I move—

Agreed to.

Sub-section (1) put,

I want to move the amendment standing in my name—

The clause will then read—

I want to say straight away that I want to secure that right to a woman alone, and I do not want to give the man the right to claim maintenance from a woman after divorce. I do not know of any man inside or outside this House who has asked for that privilege, that it should be possible for a man to be maintained on the assets of a woman after dissolution of marriage. It would be in conflict with the whole structure of our law. That proposal is in conflict with our whole social and domestic idea of marriage. When this Bill was originally introduced, the hon. member for Wynberg (Mr. Friedlander) had these words which I now propose in my amendment in his Bill. But this present Bill desires to extend the privilege to a man as well. The original Bill introduced by the hon. member for Wynberg was referred to a Select Committee. The Select Committee discussed the Bill, and the hon. member for Parktown (Mrs. L. A. B. Reitz)—I do not know whether it was through her charming influence or her persuasive powers—was able to persuade two members to vote for this alteration. The Committee divided. The two members who opposed the alteration of the original clause of this Bill were Mr. Justice Broome, who was then member for Maritzburg North, and Mr. Quinlan, member for Germiston North. It was only carried by a majority vote. I have taken the trouble to go through the speech of the hon. member for Parktown on the second reading. I tried to find the reasons why this alteration was made, and I must say it is most difficult. She gave one reason why this privilege should be granted to the man as well as to the woman, and this was her reason—

The hon. member for Zoutpansberg (Mr. Rooth) said that that would happen perhaps once in a million cases. Well, I hope we are not going to legislate for one case in a million. I agree with her reasons for giving maintenance to women, and these are some of her reasons. I quote word for word from her second reading speech—

I lay emphasis of the dependence of the wife on the support of the husband. Again, Mr. Chairman—

Again a special plea for the wife, and again—

Again a special plea for the wife, and she continues—

And—

And, finally, comes the very special plea—

I emphasise the word “wife,” because these arguments are used over and over throughout the speech on behalf of the woman. It is quite evident from this that right through this speech, with one exception, the hon. member for Parktown was making a special plea on behalf of the unfortunate woman who was left high and dry on the dissolution of her marriage—and for that woman I have the greatest sympathy. I want to refer the House briefly to our own law on the subject, because we have dealt with this matter in various enactments. First of all, in the Cape Province Act No. 7 of 1895, for the prevention of destitution, and to make provision for the relief of wives and families left destitute. Section 2 says this—

And the next section authorises the magistrate to make an order for maintenance against the husband or father, as the case may be. I lay emphasis again on this, that the husband is called upon to support. An exactly similar provision exists in Ordinance No. 44 of 1903 of the Transvaal, where the same law is enacted. And in the Free State there is exactly similar provision in Ordinance 51/1903. The right of claiming maintenance is only given to the wife. Exactly the same privilege exists in Natal in Act 10 of 1896. Now, that is the legislation in the four Provinces. We have the Union Act which also deals with this question, Act No. 15/1923, which was intended to apply to any orders granted by any other court in the Dominions, and there, under the definition of “maintenance order” in section 10 we have the following—

No mention of the maintenance of the man by the woman is made in this Act. So that, running right throughout our procedure and our enactments it is evident that our law was intended to protect the wife and children against the husband who had deserted her or neglected to support her and her children. It seems, therefore, an anomalous position if this Bill as it is worded now should become law as it stands, because it shows that while the marriage subsists the courts are able to grant a maintenance order in favour of a woman; but only after the marriage tie has been dissolved this Bill proposes that the court shall have the power to give the right to the husband also to claim maintenance from a wife. At the time of the second reading I called this the “Divorce made easy Bill,” because one knows that in 99 out of 100 cases where, on the ground of desertion, divorce is granted, it is practically by arrangement beforehand, and I do not want to put the unfortunate woman in the position of having to make terms with a young stiff who has married her in order to get her money—I don’t want her to have to make terms with him and be compelled to make him an allowance. The whole idea is contrary to our ideas that the man should provide for the woman. I raise no objection to the court having power to order the man to provide maintenance for his wife after the dissolution of the marriage, but I have the gravest objection to the court having the power to order a woman to provide maintenance to her husband after the marriage tie has been dissolved. Before that takes place, we must change our Roman-Dutch Law which regards the married woman as a minor under the guardianship of her husband. [Time limit.]

I was also on the Select Committee which the hon. member refers to and although I do not think I was present when the Vote on this item was taken I know that I argued the point strongly that the Bill should apply equally to man and woman. It seems it is time that some one should get up and plead for the rights of husbands. A great deal of legislation has been passed in recent years which is gradually putting woman on the same basis as man, and if we are not very careful we may reach the stage where we shall find that rights have been given to women which are not given to men. In other words, that men are going to be placed in an inferior position to women.

Quite right too.

We hope so.

And that is unfortunately the attitude of certain women in South Africa and in the world generally. There are women in the world who feel that they are the superior creatures and that they should have rights superior of those of men.

And so they have.

Some men even feel that. The time has arrived when in our legislation we should see to it that no provisions are inserted which place the female species, which is usually considered to be more vicious than the male, in a position of advantage over the male. In an interjection the hon. member for Zoutpansberg (Mr. Rooth) said that it is only in one case in a million where a man after being divorced was dependent on his wife. I do not think the hon. member is correct when he says that it is only one case in a million. Just as you get men who get tired of their wives so there are women who get tired of their husbands. There are cases where young women marry men older than themselves, and in time the difference in age becomes more apparent and becomes a hindrance to a happy marriage, and occasion arises that at a time when the man might have to depend to some extent on his wife, she divorces him, and he is left without any call upon her insofar as maintenance is concerned. Of course, the case may arise where the woman has a considerable amount of money of her own. And she may have amassed that money during her marriage and the husband, on the dissolution of the marriage, may be entitled not to maintenance exactly, but to an allowance from his wife’s income by reason of the fact that he himself may have been the chief contributor to the money which she has. There are many similar cases which may arise. If this House is going to pass this Bill at all it should pass it in a fair form. I think it is a good general principle to adopt that we should pass legislation which deals with men and women on an equal basis, and that we must be fair to both. After all, the method by which a maintenance allowance is paid is placed in the hands of the Judge, and I do not think the hon. member need have too many fears about the designing youth who marries rich women. In that case unless the wife does something wrong she cannot be divorced, so there is not much danger there. There is more fear of designing females marrying men for their money. I oppose the amendment of the hon. member and I hope the House will not accept it. The matter was fairly fully discussed in Select Committee and I think the House would be wise to accept the judgment of the Select Committee.

Very briefly I want to state my position in regard to this proposed amendment of the hon. member for Queenstown (Mr. Van Coller). He is quite right in assuming that in Select Committee it was advocated that we should include both men and women in this Bill. I moved that for three reasons. Firstly, I dislike in our legislation the differentiation made in dealing with matters of this sort, as between men and women. In principle I think it is wrong. I am not one of those who want privileges extended to me which should be extended to both sexes. Secondly, I certainly agree with the hon. member for Umbilo (Mr. Burnside) that there are very frequently—not one in a million—cases which do arise which would constitute a hardship on the husband. As a matter of actual fact when the Select Committee sat I knew of two such cases—both cases of professional men who had married women who owned farms, and at the instigation of their wives they had given up their professional work and they had gone to manage the farms for their wives. In both cases these men were left in a very difficult position in later life. I remember telling a story on some other Bill. It was the story of a man who met a friend on the platform of a station and said: “Man, I am engaged to a fine girl— 6,000 morgen.” Well, I contend that it often does happen that the husband spends the major portion of his life looking after the wife’s property, and in cases like that I say that I know of actual instances where great harships were imposed on men whose wives wanted to divorce them. And lastly, my main reason for proposing this was because I have a deep sense of justice in these matters and I do not think it is right that those privileges should be extended merely to the wives. For these reasons I myself would oppose the amendment of the hon. member for Queenstown, but, of course, if the House wishes to grant this as a privilege to women only, naturally I would not very seriously object.

I hope the sponsor of the Bill will not accept this amendment. In this type of legislation I do not think any discrimination should be made as between men and women. It is not an uncommon thing, apparently, for a divorced husband to receive maintenance from his wife. I have a report of a case, curiously enough, which appeared in the “Argus” last night, which I think I might read with some advantage at the moment. In this particular case a wife agreed under a separation deed to pay her V.C. husband an annuity of £500 so long as he led a chaste life. I shall read it:

Mr. Belsham: I am very disappointed in not arguing on the point of chastity, since I spent many hours reading up Jeremy Taylor’s “Holy Living and Holy Dying,” the only authority on chastity I can find.”

So apparently it is not anything new for a husband, especially a distinguished husband like Booth, V.C., to receive an allowance from a divorced wife, and I submit that the hon. member for Queenstown (Mr. Van Coller) has not made out a good case why this particular Bill should apply to divorced women only. Now I wish to move the amendment standing in my name on page 335—

1. (a) within a period of five years from the date of the marriage which is being dissolved unless at the date of such order there is living issue of that marriage; and
2. (b) unless it is satisfied—
   1. (i) that the plaintiff is destitute and unable to earn a living of a standard similar to the average standard of that maintained by the parties during their marriage; and
   2. (ii) that the defendant will be able to comply with such order after he or she has made adequate provision for his or her own maintenance and for that of any children other than a child included in such order for whose maintenance he or she is legally liable.

It is a proviso to sub-section (1). I am in favour, generally, of the principle that a divorced person should be entitled to maintenance, more particularly women. In Select Committee it was proposed that maintenance should be payable only in such cases where the parties had been married for a certain number of years. The Committee divided on that proposal, and it will be seen from page 9 of the proceedings that the voting was equal, four in favour and four against, including the chairman, the hon. member for Parktown (Mrs. L. A. B. Reitz). By the casting vote of the chairman the proposal was negatived. I proposed immediately thereafter that provision should also be made in the Bill that in the case of a childless marriage no maintenance should be payable, and that proposal was similarly defeated by one vote. My submission is that if the clause goes through as it stands, there is no doubt that it will facilitate and assist divorces. The Bill apparently is being sponsored by a handful of enthusiasts, and one must admire their persistence. It has been before the House for the last three years, and notwithstanding its ups and downs the sponsor has come before us again. As I say, one cannot but admire his persistence, but it seems to me that the only persons who will benefit from this Bill will be the lawyers.

And the gold diggers.

On the second reading I ventured to use the term “gold digger” in reading a certain article which appeared in an English newspaper, and immediately I had the whole of the feminine—I had almost said fraternity—of South Africa on my neck. That is why I only now cautiously venture to express the opinion that this Bill will only benefit the lawyers. As far as I can see, it will not remove any grievance, because I do not know of any grievance on the part of persons affected. I say that no wife has the right to demand that her husband shall set her free and yet support her. That is really what this Bill means. If the wife is set free she is relieved from all the obligations which flow from marriage, and the husband should not be compelled to continue to support her, unless there are certain safeguards. The object of my amendment is to close up certain loopholes. At the second reading, in a speeech by Mr. Broome, who is now one of our learned judges, it was made quite clear that the obligation of a husband to maintain his wife is one which flows from the contract of marriage, and when the marriage is dissolved the contract is terminated, and so also surely should the obligation to maintain the wife in that event fall away. It is also said that if the wife finds it intolerable to live with her husband, she can take steps for judicial separation, and judicial separation is generally granted on wider grounds than divorce— for instance, cruelty, drunkenness and so on. The question is what would be the practical effect of this sub-section (1) if it goes through unamended? First of all I would suggest that the majority of unopposed divorce actions by wives will be translated into defended actions.

And multiplied by twenty.

That will invariably mean the washing of dirty linen in public, fat fees for the lawyers, which I don’t really mind, and a large percentage of deadlocks. In a large number of cases where the claim is for restitution of conjugal rights, if they get to the divorce stage, would amount to legal blackmail against the man if this clause goes through unamended. [Time limit.]

The hon. member for Queenstown (Mr. Van Coller) referred to me just now as a champion in the lists on behalf of downtrodden womanhood. Perhaps he did not quite use those words, but that is what he meant, because he inferred that I would support his motion. Well, sir, he is quite correct, because I think every right-minded man in this Committee will be bound to support that motion. While I support it, however, I am not going to be a party to legislation to enable, on the one hand, an unscrupulous wife to prey on her husband, and, on the other hand, to enable an unscrupulous husband to prey on his wife. I am for fair play. I would go so far as to say that at the marriage-service there should be somebody in the nature of an umpire to see fair play. As far as the amendment of the hon. member for Queenstown is concerned, I doubt whether one hon. member here will have the temerity to get up and oppose it. I hope no other hon. member will get up and follow the example of the hon. member for Brakpan (Mr. Trollip). Mr. Chairman, I would like to move—

There are primarily two grounds for divorce in South Africa, adultery and malicious desertion, and there should be a difference made in the punishment meted out according to the grounds for divorce. The husband who deserts his wife may have every reason for deserting her. After all, the Committee has not seen the wife, and we don’t know why he deserted her; he may be able to put up a very good excuse. In the case of the woman seeking divorce because her husband deserted her, the onus should be on her, first of all, to prove that the husband was not amply justified in deserting her. This, Mr. Chairman, raises the whole question of marriage and divorce, and the relation between divorce and immorality. I know this is not a second reading debate, and if I were to go into the principles of this Bill, you would pull me up, and your action would have the approval of the whole Committee. On the other hand, my amendment now raises this question of immorality, and in order to discuss that I think it would be no more than right for me to go right to the fountainhead of our law on the subject. I propose, therefore, starting what I have to say with a quotation from the Emperor Justin.

You mean Justinian.

No, no, I am talking of Justin. He says—

This is a principle to which everybody in this Committee will subscribe. What does this clause seek to do? Unless this amendment of mine is accepted, unless there is to be a difference between divorce granted on the grounds of adultery and divorce granted on the grounds of desertion—

Order! I draw the hon. member’s attention to the fact that we are discussing maintenance here, we are discussing the first sub-clause which is entirely in regard to maintenance, and we cannot go into the reasons for divorce.

I am now moving an amendment which will exclude the operation of this clause in cases where divorce is granted on grounds of malicious desertion. Originally divorce, as an institution, was founded for the protection of women, and we are now going to drag financial considerations into the issue. I suggest that this is pertinent to the amendment. I am now going to quote from a book by one S. B. Kitchin, called “History of Divorce.” He starts out by explaining that originally divorce was instituted in the sole interests of the woman. This is what he says—

Now the hon. member is going too far. We are on this sub-section, and this sub-section only; there is nothing else but maintenance to be discussed there.

Mr. Chairman, with all due deference to you, this sub-section contains the whole substance of the Bill. If it is passed the whole matter for discussion is over. I submit I am entitled to say that by accepting the amendment which I am urging on the Committee, that is, to differentiate between divorces on the ground of adultery, and divorces for malicious desertion, we are not interfering with the original principle.

I draw the hon. member’s attention to the fact that the second reading was accepted, and the principle of the Bill is the granting of orders for maintenance of persons who have been divorced. The principle has already been accepted, and we have now to confine our discussions absolutely to this sub-section.

That is what I am doing, sir. I have moved an amendment which you have accepted. You have accepted my amendment, otherwise—

I have not put it yet.

The Chairman has accepted it; if you rule my amendment out of order—

I have not considered your amendment yet. The point is you must now confine yourself to maintenance purely, we cannot go beyond that. We cannot go beyond the sub-clause.

I am not seeking to go beyond the sub-clause.

I am afraid the hon. member is discussing principles now.

Am I not entitled, in discussing this clause, to give the reasons how it came about that divorce came into being?

No. The hon. member must discuss either in favour or against granting maintenance.

Then I am against maintenance. If I am not allowed to differentiate, I am in favour only of granting maintenance in cases of adultery, but against it in the case of desertion. In order to make my meaning clear to the Committee, I intend showing how it came about that divorce was recognised, that it was an institution brought into being to protect womanhood. Now we are going to interfere with that.

I think the hon. member is trying to evade my ruling.

I feel rather hurt that you should make a remark like that about me. What I am trying to do is to embellish this Bill. I want to make sure that if it is passed it will be a Bill to be proud of, and have a beneficial effect on womanhood, and not the reverse. If you don’t want to hear what Mr. Kitchin says, I am prepared to leave him alone. I would like to say that although divorce was instituted to protect woman, to prevent her husband from killing her, because that was the alternative if you had a wife you did not want, it was instituted to enable the husband to divorce her, which is a far pleasanter way for the woman. But for the Committee to set out not only to divorce her, but to pay her compensation as well, is going too far, unless you impose this condition which I am suggesting, and I hope the hon. member for Wynberg (Mr. Friedlander) will accept my amendment.

I do not know whether the hon. member is serious in regard to this, but if the amendment is carried, the usefulness of the Bill almost comes to an end, because it is mainly in cases of desertion that these various anomalies occurred which led to the introduction of this Bill. If you are going to take out the cases of desertion, the Bill would be of very little value. I am not in favour of this amendment. I voted against the Bill before, but now the House has agreed to the principle, what one ought to do is not to try and kill the Bill but to improve it. It is unfortunate that on a matter of this kind less than half the House is present, less than half the House is interested in the matter; and that is an unfortunate thing. I agree with the amendment of the hon. member for Queenstown (Mr. Van Coller), because in legislation of this kind you are not dealing with individual cases, but with the general mass of cases. I do not know whether the hon. member in charge of the Bill has appreciated the anomalies that will occur, unless the House accepts the amendment of the hon. member for Queenstown. As the Statute Law now stands in the Transvaal, the Free State, the Cape and Natal, the husband can get no maintenance if there is no divorce, but under this Bill as it stands to-day if there is a divorce the husband can get maintenance. The amendment of the hon. member for Queenstown is logical, because it will keep the law in the same position, as it is under the Statute when a dissolution is not granted. Unless you have this amendment you will have this extraordinary anomaly, you have maintenance paid in favour of the husband when the marriage no longer exists, but not when the marriage still exists. I think the amendment should be accepted. I would like to say I don’t agree with the hon. member for Brakpan (Mr. Trollip) in saying there are so many of these cases of husbands. The case he quoted from the English courts of a husband who claimed a certain amount of money that his wife had agreed to give him under a deed of separation is quite different from anything this Act proposes to do. Of course, if the wife agreed to give him so many thousand pounds if he remained chaste, then if he did remain chaste she would have to give him the money. But that is not a parallel case with anything intended here. With the second part of his amendment I don’t agree either. If you are going to give this right to deserted wives, why should you deprive the woman of the benefit because the marriage has not lasted for five years? Again, why should you deprive her of the benefit because there are no children? If she is logically entitled to maintenance, then she is entitled to it no matter how long the marriage has lasted, and no matter whether she has children or not.

I wish to support the amendment of the hon. member for Brakpan (Mr. Trollip). Paragraph 1 of Clause 1 contains the principle of the Bill which was passed on the second reading, but I think we should try and improve that principle. First of all I am in favour of any alimony only becoming due to a woman or a man after a period of five years. There are very good reasons for that. We know that in certain cases marriages are entered into for financial consideration. We know that during the past few months a great many marriages have been entered into by members of the Forces who have gone North, and that many of those marriages were contracted for financial considerations. Much though we deplore the fact many of those marriages will in all probability soon after the war finish up in the divorce court, and for that reason we should like to see this amendment passed. Some marriages are not contracted because of love, and the promises to be true to each other in prosperity and adversity are not seriously intended—we know that that is so where marriages are contracted for the purpose of financial gain only. Now we say that where a marriage has lasted five years there is sufficient reason to think that if a divorce is asked for something must have happened in that marriage to make it impossible for the two people concerned to live together any longer. To my mind the period should be even longer, or otherwise something should be done to prevent easy divorces, and to try to keep people together, but we should not allow a condition of affairs to develop where going to the divorce court is looked upon as a commercial matter. There must be sound reasons, such as malicious desertion, etc. The court must try and find out and determine that it is not being done merely for commercial reasons, and the period of five years should be laid down. Let us take an instance for example where people are married under ante-nuptial contract. The man promises the woman certain goods, money or valuables, and within five years some trouble arises and the marriage is dissolved, and a divorce takes place. The woman in a case like that can go and ask for the goods mentioned in the ante-nuptial contract and at the same time get an amount for maintenance. This double award should not be allowed. This Bill is going to bring about that kind of thing and is going to encourage marriages for commercial reasons. I do not think it advisable for this House to pass this clause in those terms.

I want to support the amendment of the hon. member for Queenstown (Mr. Van Coller) for two reasons. I supported it in Select Committee, and I then had with me the support of a gentleman who is now one of our learned judges. It would appear that the amendment which was then moved by the present Mr. Justice Broome was a very good one, and no doubt the House will be impressed by the fact that the man who now holds a very high judicial position in the country was of the same opinion as the hon. member for Queenstown. And I am sure, Mr. Chairman, that a still greater reason for the House being impressed with the opinion of Mr. Justice Broome is the fact that the hon. member for Umbilo (Mr. Burnside) is against the amendment. We are getting to that stage now when we men in South Africa are really placing ourselves in every respect on an equality with women. No male member of this House desires, after the dissolution of his marriage, to be supported by his ex-wife. Surely any man is man enough to support himself after marriage. Those men who marry girls with money always assure their prospective wives that money has nothing to do with it, and if you accept the amendment of the hon. member for Queenstown, it will enable those husbands who marry purely for love to prove to their wives on the dissolution of the marriage that they never really wanted their money. Our greatest difficulty here is that we find a lady member of the House opposed to this amendment of the hon. member for Queenstown, and she says the reason why she is opposed to it arises out of her sense of justice. But here we are dealing with one out of a thousand cases. The hon. member for Brakpan (Mr. Trollip) says he wants to be absolutely fair and make it fifty-fifty, but it is 999 to 1. I hope the male members of the House are not going to swallow the arguments of the hon. member for Brakpan in this amendment. The hon. member for Brakpan, we know, has been described as the greatest enemy of the gold digger in this country, and no doubt he wants to keep up that reputation, but, Mr. Chairman, we know that the hon. member for Brakpan is an absolutely just man, and he is an experienced man in these matters of divorce.

I suggest that the hon. member should come back to the clause.

The hon. member for Brakpan has moved an amendment precluding parties who are married from getting any divorce in the first five years of marriage. We have a lot of divorces at present; we have these war marriages. Young men and women meet and feel sorry for one another, and they get married casually, and it would be very harsh on our soldiers if when they got back and they discovered that they had married in haste and they had to repent at leisure, this House made them pay heavily for that marriage. It would be very unfair. There is a lot to be said for the amendment of the hon. member for Brakpan (Mr. Trollip). I do not think any marriages should be dissolved under five years, because it takes at least five years for the contracting parties to discover whether they love each other or not, and surely it should be the attitude of this House where two parties can go on in that married state not to encourage the dissolution of that marriage, and that is the reason why the hon. member for Brakpan has introduced his amendments. We have had no reaction from the sponsor of the Bill to these amendments. Surely the hon. member cannot sit there like a dictator saying nought, as they say in Lancashire, and not tell us what he thinks about the amendments. Surely we are entitled to hear from the hon. member what objections he has to the amendments, and if he keeps silent we shall have to deal drastically with him.

Although the last speaker has referred to me in such affectionate terms, I want to get away from the personal aspect, and I want to deal with the various amendments proposed and to ask hon. members to come to a decision and not allow this Bill to be killed after it has been passed twice in the second reading. After all, the question of the number of members present is not a matter over which I have any control. Those members who were here with the full sense of their responsibility have on two occasions accepted the principle, and any argument on that score should fall away. I want to refer to the amendments moved, and I urge hon. members to put on the Statute Book a Bill of which one need not be ashamed, and one which will be practicable for the purpose of giving relief such as this House has in principle decided to give. There are two amendments before us. As far as that of the hon. member for Queenstown (Mr. Van Coller) is concerned, he is trying to bring the Bill back to the form in which it was originally. I accepted the suggestion of the Select Committee that this should apply equally to both men and women, but I am prepared to accept the amendment which he has put forward so as to enable us to proceed with the further amendments which have been moved. Now may I say this at once: Relief under this Bill is dependent on the judgment of the judge who is hearing the case. If you have confidence in your judges, there can be no objection to the Bill remaining as it is. The reason why a marriage should subsist for five years before relief can be given is one which I fail to understand—why say five years? Why not seven, or three? It is an arbitrary figure, and if you have confidence in your judges—and I have confidence in our judges in every part of the country— then you can leave it to their discretion whether relief should be granted or not, and if a divorce is asked for in four or ten or fourteen years the judge will decide whether a case had been made out, whether relief should be granted in the circumstances put before him or not. That answers the further amendment from the hon. member for Zoutpansberg (Mr. Rooth). It is not a question of whether the divorce is based on the ground of adultery or malicious desertion. If the husband is the defaulting party and has given cause for action, the court should have discretionary powers. And that is why I say I cannot accept the amendment. You would make this a worthless measure, and it would have no intrinsic value. The other amendment put forward, that it should only be in the case of a marriage where there is a child living at the time of the divorce, is as groundless as the other. I do not know, nor does the hon. member, why a particular marriage is childless. If there are good reasons, let the defendant put them before the court, and if the judge considers that it is not right to give relief, the court will exercise its judgment; but if it feels that relief should be granted, then we must place that power in the hands of the court, the same power which was placed in the hands of the courts in England ten years ago. I have the same confidence in our courts as is placed in the judiciary of England. I therefore hope hon. members will come to a vote on these amendments, and that we shall put on the Statute Book a Bill of which we need not be ashamed.

I am a little surprised at the attitude of those hon. members who oppose this Bill. They have spoken of and treated this serious subject with an attitude almost of levity. For myself I can find nothing particularly amusing in the institution of marriage and still less in the dissolution of marriage, and for my part I think their attitude has been dictated by a determination that was evident all through the Select Committee. I refer to the speeches of the hon. member for Brakpan (Mr. Trollip) and the hon. member for Zoutpansberg (Mr. Rooth) and to a lesser extent the hon. member for Germiston North (Mr. Quinlan). Their attitude all along has been one of wanting to ruin this Bill, and the Americans have a term, and an apt term, for that attitude. Where the principle of a Bill has been accepted by the House, not once, but twice, as this one has been, one might imagine that no member would deliberately attempt to obstruct the passage of such a Bill in Committee. Yet that is what they are doing. The Americans call such an attempt filibustering, and I must characterise the attitude of those hon. members as that of filibusters—as that of members who are out to obstruct the passage of a Bill despite the fact that it has been accepted in principle twice. Possibly there may be something in the similarity of the names of the constituencies represented by the hon. member for Zoutpansberg and Brakpan. Brakpan—a brakish pan of water, anti Zoutpansberg, a salty pan, to account for their similarity in outlook. That may account for the bitter attitude of the two hon. members. In any event there is no doubt that as far as the hon. member for Brakpan is concerned, if we accept his amendment, we might just as well not have accepted the principle of the Bill at all. The hon. member said he did not object to the principle of the Bill, in fact he approved of it. Well, I am sure the sponsor of the Bill might very well say, “Save me from my friends.” All the hon. member, the friend of the Bill, has done is to put amendments on the Order Paper which will kill the Bill. His amendments say that a marriage firstly must have lasted five years before any maintenance can be claimed, and then he also wants there to be a living issue of the marriage before maintenance can be claimed. And not only that, but before the plaintiff can get any kind of maintenance she has to prove that she is completely destitute and unable to earn her own living on a standard more or less equal to the standard maintained by the parties during marriage. And finally, the court has to be satisfied that the defendant will be able not only to maintain himself but also any children of a subsequent marriage before the plaintiff shall be entitled to any maintenance. That is all he wants, and if these amendments are accepted it will mean that in not one case in five hundred will the unfortunate plaintiff who is seeking relief be able to get any.

How do you know that the defendant is not more unfortunate?

If that is not an attempt to kill the Bill then I have never seen a more barefaced attempt. I deprecate these amendments most strongly. It seems to me that when the House has adopted the principle, for a member to try and kill it by amendments, is conduct running counter to the traditions of the House. I support the Bill as it stands. I do not like even the amendment of the hon. member for Queenstown, because I object to any discrimination on a sex basis, but inasmuch as the mover has accepted it I no longer propose to deal with it. I do ask the House to treat this Bill with the gravity which is its due, and not to attempt to talk it out.

What the hon. member for Wynberg (Mr. Friedlander) said deserves a reply, and I should like to make it. First of all he takes the point that he has confidence in the courts; well, so have I. But I also have a great deal of confidence in the ability of our gold diggers. Imagine the picture. The judge on the bench, perhaps a warm-hearted old body, and a dainty little wench in the box full of tears appealing to him. She tells him how she has been treated, how harshly her husband has treated her in walking out and seeking pastures new. She tells him all she has had to put up with. But she does not tell the real reason. She does not tell him that he has walked out on her because she has broken his heart and has actually deserted him—denying him the privileges of marriage, and has left him alone at home while she has been gadding about in the streets. We are living in an adventurous age. Women to-day as a result of this martial atmosphere are out for adventure. In Cape Town it has reached such a stage that it has become a major parking problem, and it has required the activities of the police and the municipality combined to stop it. The hon. member talks about having confidence in the judges. Well, to support that confidence he must give the judges something to go on. There must be provision in the law to guide a judge—to guide a judge either in apportioning the amount of maintenance or in deciding whether there should be maintenance at all. We lawyers know that it is very seldom that the truth comes out in court. We know that very often a husband or a wife suffer a divorce in silence rather than let there be any publicity. And the hon. member talks of confidence in our courts, but let us look facts in the face and admit that we are living in an age where it is quite unnecessary to encourage women in this way to seek divorce. He says “Let the defendant place the facts before the court.” He knows very well what the position is. These transactions between the spouses which end up in divorce do not take place in public, they take place in private, and how is a defendant, be he man or woman, to prove what his defence is in those circumstances? I am not standing up to oppose the principle of maintenance, but if we are to grant this facility we should see to it that there are safeguards which are lacking in the Bill before the House, and one safeguard which I think is necessary is the one which I am endeavouring to import into it. I should like to see the amendments proposed by the hon. member for Brakpan (Mr. Trollip) agreed to. I think the hon. member is as serious as I am about it. We are dealing with a serious subject, and we know it, but that does not mean that we are going to burst into tears during the debate. We are men of the world. We treat this matter as an important one, and we are here to-day and are putting forward these amendments because we look upon this as a mistaken and wrong Bill. We are trying to develop it into something which will be of some use. First of all, the hon. member suggests that a maintenance order shall only be granted if the parties have been married for five years. I take it that his object is to prevent hasty divorces. If that is so, then I think that amendment should be accepted. It should be impossible for a gold digger to come to court after a very short marriage and expect maintenance. If I understand the amendment correctly, that is one of the things the hon. member seeks to do. If the hon. member for Wynberg has an argument to adduce against it, I hope he will rise and tell us what that argument is, and not behave like the Minister of Lands last night when, in introducing amendments, he was entirely unable to explain them to the Committee. The further amendment of the hon. member for Brakpan is that the plaintiff should be destitute and unable to earn a living. Surely that is a sound amendment. I am surprised that the protagonists of the Bill are silent on that. In regard to the other amendment about there being a child of the marriage, I do not like that. I cannot approve of any suggestion that a wife should only be able to claim maintenance if she has delivered the goods in the way of producing a family. That part of the hon. member’s amendment is infamous.

You do not know what it means.

Well, that is how I read it, and if I am wrong I hope the hon. member will get up and correct me. I am surprised the hon. member for Brakpan should come forward with a suggestion of that kind. Our duty is to be on our guard, particularly if the common law is being tampered with. We must not be unduly influenced by the honourable and charming member for Parktown (Mrs. L. A. B. Reitz). She has such a way with her that half the members on that side of the House will vote for it without knowing anything about it.

What about your side?

Yes, the same goes here. On the second reading, half the hon. members on this side voted for it because of the blandishments of the hon. member.

The hon. member must come back to the clause.

I am glad you interrupted me. I hate to transgress in this way, and I shall try not to do it again. Then the hon. member for Brakpan wants this Bill only to apply to marriages entered into after the passing of this Act.

The hon. member is now discussing sub-section (2).

I find I have transgressed again. I apologise. This clause needs the meticulous care of the Committee, and I hope members will not give a silent vote on this matter. I notice that so far no one has risen to oppose the amendment of the hon. member for Queenstown.

Oh, yes.

I made a mistake then. I hope the hon. member sponsoring this Bill will give us some more information.

The hon. member for Zoutpansberg (Mr. Rooth) said that while he was in favour of the principle, he wanted safeguards. The hon. member is astute enough to know that the safeguards contained in the amendments now proposed by the hon. member for Brakpan (Mr. Trollip) and himself make the Bill absolutely useless. They are not safeguards at all. They are stabs in the back. I would just like to refer him to the amendment by the hon. member for Brakpan. The hon. member for Brakpan, in the second part of his proviso, says that the court shall not grant such an order unless it is satisfied that the plaintiff is destitute. Now, how on earth can a destitute plaintiff go to court and make application?

Pro Deo.

That is another story.

Mr. ROOTH; Or she can apply for alimony.

That simply means that there are additional costs for the attorney.

And what about counsel?

Yes, counsel, too. The truth of the matter is that the hon. member knows that until 1928 the courts of this country were in the habit of granting this type of relief. In 1928 the case of Schultz came before the Provincial Division of the Free State, and the judge came to the conclusion that the law did not allow relief, but in the Transvaal some judges still grant this relief. If the hon. member for Zoutpansberg considered that safeguards were necessary, why did he not take steps in this House in those days to get these safeguards?

I was not in Parliament then.

The hon. member’s own amendment really provides for conditions which he knows are within the powers of the courts to-day because the court can refuse even in the case of adultery to grant relief where the costs of the previous application are unpaid. So that is an unnecessary and futile provision.

You are on the wrong clause.

I am told the hon. member has not come to that yet. The second part of the amendment of the hon. member for Brakpan is also very unfair, and I am surprised that the hon. member for Brakpan should face the House with so unjust and so unfair a provision, because it says the applicant can only come to court if she is destitute and she can only get relief if she can show that the other party, the guilty party, has made adequate provision for his own wants and is able to adequately provide for his children. That is very unfair. What is the meaning of adequate provision? It means ample provision, sufficient provision for all he needs, whereas the woman whom he has wronged and has thrown on the streets—

She may have wronged him.

No, it is only the plaintiff who can come to court and claim relief under the provisions of this Bill. The hon. member for Zoutpansberg has evidently lost sight of that fact, that the Bill only intends to provide for the case of an innocent plaintiff and not for the case of a defendant. And, therefore, I hope the House will recognise that this amendment, and the next one, are really amendments which are intended to kill the Bill, and I hope they will be thrown out.

I wish to remind the hon. member once again that we are discussing sub-clause (1), and I also want to remind hon. members of the rule dealing with tedious repetition.

I would like to deal with the hon. member for Jeppe (Mrs. Bertha Solomon). In the course of a speech just now she made an allegation that the amendments which I am moving have been with the deliberate object of wrecking this Bill. I refute that allegation. By these amendments I am endeavouring to tighten up this law. I would remind the hon. member for Jeppe that when she sat on this Select Committee and when I moved that maintenance should be payable only in such cases where the parties had béen married for a certain number of years, in other words the very identical amendment I am now moving in this House, she voted for it. Now it is said to be a wrecking amendment. It was good enough when it was moved in all seriousness in Select Committee for the hon. member to support it.

What was the voting?

The voting was four on each side, and the chairman of the committee gave the casting vote against me, but the hon. member for Jeppe supported it. Now she has turned a complete volte face and accuses me of coming here and moving wrecking amendments. I am moving these amendments because I conscientiously think that they are necessary to this Bill. I feel that if this section is allowed to go through unamended, it will open the door to abuse. I can assure the Committee that it was only after mature thought that I decided to move these amendments. I take very strong exception to any hon. member of this House saying that these amendments are wrecking amendments, and that I don’t mean them.

I am very sorry that the hon. member for Wynberg (Mr. Friedlander) has accepted the amendment of the hon. member for Queenstown (Mr. Van Coller). The Select Committee went very thoroughly into this question, and suggested a provision which would be of general application. Now the hon. member comes along and accepts an amendment which will give relief to the woman only. There are other instances too where the woman very definitely can support the man. Why should not the man in a case of that kind receive maintenance? I definitely consider that the hon. member for Wynberg had a good Bill, and I voted for it, but now he is making a concession in regard to the principle of the Bill. I must say that if he goes on like that I am not going to support him any longer, but so far as the amendment of the hon. member for Brakpan (Mr. Trollip) to the same clause is concerned, I feel that all those provisos which he wants to introduce are unnecessary. It is left to the discretion of the court. The hon. member knows perfectly well that even in regard to the maintenance of children the court takes all these matters into consideration, the standard of living, etc., before laying down the conditions in regard to maintenance. If we leave the Bill as it is the discretion will be left to the court, and the defendants can always come and give evidence on the question of maintenance to prove that they are not able to pay maintenance. In regard to (b) (i)—

This is a general matter which should be left to the discretion of the court. The court will go into all those questions, and I feel that the provision is unnecessary. In regard to (a), namely, to lay down a period of five years, I want to ask why that should be done. If two people cannot live together why should they be compelled to live together for five years before the plaintiff can ask for maintenance? I hope that the hon. member for Wynberg, if he wants to have the support of a large number of members of this House, will stand by the Bill as it is. Unfortunately he has already accepted the amendment of the hon. member for Queenstown, but we are not satisfied with it. In any case I hope that he will not consider the amendments of the hon. member for Brakpan.

I take exception to the statement made by the hon. member for Jeppe (Mrs. Bertha Solomon) that we are filibusters, and our filibustering amounts to wrecking the Bill, because the hon. member for Brakpan (Mr. Trollip) moved a similar amendment in Select Committee, which I and the hon. member for Jeppe supported. I also moved an amendment during the Select Committee, in which I suggested that both this Bill and another Bill which has been passed by the House, were matters of such great importance and contained so many far-reaching implications, that they were not proper subjects for private members’ Bills, and that the subject-matter of them should have been referred to the Government with the request that a judicial commission be set up to investigate the matter, and produce a Bill under the Government aegis for the consideration of the House. That was turned down, and we find this Bill, which I contend contains so many implications which were not considered by the Select Committee, is now brought forward without any safeguard. I think it is necessary to insert some safeguards. There is no suggestion in the first part of the amendment that a woman is going to be penalised because she has had no children. It deals with the type of individual commonly called the “gold digger,” and provides that where there are no children in the marriage, and the marriage is dissolved within a period of five years, no alimony would be payable. The effect of that is very obvious. It is designed to safeguard against the gold digger. It prevents a young woman trapping a rich husband, for instance, and within a couple of years or so fixing up a divorce and claiming alimony. That is the method of redistributing income that I am not in favour of. It can also be suggested in many of these instances where gold diggers are concerned, the possibilities are that the wife will have refused to have any children, because gold diggers are not usually the type of individual who are longing for children. Why anybody should suggest that a man, or woman for that matter, should be penalised because they have been guilty of adultery or desertion, I do not know. I think it is understood in all civilised countries that whilst the general public may look with disfavour upon people who have committed either adultery or desertion, there is no civilised country, so far as I know, prepared to lay down legal sanctions against the individual for having done that. So that if the wife is not destitute and she is in a position to earn enough money to keep her in the standard to which she was accustomed when she married, the only justification for asking for alimony then is that you want to impose sanctions upon the husband either for committing adultery or deserting his wife. They are attempting now to introduce an entirely new principle into this Bill, namely, that sanctions should be imposed upon the erring spouse, something which is quite new and which I am satisfied would not gain the approval of the people of this country. So it seems to me that this is a justifiable amendment to move. From time to time when marriages are dissolved within two or three, or even four years, as a general rule one may say that the divorced wife is usually fairly young, and if you are going to leave it to a judge to give a certain amount of alimony, and that has to be continued for years and years, it is quite possible that the judge might order alimony which the unfortunate husband would have to pay for 20, 30 or 40 years. There is no provision in the Bill for any sort of ending to the payment. Moreover, a woman of that age is in a better position to go back to her former economic position. One admits that it is very difficult for a woman who has been married for ten or twelve or more years to resume her previous existence or get a living for herself. In many instances now they do not even leave their employment when they get married. I think the five-year period will be quite the best thing about the Bill. I do not think it is a provision that can seriously be fought even by the most ardent supporters of the Bill. It certainly is not a provision that can be characterised as filibustering in any sense of the term. The latter end of the proviso, I think, is also something which ought to be inserted in the Bill. Why should the court make an order whereby a man’s own children are going to be deprived of proper sustenance in order that maintenance may be paid to his divorced wife? I do not think there is any justification for that. Possibly this provision may not be necessary, but I should imagine that judges will take that into consideration.

I move—

Division called.

As fewer than ten members (viz., Messrs. Burnside and Rooth) voted against the motion, the Chairman declared it agreed to.

Amendment proposed by Mr. Rooth put, and a division was called.

As fewer than ten members (viz., Mr. Rooth) voted in favour of the amendment, the Chairman declared it negatived.

Amendment proposed by Mr. Van Coller put, and the Committee divided:

Ayes—32:

Alexander, M.

Badenhorst, C. C. E.

Bowker, T. B.

Clark, C. W.

Conradie, J. M.

Dolley, G.

Faure, P. A. B.

Friedlander, A.

Geldenhuys, C. H.

Hayward, G. N.

Haywood, J. J.

Hofmeyr, J. H.

Le Roux, S. P.

Louw, E. H.

Olivier, P. J.

Reitz, D.

Reitz, L. A. B.

Rooth, E. A.

Shearer, V. L.

Solomon, V. G. F.

Steyn, C. F.

Steyn, G. P.

Stuttaford, R.

Sutter, G. J.

Swart, C. R.

Van Coller, C. M.

Wallach, I.

Werth, A. J.

Wilkens, Jacob.

Wolfaard, G. v. Z.

Tellers: J. W. Higgerty and W. B. Humphreys.

Noes—24:

Allen, F. B.

Bell, R. E.

Bowie, J. A.

Burnside, D C.

Christopher, R. M.

Davis, A.

Fourie, J. P.

Goldberg, A.

Jackson, D.

Johnson, H. A.

Kentridge, M.

Liebenberg, J. L. V.

Long, B. K.

Molteno, D. B.

Oost, H.

Schoeman, N. J.

Solomon, B.

Sonnenberg, M.

Steytler, L. J.

Theron, P.

Van den Berg, C. J.

Wares, A. P. J.

Tellers: J. G. Hirsch and A. E. Trollip.

Amendment accordingly agreed to.

Amendment proposed by Mr. Trollip put, and the Committee divided:

Ayes—14:

Burnside, D. C.

Conradie, J. H.

Geldenhuys, C. H.

Hirsch, J. G.

Louw, E. H.

Stallard, C. F.

Theron, P.

Trollip, A. E.

Van den Berg, C. J.

V. d. Merwe, R. A. T.

Wilkens, Jacob.

Wolfaard, G. v. Z.

Tellers: J. J. Haywood and E. A. Rooth.

Noes—46:

Alexander, M.

Allen, F. B.

Badenhorst, C. C. E.

Bell, R. E.

Booysen, W. A.

Bowie, J. A.

Bowker, T. B.

Christopher, R. M.

Clark, C. W.

Conradie, J. M.

Davis, A.

Derbyshire, J. G.

Erasmus, F. C.

Faure, P. A. B.

Fourie, J. P.

Friedlander, A.

Goldberg, A.

Hayward, G. N.

Hofmeyr, J. H.

Howarth, F. T.

Jackson, D.

Johnson, H. A.

Kentridge, M.

Le Roux, S. P.

Liebenberg, J. L. V.

Long, B. K.

Molteno, D. B.

Olivier, P. J.

Oost, H.

Payn, A. O. B.

Reitz, D.

Reitz, L. A. B.

Shearer, V. L.

Solomon, B.

Solomon, V. G. F.

Sonnenberg, M.

Steytler, L. J.

Stuttaford, R.

Swart, C. R.

Van Coller, C. M.

Vosloo, L. J.

Wallach, I.

Wares, A. P. J.

Werth, A. J.

Tellers: J. W. Higgerty and W. B. Humphreys.

Amendment accordingly negatived.

Sub-section (1), as amended, put, and the Committee divided:

Ayes—36:

Acutt, F. H.

Alexander, M.

Allen, F. B.

Badenhorst, C. C. E.

Bell, R. E.

Bowie, J. A.

Bowker, T. B.

Christopher, R. M.

Clark, C. W.

Davis, A.

Faure, P. A. B.

Fourie, J. P.

Friedlander, A.

Goldberg, A.

Hayward, G. N.

Hofmeyr, J. H.

Jackson, D.

Johnson, H. A.

Kentridge, M.

Liebenberg, J. L. V.

Long, B. K.

Molteno, D. B.

Oost, H.

Payn, A. O. B.

Reitz, L. A. B.

Shearer, V. L.

Solomon, B.

Solomon, V. G. F.

Sonnenberg, M.

Steytler, L. J.

Swart, C. R.

Van Coller, C. M.

Wallach, I.

Wares, A. P. J.

Tellers, J. W. Higgerty and W. B. Humphreys.

Noes—10:

Booysen, W. A.

Conradie, J. M.

Klopper, L. B.

Schoeman, N. J.

Van den Berg, C. J.

Van Zyl, J. J. M.

Werth, A J.

Wolfaard, G. v. Z.

Tellers, E. A. Rooth and A. E. Trollip.

Sub-section (1), as amended, accordingly agreed to.

Sub-section (2) put,

The hon. member for Wynberg (Mr. Friedlander) is getting more and more like the Minister for Lands. He moves a clause and he does not get up to address the Committee. I would like to know why it is necessary to import into this Bill this unjust clause. Why should this Bill be retrospective; we are now imposing a harsh legislative measure. In itself it is bad enough, but why make it retrospective? It seems to me that the hon. member is not satisfied with getting these unfortunate people into all this trouble, but now he wants to rub it in as well. Surely it would be going quite far enough for his purpose if he were to adopt the ordinary procedure and allow this Bill to take effect when it reached the Statute Book. What advantage will come to the general public by making this Bill retrospective? Does he know of a case pending which involves hardship to any litigants who therefore need the protection of this Bill, or rather let me say, the alleged protection? This is a Bill which has not been properly considered and this is a clause which has been considered least of all. I cannot understand why the hon. member is moving this clause.

I move the amendment standing in my name on page 335—

As the section is drawn the Bill in its present form is retrospective in effect, and if it is ever to reach the Statute Book those already married should at least have the right to demand that it should not be made retrospective. That is to say that it should not affect existing marriages.

That would be better.

Under Common Law wives undertake the obligation of matrimony until death or divorce. I submit that this House should not lightly interfere or vary any existing contract.

Now we have to give them a bonus for getting divorced.

After all, there is such a thing as sanctity of contract. And it is reasonable to demand that this alimony Bill shall only apply to marriages contracted after its promulgation. That would meet the position of those who have already entered into contracts of marriage, and those who marry in future will at least be accepting the alimony obligation with their eyes open. I submit that that is a very reasonable amendment. I cannot see what reason the sponsor of this Bill can give the House for making the provision of the measure retrospective. It is a serious thing to interfere with existing contracts or to alter the terms of these contracts, and I submit that a marriage contract is like any other contract. It is a serious obligation entered into by the parties; it is entered into under the existing law and it would be a serious hardship on those people to have this Bill made retrospective, and to apply it to all existing marriages.

Is the hon. member in order in moving an amendment of this nature? On the second reading the House adopted the principle that maintenance shall not apply to marriages, that is to existing marriages. Now the hon. member seeks to move an amendment which will depart from the principle adopted that the law shall not apply to existing marriages but only to future marriages. It seems to me that that is a matter which needs your consideration.

Can we have Mr. Speaker’s ruling?

The Chairman has not given his ruling yet.

We would like to hear what the hon. member in charge of the Bill has to say about it.

So far as I am concerned, the position is simple. If this is a Bill which should go on the Statute Book, then I submit it should apply to all marriages existing to-day. It should apply to all actions which are pending.

The question is whether this amendment is in order.

I think that this is an amendment which is in conflict with the whole idea and purpose of the Bill regulating and dealing with all marriages existing at the present time.

On a point of order, I doubt whether there is a quorum.

I think the amendment is in order; it narrows the scope of the Bill.

May I have Mr. Speaker’s ruling?

I am not prepared to ask Mr. Speaker’s ruling.

I beg to move that Mr. Speaker’s ruling be asked.

I am not prepared to put it to the Committee. The Chairman has sole discretion.

With submission, you cannot be aware of what the position is. You have just walked into the House.

I know what the amendment is, and I am prepared to allow it.

May I put my view to you?

I have already ruled.

I should like to say this in regard to this particular sub-clause, that I am of opinion that it is very unfair to apply it to cases which are already pending. We may now get the position that a person started a case for divorce while the old Act was still in force. When judgment is given the new law may be in force. I do not think that the new law should apply to his case, and I think it is most unfair that cases already pending should come under the new law. I do not go as far as the hon. member for Brakpan (Mr. Trollip), but I feel that this Bill should only apply to cases which are started after the new law has come in, because a person knows then what the law is when he starts a case for divorce. As the Bill now reads, a divorce case may be brought under the old law, but the day before judgment is given the new law comes into force. That sort of thing is very unfair. I therefore move the following amendment—

I am prepared to accept that last amendment. It fixes a date, and it will be more satisfactory.

I was under the impression that the hon. member had accepted the amendment of the hon. member for Brakpan (Mr. Trollip). I want to support the amendment of the hon. member for Brakpan. I think there are very sound reasons why an amendment of that kind should be included in the Bill. Marriages contracted previous to the introduction of legislation of this description have been contracted under certain well-known principles, and to suggest at this moment that a new feature in South African legislation should be introduced and should be made to apply in regard to marriages contracted in the Union is a very bad thing. Candidly, there does not appear to have been any call from the people who are married at the moment for the introduction of this Bill. One assumes, therefore, that the people already married are quite satisfied with the situation. I could say with a great deal of truth that most requests for maintenance have arisen from spinsters. This Act could be described as a Spinsters’ Bill. The requests have come from spinsters, and not from people already married.

I am rather in the dark about this amendment, because I do not know whether the hon. member for Wynberg (Mr. Friedlander) has accepted it or not. I have to assume that the amendment has not been accepted. This Bill has already created the impression that it is an unjust Bill. There are many people here who think it will have a bad effect on the community, and now they come along and try to make it retrospective.

Question put: That the words “to an action commenced,” proposed to be omitted, stand part of the clause, and a division was called.

As fewer than ten members (viz., the Minister of Mines, Messrs. Burnside, Klopper, Rooth and Trollip) voted against the question, the Chairman declared it affirmed and the amendment proposed by Mr. Trollip dropped.

Question put: That the words proposed to be omitted by Mr. C. R. Swart stand part of the clause, and a division was called.

As fewer than ten members (viz., Messrs. Geldenhuys, Klopper, Rooth, N. J. Schoeman, Trollip and J. J. M. van Zyl) voted in favour of the question, the Chairman declared it negatived and the words were omitted.

The substitution of the words proposed by Mr. C. R. Swart put, and a division was called.

As fewer than ten members (viz., Messrs. Geldenhuys, Klopper, Rooth and Trollip) voted against the substitution of these words, the amendment proposed by Mr. C. R. Swart was agreed to.

Sub-section (2), as amended, put and a division was called.

As fewer than ten members (viz., Messrs. Geldenhuys, Klopper, Rooth and Trollip) voted against the sub-section, as amended, the Chairman declared it agreed to.

Sub-section (3) put:

I would appreciate it if the hon. and silent member over there would rise in his place and tell the House why he wishes to impose this harsh provision. Here you have a case where the court was, rightly or wrongly, awarded maintenance. Imagine the position of one of the parties who is financially sound being constantly pestered with applications for a variation of the order by a person who cannot pay the costs. Surely there ought to be some provision to check that, and the proper course is to accept the following amendment—

It seems to me that in dealing with people of this type who frequent the divorce courts, it is necessary to make provision to prevent any further immorality, and I suggest that this is the right way to do it.

This is an attempt to limit the scope of the Bill. Having failed to get certain safeguards into the Bill, we are justified in limiting the scope of the measure. The hon. member has done away with the most objectionable feature of his Bill, which was an attempt to make it retrospective. Despite the fact that he has done that it does show the frame of mind of the hon. member when he drafted the Bill. The more I go into it the more I see that some safeguards are essential, and unless we get some in I foresee that we are going to have trouble, and a lot of trouble. The Bill is going to bring forward a lot of implications that I am sure the hon. member has not considered. It may be argued, of course, that this is rather a novel suggestion, that the provisions of a Bill dealing with marriage should only apply to marriages contracted after the Bill became law, but I do not think we are entitled to turn down suggestions merely because they happen to be novel. Most legislation, at one time or another, was novel, and this seems to me to meet the situation perfectly. People married before this type of legislation becomes law, if it ever becomes law, were married under conditions which they knew at the time they were married and were prepared to accept, conditions to which they pledged themselves in a solemn manner, and having been married under these conditions they have no grievance if they are asked to continue to live under those condtions. People who are going to marry in the future are, of course, in a different class; they will marry under the conditions laid down in this Bill. For the life of me I cannot see what effect this Bill is going to have on marriage generally, but I am satisfied that it is going to have a very considerable effect on future marriages. People usually consider all the pros and cons before marriage, and I think this provision for maintenance on what may be a generous scale will have a very serious effect upon the minds of a section of the population in regard to marriage. I think we are justified in saying that the provisions of this Bill should not apply to marriages contracted before the Bill itself becomes law. As a result of this measure something of this sort may happen. There are instances of marriage which I can quote which have been near shipwreck, but the wife has held on for economic reasons and kept the vessel on an even keel, and the marriage has eventually-turned out successfully. When the trouble arose the economic question has kept the wife from taking any drastic action, and the difficulties have eventually been got over. But if we are going to extend the provisions of this Bill to all the people who are already-married, we quite possibly are going to make the suggestion to a great many women who are perhaps not happily married, but are carrying on because of the economic difficulty, to throw discretion to the winds and seek redress in the divorce court, seeing that they are promised a certain amount of alimony. I hope that is not going to be taken to mean that I advocate that a woman should continue to live with a man when the marriage is completely unhappy, nor must it be taken to mean that I am advocating that we should keep women in economic subservience in order to make them more or less happy in the marriage state. There are many cases where the woman, but for the economic pull, would probably leave her husband and divorce him for some probably-trifling thing.

[inaudible].

The hon. member says that I have a strange idea of the attractions of a husband. Unfortunately we are dealing with actualities, and not with a position of highbrow nonsense. In a great many marriages to-day it is very much a financial contract. [Time limit.]

Imagine the case of a gold digger being awarded a substantial amount per month, and with the proceeds of that setting up a house of ill-fame. Has the hon. member contemplated that possibility? The more one goes into this Bill the more signs there are that the subject matter has not been properly digested, either by the mover or by the Select Committee. I am surprised that although there is provision made for the granting of maintenance, there is nothing to guide the court to set forth upon what conditions maintenance will be discontinued. The party will perhaps have facts to go on, but may be in the unfortunate position of not knowing whether the court will take cognisance of these facts. The court may think that maintenance has been awarded and that it is not for the court to enquire into the morality or otherwise of the parties. It seems to me that the hon. member instead of gazing up at the Gods should give this aspect of the case his attention before we take a step which the public will ultimately regret. I am sorry to see that there are so many hon. members who are prepared to cast their vote without giving their reasons. There is the hon. member for Pretoria, Central (Mr. Davis). I should like to know what his reasons are. He gave us reasons on a previous clause and told us the courts were still granting maintenance. It would have been better for his reputation as a lawyer if he had said that maintenance was granted not because of the law, but because an agreement had been arrived at between the parties. He misled the Committee.

I am not going to answer you.

In those circumstances it is perhaps better for the hon. member to retain his seat. I should like to know what the hon. member for Wynberg has to say before I take the matter any further. There the hon. member for Wynberg sits. I think I am entitled to refer to him as the silent member. What is the reason for his silence, why does he not reply?

I do not want to interrupt the hon. member but I think he should be serious; he should confine himself to the sub-clause.

I think I have the right to direct a question to the sponsor of the Bill. My question is: “Why don’t you reply?” I want an explanation.

There is nothing to explain.

That is a matter of opinion. We have had many cases where an unfortunate individual with money has been pestered from time to time by a litigant whose failure in previous cases has not put a stop to litigation, and it is no more than reasonable that we should protect the public from that kind of thing.

I wish to make an appeal to the hon. member who has introduced this Bill, and I want to ask him to accept the amendment of the hon. member for Zoutpansberg (Mr. Rooth). As the clause now reads, it is not fair and just. When an hon. member brings a Bill like this one before the House, especially if he is a lawyer, he should know what the principles of the court are, namely, that if a contract is entered into and the court makes an order, the court is not disposed later to amend that order.

What has that to do with the clause?

It concerns the amendment proposed by the hon. member for Zoutpansberg, namely, to add a proviso to this sub-clause. As I have said, when the court makes an order in those circumstances, it is not disposed to amend that order. The principle is simply this, that it is a good and sound principle to prevent the parties in a case being easily mulcted in costs from time to time, and to prevent anyone who has nothing from holding a threat against his opponent and causing him great expense. That is the reason why the court is not disposed lightly to alter a contract entered into and an order made on that contract. Now the hon. member who is sponsoring this Bill comes along, and he wants to provide that one of the parties to a case can at any time apply to the court for an amendment of an order. It seems to me to be very unfair, and it is no more than fair to maintain the sound principle that this should not be lightly allowed. That is why the hon. member for Zoutpansberg has moved his amendment, and why I look upon the amendment as fair and reasonable. It is not only fair, but it is in accordance with the principle which the court has so far laid down. We want to follow the recognised practice of the court, and that being so I hope the hon. member will realise the fairness of this amendment and agree to it. It will improve this Bill, it will make the Bill better than it is at the moment. We should not insert principles into this measure which constitute a departure from the sound practice so far pursued by the court. When two parties to a case arrive at an agreement and an order is made on the basis of that agreement, the court will not lightly amend such an order from time to time. In regard to the costs, it is no more than fair that where the one party is responsible for the costs another party cannot bring another case before he has paid the costs. It amounts to this, that from time to time the one party can incur costs knowing that he will not be responsible for them. I hope the hon. member in charge of the Bill, who should know what is right and fair in this connection, will accept the amendment proposed by the hon. member for Zoutpansberg.

I move—

Upon which the Committee divided:

Ayes—35.

Alexander, M.

Allen, F. B.

Badenhorst, C. C. E.

Bell, R. E.

Bowie, J. A.

Bowker, T. B.

Christopher, R. M.

Clark, C. W.

Conradie, J. M.

Davis, A.

Fourie, J. P.

Friedlander, A.

Goldberg, A.

Hayward, G. N.

Higgerty, J. W.

Hofmeyr, J. H.

Jackson, D.

Johnson, H. A.

Kentridge, M.

Lawrence, H. G.

Long, B. K.

Moll, A. M.

Molteno, D. B.

Oost, H.

Reitz, D.

Reitz, L. A. B.

Solomon, B.

Sonnenberg, M.

Steyn, C. F.

Steytler, L. J.

Sturrock, F. C.

Wallach, I.

Wares, A. P. J.

Tellers: W. B. Humphreys and C. M. van Coller.

Noes—10.

Booysen, W. A.

Conradie, J. H.

Geldenhuys, C. H.

Gilson, L. D.

Klopper, L. B.

Serfontein, J. J.

Strydom, G. H. F.

Vosloo, L. J.

Tellers: E. A. Rooth and A. E. Trollip.

Motion accordingly agreed to.

Amendment proposed by Mr. Rooth put, and a division called.

As fewer than ten members (viz., Lt.-Col. Booysen, Messrs. Geldenhuys, Rooth, N. J. Schoeman, Capt. G. H. F. Strydom and Mr. Trollip) voted in favour of the amendment, the Chairman declared it negatived.

Sub-section (3), as printed, put, and a division called.

As fewer than ten members (viz., Lt.-Col. Booysen, Messrs. Geldenhuys, Rooth, N. J. Schoeman, Capt. G. H. F. Strydom and Mr. Trollip) voted against the sub-section, the Chairman declared it agreed to.

Sub-section (4) put,

I have not taken part in this debate. I had intended speaking on sub-clause (3), but I was prevented from doing so as a result—

I must ask the hon. member to refrain from making those remarks. The closure is only accepted by the Chairman after careful consideration.

I want to assure you that I did not refer to the closure, but it seems to me that the debate has now got to such a stage that it is no longer serious. It has almost become a farce. And I doubt whether a Bill of this kind should be tackled by members in the state of mind in which they are now. I therefore move—

The hon. member has given me a very good reason why I should refuse to accept the adjournment, and in terms of Standing Order No. 36, I decline to accept the motion.

I have an amendment. I move—

Sub-section (4) provides that on the remarriage of the successful party—the one who has managed to plunder the other party, the order of maintenance should lapse. It seems to me that the court should have the power to cancel an order of maintenance if the successful party is found guilty of immorality. That seems a reasonable proposal, and I hope it will meet the views of the Committee. Furthermore the clause provides that the cancellation of an order of maintenance will not relate to any part of the obligation resulting from that order which was not fulfilled. I want to suggest that non-fulfilment might have been with the acquiescence of the plunderer and that should not be made possible. It does not follow that if the successful party, the party who emerges from this divorce action, commits an act of immorality, that the court will necessarily cancel the order. I am certain that no right-thinking member of this Committee would want an order in those circumstances to remain in force. Let us assume that a divorce is granted, and that the husband has to pay maintenance, say £25 a month. And his wife goes and sets up life in a flat in Cape Town and spends her time in riotous living. Let us say she frequents places where decent people are not seen and she goes about in the company of undesirables. The fact that a few minutes after this clause was called it became necessary to call for a quorum shows that there was a great deal in what the hon. member for East Griqualand (Mr. Gilson) said about this matter, that the Committee is not addressing its mind to it. The Committee is not in a proper frame of mind to deal now with legislation of this kind. I can visualise a successful litigant carrying on a life of immorality. Let us say she goes further and lives with a stranger, would that be ground for the court cancelling the maintenance order? Would not the husband have to risk an application to court and having to pay the costs of an unsuccessful application because the judge may not agree with his ideas of morality? Would it not be better for us to lay down conditions upon which the husband would be entitled to the protection of the court? The Bill does not say the court would necessarily have to vary the order because of the immorality of the successful claimant. We should go further and say upon what condition the court should be compelled to vary the order. The previous clause is not a sufficient safeguard. The court would be compelled to vary the order if the defendant landed on evil days, and was unable to pay the maintenance, but there is nothing in this Bill which suggests that the court would be compelled to vary the order if immorality were proved. I hope the hon. member has an answer to that. If there is one, I should like to hear it.

I move—

Agreed to.

First amendment proposed by Mr. Rooth put and a division called.

As fewer than ten members (viz., Messrs. Erasmus, Haywood, Rooth and N. J. Schoeman) voted in favour of the amendment, the Chairman declared it negatived and the second amendment proposed by Mr. Rooth dropped.

Remaining amendment proposed by Mr. Rooth put, and a division was called.

As fewer than ten members (viz., Messrs. Erasmus, Geldenhuys, Haywood, Rooth, N. J. Schoeman and Trollip) voted in favour of the amendment, the Chairman declared it negatived.

Sub-section (4) as printed, put and a division called.

As fewer than ten members (viz., Messrs. Geldenhuys, Haywood, Rooth, N. J. Schoeman and Trollip) voted against the subsection, the Chairman declared it agreed to.

Clause, as amended, put and agreed to.

On Clause 2,

I move—

Agreed to.

Clause as amended put and agreed to.

The title having been agreed to,

House Resumed:

The CHAIRMAN reported the Bill with amendments.

I move—

I object.

Amendments to be considered on 18th March.