I wish, with great respect, for the guidance of myself and some of our friends, to ask for a ruling from you, Mr. Speaker. When this Bill was before the Committee upstairs, there was a new Clause down in my name in these terms:

I do not know whether I might venture to submit one argument in favour of my contention that this Clause should be admitted. The Title of the Bill is merely "A Bill to amend the Matrimonial Causes Act, 1857," and there is nothing in the nature of any special preamble to the Bill with regard to its objects. The Matrimonial Causes Act, 1857, is an Act which, if I may use the words—I do not think they are misleading—permits and regulates the arrangements under which a married couple may be divorced, and it gives a number of causes and reasons of entirely different kinds upon which petitions for divorce may be founded. This Bill, which is a Bill to amend that Act, does, it is true, purport by Clause 1, which is really the only operative Clause in the Bill, to do one thing, and one thing alone, and that one thing is to provide a new cause for a divorce, and I take it that the hon. Member who was the Chairman of the Committee ruled my Amendment out of order on the basis of the view which he held that, as the Bill in its original form dealt with only one proposed new cause for divorce, therefore no Amendment should be allowed which in any way dealt with, suggested, or provided some other cause for divorce. With very great respect, I suggest that if that ruling were correct, it would hamper the proceedings of this House very largely indeed on a large number of Bills of great importance, and that in fact it is quite contrary to what has been the practice of this House in the past and, if I may say so, the rulings of your predecessors and probably yourself also on a number of different occasions.

May I take, just as an example, one case which comes to my mind at the present moment? In the last Parliament there was passed a Safeguarding of Industries Act. That Bill, when it was brought in provided for safeguarding certain industries, and I do not think it was for one moment disputed that it was perfectly open to the House to move Amendments to the effect that industries which were not included in that Bill as originally drawn should be included in it. Indeed, it would seem in a case like that to be almost ridiculous that if a Bill be brought in for the purpose of safeguarding certain industries, the scope of the Bill should be so limited that this House could not bring within the scope of the Bill other industries merely on the ground that they were not in the Bill as originally drafted. This Bill, as I submit, is a Bill to amend that Act, which sets out all the different causes upon which a divorce can be obtained, and I submit that on any Bill which alters the grounds on which a divorce can be obtained, any Bill which introduces either one or more now grounds for divorce, it should, if the proceedings of this House are not to be stultified and limited in a most undesirable way, be open to this House to consider the new ground or grounds upon which it is proposed to make a divorce lawful and, if this House thinks fit, to bring in other grounds on which a divorce can be obtained.

I venture to submit this argument to you, Mr. Speaker, and to ask for a ruling on the point now, because, as I say, it may possibly affect, and perhaps save some little time in, the discussion of the Motion which stands in my name to recommit the Bill. Might I also respectfully suggest that it might be for the convenience of the House if, when you give your ruling on this point, you would possibly intimate whether you propose to rule out of Order any of the Amendments to this Bill which stand upon the paper.

The form of the hon. Member's submission to me is an appeal from the Chairman of the Committee to the Speaker. That is a thing which cannot be admitted. The Chairman of the Committee is absolute in his authority, and no appeal lies from him to the Speaker. That applies as much to the Chairman of a Standing Committee as it does to the Chairman of a Committee of the Whole House. Therefore, I cannot say anything on the matter in that form, as an appeal from the Chairman of the Committee to me. I would only say that I intend to take the same course as the Chairman of the Committee did, and that will sufficiently indicate what is my view. In my opinion, the Clause referred to by the hon. Member is outside the scope of the Bill, and cannot be entertained to-day.

Will it be convenient, Sir, to tell us which proposed new Clauses standing on the Paper are out of order?

The same thing applies to the second Clause on the Paper, in the names of the right hon. Member for Oxford University (Lord H. Cecil) and the Noble Lord the Member for Shrewsbury (Viscount Sandon)— [" Prohibition of use of Book of Common Prayer in marriage of divorced persons "]which is an Amendment outside the scope of the Bill, and also to the third Clause, in the name of the right hon. and learned Member for Cambridge University (Mr. Rawlinson)— [" Repeal of part of s. 43 of The Matrimonial Causes Act, 1857 ."] The fourth Clause, in the name of the hon. and gallant Member for South West St. Pancras (Major-Barnett)— [" Custody of children "]is in order, as is the fifth Clause, in the names of the hon. Member for Watford (Mr. D. Herbert) and the hon. and gallant Member for Hexham (Major Brown)— [" Provision as to corespondent in case of wife's petition "]I am not sure as to whether it ought to be a new Clause, or an addition to Clause 1. The sixth and seventh Clauses, in the names of the same hon. Members and the hon. and gallant Member for West Islington (Major Despencer Robert son)— [" Provision as to costs in case of wife's petition "]and [" Claim of wife to damages against a co-respondent "]—are in order. But I am a little doubtful about the eighth Clause, in the names of the same three hon. Members— [" Power of Court to award alimony to a husband "].I will hear what the hon. Member has to say on that Clause. The last of the new Clauses, in the name of the right hon. and learned Member for Cambridge University— [" Decree nisi not absolute until after twelve months "]—comes within the ruling I have given on the first two Clauses.

With regard to the last proposed new Clause, in the name of the right hon. and learned Member for Cambridge University (Mr. Rawlinson), which you said comes within the ruling you have already given, may I ask if you will kindly consider the Amendment to that Clause which stands in my name, and which would have the effect of making the Clause strictly a qualification of new grounds for divorce contained in Clause 1, and, therefore, I respectfully submit would take it out of that particular class of Amendment which you have ruled out of order?

I will consider that. Notice has to be given of a new Clause, and, therefore, I think it ought to apply to the Amendment on the Paper. But it is quite possible that might be brought up in the form of a proviso to Clause 1.

I beg to move, "That the Bill be re-committed."

May I, in reference to the ruling you, Sir, have just given, thank you for doing so, and say that that course, as I anticipated, will shorten to some extent what I have to say in support of the Motion which I now move? Had it been the case that you had taken a different view from that taken by the Chairman of the Standing Committee on the subject of some of these new Clauses, that might have been a very strong ground for asking for the Bill to be re-committed. But, had that been the case, that would have been, in my mind, only a secondary ground for moving to re-commit the Bill. I will explain as shortly as I can what I believe to be the very strong case that I have for asking that this Bill may be sent back to the Committee. When this Bill passed its Second Reading, and went before the Standing Committee, it contained a third Clause in these words: or lesson, some inequalities as between the sexes under the divorce law. The divorce of a husband by a wife on the ground of adultery alone has hitherto been unknown to our law, and, indeed, it is admitted, and must be admitted by everybody, that our divorce law is an extraordinary anachronism at the present time, particularly with regard to the position of women, the law really being, to all intents and purposes, much the same as it was in the days when there was no Married Women's Property Act, when women were looked upon as chattels of their husbands, as not fit to own property of their own. Those days, of course, are long gone by, and, therefore, there is a great deal to be said for some alteration, at any rate, in the divorce law which may deal justly with the two sexes.

Therefore, although I failed to under stand Clause 3 of the Bill as originally introduced, one did feel that it was in tended by that Clause to provide that if a woman could be a petitioner on the ground of adultery, she should as such petitioner be in precisely the same position as a husband petitioning for divorce on the ground of adultery. Now that Clause has gone, and what is the result? We have a Bill which, if it be passed into law in its present form, will introduce an entirely new form of divorce petition for a wife, a form of divorce petition which is perfectly well known in the case of a husband, and has been law in this country for a great many years. But a husband petitioning for divorce on the ground of adultery has to do a number of things. There are a number of sections of different Acts which regulate the proceedings on such a petition. They make it necessary for him to cite a co-respondent. They necessarily, therefore, contain provisions as to what should happen with regard to that co-respondent. There is, in fact, a whole code of law—of case law as well as statute law—relating to co-respondents, and now, if this Bill goes through in its present form, it goes through in such a way—

The hon. Member is now dealing with the Bill. He is only entitled to give reasons for recommittal, and I would remind him that, under the Standing Order, he has only 10 minutes in which to do so.

I am very sorry, I did not know of that limit of time, but I will endeavour to shorten what I have to say.

Is there anything in the Standing Order about 10 minutes? I have just looked at the Standing Order, and it says that Mr. Speaker may allow a brief statement from the Member proposing and a brief statement from the Member opposing. I do not think there is anything as to 10 minutes.

That is quite true, but I will remind the right hon. Baronet that the 10 minutes is not referred to in another Standing Order. It has long been the accepted custom of the House that that 10-minutes Rule should be observed on both sides.

I remember an occasion when an occupant of the Front Bench—and I am prepared to give the name if necessary—made a speech 45 minutes long under the 10-minutes Rule.

I can assure the right hon. Baronet that that was not in my time.

In these circumstances, if I may say so, I am grateful to you, Mr. Speaker, for not having interrupted me before. I will, therefore, put in the shortest possible way the explanation of the ground on which I ask that this Bill may be recommitted. It is shortly this: If the Bill is to be a reasonably workable Bill from the point of legal proceedings; if, indeed, it is to be a Bill which is just to women, just to those Women who are accused of having committed adultery with a husband-respondent, then it is necessary to have a number of provisions in the Bill with regard to the co-respondent in the case of a wife's petition, and the fact that it is necessary means that a number of these proposed new Clauses which you, Sir, have intimated would be in order ought to go into the Bill. If they are to go into the Bill I venture to suggest that it is desirable they ought to be scanned most carefully by people who have experience in the practice of the Courts, and that it is not really to be expected that it would be possible for this House on the Report stage to be able satisfactorily to incorporate in this Bill all those necessary legal provisions and arrangements of legal procedure which are necessary in order to make the Bill a fair one, a workable Bill, and a Bill which shall proceed upon lines that will be generally acknowledged to be satisfactory by those who are engaged in the Courts dealing with this work—a Bill which will not lead to unnecessary litigation, but will show the absolute necessity of some further amendment of the law as it would be enacted if this Bill were passed in its present form. I therefore earnestly appeal to the House and to my hon. and gallant Friend opposite, who has charge of this Bill, to consider whether, in the interests of those who are most in favour of this Bill, the Bill ought not to go again to Committee in order to have these questions in regard to co-respondents properly dealt with.

I cannot possibly accept the Amendment of my hon. Friend, who invites me, in dulcet tones, to accept it, knowing very well that if I did the Bill is dead for all time. This is a private Member's Bill. This is the only day which we shall have to deal with it, so his invitation to me is, in fact, an invitation to abandon my Measure. I do not propose to accept that invitation. The hon. Member undoubtedly intended to base his Motion for recommittal on what he hoped would be your ruling, that the Chairman in ruling out the Amendment to include insanity was not giving a correct decision. You, Sir, have upheld that decision, and, therefore, it is quite clear that the main ground on which my hon. Friend intended to move this recommittal has gone. Having lost that ground, he seeks ingeniously to endeavour to find some other foothold. He discovered it in the innocuous Clause which appeared in the Bill as it was originally drafted that the usual consequences of a decree nisi shall follow in a wife's petition as in a husband's petition. But because that was withdrawn by me at the request of the Solicitor-General, who said the words were quite unnecessary, he says that is a ground for recommittal, because if these words had appeared, others Amendments and new Clauses on the Order Paper might have followed. I assure him nothing of the sort would have happened. If the hon. Member will look through all the new Clauses he has on the Order Paper not one single one of them would be affected by these words as they first appeared on Second Reading. This Motion for recommittal is really a Motion for rejection. The House has already given an overwhelming vote in favour of the Second Reading, and I ask

Bill, as amended( in the Standing Committee ), considered.

NEW CLAUSE.—( Custody of Children. )

under Section one hereof the Court shall not either before making its final decree or in or after the final decree deprive the husband of the that hon. Members will vote against this proposal.

Question put, "That the Bill be recommitted."

The House divided: Ayes, 17; Noes, 145.

custody or control of the children of the marriage (if any) merely by reason of a single act of adultery or of a dissolution on the ground of a single act of adultery unless the Court shall be of opinion that for other reasons the husband is not a fit or proper person to retain such custody or control.— [ Major Barnett. ]

Brought up, and read the First time.

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

This new Clause is one which will alter the usual practice with regard to the custody of the children. The House in its wisdom decided on the Second Reading of this Bill to change the conditions under which the decree of dissolution is usually granted in the case of the infidelity of the husband. My submission is that the House ought very carefully to consider all the circumstances connected with the new conditions introduced by this Bill. The question of the custody of the children is very important. There is no doubt that at the present time the Court has got a discretion as regards custody, but every petition for divorce includes also a petition for the custody of the children, and the practice of the Court has been to give the custody of the children to the innocent party and against the guilty party. I think hon. Members connected with the legal profession will agree with me when I say that that has been the unvarying practice.

I think there are good and sound reasons for that, because in the law as it has hitherto existed the husband against whom a decree of dissolution is granted has been found guilty of adultery, plus cruelty or desertion, whereas a single act of infidelity in future is going to entitle the wife to a. divorce. That is the decision of the House and we must have regard to that decision. The penalty placed upon the husband is a severe one because for one single act of infidelity he becomes a divorced man. Are you now going to add to that penalty that he shall be deprived of the custody of the children and perhaps of access to them? I submit that the penalty here from the husband's point of view is too serious for the offence. I am not here as an apologist for conubial infidelity, but the husband is being severely punished by being deprived of the society of his wife and—if, you also deprive him in every case of the custody of the children, you are inflicting too great a penalty for his offence. It is notorious that boys are better brought up in the custody of the father, and it is also notorious that when a widow has been left with boys to bring up they are greatly handicapped in the upbringing. I must not be understood to be urging that where the husband is a thoroughly bad lot, where he has been proved guilty of not merely one act of conjugal infidelity there is to be a choice whether you give the boys to the custody of the innocent wife or whether you give them to the erring husband, because in such a case the custody of the children would be given to the wife. Under the new conditions I suggest that the Court should be given a free and untrammelled discretion.

They have it now.

The discretion is there, but the practice is that when the decree of dissolution is given against either the husband or the wife the custody of the children is given to the innocent party. It is the practice of the Court, and it will continue to be the practice of the Court unless some Clause such as this be passed. This Clause provides that

"Upon any petition under Section one hereof the Court shall not either before making its final decree or in or after the final decree deprive the husband of the custody or control of the children of the marriage (if any) merely by reason of a single act of adultery or of a dissolution on the ground of a single act of adultery unless the Court shall be of opinion that for other reasons the husband is not a fit or proper person to retain such custody or control."

My submission is that the Clause safeguards the position of the children, the position of the wife, and the position of the erring husband. If the husband be shown by evidence to be a man who has no regard to moral law, and is therefore probably a bad father, the Court will have full discretion to deprive him of the custody of the children, but the Court will not have to do it as a necessary consequence of a decree of dissolution based upon a single act of infidelity. The House ought to realise that in passing this Bill it is making a great departure from the matrimonial law and is establishing an entirely different standard from that which has hitherto prevailed in the case of men. It is doing that in its desire to carry out the principle of equality of the sexes. Let us, therefore, take care that in passing this legislation we are not led into doing a great injustice to the children and of depriving them in every case of their natural protector. There is a higher standard still; there is the highest authority for the statement

"That whosoever look the on a woman to lust after her hath committed adultery with her already in his heart."

That may be the subject of legislation in the future, but it will be rather difficult to prove. If the husband for one act of infidelity is going to lose the society of his wife, let us take care that we do not do a great injustice to the children by depriving them of the assistance and support of a good father. It is for these reasons that I submit this new Clause.

I beg to second the Motion.

I do so as one who is entirely opposed to this Bill. I do not believe that when the House has heard all the arguments against the Bill it will pass it, but, if it does, I think this new Clause will improve it.

I cannot accept this new Clause for more reasons than one. First of all, it is thoroughly unnecessary so far as the grounds which have been advocated in its favour are concerned. I assure the hon. and gallant Member (Major Barnett) that the Court have absolute discretion under Section 35 of the Matrimonial Causes Act to do precisely what he wants, but I cannot accept the Clause, because it might have a mischievous effect. It would destroy that absolute discretion of the Court. Section 35 of the Matrimonial Causes Act imposes no limitation whatever on the discretion of the Court. This new Clause would impose limitations on that discretion by saying that the Court, where the husband has been guilty of one act of adultery, shall not deprive him of the custody of his children, unless so and so. At present, it is the practice of the Court to take as their paramount consideration in determining who shall have the custody of the children the interests of the children. That has been the tendency of all modern legislation with regard to the guardianship and custody of children. I am quite certain that hon. Members will agree that that ought to be the paramount consideration in these questions, but the hon. and gallant Member's new Clause, if it has any effect at all, will limit that fundamental consideration and have a detrimental effect. I submit that the only consideration ought to be the interests of the children. That is the position at the present time, and the Court already has power to do what the hon. and gallant Member wants under the existing law. I therefore ask the House not to accept this new Clause.

If there be one reason why I oppose this Bill, it is the speech to which we have just listened. I regard this Bill as sloppy legislation which cannot by any means be defended as being of any use whatever to the people of this country, and I am quite sure that the people who bring it forward do not understand the real things in it. This new Clause would improve the Bill, and I am sure that my hon. and gallant Friend, the Member for South-West Hull (Major Entwistle) is profoundly mistaken in not allowing this very innocent proviso to be inserted in it.

There is one very strong reason why this new Clause should not be carried. It would have a wrecking effect, however little the intentions of the Mover and Seconder in that direction may be, for no woman, or not one in a hundred, would take action if she knew that, if successful, she would lose her children. The hon. Member who seconded the Clause (Mr. Blundell) said that he was opposed to the Bill, and that was why lie was seconding it. I have no doubt whatever that he has looked very closely into the matter and has discovered that women will not take action if they know that they are going to lose their children, because this Clause is mandatory and says, "If you take successful action against your husband for a single act of adultery, your children are to be taken from you."[HON. MEMBERS; "No! "] That is going to be the effect of the Clause, except in exceptional cases, with out the husband is proved to be unfit to have the custody of children. This is a wrecking Clause, and I am afraid that it is intended to be so.

It is most astonishing that a Bill dealing with divorce should be advocated by speeches which, show such a lamentable ignorance of the practice of our Courts at the present time. May I deal with what the hon. and gallant Member for South-West Hull (Major Entwistle) said with regard to the Court having discretion at the present time. We know that perfectly well, and my hon. and gallant Friend the Member for South-West St. Pancras (Major Barnett), who moved the new Clause knows it. The hon. and gallant Member for South-West Hull objects to this Clause because, he says, it would limit that discretion. That is the express reason why we are supporting it. At the moment the Courts, it is true, have absolue discretion as to what they shall do with regard to the children of a marriage which is dissolved. The Court has discretion now to take them away from the successful woman petitioner. She runs that risk now if she takes her case into Court. The practice which has grown up is this, as everyone who has had experience in the Court knows, that as a matter of course, excepting one or two special cases, the guilty party is deprived of the custody of the children, which is given to the other party. Does my hon. and gallant Friend opposite say that that is not the practice of the Court? I notice he shakes his head, but I should be very surprised if he can find one case in fifty where the guilty party is given the custody of the children. Therefore, I say the practice has grown up that, as a matter of course, except in certain special cases, the custody of the children is taken away from the guilty party. Further than that, it is extremely difficult for the guilty party to get even an order for access, or to be allowed to visit the children at school, or to have them, as is sometimes done, stay with him or her for a week twice in the year. Because of that practice we consider the time has come when there should be this trifling limitation on the discretion of the Court. It does not really take away the discretion of the Court where it should be exercised. It merely says that the Court should not deprive the husband of the custody of the children—

But shall deprive the wife! My hon. Friend is inconsistent. He says it is the invariable practice of the Court to deprive the guilty party, but now he wants, in the case of the husband being the guilty party, to have discretion exercised in his favour.

12 N

That shows the difficulty in dealing with a Bill of this kind on the Report stage when the question has not been properly considered in Committee. I should not have the slightest objection to corresponding words being inserted in the interests of the wife. Of course no one can foresee every possible contingency in a case like this, and that is why the House has realised the wisdom of having a Committee stage for these Bills so that all these questions can be thrashed out. Let me get back however to the thread of my argument. The proposal in this Clause limits the discretion of the Court simply in this way, that the Court shall not be allowed to deprive a husband of the custody of the children simply and solely on the ground of a single act of adultery, unless there are other reasons for so doing. There may be a trifling error in drafting here, but what I have in my mind is that in a case of that kind it is not right, from the point of view of the children, that they should lose the influence and society of either the father or the mother. There is of course such a thing as joint custody or shared custody, even where the husband and wife are parted. I want to ensure that the children shall not lose entirely the advantage of having a father, simply because that father has been guilty of a single slip, possibly under circumstances which cry out in every way for its being forgiven. This Clause does not prevent the custody being taken away from a father who has shown that he is an eminently immoral person. Hon. Members of this House must know perfectly well the unfortunate position of families of boys who lose their father when young. I am sure hon. Members who belong to the other sex will agree that this is no reflection whatever on the mother. I am one of those who believe that the best friend a man ever has in his life is a good mother, but there is no denying the fact that, however good a mother's care may be, a boy does require most urgently the care, experience and society of a father, and no woman can provide it. We have experience every day of the unfortunate position of boys who are left with no father when they are young. No matter how good, how capable, or how devoted a mother may be she can no more make herself a father to these children than she can make herself a man. [An HON. MEMBER: "And a man cannot make himself a woman!"] I entirely agree, but I never heard a more irrelevant interruption. I remember a case within my own personal knowledge, one of three boys who are still alive and who are probably about my own age. I knew them as boys. They were sons of a country parson who, unfortunately, was one of those men who give way too much to his wife: he was entirely under her thumb. Because she felt that she could not part with her children, these three boys came to the respective ages of 17, 16 and 14 without ever going to a school of any sort or kind. These men know the disadvantage under which they suffered, because in their case, although they had a father, he had to a great extent abdicated his rights.

That is just an example of what may happen to boys who have no father to guide and help and look after them—and no other man can take quite the same place as a father. It is just an example of the unhappy conditon in which children are left if they lose the advantage of having a father who has some hand, at any rate, in their management and bringing up. If it is going to be suggested by any hon. Members on the other side that, because a man has once in his life been guilty of an act of adultery, he is, therefore, unfitted ever to see his son again, I cannot argue it; but I very much doubt whether anybody in this House would go so far as that. Many of us, probably most of us, know of cases where a man or a woman has been guilty of moral offences which, on the face of it, would appear to be a perfectly good ground for taking their children away from their custody, and yet we know that in many of these cases these people, who, perhaps, lead a bad life to some extent, can still be devoted parents and do much for their children. I venture to suggest that it is better for children that they should have the advantage of having both a father and a mother to look after them, and in some way to share the custody and care of those children. If those parents are good parents, the fact that one or both of them may have done something that is wrong, however much it may show the imperfection of the parent, does not necessarily show that that parent is not a fit and proper person to have the custody of his or her children.

Therefore, I support, and I think with a great deal of reason, the insertion in this Bill of a Clause which shall just to that extent limit the discretion of the Court, provided that there is no other reason. If a husband is not an unfit person to have the care and custody of his children, he should not be entirely deprived of it merely on account of the fact that he has committed what, for the purposes of custody of children, I might almost describe as a technical offence, though I will not go so far as that, but an offence which does not necessarily prove that he is not a fit person to look after his own children. If the Clause goes through, it will not for a moment prevent, in case of a divorce taking place, the Court arranging, as has been done in other cases where there is good ground for it, that boys shall be under the custody of the father and girls under the custody of the mother, or that they shall be under the joint custody of the two parents under some arrangement, spending half, or it may be a third, of the year with one parent, and the other half or two-thirds with the other. I submit that this Clause can do no possible harm, and that it would do something, at any rate, to show the Courts and Judges and people of this country that there are reasons, in the interests of the children themselves, why the children should have the benefit of a father's care and custody, even though he may have been guilty of this one offence. Therefore, I sincerely hope that hon. Members will not for one moment consider that this is intended in the slightest degree as a wrecking Amendment. It is not. It is one which is put forward in the interests of the children, and, therefore, one which, I submit, should be supported by those who put forward as their special care the interests of the female sex and the young children of the parents.

I regret that I am unable to support my hon. Friends who propose this new Clause. No one impugns their motives in doing so, for one must admit that their motives are beyond suspicion. But I am inclined to think that the whole basis of the Clause is really opposed to the principle of the Bill, which is to put men and women on an equality in this matter. This Clause prevents that equality from being completed in this respect in connection with the children. The lines of argument have been two. In the first place, there has been the legal argument, and the last speaker has admitted that this Clause will, as a matter of fact, fetter the discretion of those who try these cases. I believe that those who try the cases are the right people to know in whose hands the children should be placed, and anything that fetters their discretion is, I think, contrary to the interests of the children. I should oppose it, therefore, on this ground. The second ground that has been advanced is the sentimental ground, that it is extremely hard that, for one act of infidelity, the children should be deprived of the advantages of a father. There seems to me to be this mistake in that argument: It is assumed that in every case where there is such a single act of infidelity the wife will proceed for dissolution of her marriage. I think that in many cases one single act of infidelity, serious as it is, will be overlooked by a wife who is fond of her husband and children. At any rate, it is quite improper to assume that in every case, for one single act of infidelity, marriages will be broken up and children deprived of their father. Therefore, I submit on these grounds, and also because, as a matter of fact, it is imposing a different condition on the woman from what is already imposed on the man, this Clause should not be accepted.

I think the hon. Member for Dumfries (Dr. Chapple) could not have read the Clause when he stated that he intended to oppose it, and I hope that, if he will allow me to point out to him what the Clause actually does, he may eventually find himself in the Lobby with my hon. Friends and myself. The hon. Member for Dumfries stated that he was acting in the interests of the children. So are we, and we are putting forward this Clause because we are anxious that the interests of the children should be considered. The hon. Member says that, if this Clause were carried, the result would be that the Judge would have no alternative but to allow the father to have the custody of the children. That, however, as a matter of fact, is incorrect. If the hon. Member had read the Clause, he would have seen that what the Clause says is this: would call the special attention or the hon. Member—

We are at present in rather a transitory state, and we do not quite know what is going to happen. The first thing we ought to do is to see that the upbringing of children is right, and above all the upbringing of boys. It is necessary that boys shall be brought up in a proper way. I hope hon. Members will support the Clause. The acceptance of it will not in any way wreck the Bill. I desire to improve the Bill. The effect of the Clause if passed would be to prevent any opposition arising later when the Bill is found to be unworkable and foolish, and the Clause will assist the Bill and will not wreck it. I am really surprised at the hon. and gallant Gentleman opposite. I conclude that he is under the control of certain societies who do not understand procedure in the House or what is good for the country, but having taken a certain fad in their mind, say" You must support this or we will make ourselves unpleasant in your constituency. "I have always found it wiser to take the bold course and stand by my opinions.

I cannot support the Clause. An hon. Member supporting it surprised me by saying it would make no difference to the existing law. I differ from that strongly. I rather gather that at present the practice is that the guilty party as a rule does not have the custody of the children, though there may be exceptional cases. This Clause will alter that and it would certainly alter the law as it exists at present. No doubt the promoters of the Bill meant it to apply only to cases where a husband has committed adultery and the wife wishes to have the marriage dissolved, but in practice this will be used very largely indeed as a form of what I may call collusive divorce, in a non-technical sense. In a very large number of cases where there is a dispute between husband and wife, the wife will press the husband to put himself in such a position that he will be charged with adultery on one single occasion, and will give information to the wife that he stayed at a hotel on a particular occasion, and in that form there will be evidence of adultery, whether adultery was committed or not. Husbands have in the past lent themselves to that form of agreement, and it is probable that this Bill when passed will be used very largely indeed for that form of putting an end to marriage. With my hon. Friend's motives I have every sympathy, but if we pass this Clause it will make collusive divorce, to use the non-technical phrase, a very easy thing, if the father knows that if he goes through

that form it will be looked upon as not being a moral stigma, and that the Court will not look upon it as a moral stigma or treat him as if he had committed adultery. In the vast majority of these cases adultery will not have been committed. That form of divorce will be made much easier and will be multiplied a hundred-fold by this Clause. The man will be less likely to lend himself to that form of divorce if he knows that probably he will lose the custody of the children afterwards. When the husband and wife are arranging this type of divorce the custody of the children is frequently a barrier and a great difficulty. If we pass this Clause we shall make it easier to get these collusive forms of divorce, whereas it is in the interests of the State, of the children and of the husband and wife, that they should live together and not be divorced. Therefore, I ask the House not to pass this Clause.

Easy divorce is a curse to the State, a curse to society and a curse to the people who indulge in it. For these reasons I am opposed to this Clause. It is well that the ship, so to speak, should be kept together for a short time, because time is so important in these cases. I have been for 40 years practising in the Court and advising in this class of case, and I know the value of time. Give a certain amount of time to the husband and wife so that they may come to agreement, and very often things heal up and the people are surprised afterwards that their married life was so nearly wrecked some years previously.

rose —

Divide!

If the House desires to divide, I will not stand in the way.

Question put," That the Clause be read a Second time."

The House divided: Ayes 25; Noes, 172.

NEW CLAUSE.—( Provision as to co-respondent in case of wife's petition. )

Upon any petition presented by a wife alleging adultery the petitioner shall make the person with whom the husband is alleged to have committed adultery a co-respondent to the said petition unless on special grounds to be allowed by the Court she shall be excused from so doing."—[ Mr. D. Herbert. ]

Brought up, and read the First time.

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

This proposed new Clause is a very great importance and I hope that it will be recognised by the large majority of the House that it should be in the Bill. If the hon. and gallant Gentleman does not accept this he at any rate will hardly say that it is intended in any way as a wrecking Clause or one that should be treated otherwise than with the greatest consideration. The law at present is that when a husband files a petition for divorce in which he alleges adultery he is obliged to cite as a party to the suit the man with whom he alleges his wife committed adultery. Consequently, following on that, the third party to the proceedings may be involved in costs, damages, and other things. It is obvious in a case of this kind, where the ground of a petition is an offence as between the two sexes, it is only common sense and right that both offenders should be before the Court in order that the case may be properly gone into. It is of course the case that when a wife under the present law brings a petition which is based on adultery there is no necessity to set out a co-respondent, but that is due to the fact that the whole of our divorce law dates from times which are now looked on as positively archaic.

I submit that this Clause is out of order under your previous rulings, Mr. Speaker, because it deals with matters far beyond the scope of the Bill. There are two grounds on which it is out of order. First, a petition may be presented by a wife alleging adultery coupled with desertion or cruelty. Second, a petition may be presented by a wife asking for a judicial separation on the ground of cruelty. These cases would be covered by this Clause, which seeks to have the co-respondent named in at least two classes of cases which have nothing to do with this Bill, and which are therefore out of order.

The point which I have to consider is whether this Clause is limited to the particular cases dealt with in Clause 1 of the Bill. The impression in my mind was that it is. But the hon. Member for Crewe (Mr. Hemmerde) has made a submission on which I would like to hear the other side.

If necessary, I could propose this Clause in a slightly amended form, so as to cover only the case in which a petition is presented by a wife alleging adultery under Clause 1.

I have already ruled that the Clause cannot be altered, except by Amendment, on notice given to the House. I would ask the hon. Member to address himself to this point: Have these words "alleging adultery" an effect beyond the particular cases dealt with in Clause 1 of the Bill? It has been suggested to me by the other side that they go much further.

I would respectfully suggest that, even if that be so, it does, not necessarily put the Clause outside the scope of the Bill on the basis of your previous ruling. Clause 1 of the Bill alters the law in regard to petitions by a wife alleging adultery. Petitions for divorce by a wife alleging adultery at the present time have to be petitions which allege something else also. Therefore, I suggest that when you are saying that a petition alleging adultery may be a petition for divorce, although it alleges nothing else, you must be able to deal with the question of what shall happen, when a petition for divorce alleging adultery is brought forward. Of course, at present a. woman may bring a petition for separation urging adultery alone, but this is a case which alters the law in regard to petitions by a wife alleging adultery. If it alters the law in regard to petitions which allege adultery, it is only right that you should be able further to alter or amend those proposals so far as they concern petitions dealing with adultery. I submit that that would take it out of the ruling which you gave.

I am afraid that the hon. Member's statement shows that my contention is right. Therefore, this Clause is outside the scope of the Bill. The same remark applies to the next two Clauses on the paper, namely, that referring to" Provision as to costs in case of wife's petition," and that which deals with "Claim of wife to damages against a co-respondent. " Will the hon. Member move the Clause in his name relating to " Power of the Court to award alimony to a husband "? Is that covered by Section 45 of the principal Act?

May I turn to Section 45 of the principal Act to which you have been good enough to refer me?

The point I was doubtful about there was this: Is this Clause necessary, in view of Section 45 of the principal Act? There may have been decisions on these points, of which I am not aware. That is why I give the hon. Member the benefit of the doubt, and allow him to move this new Clause.

NEW CLAUSE.—( Power of Court to award alimony to a husband. )

After the passing of this Act the Court shall have the like powers of making decrees or Orders for alimony to be paid by a wife to or for the benefit of a husband as it has hitherto had of making decrees or Orders for alimony to be paid by a husband to or for the benefit of a wife."—[ Mr. D. Herbert. ]

Brought up, and read the First time.

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

I suggest that there can be no doubt upon the point that has been raised. Section 45 of the Act of 1857 says:

I beg to second the Motion.

As you in your wisdom, Mr. Speaker, have ruled previous Amendments out of order, I am not sure that there is any useful purpose served in putting forward this new Clause, because the Bill, from the point of view of the legal mind on this side of the House—it may be inferior or superior to the legal mind on the other side—will be unworkable without the Amendments. I second the Motion because this seeing to be one of the only opportunities we have of putting something right on the main principle of equality of the sexes. The principle at the bottom of this Bill, as I understand it, was to put divorce, as far as the two sexes were concerned, on an equal basis. As the law stands it contemplates taking the property of the husband or of the wife only in cases where the wife has been guilty of adultery or is the offending party. The proposed new Clause simply says that when the husband is the guilty party the same principle shall apply. I appeal to my hon. and learned Friend in charge of the Bill. He will appreciate, at once, that when a woman holds exactly the same rights as a man as to property, there is no reason at all either on legal or moral grounds why her property should not be placed in exactly the same position as the husband's. One effect, and to my mind the most important effect, of accepting this Clause will be that the Court will have an opportunity of making some provision for the children of the marriage. At present there is no provision for the innocent children when their father has been guilty and their mother has ground for putting him away. I press this Clause on the House in the interests of the children and in order to give the Court a discretion which the Court will exercise judicially and fairly.

I think technically this proposed new Clause is out of order within your previous ruling, Mr. Speaker. The wife obviously cannot be ordered to pay alimony except in a case where she has been the respondent and the husband has petitioned. These cases must clearly be outside the scope of the Bill which is limited to petitions by the wife. As you, Mr. Speaker, have allowed it to be moved, I may point out that the powers sought to be conferred are already amply given by Section 45 of the Act of 1857:

"In any case in which the Court shall pronounce a sentence of divorce or judicial separation for adultery of the wife "—

that again shows how this Clause must be out of order, because now we are dealing with the adultery of the husband, and not of the wife—

"if it shall be made appear to the Court that the wife is entitled to any property either in possession or reversion it shall be lawful for the Court if it shall think proper to order such settlement as they shall think reasonable to be made of such property or any part thereof for the benefit of the innocent party and of the children of the marriage or either or any of them."

These settlements can be made both in the interests of the husband or of the children, and the only limitation is as to cases where the wife has property, and I do not know that there is any harm in that limitation, because there is not much object in making a settlement if the wife has no property at all. The hon. and gallant Member who spoke last based his argument on the fact that in these days wives have property of their own. If they have, here is ample power given to the Court to make a settlement not only in the interests of the children, but even in the interests of the injured husband. The words of the proposed new Clause are quite supererogatory on the ground which I have just indicated, and the Clause is not well drafted, if I may say so with all respect. The Clause uses general expressions like "powers of making decrees or orders for alimony," which is not the expression used in the granting of rights to the husband. Under Section 32 of the Matrimonial Causes Act the powers to order alimony to a wife are expressed in very similar terms to those in regard to the powers to order alimony to the husband under Section 45 of the Matrimonial Causes Act. If, as I say, this only applies to petitions of the husband which are outside the scope of this Bill and if, furthermore, the powers sought are amply covered by Section 45 of the Matrimonial Causes Act and if, as I believe, the passing of the Clause will only serve to introduce terms not of technical or legal art, which will cause difficulty and produce no good result, then I ask the House not to accept the Clause.

1.0 P.M.

The hon. And gallant Member has mentioned part of the existing law. That is exactly what I understood this Bill was going to alter. Apparently the hon. and gallant Member only takes advantage of the existing: law when it suits his purpose and when it suits the carrying out of the object of this Bill. The hon. and gallant Member says that this Clause is badly drafted, but the whole Bill is badly drafted, and if you put a badly drafted Clause into-a badly drafted Bill you do not do it any harm. You leave the Bill in the bad state in which it already was. The object of this Clause is, however, one which the hon. and gallant Member and those who support him, have at heart, namely to-put men and women on an equal basis. Apparently, when it comes to putting men and women in the same position as far as worldly goods are concerned in this-matter, all these ideas of sex equality are forgotten, and if a woman commits adultery the man is supposed to do something to support the woman and the children, but if the man commits adultery, the woman is not obliged to support or give any contribution towards the support of her husband. As an old-fashioned person I am rather in agreement with the old law. I always thought, that woman was a rather inferior person as compared with man, but we have wisely or unwisely changed all that and now we have women occupying all sorts of positions, sitting as Members of this House and dealing with other public matters and having their own property under their own absolute control. In these circumstances, and in view of the fact, which often arises, that a woman may be-cleverer than a man—I am sure the noble Lady the Member for the Sutton Division of Plymouth (Viscountess Astor) will not disagree with me in that—I think that women should be put in exactly the same position as men are in as regards the divorce of a wife. For these reason I sincerely trust that the House will accept this new Clause, and I cannot understand how they can reject it without rejecting the principle of the Bill. If there is any desire for a logical conclusion on the part of the supporters of the Bill, and if they really desire equality of the sexes, they must accept this new Clause. There is no other alternative.

On a point of Order. Does not the argument which has been put forward by the right hon. Baronet again show that this Clause comes within your ruling, Mr. Speaker? It is going right outside the scope of this Bill. My right hon. Friend does not seem to realise that every reason he gave in his speech is already covered under Section 45 of the principal Act, and an attempt is being made to put into the Bill something which is already in the principal Act, and it is sought, by not reading what is in the principal Act, to make speeches on the subject suggesting that something should be there which in fact is there.

On a point of Order. May I point out that it is not fair to bring in, as an argument on a point of order, that I did not deal with Clause 45. I thought it was unnecessary to take up the time of the House in doing so.

On the point of Order put by the hon. and learned Member for Crewe (Mr. Hemmerde). I do not think it would be fair to hold that the speech of the right hon. Member for the City of London (Sir F. Banbury) spoiled the case of the hon. Member for Watford (Mr. Herbert). I had myself doubts whether or not this Clause was superfluous. It was on this ground that I gave the hon. Member of Watford the benefit of the doubt, and allowed him to move it. Does he wish to press the Clause?

Yes, if I may. May I first of all deal with the interruption which has been made in speeches of mine by the Noble Lady the Member for Plymouth (Viscountess Astor), as on previous occasions, and may I venture to suggest—

We cannot go back on that matter.

I was not wishing to go back, but merely to ask that, if I be interrupted in my speech, it should not be by somewhat abusive interruptions. However, that is a thing which one has to expect in these days. May I point out to the hon. and gallant Member in charge of the Bill, who was good enough to receive this suggestion, I think, without any real hostility, that the reasons which he gave for not agreeing with it are based on a misapprehension? He said this Clause was incorrectly drafted, in that it did not follow the language of the existing Act, and he referred to the words "powers of making decrees or orders for alimony."

I merely said that the proposed new Clause introduced wide words which might lead to some difficulty.

Will the hon. and gallant Member look at the actual wording of the proposed new Clause? If he will also turn to Section 32, which deals with the orders for alimony, he will see that that Section states that the Court may, "if it shall think fit on any such decree, order that the husband shall," and so on. I therefore suggest that, when you are trying to put the sexes on the same footing in this matter of alimony, it is quite right to say "decrees or orders for alimony."

Section 32 is repealed, anyway.

That is so, but it is repealed by a Section which re-enacts very much the same thing. This Clause merely re-enacts provisions in the old Act with regard to the alimony to be ordered against a husband, with the substitution of the word "wife "for "husband "and "husband "for "wife," as the case may be. I suggest, therefore, that there cannot be any objection to this Clause on the ground that it is likely to create any confusion or doubt, and I would adopt again the argument that this is an improvement, because, in regard to this matter of alimony, it is putting it in precisely the same form in the case of a woman as it is at present in the case of a man. I again appeal to hon. Members to support this proposal.

I also think—

On a point of Order. Is Debate in order after the Mover of the Clause has replied?

Yes, certainly

The Standing Order says that no one shall speak twice, except the Mover of the Amendment and the hon. Member in charge of the Bill.

It seems to me that the point of Order raised by the hon. and learned Member for Crewe (Mr. Hemmerde) strikes at the root of the whole matter, and the speech he then made ought to have been made on the new Clause and not on a point of Order. Hon. Members opposite are often talking about the necessity of making equality between men and women, but when a definite Amendment is put down for this very purpose, they scoff at it. It is most important, if this Bill is going to become law, that this particular Clause should appear in it, for only by that means can it be made a fair and honest Bill. It discloses a very curious mind on the part of the hon. Members who framed this Bill, when they talk about bad draftsmanship and defects in the Bill, that when such a Clause as this, which is

obviously to improve the Bill, is moved, it is turned down without a word really tackling the root of the question. We are not lawyers, and we do not understand these questions of draftsmanship, but we do understand that this is fair play as between a man and a woman, and it is only making it an equitable and fair Bill. Therefore, I think those who are in charge of the Bill are ill-advised not to meet their opponents to the slightest extent. I hope the new Clause will be pressed to a Division.

Question put, "That the Clause be read a Second time."

The House divided: Ayes, 65; Noes, 148.

The next Clause in the name of the right hon. and learned Member for Cambridge University (Mr. Rawlinson)—

"No decree nisi for a divorce shall be made absolute until after the expiration of twelve calendar months from the pronouncing thereof unless the Court shall, under the power now vested in it, fix a shorter time,"

is outside the scope of the Bill.

I understood that the Clause would be in order as proposed to be amended by me. I have an Amendment on the Paper, after the word "divorce" to insert the words "obtained under Section one of this Act." Am I not right in thinking that that Amendment has the effect of bringing the Clause within the scope of the Bill?

Mr. Speaker considered the question, and decided that it was not in order.

Was it not suggested that it might be in order with a proviso? I have handed in a proviso, which will arise again on the first Clause.

As to the Amendment, I could only rule on it when it may arise, if I am in the chair.

CLAUSE I.—( Right of wife to divorce husband for adultery. )

It shall be lawful for any wife to present a petition to the Court praying that her marriage may be dissolved on the ground that her husband has since the celebration thereof been guilty of adultery.

:I beg to move, after the word "thereof,' to insert the words "and since the passing of this Act." The effect of the Clause as it stands would be, that in the case of a couple who have been married, say 25 years, and 24 years ago the husband committed an act of adultery, the wife could bring a petition based on that act. Do I really understand that that is the intention of hon. Members who are supporting this Bill? The object of my Amendment is perfectly simple, and I should have thought, in altering the law as is now proposed to be done, no attempt would be made to make it retrospective. My Amendment is to insert the words "and since the passing of this Act." I have all along assumed it would be accepted without question. If not, I must put my case as shortly as possible, and in doing so I must quote again an illustration. If this Amendment be not accepted, it means that directly this Bill becomes law the wife, who knows, or has evidence, that her husband committed an act of adultery after the celebration of the marriage, although it may have been over 20 years ago, can bring a petition for divorce.

If they have gone on living together, it would have been condoned. Such a case would not be possible to arise.

I did not say they had gone on living together. I submit that if for 25 years, without any further offence having taken place, the woman has been unable to divorce her husband that she should not, under a new act of Parliament, be entitled to divorce her husband on the ground that something took place 25 years ago. Really I do not think I need go on. I have stated as plainly as I can to the House the state of affairs.

I beg to second the Amendment.

I am in entire sympathy with it. Like my hon. Friend, it does seem to me unreasonable that one single act of adultery 20 years ago should, under, this Bill, be a ground for divorce. I speak with great diffidence in the presence of the hon. and learned Gentleman who intervened a moment or two ago, but I am under the impression that the law of condonation is officially denned as having full knowledge of the consequences, or was to restore the person, he or she, to the position they occupied before the offence was committed. Therefore, I submit that living together is not a necessary condonation of the offence. There must be full knowledge. Assume, for example, that a single act of adultery was committed by a man 20 years ago, and this Bill passes into law. It is then discovered by some officious busybody, who tells the wife that an act of adultery was committed years ago, and that this Bill has been passed into law in the form in which it now stands; that would be the Statute on which a petition could be laid. I submit that is manifestly unfair. Another principle of the law is that I think there should be notice. Again I speak with some diffidence, but my recollection is that if anyone is charged with an offence in a Criminal Court, the prosecution has most clearly and with meticulous care to set out the charge on which the person is arraigned, while equally in a civil action, in fraud it might be, the case has to be most meticulously framed. How can it be said, in the case of anyone who committed an act of adultery 25 years ago, that they had any knowledge that in the year of grace, 1923, the House of Commons would put on the Statute Book an Act which makes this an offence? For these reasons I have much pleasure in seconding the Amendment.

I feel a very great deal of sympathy with the arguments which have been put forward by both hon. Members who have spoken. I think, however, there are certain aspects which they have not quite considered in regard to this Amendment which I should like to put to them and to the House to show that it is rather a difficult matter; one on which I should like the House to take their decision. The first point that I would like to make is that we are here substituting for the grounds on which a wife can now get a divorce grounds as mentioned in Clause 1 of this Bill. If the grounds in the Bill are limited purely to an act committed after the passing of this Act it will have the effect of depriving the wife of the rights she had immediately before the passing of the Act—that is to say, where she could have got a divorce for an act of adultery coupled with some other grounds. That is a difficulty which I am sure my hon. Friends will appreciate.

Apart, however, from that consideration—which might possibly be cured by subsequent Amendments which we should have to consider, on the actual merits of this question I think the House should bear in mind that when an act of adultery has been committed prior to the passing of this Act, and the parties are living together, in the huge majority of cases, in 999 out of 1,000, that act would be condoned and could not be taken advantage of by the wife. The hon. Gentleman who is opposing the Bill mentioned an instance of a woman who had been separated from her husband for 25 years, I presume because of an act of adultery then committed, which she considered went to the fundamental basis of marriage and destroyed the whole spirit of the sacred contract into which they had entered. Because that act took place 25 years ago, and because under the law as it has stood till this Bill of mine is passed, she was unable to get a divorce, which, if she had been a man, she would have been entitled to, and she has been living separated from her husband for all that time is she to remain so for all time?

indicated dissent.

I submit that a very strong case can be made out where the parties are separated, and where, owing to the existing state of the law, they are unable to procure their divorce because of the additional grounds which have to be proved under Section 27 of the Act of 1857, in respect to the wife's petition. The only objection to taking advantage of an act committed prior to the passing of this Bill is in the event of the parties living together. If they are living together the adultery has almost certainly been condoned, and could not be taken advantage of in the petition of the wife.

I used the 24 years' illustration in order to show the most extravagant sort of case that might arise.

Yes, I know.

The whole point of my Amendment—and I am surprised the hon. and gallant Gentleman or anybody disagrees with it—is that if a man goes to law, and he knows what he is doing, and he knows he has committed an act of adultery before the passing of this Bill, knowing that under these circumstances—his wife knowing the same thing —that that is not a ground for divorce, this legislation should not be retrospective in regard to that Act, even if it was only committed a day prior to this Bill being passed.

On that point I must submit to the House that the hon. Member looks upon this subject from a completely wrong point of view. This Bill is not to penalise a husband but to relieve a wife and give her the relief to which she is entitled. Can anyone say that a wife, who has been separated from her husband for a long period of years owing to him having destroyed the whole basis of the marriage by committing either one or several acts of adultery, and who under the existing law cannot bring an action for divorce, is to be debarred from the benefit of this legislation? It is not a question of punishment, but a question of giving the wife the relief to which we think she is entitled. If it had been a question merely of punishing the husband or of placing any penalty upon him not a single argument could be raised against the Amendment, but that is not the right aspect from which to view this Amendment. So far as any punishment is concerned, it can only apply where the parties were living together. I hope the House will take these points into consideration very carefully before arriving at any decision.

I understand it is the intention of the Bill to make it retro spective in the sense that any man who has committed one act of adultery since his marriage is to be liable to have a petition served upon him, and be divorced The hon. Gentleman introducing the Bill has has been so bold as to say that this is no punishment on the husband. It seems to me that hon. Gentlemen opposite take a peculiar view of the position on the accused person in divorce proceedings. My opinion is that it is a very severe punishment for any man to be cited as a guilty party in the Divorce Courts of this country. If hon. Members will accept the argument that it is some punishment or disgrace to be cited rightly or wrongly as a guilty party, then they must take the view that if a man in British justice is to be penalised he must either know at the time he commits the offence that he is doing wrong or else he must have the opportunity of finding out if he wishes to do so Now you are going to punish a man for not knowing a law which did not exist when he was brought within the damage of it, and that is an entirely novel proceeding in British justice

May I put a case to the House which I presume might happen? Take two people married 24 years ago They have lived happily until yesterday or the day before, and then suddenly they find their characters or tempers have become incompatable. It may be that the wife has joined the Labour party or vice versa. We will assume that the wife is un principled in the methods by which she seeks to divorce her busband. She could procure under this Act some woman to come along and say, "I have a child six years of age and your husband is the father of it. "Is not that possible under this Bill. [HON. MEMBERS: "No!"]

If a question of this kind be put to us, are we not entitled to make some reply?

I think it is quite unnecessary.

Supposing a woman procured some other woman who incidentally need not be cited as a corespondent and therefore need not give evidence, and the wife says, "Seven years ago my husband committed adultery with that woman and a child was born as the result of that act; I only heard of it yesterday, and therefore I wish to divorce him. "The first thing that strikes me is that no Court would believe that story, and the action would be futile, and there would be no result except that the unfortunate man would be dragged through the Court, and much as hon. Members may like that form of procedure, it is not a pleasant one. This Bill tries to make a new law. It starts afresh from the day it is passed and lays down that a man may be presumed to know the law. I hope my hon. and gallant Friend the Member for South-West Hull (Major Entwistle) is not going to oppose this Amendment any longer, and I beseech him, with his great knowledge of the law, and of that particular Court in which he has distinguished himself, to accept this Amendment as being a reasonable one.

I hope my hon. and gallant Friend will accept this Amendment. I have supported him all through this Bill, but I do think that this Amendment ought to be accepted. I would remind the House that it is not more than a week or so ago that we were urging the House to accept retrospective legislation in regard to the Rent Bill which sought to rectify a mistake. This is going to put a certain class of person in a very unenviable position, and therefore I beg my hon. and learned Friend to accept this proposal.

I wish to reinforce what has fallen from the hon. and gallant Member for Central Nottingham (Captain Berkeley), and I hope that the hon. and gallant Member in charge of the Bill (Major Entwistle) will accept the Amendment. As the Bill stands, it is the very worst kind of retrospective legislation. The hon. Member for Tavistock (Mr. Thornton) made a most lucid contribution to the Debate, which seemed to me to be absolutely final, and I did not imagine that the hon. and gallant Member in charge of the Bill would resist the Amendment any longer. I hope that I he will accept it now, but, if not, I would appeal to the Members of the Labour party, to whom I have listened evening after evening speaking against retrospective legislation designed to correct a legislative mistake, to make this opportunity of voting against retrospective legislation designed to penalise a past offence.

I must say that I cannot accept the Amendment. It seems to me that hon. Members look upon the Bill as a sort of punishment for the husband, but I look upon it rather as a remedy for the unfortunate wife, and I submit that there must be very many hard cases where the unfortunate wife has no remedy at the present time. This Act does provide a remedy. I agree entirely that retrospective legislation is not the best method of legislation, but, where we are going to cure a great evil, I submit that we might see our way clear to give this remedy. It will place no great hardship on the man, and he will not be dragged through any specific Court if he committed a crime 24 years ago, because the woman who is anxious to obtain a divorce must to-day be living apart from her husband. Surely, then, in common justice, the woman is as much entitled to her right of separation from her husband as the husband is entitled to his right of separation from his wife. For that reason, I beg the House to oppose the Amendment and to let the Bill stand.

I really ask the House to think twice before rejecting this Amendment. I was on the Committee upstairs which dealt with this Bill, and, though perhaps it was very careless of me not to see it, I had not the slightest idea that it was intended to be retrospective at all. We all know the arguments against retrospective legislation, and this is retrospective legislation of the worst kind. Let me put a case. A married couple through incompatibility of temper separated years ago, and they have arrangements about the custody of the children and about allowances. They live apart, and everybody knows that, if the husband did commit adultery, he did not commit any marital offence at all. This Bill comes along years afterwards, and the whole of his position is changed. The wife then and there has the right to reopen the whole proceedings and immediately to apply for a divorce. My hon. and gallant Friend opposite (Col. Alexander) said that there is no punishment on the husband. The wife would at once go to a solicitor and put in a petition for divorce against the husband. She would at once apply for security of costs against the husband, and the husband would have to pay every penny of the wife's solicitors' costs whether her petition failed or succeeded. That is the equality of the sexes which we have got at present. Moreover, after she has taken these proceedings, she will be entitled to receive alimony pendente lite. Probably, under the old arrangement, there was no allowance.

If there be a judicial separation, the wife gets separation allowance.

I have already stated that they are living apart under a deed. Supposing the petition be successful, the decree under this Bill will very properly be made against the husband. Is that no punishment on the husband? Obviously, it is a very severe punishment. Is it not asking for trouble? The only bright spot about it is that work is very slack at present in the Law Courts, and it certainly ought to look up, because in every case of judicial separation on the ground of adultery during the last 20 years the wife will be entitled now to turn it into a divorce. Do hon. Members honestly think that is fair play? Are you by retrospective legislation of this kind suddenly to make different the position of the parties to a deed of separation which was effected years ago, and to allow the matter to be reopened? It is known that I am opposed to the Bill, not on any question of morality, but on the grounds that I have stated, but, speaking as a lawyer, I do ask the House to hesitate more than once before it goes in for this sort of retrospective legislation, because it is a very slippery slope once you take a step in that direction.

The Rent Restrictions (Notices of Increase) Bill was retrospective.

The hon. and learned Member is perfectly right about that Bill, and, if he be a constitutional lawyer, he will support me on the ground that he disapproves as much as I do to all retrospective legislation. I find that I agree more often than some of my friends with the Labour party—I suppose it is a case of extremes meeting. We both realise the evil of restrospective legislation. I do therefore hope that the House will not pass this retrospective legislation, because I am sure that it will work out quite unfairly.

I do not agree with my right hon. and learned Friend who has just sat down that retrospective legislation is always dangerous, though generally it is. "What is really the sum and substance of this case? At present, if a man has committed adultery, he can be brought before the Courts for a judicial separation. All that we now say is that, under those circumstances, divorce proceedings can be brought against him. It is perfectly clear that for any offence committed before this Act judicial separation proceedings could have been brought, and the only addition is that we now say that divorce proceedings shall be possible. Suppose a case did arise in which the parties were separated under a deed. My hon. and learned Friend says it would be a terrible thing in that case if the husband, who apparently had committed adultery knowing that it did not constitute a matrimonial offence, were subsequently brought to the Court for that act. But we are only putting the husband in the same position as the wife, subjecting him to the same penalties. I hope my hon. and gallant Friend will stand by the Bill. There are quite a number of cases where there are great hardships on women. The object of this Bill is to relieve women of hardships. I am not impressed by people who tell us of cases in which the parties have been living apart for some years, and in which some injustice is going to be done by divorcing them and thus enabling them to marry again. I want to see every possible assistance given to the women. I think we should stand by the Bill and not be afraid of a case in which there has been injustice to women for years. We should not be afraid of it and theoretically talk about retrospective legislation. The hon. and gallant Member opposite (Major Barnett) sought to draw tears from our eyes for a man who, on a nice calculation, had committed adultery in the belief that he could not be divorced.

I never said anything of the kind.

I certainly heard the statement made from that side of the House. Perhaps it was the hon. Member seated behind the hon. and gallant Member.

I certainly said nothing as to a husband making a "nice calculation "of that kind.

Perhaps it was the hon. Member for Rushholme (Captain Thorpe).

I should be very grateful if my hon. Friend will repeat what he suggests, that I said.

Is the hon. and learned Member at liberty to bring an accusation against three Members of the House in succession and not withdraw it when it is denied?

I think it was rather in the nature of a roving suggestion.

2.0 P.M.

I have been here ever since the Debate began, and I intend to stay to the finish. I certainly heard one hon. Member opposite say this, and his statement was cheered from that side. I am sorry if I have imputed the statement to the wrong hon. Member. Certainly one hon. Member referred to the case of a man who, having nicely calculated his rights as a husband, committed misconduct and then found himself dragged before the Court because it turned out that he was wrong in his calculation. The law is now being altered to his disadvantage. I only want to say this: we are not called upon to consider the question as affecting husbands who have these ideas of the responsibilities of married life. As a matter of fact I shall stand by the Bill.

The hon. and learned Gentleman has told us that, if a husband and wife have been separated for a considerable number of years, he sees no reason why they should not be divorced. Apparently he is desirous of increasing the number of divorces. There are, however, a large number of us on this side of the House who do not hold that view. We do not want to introduce here the practice which obtains in some other countries where a husband and wife who do not happen to agree can immediately obtain a divorce. That does away with all the sanctity of marriage. My hon. and learned Friend in charge of this Bill spoke of a case in which 25 years ago a couple were separated on account of the adultery of the husband. He admitted that it was an extreme illustration. But how does be know that that separation took place because of adultery? It might have been due to innumerable other causes such, for instance, as incompatibility of temperament. Is it to be said that because 25 years ago this couple wished to live apart, and the husband committed adultery, knowing when doing it that he was not committing an act which would entitle his wife to institute divorce pro- ceedings, he ought now to be subjected to the penalty of divorce for that act? Labour Members opposite have, I know, been objecting to the retrospective legislation in connection with the Rent Restrictions (Notices of Increase) Act. I was opposed to the retrospective Clause of that Act. I said so, and I voted against it. Therefore it cannot be suggested that I am inconsistent in the view which I have held for a considerable number of years. I have always been against retrospective legislation in any form, and I shall be surprised if hon. Members opposite, who only a few days ago waxed wrath over a piece of retrospective legislation in the Rent Restrictions Bill, do not follow the same policy now. I know there is no consistency in the Labour party and I am generally in disagreement with them, but in order to preserve the ordinary decent custom of being more or less consistent I hope that they will vote for this Amendment. The hon. and gallant Gentleman objected that the chief reason given was as instance of separation for 25 years, but there are many other instances which will arise. It may be that last year, for some reason or another, a certain person did commit a single act of adultery, knowing then that he was not doing anything outside the scope of the law. Are we now to say that while that act, at the time he did it, was perfectly legal as far as regards divorce— I am not suggesting that the wife should not be able to obtain a separation—the law should be altered so as to make a person liable to the penalties of the law when what he did was an act in respect of which he was not then liable to the penalty to which he would be subjected under this Bill?

In view of the fact that the House has expressed its opinion, and of the time which has been taken over this Amendment, I will, in order to facilitate matters, accept the Amendment, subject to another consequential Amendment which I shall have to move to preserve to the wife the rights she has already. I presume that there will be no objection to that. This further Amendment will be to insert the words

"Provided that nothing contained therein shall affect or take away any right of any wife existing immediately before the passing of this Act."

Amendment agreed to.

The Amendment of the hon. and gallant Member will have to come in a little later, because there are other Amendments in the, body of the Clause which come first.

The next Amendment standing in my name is to insert the words "habitual or repeated," but with your permission, Mr. Deputy-Speaker, I propose not to move this Amendment, if I may be allowed, in its place, to move as an Amendment the words proposed to be added at the end of this Clause.

Yes, that will be in order. Does the hon. Member wish to move the proviso on the Paper?

Yes, Sir, but might I suggest, subject to your better judgment, that possibly—

If the hon. Member moves this Amendment, it will not prevent him from moving the other proviso, because all he need do is to put the words "Provided also "at the end of this one.

There will then be three provisos—two in the name of the hon. Member for Watford (Mr. D. Herbert), and one in the name of the hon. and gallant Member for South-West Hull (Major Entwistle). It will in that ease be perfectly in order with the addition of the word "also."

Would it be convenient to take first the proviso suggested by the hon. and gallant Member for South-West Hull.

Is it the proviso about the discretionary defence that we are now considering?

I thought that that was the one of which we were speaking.

That is quite unnecessary because there is already a discretionary defence, whether adultery is condoned or not.

:May I point out that there is now no Question before the House?

I understand that Mr. Speaker did not select this Amendment, on the ground that it is quite unnecessary.

I think we should be quite clear as to which proviso it is that we are to consider.

All these provisos are in order, and I am rather in the hands of the House as to which they would like to take first.

Perhaps it would be more convenient to take that of the hon. and gallant Member for South-West Hull first.

I beg to move, at the end of the Clause, to insert the words

"Provided that nothing contained therein shall affect or take away any right of any wife existing immediately before the passing of this Act."

I am sure that this will commend itself to all hon. Members.

I am not quite sure whether I have exactly followed the effect or application of this proviso. Perhaps the hon. and gallant Member would give us a little further explanation of what he intends.

Clause I now says on what ground a wife can get a divorce, namely, on the ground of adultery alone, but now, by my acceptance of the hon. Member's Amendment, that is limited to an act of adultery committed after the passing of the Bill. Supposing, however, that a wife under the existing law, apart altogether from this Bill could have brought a divorce petition, she would have to prove adultery in addition to the other grounds stated in Section 27 of the Act of 1857, and this is only to preserve her position exactly as it would be if this Bill never became law.

I beg to second the Amendment.

I venture to suggest that these words are surplusage. The Bill, as has been pointed out by the hon. and gallant Member, by the acceptance of the last Amendment, is now confined to what happens after the Bill is passed. It creates a new condition of things with relation to the future.

There is a repeal Clause.

The repeal Clause does not affect the existing rights of the wife.

What harm is there in it?

I should like it to be made clear.

I thought that this was agreed. Clause 2 repeals Section 27 of the Act of 1857, in consequence of Clause 1 being enacted, but as Clause 1 is now limited to acts taking place after its passing, that will also affect, of course, the rights which have accrued prior to the passing of the Bill. At the worst it can only be said that these words are surplusage, but I am advised that they are not, and, as they are quite harmless, and the House agrees with them, T would ask the House to accept the Amendment without further discussion.

May I point out to my hon. and gallant Friend—

I accepted your Amendment.

Had there been no understanding we should have divided upon it.

If the hon. and learned Gentleman would have the patience to listen to about two sentences, I was going to make a suggestion, which I thought would be a friendly suggestion. My hon. and gallant Friend in charge of the Bill appears to think that a wife might lose the rights that she has at present because those words in the present Act are proposed to be repealed, as mentioned in the Schedule. May I point out that there is an Amendment in my name to leave out Clause 2, which repeals those words, and I venture to suggest that that is a very much bettor way of attaining the hon. and gallant Member's object.

I really have very carefully considered this from the point of view of the Amendment being carried. I have consulted very good authorities, and, as a matter of fact, I understand that this is the best method, and if the hon. Member has no objection to it I would appeal to him to let it be carried in this form.

I had long before we came here to-day considered this and the possibility of the acceptance of this Amendment which the hon. and gallant Member has accepted. I have considered the point he is dealing with now, and it is for that reason that I put down this Amendment to leave out Clause 2, and I still suggest that it is quite unnecessary for the hon. Member to repeal those grounds on which a woman can at present get a divorce. It is very much safer to leave the old grounds, even if they are out of date and would not be made use of except in these special cases. I do not want to oppose the Amendment, though the hon. and gallant Gentleman is entirely wrong in suggesting that there is any kind of bargain on the part of myself or anyone else. I want to show hon. Members opposite the same courtesy they show me. My hon. and gallant Friend has accepted my Amendment under some pressure from the House, and I do not want to oppose this Amendment, but I think I have a very much better way of doing it. I have gone into it most carefully before we met to-day at considerably greater length than he has had an opportunity of doing now. There is no doubt that if he would accept my Amendment to leave out Clause 2, which would also involve leaving out the Schedule, it would be very much more satisfactory from his point of view, and from my point of view it would make the Bill a better drawn instrument.

Amendment agreed to.

I beg to move, after the words last inserted, to add the words

"Provided also that it shall be a discretionary defence to any such petition that the wife has at any time since the marriage been guilty of adultery whether such adultery has been condoned or not, and where such discretionary defence has been established the Court may refuse the relief applied for."

This question of discretionary defence was dealt with in the Royal Commission on Divorce and Matrimonial Causes.

This Amendment is quite unnecessary. It is the law now. Adultery, even though it is condoned, is a defence to a petition, which is what the hon. Member wants. I understood from your previous ruling, Sir, you were not selecting this as an Amendment to be called. There is no question about it, and I am sure the hon. and learned Gentleman opposite will confirm what I say.

I do not agree. Condonation wipes out the offence, and cannot be raised afterwards.

This is the adultery of the petitioner. It is in the discretion of the Court.

Not if it is condoned.

That is the point upon which I was in doubt, and wanted to get cleared up. We had better have the Amendment moved shortly, and hear the arguments.

The actual phrase "discretionary defence "is not officially known at present, and does not occur in any of the Matrimonial Causes Acts, but discretionary defences were discussed and considered by the Royal Commission, and in the lengthy and comprehensive Bill which passed the House of Lords a few years ago, and which really codified the whole divorce law, there were provisions for what should be absolute defences and what should be discretionary defences. It was proposed in that Bill that adultery on the part of a petitioner should be a discretionary defence, and a discretionary defence was defined to be a defence which the defendant or respondent might put up for the consideration of the Court. My objection to the Bill has been that I think it will lead to an extension of what I have described as divorce by consent in cases where divorce was not justified. If hon. Members sympathise with that view this proviso would do something to meet that objection to the Bill because when one comes to consider what the law is at present one has to consider the divorce law and practice which has been built up by decided cases general custom and the usual rules adopted by Judges of the Divorce Court. Considerable doubt was expressed in the Report of the Commission on the point as to how far condoned adultery is in any way a defence. I think the hon. and learned Gentleman opposite will agree that in practice it is only on the rarest occasions made use of as a bar to a decree.

I do not agree at all. I regard the Amendment as entirely unnecessary.

I can quite understand that the hon. and learned Gentleman regards it as unnecessary. He has been somewhat vehemently expressing his disagreement with me, but he has never answered the question I put to him. Does he not agree that in practice condoned adultery is very seldom indeed acted upon as a bar to a decree?

The point is not whether it is often acted upon but whether it is a discretionary bar, and it is already, and every word of this is unnecessary and every word of the argument is unnecessary.

That is the hon. Member's point. I was addressing the House and putting my point. The fact that the hon. Member may think my point a very stupid one is no reason why he should get out of answering it by putting what is his point and not mine at all. Whatever may be the law, and whatever opinion they might give if they were asked to give an opinion as to whether it was a discretionary defence or not, those who have had experience in the Divorce Courts, or the great majority of them, will agree with me that in fact condoned adultery is not made use of as a bar to the granting of a decree. On general principles, a condoned offence ought not to be a bar to the granting of a decree, but there are cases and there are circumstances—

Your Amendment would make it a bar.

There are cases and circumstances where a condoned offence should be not an absolute bar, but a discretionary bar.

That is what it is now.

I do not want to dispute with the hon. and learned Member, and I hope he will try to follow what I am saying. I would remind him that what I am wanting to deal with is a practice and a custom which has grown up in the Divorce Court.

You do not deal with it.

I do not know whether the hon. and learned Member thinks he is in Court now, and whether he would interfere with counsel who had not his skill and ability in the way he is interfering with me. If he will be good enough to show a little consideration and will allow me to finish my argument before he interrupts me it would be much better. If he will do that, it will be better than putting himself in the position which he seems to occupy at the present time of appearing to be totally incapable of following the simplest possible argument. Of course, I know he is not, but if he is so hasty about it, and will not hear my argument and interrupts me as if it were all nonsense, it merely looks as if he could not understand a simple argument. The simple argument is this, that there is at the present time a practice or custom which has grown up in the Divorce Courts, and which the Judges regard as, generally speaking, vital, that condoned adultery is to be regarded in fact as adultery which has never been committed. It may be that they have a discretionary power, I am quite prepared to admit that, but I assert without fear of contradiction that that is a practice which has grown up to the contrary. Therefore, I want to have it definitely on the Statute Book that in cases of this kind, in cases where a woman has been able to divorce her husband on the ground of adultery alone, on the ground of one single act of adultery, it is only reasonable, even if it goes no further, to remind the Court that they have and are expected to exercise in proper cases a discretion, and that in a case where they think it is what I might call an unjustifiable divorce, brought about by consent, they have a right and a duty to take note of what has been the conduct of the petitioning parties in the past.

Let me give an example of the sort of case with which I desire- to deal. Take the case of a married woman who, perhaps partly as the result of an unfortunate mistake before she was married, has often been guilty of moral offences. The husband may be very fond of her, he may have forgiven her over and over again, and there may be a whole string of cases of condoned adultery on the part of the wife. The husband in that case may have lived a perfectly moral life, but if the time comes when on one occasion, and one occasion only, he makes a slip, would it be altogether reasonable that the Court should pronounce a decree against him in favour of the wife who, let us say, has been committing these offences for a period of years, continuously or habitually?

The hon. Member is saying the same thing over and over again. I must remind him of Standing Order 19.

I apologise if I have done wrong. Perhaps I have been going off the line a little. [HON. MEMBERS: "Oh!"] All I wanted to do was to give an illustration of the kind of case that I should like to meet. I have given that illustration therefore I have said what I intended to say, except this, that I ask that this Amendment should be accepted on the ground that it cannot do any real harm to anybody, and that it does give an opportunity for assisting the Court to do what I believe this House— [ Interruption. ] May I appeal to you, Mr. Speaker, to ask the Noble Lady the Member for the Sutton Division of Plymouth (Viscountess Astor) not to carry on, and not to encourage others to carry on, conversation in a loud tone of voice.

We all know the anxiety of the hon. Member for the Sutton Divison, but perhaps she will restrain herself.

I have never in my life exercised more patience than I have to-day.

I trust that the Noble Lady will continue to do so. On a point of personal explanation may I say—I do not know whether she will believe me— that what I am doing in regard to this Bill has absolutely no relation to the next Order on the Paper. She may be surprised—at any rate I trust she will believe me when I tell her—that I have not the slightest intention of voting against the Bill in which she is interested.

The hon. Member has taken a long time in coming to his point.

I apologise for my shortcomings, and shall content myself with moving the Amendment.

rose in his place, and claimed to move, "That the Question be now put."

Question put, "That the Question be now put."

The House divided: Ayes, 206; Noes, 46.