that; they were set out very well by my hon. Friend the Member for Pontypool during the discussion on his Measure and on other occasions.

It is, however, the Law Commission's view—and it seems to me common sense—that under the new law the remedy which was attached to a matrimonial offence would be completely inappropriate when the court was investigating the breakdown of a marriage, with complicated personal relationships which have resulted in the breakdown. My hon. Friend the Member for Pontypool agreed with the general principle today and also in Committee. The Clause, while it is intended primarily to benefit the children of the marriage who suffer financial hardship because of the divorce, is a retention of the form of damages which existed under earlier legislation and, whatever my hon. Friend's objectives, it is inappropriate to the new Divorce Reform Act.

As hon. Members know, adultery in most cases is not the cause but a symptom of the breakdown of the marriage. When a petition alleges a particular act of adultery as contributing to the breakdown, it will presumably be open to the corespondent, or however he may be described under the rules of the new Act, to contest this and to bring into issue all the relationships of husband and wife to show that his adultery was not a serious contributing factor in the breakdown. Obviously, this will result in many bitter wrangles in court and a great deal of dirty linen being washed.

It will not be easy for the court to decide whether or to what extent the adultery was a contributing factor. Damages are awarded now because adultery has taken place. My hon. Friend the Member for Pontypool said that adultery is easy to describe and to define, but to decide to what extent adultery is a contributing factor to the breakdown of the marriage will be extremely difficult for the court. Under the present law, once adultery is proven, there is an automatic right to damages. This does not face the court with the same problems.

Suppose that a wife or husband has committed adultery with a number of people. Obviously, if the wife or husband seeks this financial remedy, he or she will proceed against the wealthiest of the adulterers because he or she is the most likely to be able to make the lump sum settlement which the Clause proposes. However, how will the court be able to decide whether his adultery, in particular, has been a contributing factor of any seriousness to the breakdown of the marriage?

The Clause is aimed at a very small target. The hon. Member for Pontypool has described them as the lascivious accountant, the promiscuous lawyer, the wealthy man who cruises outside factory gates. That might be all right for "Peg's Paper" but, in practical life, it hardly ever occurs. That is my knowledge and information, not only from my experience but from that of others. But the Clause, intended to meet this small objective, would hit a very much wider target, and that is the trouble. It would also be likely to multiply the number of petitions embracing this scheme, impose additional burdens on the courts and have little advantageous social consequence.

The Clause is, I understand, based upon the Report of the Gorrell Commission of many years ago—I think that it was published in 1912—when there were entirely different social considerations on the whole question of marriage and divorce. Just to meet a comparatively small number of cases it would be unwise to introduce a Clause which would create far more anomalies and problems than it would solve.

There is always danger of this House being accused of permissiveness, of providing no deterrents for the wealthy seducer. This is one of the risks which we have to face. We are criticised in our day-to-day work anyway, and we cannot help that. But, bearing in mind the merits of the Clause, I suggest that, although it might do good in a minute number of cases, it would do a great deal of harm in many others. The view of the Law Commission that damages should be entirely abolished is by far the best suggestion, and I commend it to my hon. Friend.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Will the hon. Member for Birmingham, Aston (Mr. Julius Silverman), who is in charge of the Bill, say something about the Amendments that we are discussing?

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

I think that three of them are consequential, Mr. Speaker.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Perhaps the hon. Gentleman will intervene on this point a little later.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

Perhaps I can do so when the Amendments are dealt with, Mr. Speaker.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

When he wishes to do so, the hon. Gentleman may intervene again.

Photo of Mr Eric Ogden Mr Eric Ogden , Liverpool, West Derby

The debate is more like reading articles in Sunday newspapers than our normal proceedings. My hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman) and the hon. and learned Member for Surrey, East (Mr. Doughty) referred to what some people outside the House may regard as our attitude to the permissive society. They made that point quite clear in the Committee proceedings. But these are matters which should be considered on merit, regardless of what people outside may or may not believe we are doing at any particular time.

I think that the new Clause is too long, too complicated and too obscure. For those reasons, it should be rejected. My hon. Friend the Member for Pontypool (Mr. Abse) has proved, not on this occasion but on many others, that he has concern not only for his constituents but for all those who are socially deprived. He has given full support to social legislation more human, more acceptable and more realistic.

On this occasion, my hon. Friend is perhaps speaking with two voices. He speaks as a practical and realistic man supporting the rights of women to equal status and to equal citizenship rights. Yet he may also be the last of the great Welsh romantics in believing that women and children, particularly women, still need the law's protection and help more than men need that protection. That is his dilemma. His proposals in the Clause will not help. They are based partly on this dual personality which he has shown.

We most certainly want equal rights and equal respect for women, but in the relationship between law and marriage the law should support and be a protection to both sides. Marriages thrive and will continue to thrive more in spite of the details of the law than because of the law. The less the law has to do with marriage itself, the better it is both for marriage and everything else. That applies also to solicitors and barristers. As long as major support by the law is present, the Clause would not help.

There are other considerations which might protect children and their rights that my hon. Friend has not mentioned. He gave a number of permutations of hard cases as a target at which the new Clause would be aimed. He spoke rather grandly of leather-seated Rolls-Royces. I do not know what happens in the Welsh valleys if Rolls-Royces go cruising around. My hon. Friend the Member for Aston also spoke of the philanderer cruising outside factory gates. All I can say that someone cruising about factory gates in a Rolls-Royce on Merseyside, or in Oldham, would get "a flea in his ear".

In dealing with the welfare of children, my hon. Friend the Member for Pontypool seemed to be confirming that simply because a marriage has been ended by divorce that does not mean the end of the responsibility of the parents for the children, whether they be the parents given the guardianship and charge of the children or those who have gone off and remarried. He says that the parent who has been guilty of assisting in the breakdown of the marriage should provide a lump sum. What happens to the spouse who has gone off with that person? Has he or she no influence or say in regard to the welfare of the children of the marriage? I do not think that the Clause would help in that regard.

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

I am sure that my hon. Friend does not want to do an injustice to me. If he had read the Clause, he would have seen that only where financial hardship could not be remedied by having an order against the spouse would the Clause come into operation.

Photo of Mr Eric Ogden Mr Eric Ogden , Liverpool, West Derby

My hon. Friend perhaps does me an injustice by saying "If I had read the Clause". I have read it at length. The more I read it, the less I understand it. Perhaps that is a fault of my education. He has more experience of legal phraseology, but I have tried to understand it. The point he makes suggests that perhaps he does not understand the point I am trying to make.

Let us take the case of a family—man, wife and two children. Let us assume that the wife goes off and marries again. The Clause would enable the adulterer, the respondent, to be sued for a sum of money. What happens to the responsibility of the mother? Has she no responsibility for the children? Cannot she influence the person with whom she has gone off to help provide for them? This is where rights and responsibilities come into the picture.

I accept my hon. Friend's intentions but I do not think that they would do good in practice or good in principle, and I hope that the House will not accept the new Clause.

12 noon

Photo of Sir Arthur Irvine Sir Arthur Irvine , Liverpool Edge Hill

My hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman), who has undertaken the sponsorship of the Bill, has given a fair account of the state of things revealed on this point in Standing Committee. It is fortunate that the House should have the opportunity, in a debate on this new Clause, to consider the merits of an issue of this scale and importance.

The Clause, in my view, is free of some of the technical deficiencies which we thought existed in the new Clause which the Committee had to consider. My hon. Friend the Member for Aston has fully, as I am sure my hon. Friend the Member for Pontypool (Mr. Abse) will agree, implemented the undertaking that he gave to go into this matter with the greatest care. I think that he did that taking into account, as I did, the disposition of opinion manifested by hon. Members in Committee. So we are now able to consider this point in the context of expert draftsmanship in the proposed new Clause. That makes it possible for those of us who were critical of the proposal to consider whether that draftsmanship has achieved a significant result in removing the objections which some of us thought applied to the principle of the new Clause.

I was happy to agree on this occasion with what was said about this by the hon. and learned Member for Surrey, East (Mr. Doughty). I also found extremely persuasive the argument of my hon. Friend the Member for Aston. But the substantial objections to my hon. Friend's original new Clause are still present. I think that if this kind of provision found its way on to the Statute Book we would, in effect and in practice, be reintroducing the punitive element and the process of inquisition into these matters. It may be in only a limited sphere, but we should still be introducing, as a matter of principle, the punitive and inquisition element.

Many people thought that in the current process of divorce law reform generally we were getting away from that. It is implicit in the concept of breakdown of marriage taking the place of the concept of matrimonial offence—whether that basic difference is right or wrong is not for me to argue here—that if the concept of breakdown is to prevail in future it is surely desirable that, in particular instances, matters should not arise which have the character, effects and disadvantages that were thought were attracted by the law as it was.

My hon. Friend the Member for Pontypool would, I am sure, be the first to agree broadly with that proposition. That is what I would expect of him. But he thinks that in this instance there is a particular hardship affecting the children of a marriage which has broken down which warrants a remedy. That is the issue before the House. In many respects I see the force of my hon. Friend's argument, but I hold the view that his proposal, even now that it is expressed in terms of expert draftsmanship, has disadvantages which outweigh the possible advantages that he has in mind.

If the Clause were adopted by the House, the courts would have to consider, in cases to which the Clause would apply, who caused the breakdown of the marriage—not just the question whether there has been a breakdown. In my view, this is an important modification of the new divorce law. The punitive element which we thought we had removed would not only be reintroduced, but reintroduced somewhat anomalously.

For example, under the Clause—this also applies to the new Clause that we considered in Committee—the corespondent will have to be aware, before the liability occurs, of the existence of a marriage. I believe that that has evidential difficulties attaching to it. That anomaly, in a way, has survived from the earlier law, but it is a rather serious matter.

Although the lump sum is intended for the child's benefit, my hon. Friend's proposal would raise procedural difficulties about any proceeding which would have to follow. It is a remedy which, as I understand, can only be initiated by a parent. Despite efforts that have been made, to my knowledge, to overcome these difficulties and disadvantages, it will still not be possible to avoid the difficulty that the entitlement of the children will depend on circumstances entirely outside their control. They cannot decide whether divorce proceedings should be instituted or whether the petitioner or the respondent cares sufficiently about them to make a claim.

These are real difficulties which the Clause cannot be said to overcome. In my view, it is anomalous in imposing liability to compensate the children on only one type of marriage breaker—the adulterer. Others—the mother-in-law, the enticer, and so forth—will still go scot-free. I see the point that if it is undesirable that one or two classes of offender should go scot-free, that does not make it desirable that another should. On the other hand, I would find it difficult to defend that anomaly.

I have tried throughout my consideration to consider it fairly and objectively, recognising the objectives which my hon. Friend the Member for Pontypool has in mind, but it seems that this remedy might open the way to some very undesirable proceedings indeed. The House will appreciate that if an adulterer is under the threat or danger of having to pay a lump sum, he will be very anxious to show—and in many cases may not have great difficulty in showing—that it was not his adultery which caused the breakdown, but that there were other adulteries which had contributed to that event.

I ask the House to consider how very undesirable would be the consequences of that situation. One would get into the very worst type of entanglement. In it, and as a consequence of it, I should have thought that over all the children would suffer as acutely as anyone else.

For these reasons, and because this matter has now, I am glad to say, been fully ventilated and expert consideration has been given to the language which might most appropriately meet my hon. Friend's purpose—despite all that—I hope that the decision of the House will be to reject the new Clause.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

It may now be for the convenience of the House if I intervene to deal with Amendments Nos. 2 to 6 and explain the position, so far as I understand it, concerning them. Amendments Nos. 4 and 6 are purely consequential. Those are the Amendments to which the name of my hon. Friend the Member for Pontypool (Mr. Abse) is alone attached. Amendment No. 4 simply provides that an order of this character, if it comes into operation, could be operated in Scotland, Wales or Northern Ireland. Therefore, it is purely consequential on the new Clause. Amendment No. 6 simply alters the Title because the Title at present does not cover the objective which my hon. Friend has in mind.

Amendment No. 2, which seeks to leave out the word "any", means in substance that proceedings could not be taken in any court not merely, as at present, in the High Court or a divorce court in appropriate circumstances. It might have some significance if the rules were altered.

Amendment No. 3 affects the date of the coming into operation of the Act. This, therefore, is a matter of some substance. It is obvious that if the new Clause were passed it would be absolutely essential that it should not come into operation until the operation of the new Measure dealing with family provisions, which is intended to come into operation on 1st January next year. The Divorce Law Reform Act is to come into operation at the same time. That would be an absolutely essential consequence.

Having considered the matter, it is my view—totally apart from the question of the new Clause—that it is desirable for this Bill to come into operation at the same time as those two other Measures, on 1st January next. Basically, the abolition of the ground of adultery is based on the new conception of divorce as it exists under the new Divorce Law Reform Act. This is an amendment of substance which would bring back the date of operation from that of a month after the Act is passed.

Amendment No. 5 is purely drafting. It applies to the Schedules of Acts being repealed. Apart from drafting, it has no significance.

12.15 p.m.

Photo of Sir Ian Percival Sir Ian Percival , Southport

Usually it is my purpose when rising to disagree with something that has been said by the Solicitor-General. Happily, on this occa- sion, I have the opposite purpose for I agree with what he said. I thought my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) gave with a great economy of words three very good reasons, each of which, as he said, was sufficient reason for at least having another look at what we are trying to do and all three of which together form very cogent reasons for not giving the new Clause a Second Reading. That was added to by the hon. Member for Birmingham, Aston (Mr. Julius Silverman) and the hon. Member for Liverpool, West Derby (Mr. Ogden).

I want to say a word on the penultimate reason mentioned by the Solicitor-General. I can see the logic of saying that if a man or woman so acts as to deprive a child of that child's mother or father, the person who so acted should be liable to an action for damages on behalf of the child. If one were putting forward a general proposition like that, one could at least see the logic of it, but it would be retaining the action we are abolishing in Clause 5(a) and making it available on behalf of children rather than on behalf of spouses. I merely say that I see the logic of it: I have no desire to see it done.

There are far too many difficulties involved in applying it, and in any event I think most of us would agree that there is something repugnant in the concept. It is trying to translate affection and the kind of services parents render to their children into terms of money. What seems most repugnant about the new Clause is that, rather than trying to provide a general remedy of the kind to which I have just referred, it would be instituting such a remedy in circumstances which, perhaps, are the most repugnant of all, making the liability for damages dependent on the committing of adultery. There is no rhyme nor reason in that. As the Solicitor-General said, it would leave all sorts of difficulties to be dealt with by the court in dealing with such a claim.

It has not even the merit of being simple. If one could say that this would be a simple action in those circumstances, there would be a case for singling it out. Then I should see the point; but here there would be very substantial difficulties of the kind to which the Solicitor-General referred.

I hope, therefore, that the House will not give a Second Reading to the new Clause.

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

I have listened to the arguments which have been adumbrated. I do not pretend that they have not been formidable, although they leave me unpersuaded. I am glad that my hon. Friend who is undertaking the heavy duty of steering this Bill has pointed out the scrupulous care with which he has consulted the Law Commissioners to make certain that the social policy involved in this Clause should be discussed in this House in the appropriate terms.

I sometimes think that the great danger is that we erect an excessive number of difficulties, real as they may be, whenever we may come to questions within the divorce law generally that particularly affect children. It is a constant argument which has been used, as it has been used today, that the complications are excessive if an endeavour is being made to protect the interests of those, as here, who can be innocently affected. I still believe and maintain that the House is losing an opportunity of extending a helping hand to little ones when it is within the capacity of the House so to do. It is because of that that—at least formally—I press the Amendment.

Question put and negatived.