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Divorce Law Reform (Scotland)

Volume 884: debated on Tuesday 21 January 1975

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3.54 p.m.

I beg to move,

That leave be given to bring in a Bill to amend the law of Scotland relating to divorce, dissolution of marriage and judicial separation and to the power of the court to award interim aliment; and for purposes connected with the matters aforesaid.
It is now five years since this House carried through a far-reaching reform of the English law on divorce. Five years later the Scottish law on divorce remains obstinately stuck at the point from which the rest of the island departed in 1969. That, of itself, is not a compelling argument for reform. There are certainly anomalies which arise in the situation, but these we could thole if the Scottish law were satisfactory. However, it is not satisfactory. It is still firmly rooted in the doctrine of matrimonial offence. No couple in Scotland can obtain a divorce unless one spouse is prepared publicly to accuse the other spouse of adultery, desertion or cruelty. No marriage in Scotland can be ended unless the partners are prepared to pursue each other through the courts, one accusing the other. It is a formula for creating the maximum bitterness, humiliation and recrimination in the ending of what was once a personal matter. It is also a formula which guarantees the minimum likelihood of the couple coming to a sensible and lasting agreement on such questions as custody, access to children and maintenance payments.

Any hon. Member who has witnessed a couple going through the mill will be aware of how true the words of the Scottish Law Commission were when it observed in its report on divorce that the progress of the average defended case was "quite enough to kill any marriage stone-dead even if it may have had a flicker of life in it up to the trial."

If I obtain leave of the House to introduce the Bill, I shall introduce a measure similar to the Bills brought in by my hon. Friends the Members for Fife, Central (Mr. Hamilton) and Aberdeen, North (Mr. Hughes). It would scrap matrimonial offence as the basis of divorce, and replace it with the concept of irretrievable breakdown. Such a formula would enable the State decently to bury a marriage which was already dead without obliging the courts to enter into a moral judgment as to which spouse killed the marriage.

I do not accept the argument that such a reform would make divorce any easier. It is a remarkable but true fact that the rate of increase in divorce in Scotland has accelerated faster in recent years than has been the case in England under the new law based on irretrievable breakdown.

Any couple in Scotland who both wish to obtain a divorce can obtain it under the present law provided they both agree to convince the court that an offence has occurred. Nevertheless, I admit that there are two distinct groups who would be able to obtain a divorce under this Bill but cannot do so at present. First, there are those couples who agree that their marriage is at an end, yet no matrimonial offence has taken place and they are not prepared to invent one. I have received a large mailbag since it was announced that I intended to try to bring in this Bill. I refer to one of those letters written by a gentleman living in the Borders. He and his wife agreed to part seven years ago. There was no adultery, no cruelty, and no wilful desertion, and neither spouse is prepared to pretend that there was. Neither spouse is prepared to take up the year's residence in England to obtain an English divorce under the present law. Therefore, there is no hope of their obtaining a divorce.

There is no point in deluding ourselves that by refusing to recognise that this marriage has broken down we are somehow strengthening the institution of marriage. We are not. We are simply making the law look an ass.

The second group enabled under the Bill to obtain a divorce who cannot now do so are those couples in respect of whom there has been a matrimonial offence but the spouse who is regarded in law as innocent is unwilling, or refuses, to bring an action for divorce.

I propose to include in my Bill a clause similar to the English provision whereby either party can bring an action for divorce after five years' separation. In previous debates hon. Members have seen this provision as enabling middle-aged husbands to discard ageing wives of whom they were tired. The belief that younger women are irresistibly attracted to middle-aged men reveals considerable male conceit.

The most persuasive letters I have received arguing in favour of this clause have come from women. I refer to one letter I received from a woman writing from the West Coast who deserted her husband seven years ago because he battered her. Like many battered wives, she concealed the humiliation, and because neither neighbours nor relatives knew what happened she had no evidence or witnesses on which to ground a suit for cruelty. Since the husband will not divorce her for desertion she has no hope of freedom to marry the man she has since met. I see no possible social objective which is served by compelling her to live in adultery rather than in the married state. Nor is hers an isolated case. Looking at the figures for England, last year a clear, though narrow, majority of cases brought under the five-year rule was not brought by ageing male Casanovas but by women. I expect experience in Scotland to be similar if we reform our law in this way.

I recognise there are hon. Members who have very serious reservations regarding the provisions for reconciliation and maintenance payments to be included in any measure. I respect these reservations, and in many ways I share them. But I ask those hon. Members to note that we have been going over this ground for several years and that the Bill now on the shelf goes a long way to meeting these objections. In particular, the provisions for reconciliation are more generous than the present law and would enable a couple to attempt an experimental re-run of their marriage where at present they fear to do so lest they lose their grounds for an action for desertion.

Nearly every major body of informed opinion in Scotland accepts the case for reform, including the Church of Scotland and virtually the entire legal profession. I understand that the matter is now of such little controversy that it is unlikely to be opposed today. Why, then, do we still fail to reform the Scottish law on divorce five years after the reform of the English law and 10 years after the report of the Scottish Law Commission urging reform in very strong terms? Heaven knows, it is not for the want of trying.

This is the fifth attempt to introduce such a Bill since the English measure was passed. All the previous attempts have failed through lack of parliamentary time. This House made a very generous allowance of time available for the passage of the English measure, and that was not a Bill coming in the first eight on the Ballot. It really is high time that we made a similar facility available for a parallel reform of the Scottish law. It would be intolerable if this House continued to delay indefinitely the introduction of this necessary reform. It is one which would have a very significant impact on the lives of many of my countrymen, who will not lightly forgive this House if we continue to neglect them.

Question put and agreed to.

Bill ordered to be brought in by Mr. Robin F. Cook, Mr. W. W. Hamilton, Mr. John P. Mackintosh, Mr. Norman Buchan, Mr. David Steel, Mr. Malcolm Rifkind, Lord James Douglas-Hamilton, Mr. George Reid and Mr. James Sillars.

Divorce Law Reform (Scotland)

Mr. Robin F. Cook accordingly presented a Bill to amend the law of Scotland relating to divorce, dissolution of marriage and judicial separation and to the power of the court to award interim aliment; and for purposes connected with the matters aforesaid: and the same was read the First time; and ordered to be read a Second time upon Friday 14th February and to be printed. [Bill 62.]