I move—

I think the object is clearly stated. The Bill as it stands proposes to extend the grounds of divorce by three grounds—first, if one spouse is suffering from leprosy; second, if one spouse is incurably insane, and third, if one of the parties has been sentenced as a habitual criminal. The title of the Bill has been made very wide; any amendments which may be considered necessary can be introduced, and in order to save an interminable discussion I propose to move that the Bill be referred to a Select Committee. It was urged upon me that the Bill should be still further widened; for instance, where separation has taken place for a number of years, that should be a ground for divorce, and also that divorce on the ground of desertion should not be so easily obtainable as it is now. It was represented that nothing should be done under nine months. Take the case of a man who is declared a habitual criminal. On the one hand we have the position in South Africa that divorce on the ground of desertion is probably more easily obtained than in any other country in the world. It does not matter how long or how short the period of desertion has been. The ease goes through and a divorce follows as a matter of course. Even in America divorce on that ground cannot be obtained so easily. When the parties really wish to get a divorce in this country, there is nothing to stop them. The churches have directed quite a number of communications to me on the subject, and, on the whole, the churches oppose this Bill, and one must respect the idea underlying their opposition. But let me say with all due respect to the pillars of the Church that they do not understand the provisions of the Bill. The main objections I have heard from such quarters are mainly that marriage is a sacred thing, and whom God hath joined together let man not put asunder. In all three cases cited by me the Government have, in their own good sense, taken steps to separate spouses in the interests of the public generally. A man who is declared a leper is put aside for the protection of the public. Tell me that there you must insist that he should associate intimately with his wife as a man associates with his wife, and that children should be born. It must be deleterious to the welfare of the country. If you allow this, and, at the same time, tolerate that the public may not come into contact with such a person, it is cruel. Then take the case of a criminal with an indeterminate sentence. He is not fit to associate with the public, but he must remain the guardian of his wife and children, and the husband of his wife. Yet another individual, who runs away from his wife, can have a divorce granted. I do not know a single habitual criminal who is a woman; every one is a man, and the people suffering outside are the wives and children of these men. They have no relief, and they live in poverty. Hon. members are aware that judges at the Cape have declared by decision that a person sentenced for life may be divorced—his wife may divorce him. Surely this House will be guided by Such a principle and say that, in such a case, the wife should have a right to get rid of a man like that, and that the wife and children should not suffer under his authority. When the churches, without any protest, allow a man to be separated from his wife because he has been sentenced to imprisonment, they cannot, in principle, object to this provision of the Bill. A man who steals a diamond can, under our laws, be sentenced to fifteen years’ hard labour, although such cases are rare. A life sentence is seldom more than fifteen years. Then there is the third provision, dealing with incurable insanity. Divorce can only be granted, it is proposed here, when insanity is incurable, and prima facie evidence of that is when a man has been incarcerated for five years in a mental asylum. I say prima facie evidence, and it may be repudiated.

Who is going to repudiate?

The courts will appoint a curator ad litem.

Why not put the onus on the applicant?

The onus is on him. He must prove that the insanity is incurable. It is only after the expiration of five years that the onus shifts. It is still open to the curator ad litem to show that the case may not be definite and certain. Hon. members will realize that a large number of litigants are poor men, and that to lead evidence of incurable insanity is often beyond their means. Provision is made that whenever a decree of divorce is granted in a case where a person is suffering from leprosy, or has been declared by competent authority to be incurably insane, the court may order the plaintiff to pay the defendant’s costs, and that provision is made for the proper maintenance of the defendant and any child or children of the marriage, and the court shall not order any forfeiture of benefits accruing to the defendant by reason of the marriage. When the second reading of the Bill has been adopted, I propose to move that the Bill be referred to a Select. Committee. The reason for this is obvious. There is a strong feeling, especially amongst the churches, that divorce is obtained too easily in this country. Let me say at once that I entirely agree. Our divorce laws are not the same in the four provinces, and it is beyond the scope of this Bill to be a consolidating measure. If the measure is referred to a Select Committee suggestions can be brought forward, and if the Select Committee wishes to recommend wider provisions they can do so. I had a discussion with the Judge-President of the Transvaal some time back, and it appears that the judges agree generally that some such Bill as this should be put on record. In Natal, I understand, divorce is granted after nine months’ desertion.

Eighteen months.

At present in this country you can get a divorce on the grounds of adultery or of desertion. I think that hon. members, who are opposed to particular provisions of the Bill, ought to agree to the principle. Any amendments can be introduced in the Select Committee. I hope the House will accept the principle that a change is necessary. In the newspapers you read of a large number of cases in this country where men receive an indeterminate sentence, and that necessitates a Bill of this nature.

One would have thought that in introducing such a very important and far-reaching measure, the hon. member would not have contented himself by saying that he would take up as little time of the House as possible. We don’t begrudge him time to explain his Bill, one which should be discussed very fully. The hon. member should have given us reasons for desiring a change in the law. He suggests that the measure should go to a Select Committee. Some people would be very well satisfied with that proposal, but when he goes on to say that the preamble of the Bill gives the committee power to include other grounds for divorce than those mentioned in the Bill, then we become suspicious. The hon. member told us that in no other country in the world is divorce so easily obtained as in South Africa. That is one reason why I object to a private member bringing in a Bill to increase the grounds for divorce. If he had confined himself to tightening up the present divorce laws, he would have done the country a greater service. He said that judges have granted divorce in the case in which one of the parties has received a life sentence of imprisonment, and he used this as an argument to justify the inclusion of the new ground for divorce, habitual criminality, but being a barrister, the hon. member must know that the reason for that decision is that under the Roman-Dutch law it was held that any person who received a life sentence was considered to be civilly dead. I oppose the Bill because it is becoming for too common a practice for private members to introduce ill-considered amendments to very important laws which should be dealt with in a comprehensive manner. Amendments are made which do our laws no good at all, and as a rule they are amendments which deserve the very earnest consideration of the whole machinery of the State. This measure is one of the worst examples. It is a dangerous interference with matters which concern the State as a whole, and it shakes to its very foundations the whole fabric of society. Before a private member introduces an important amendment to such a law, the Law Department should first of all scrutinize the Bill, and the Government should then say whether it is satisfied that the proposed change should be made, and whether it agrees to a private member introducing the Bill. We should have evidence giving reasons for contemplated changes, and the Government law advisers should report whether the Bill is or is not introduced merely to give relief to one or two persons. In the second place, I oppose the Bill because undoubtedly it is meant to give relief to very few persons. I know of only one person who will be affected by the Bill, and he travelled all the way from Pretoria to ask me to withdraw my opposition, and told me that he was the force behind the introduction of the measure. I feel that the principle of the Bill is one which no Christian nation should subscribe to, and Parliament should register its protest against any attempt to increase the already too numerous grounds for divorce. I have received several resolutions against the Bill. The Catholic Federation passed the following resolution—

We don’t go the whole length of that resolution.

Where do you stop?

We have quite sufficient grounds for divorce at the present moment. A public meeting in the Cape Town City Hall registered—

At another meeting held in Cape Town, the following motion was adopted—

I have also a resolution from the Dutch Reformed Church associating itself with the earnest appeal which has been made by the Rev. P. S. van Heerden, the chairman of the church council of the Dutch Reformed Church, against the measure. Besides that, I tabled last year a petition from all over the Union against the introduction of any further measures for the obtaining of divorce. The grounds sought to be included in the Bill before the House are leprosy, insanity and habitual criminality. Something may be said in favour of the last ground, but it is not meant to stop at this point, for the hon. member says that his idea in sending the Bill to Select Committee is to have further grounds for divorce included. But we should be very careful, and rather than supply fresh grounds for divorce, we should seek to restrict facilities for obtaining a dissolution of the marriage bond. We already have a very large number of grounds for divorce in this country. Take leprosy. We know that leprosy has been arrested. We know of many cases where it is certified the disease has been arrested, and in the judgment of medical men, such cases are fit to return to family life. We also know that the cases of arrested leprosy are increasing daily. In former days when there were so few arrested cases, everybody spoke about it. To-day it is becoming quite common. Take insanity as a ground for divorce. There is only one State in the world where they have divorce for insanity after so short a period. We know of many cases where insanity has been cured after as long a period as 15 years. Women are often driven to insanity by the treatment of a husband who wishes to avoid his obligations.

It would be a good thing for those women to get divorce.

We do know of many women who have been driven to insanity through the treatment they have received, and members should not laugh. Our laws are too lax. For instance, we have no King’s proctor in this country. He would appear when there were divorce cases to see justice was done. I should have thought that that was one of the things we should have done. The time has arrived to tighten up our laws, and judges themselves have felt that. I would like to give a few examples of what happens in America, where it is popularly supposed divorce is easy to obtain. Insanity as a cause is enforced in only four States in America, and they have a Mental Deficiency Board consisting of two medical men and a psychologist. They take particular care of a patient, especially when there is an action pending, giving him special treatment, and bringing him as much as possible in contact with the public in an endeavour to cure him or her. The question of domicile is more strictly enforced than here. In America an important commission was appointed in order to try and codify the whole of the laws of America and to have uniformity, and that commission definitely decided that among all the grounds in force in the different States, insanity should be rejected. We ought to make divorce more difficult. Divorce for desertion is a very common ground. It is the commonest in this country because it is so easy to obtain. We should have divorce on the grounds of desertion made more difficult. In America there is no State where a case for divorce can be brought for desertion within a period of three years, and most of them give the court the right to fix a period of ten years before the action can be brought. There is no mention of cruelty in this Bill. Yet cruelty has been the cause of the breaking up of many homes. In most States of America they hold that insanity of the wife is no ground for divorce. They give divorce on that ground in some States, but they are particularly careful with regard to the insanity of the wife. In one State adultery, cruelty, failure to support the family, habitual drunkenness and drug-taking for one year are among the grounds for divorce, but there is no divorce for insanity. In Western Virginia, when divorced, a person may not re-marry for six months, and judges have even refused to allow re-marriage up to a period of five years. Here you get re-marriage immediately after divorce. A proctor would fully investigate and go into matters. He should consider cases even more carefully than they do in England. He has tremendous powers. In Maine divorce is granted if a man is in an asylum for 15 years and is then reported incurable. We have the same in other States of America, but if you do not think America is sufficient, take New Zealand. Divorce can be obtained there for several reasons. Under the Bill of 1908, when the 1904 law was repealed, non-compliance with the decree of restitution does not constitute grounds for divorce for desertion if the petitioner’s own habits or conduct have contributed to the wrong. They added lunacy, but fixed the period for ten years, and they are strict in seeing that there is no hope of recovery or that the petitioner’s conduct is not contributory. Drunkenness, penal servitude and repeated assaults on the petitioners are also grounds for divorce there. New South Wales has a comprehensive Act. The grounds for divorce there are adultery, wilful desertion for three years, habitual drunkenness, a long term of penal servitude, and repeated assaults on the petitioner, but not insanity. In Tasmania they fixed a period of seven during ten years preceding the application. Victoria is exactly the same. Western Australia has become alarmed, and is tightening up the divorce laws. They now hold that desertion must have continued for three years before the case is brought into court. So we go right through the civilized world, and we find that the tendency is to tighten up these divorce laws, and not to give more latitude. The tendency is to make the man or woman face his or her obligations. I feel very strongly that a Bill such as this should not be introduced by a private member, and that it should have the full consideration of all the best brains in the country. I therefore move as an amendment—

I have great pleasure in seconding the amendment. I do so both on the ground that I object to the Bill itself, and on the ground that I object to the principle of having a measure of this vast importance introduced by a private member with the comparatively small opportunity that there is for discussion such as private members have in this House. This is a measure, in my opinion, of far-reaching importance, and the matter should only be introduced after the country has had a full opportunity of discussing a measure which comes before the House under the aegis of the Government and with the support and responsibility of the Government. I object to the Bill itself and to the method of procedure. With regard to the Bill itself, it seems to me that a measure of this kind can be approached from the point of view of State policy, and also from the other point of view, which appeals to a large number of people in this country, namely, the point of view of the religious nature of the institution touched by the Bill. Those of us who regard the family and the family life as the basis and foundation of a sound and secure State feel that this Bill is striking a blow at the family arid family life, and therefore striking at one of the foundations and fundamental bases of society. What are the reasons which actuate the hon. member in bringing a Bill of this sort before the House? There has been no public demand for this Bill. The mover has made allusion to certain hard cases. In any human institution of this kind, in which people are bound by obligations undertaken voluntarily, hard cases may arise at any time, but I believe the effect of this Bill will be to create far more hard cases in future under this Bill than are in existence under the present state of things. There are hard cases; I know hard cases. Four years ago I was approached to bring in a Bill of this very nature, and the letter that was sent to me begging to move such a Bill was one of the most moving documents I have ever had placed in my hand. It conveyed a picture of hardship in that particular case such as almost made me change my mind, but I realized that one of the most trite principles that we know is that hard cases make very bad law, and hard cases make very bad legislation. Believing as I do that this Bill is opening a door which will become more and more easily opened and more and more difficult to shut, I look upon it as dangerous, and probably even fatal to the community. Those who feel as I do that the family is the basis of society and that the protection of the family is the most vital thing to uphold, will, I feel sure, support the amendment. Take what has already happened in regard to our marriage laws. Not many years ago we had a Deceased Wife’s Sister Bill in this House. When it was introduced, it was specially held that there was a broad distinction between marriage with a deceased wife’s sister and marriage with a deceased husband’s brother. Although that distinction was specially drawn, three years ago, when a particular concrete case had arisen in this country, this House was induced to pass a Bill for the marriage of a widow with the deceased husband’s brother. That is a very striking proof of the way in which, when once you have got an alteration made in fundamental things like this, you go from precedent to precedent, until in the end you do not recognize your legislation, and your legislation reaches a length such as was never contemplated when the Bill was originally introduced. Take the mover of the Bill to-day. He has had a most ample opportunity during the last three or four years, and how has the hon. member endeavoured to cope with any public demand for widening the scope of the Bill such as he says can be done in Select Committee? I regard that as a very significant and a very sinister sign. Here we have a comparatively mild Bill, putting forth three extra grounds for divorce. The hon. member has already indicated that those grounds can be widened. We have got leprosy as a ground in this Bill. What about cancer? What about a large number of other diseases for which, like leprosy, the unfortunate man or woman is not responsible in any shape or form? Are you going to punish people and add to their load of misfortunes by striking at one of the most sacred ties in life? Every member of this House can think of at least a dozen grounds that will be equally justifiable.

They are not bound to be isolated.

I am not talking about isolation. We do not know what we are coming to in regard to some of these diseases yet. But the question of isolation is not the only thing.

A Select Committee has some intelligence.

I thank the hon. member for that information, but I am dealing with the danger we have that the Select Committee may be persuaded, say by the eloquence of the hon. member himself, by his ingenious method of putting things. Does he seriously think that from the Select Committee will emerge any serious tightening of the marriage laws? I have the gravest apprehension, and no matter how intelligent the committee may be, I do not propose to place my principles and point of view in advance in the hands of any committee, select or otherwise. I do urge very strongly that we should bear in mind the very great dangers both on general grounds and the great dangers in the light of the experience of the past in regard to tampering with the marriage laws. I wish to deal with the argument of the hon. member in regard to the laxity of the present law, particularly in regard to malicious desertion. I quite agree that there is great laxity in the present law, especially in regard to persons who take advantage of the facilities for malicious desertion by collusion. I believe that could be dealt with by the method suggested by the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) and suggested before, that is, the appointment of a King’s proctor. The fact of the existence of the King’s proctor both in advance serves as a check, and in effect serves as a very useful check. I have urged for years, and urge again now, that the way to check this abuse is by the appointment of an official who shall have the authority, the power and the facilities for probing these divorce cases and for seeing that these grounds of desertion, or any other grounds, are genuine, proper and decent grounds That is one of the reasons why again I say the Government alone should introduce these matters to the House. The hon. member talked about the fact of isolation as being a ground in each of these three cases. Of course, it is not necessary that a person who is insane shall be isolated. The hon. member knows that an insane man need not be isolated. It is only the relatives who put the man there, in some cases for good reasons, but in other cases, as history has shown, for very bad reasons. Five years’ detention is prima facie proof that he is habitually insane. In how many cases has it not been shown that after more than five years it is possible for a man to recover his sanity? Take the case of a man who three months after the expiration of five years has to fight an application to have him declared habitually insane. The hon. member knows how restricted the powers of the curator ad litem are. The onus of proving that he is not incurable is thrown upon the unfortunate man himself.

Bead Section 3, where provision is made for that.

It says they can pay the costs, but that makes no provision for paying money beforehand for purposes of defending the action. The curator ad litem is going to be practically valueless security for preventing hardship. Take the case of leprosy. There is a case of hardship where the man has done nothing to bring upon himself the trouble. What chance, in the case of insanity, is a man or woman going to have of recovering if the greatest possible blow has been struck at one of the greatest ties and safeguards? In how many cases is a man’s chance of recovery going to be lessened if he finds that the woman, or the woman the man, has rounded upon one of the most sacred obligations of life merely to rid himself or herself of that obligation? There are hard cases? I know, but they are comparatively rare, and they do not justify this Bill. In the interests of the State, I believe the hon. member is striking a grievous blow at the true interests of the State. Take the case of the habitual criminal. He, after all, is curable. There are many of us in this world guilty of moral lapses very often worse than those for which a man is made a habitual criminal. And the law does not come to the rescue. These matters are of infinitely more moment to the other party to the contract. In each of those cases there is a chance of cure, and what is going to happen when a man is cured of the two physical and one moral diseases which are dealt with here, and has his last hope destroyed? I am one of those who feel that it is an argument of at least equal importance that when a man and a woman enter into a bond of this kind they enter into a sacred tie which they have undertaken for better and for worse. I believe that the law should not, in the interests of these people, tend to relax, or give them an excuse for relaxing, and it should not step in and help them in that way.

It is in the interests of the State to prevent an insane person from having children.

I think it is a pity that the hon. member (Mr. van Hees) should have repeated in this House the conversation of judges. One does not know what the circumstances were and the points which were put before the judges. It is a pity that use should be made of the informal statement of judges. On both grounds I heartily accept the amendment of the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl).

I do not think it necessary to say much about this matter because it is clear that the feeling in the House is that the Bill ought not to be passed. I wish, however, to say at the commencement that I differ from the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) when he (attributes special motives to the hon. member for Delarey (Mr. van Hees) in introducing the Bill. The hon. member said that the hon. member for Delarey was inspired by someone who was out of his mind, and that the same person came to see him—the hon. member for Cape Town (Harbour)—and asked him to withdraw his opposition. If that class of person goes to the hon. member for Cape Town (Harbour) it does not say that it is also the case with the hon. member for Delarey. I feel that it is wrong for a private member to introduce a Bill of this kind. A Bill which touches marriage rites ought to be introduced by the Government. The debate will probably lead to nothing, except that the Government consider the question of consolidating the marriage laws as soon as possible. Before that takes place, however, it is necessary for a thorough enquiry to be made into the possible grounds of divorce. I differ from the grounds which have been given, and I feel that if every member were to state grounds, everyone would have different reasons. There is no uniformity of ideas or unity of feeling about the grounds of divorce. There are other grounds which are more important than these.

What?

They are, e.g., that someone who has been convicted of all sorts of crimes—say, for fifteen years—has to live with the other party to the marriage. The prison influence is worse than that of a large leper or mental institution. I feel, at the same time, that enquiry should be made into the grounds mentioned by the hon. member for Delarey, so that they shall not only be tested by public opinion, but also by the Christian feeling of South Africa. We acknowledge Christianity at the opening of Parliament, and this matter must, therefore, be tested by the Christian feeling of the public and of the churches as a whole, not by one or two churches. This the Government can only do by a thorough enquiry regarding the consolidation of the marriage laws, so that the matter may be brought to the notice of the public. In this Bill lunacy for five years is mentioned as one of the grounds for divorce, but the hon. member for Delarey has not given data to show how many mental defectives recover after five years.

The word, permanent, is used.

Technically, therefore, a period of five years is permanent? I differ from that. It must be shown that lunacy for a period of five years is permanent, and that a small percentage recover later. I think the statistics will surprise the hon. member. It is the same with leprosy. Cures have been announced, and everybody feels that means may be discovered of curing leprosy. We must not merely think of people in good health, but also of people who are in institutions. Just think of a divorce taking place without one’s consent! Think what a dagger it must be through his or her heart when such action is instituted. It is not only contrary to Christian principles, but also to humane principles. There is another thing which ought to be mentioned, and why the Government should take up the matter. I feel that we ought to prevent divorce even on the grounds mentioned by the hon. member for Delarey. I should like to see it made obligatory for every married couple to have to undergo a thorough preliminary medical examination.

The eugenic doctrine.

It may be eugenics. If a thorough examination is made as to the health condition of the bridal pair, then it will not be made so easy to demand divorce after a few years. On certain points it must be made more difficult to obtain divorce. There is, e.g., the ground of malicious desertion. When one is gone for twenty-four hours it is a ground for divorce if a letter is held: “I refuse to return.” Then divorce can take place within a few weeks. I know of a case where the parties had difficulty in entering into an ante-nuptial contract a few years after the marriage, and as they considered it essential to be married without community of property, they obtained a divorce on the ground of malicious desertion, and thereafter, married with an ante nuptial contract. We must prevent the law being so abused. I think that the Government should consolidate the marriage laws of the Union. Where necessary they should be made more strict, and where there is reason for extending them, then it should only be to meet the demands of Christian feeling in South Africa.

This is another of those Bills which annually make their appearance in this House and unnecessarily waste its time. The large majority of the people is against the Bill, and so are all the churches. When we look at the divorce cases in the courts, we must become alarmed at the scandal, and now we are asked to extend the grounds for divorce. I am opposed to the Bill, and will vote for any motion to get it off the Order Paper. If there is anything in the divorce laws which requires alteration, let the Government bring in a proper Bill, so that the divorce laws may be tightened, instead of widened.

This measure, which I support, has received a very hostile reception this afternoon. It has been suggested that in future private members should not be allowed to introduce Bills without the consent of the Government’s law advisers.

Serious Bills.

I don’t suppose any private member will introduce a Bill which is not serious. As it is, private members have very little opportunity of bringing matters before the House, and I should strenuously oppose any proposal still further to curtail those opportunities. Rather than do that, those opportunities should be extended. Seventeen years have passed since the establishment of the Union—has any Government attempted to deal with this matter? Is a private member to wait for ever? Private members should be encouraged to give their attention to some particular reform which Governments have ignored. Some of the most valuable reforms on the statute book have been placed there at the instance of private members. The question before the House now, however, is—is this a good Bill? It has been urged that the matter should be enquired into. But the subject has been before the House for years, and has had full publicity and consideration. The hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) said he knew only one case which would be affected by this Bill. I, however, have had numbers of communications and, in nearly every case, from women in various parts of the country whose husbands have been in asylums—in some instances for as long as 20 years. What is the Use of talking about the sanctity of family life under such circumstances? When a man is suffering, say from leprosy in an incurable form and has been shut off from the world for 20 years, are you going to pretend that his family life still exists? Or are you going to recognize hard facts and to acknowledge that in this case family life has ceased, and that nothing can restore it? The idea of this measure is not to loosen the marriage bond, but to ask people to recognize hard facts. A few days ago a woman came to see me. She was married some years ago, but a month after the marriage day her husband was removed to an asylum. According to law, if you can show that a man was non compos mentis at the time of the marriage, the marriage can be dissolved. In this case the medical report states that the man is absolutely incurable. The woman has a child, and she has to struggle to make a living. I cannot see that family life can be said to exist under such circumstances. Family life contemplates intercourse and the bringing up of families. But when a person is incurably afflicted with leprosy, the law insists on separation from his family, so that there shall be no intercourse or family life. Proof that it is incurable will have to be there. Five years may be too short, and medical evidence will have to be there that it is incurable. I cannot conceive how those who want to preserve the sanctity of the home and the family life can object to the provisions of a Bill dealing with cases where there is no family life at all. We do not punish a person who is a leper by granting divorce against him. It is not punishment, but a recognition that in certain circumstances family life cannot exist. Neither is it a punishment in the case of a man who is known to be non compos mentis at the time he entered into the tie. There are circumstances where there has been desertion with a firm intention not to return. In such cases there is no family life, and the sooner you recognize it the better. Criticism is offered in some cases that the desertion may not have been sincere and that there may have been some kind of collusion to get divorce. In that respect the suggestion to have a King’s proctor, an official to watch these cases for six months, say, to see if there has been collusion, and, if so, to bring it to the notice of the court, is a valuable suggestion, and I have advocated it for many years. Then, of course, decrees could be made provisional for six months before making them final. That is a reform of a different kind, and I do not see, because it has been so long delayed, why it should make it impossible to support this Bill. On the merits of the Bill itself, we should lay down that where, owing to a terrible and incurable disease, such as leprosy, family life has ceased to exist, the State should recognize the right to divorce. The hon. member for Bondebosch (Mr. Close) instanced cancer, but I do not agree with him, because there may be quite a happy family life even under this terrible affliction, but there cannot be for the unfortunate leper. He is at once removed from his home and his family, and so there is no analogy between the two cases. So it is with regard to insanity and habitual criminality. Let this Bill go to a Select Committee by all means to have every point of view represented, but I do not think that a private member, who introduces such a Bill in the interests of our social life, should be treated with the scorn which has been meted cut this afternoon.

One does not like flogging a dead horse, but after the speech of the hon. member for Cape Town (Hanover Street) (Mr. Alexander) I feel compelled to say a few words, because it appears, judging from his speech, that there is still a little life in the horse The hon. member for Delarey (Mr. van Hees) previously introduced a similar Bill under another title to extend the grounds of divorce. He had difficulty in getting his Bill passed, and now he has gone further and makes the general proposal to amend the divorce laws. It is courageous of the hon. member to say that we can introduce amendments and, if necessary, delete and change all the clauses in the Bill. As I read the Bill, it amounts in principle to nothing else than an extension of the grounds of divorce, and as such, I must deal with it. My objection to the title is that it leaves too much room for the Select Committee to introduce all kinds of things. I do not think there is much pressure on the part of a large portion of the public for the extension of the grounds of divorce. The hon. member for Delarey, and also the hon. member for Cape Town (Hanover Street) has spoken of a great many persons. I should like to know how many people demand an amendment of the divorce laws. I have before me two volumes dealing with a careful enquiry into the whole matter in England, viz., the report of the Royal Commission appointed in 1912, and the evidence is so all embracing and general that I think it will be difficult to find anything new in our country which did not come to the notice of the English commission, for, in those days, a similar alteration of the divorce laws was demanded. The evidence proved that in practice there were not so many people who demanded an alteration. Take the case of the habitual criminal. There is the evidence of persons who have come into contact with the wives of the men who, from time to time, have got into gaol and been branded as habitual criminals, and in general, the wives say that they remain faithful to the men who are constantly in gaol. I have before me the evidence of Mrs. Hodden. She has been working among the women, and says that she has been in touch with 3,000 of such cases, and that she has noted 1,575 long sentences of ten to twenty years. She says that during the whole period of her experience she never heard of women seeking divorce. Most of them remained faithful to their husbands. I have heard of similar cases in South Africa, often hard cases. The women or men who have spouses in an institution mostly look with loathing on the idea of getting rid of a marriage bond because the wife or husband is a chronic lunatic. I do not think that the statements are borne out that the public will insist on the alteration. There may, here and there, be individual cases, but on the other hand there is ample evidence that it is strongly urged—not only from the church point of view, but also by judges—to narrow the grounds of divorce. It is not necessary for me to oppose this Bill from a church point of view. The hon. member said it would be useful to appoint a commission to go into the matter and get evidence from the Christian public and the churches, but I think that the standpoint of the churches is so clear that it would be a waste of time and money. There are only three standpoints in the Christian churches on which there is a difference of opinion with regard to divorce. One will not admit divorce at all, and one other permits it in the cases of misconduct, and a third also admits it in certain cases of malicious desertion. But for the rest, there is no dispute as to the biblical standpoint. Apart, however, from the church point of view, there is ample evidence that legislation of this kind is not in the interests of the general public. There may be individual cases which are hard, where the father or the mother is in a mental hospital, and the family life is broken up, but if we regard the matter from the general standpoint of society, we must come to the conclusion that the principle of extending the grounds for divorce is unsound and dangerous. The chief objection that I feel is that it is the thin end of the wedge, which may go very far. Mental defectiveness, e.g., is, to-day, simply regarded as a chronic bodily disease. When one commences with one chronic disease others will follow. It is constantly said that from a general moral standpoint it is desirable, if a man or woman is in a mental hospital and declared incurable, to release the other party from the marriage. That view proceeds on the assumption that there must be immorality if a man’s wife is in an institution. But the same applies to any Other chronic disease. A woman may have had some kind of stroke and lie chronically ill in hospital. There the same argument applies, that on grounds of morals such a man ought to be set free. I have gone into the evidence in the British report and it appears that the expert alienists differ a great deal in their views, and that, according to them, there is not yet any measure of certainty at all with regard to the curability or incurability of lunacy. Sir George Harry Savage, who gave evidence, states that he has come into contact with mental defectives tor over forty years, seventeen years as superintendent of a large mental hospital, and generally he had had great experience and practice in this respect. He says that there can be no doubt of the fact that in individual cases people are hard hit, and that he himself, in the beginning, was much in favour of divorce, but that, more and more as he got individual reports about the people, and from his own experience of forty years, he unavoidably came to the conclusion that there was not sufficient ground to make any alteration.

How long ago was that?

This was a Royal Commission in 1912.

What did the Royal Commission report?

There were two reports, one a minority and the other a majority report. I am concerned, however, with the view of the great experts, not so much whether there are also other doctors who hold a different view. There is, e.g., Sir James Brown, a celebrated expert, who says that it is impossible always to say whether a mental defective is incurable or not. In answer to a question, he said that lunacy was still often uncertain and incalculable. Instances are given of people declared to be incurable again becoming normal after 24, 26, 17, 14 and a less number of years. For these reasons it is dangerous to make this alteration in the grounds of divorce. Many witnesses also alleged that it would have an injurious effect on the patients if they knew that after a certain period a wife or husband could be released from the marriage bond. Precisely the same can be said of leprosy. Anyone who has been to Robben Island and learned the conditions there will know of what value it is to the sufferers to get encouragement periodically in their sad plight from their families, who often live far away. Apart, therefore, from the church standpoint, there is enough evidence that in general the public do not insist on the change. I would advise the hon. member for Delarey (Mr. van Hees) to read the report, and to consider the strong evidence of the experts. Even if we only decided to appoint a Select Committee to examine the principle, we shall already have compromised ourselves, and I am not disposed to give a Select Committee instructions to go into the matter, with the chance of extending the grounds of divorce. I am in favour of the limitation of certain grounds of divorce. I myself gave notice last year of a motion in this direction, but withdrew it because I felt that there were many difficulties in the matter and because I expected and still expect, the Government to codify the divorce laws. On the other hand, I do not agree with the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) that a private member has not the right of introducing such a Bill. As far as I can see, almost all alterations in divorce laws in all countries in the past ten years have been made at the instance of private members, and if the Government delays too long in tackling such alterations, a private member should have a complete right to take the lead. My chief objection is that such an alteration will be the thin end of the wedge, and that we might have a dangerous development, and that the ultimate result will be that our legislation on divorce will become still more lax. The idea of some people that this Rill will bring about an improvement in morals does not hold water. Gibbon, in his history of “The Decline of Rome,” says in this connection that easy grounds of divorce lead to immorality, and contributed to the fall of the Roman empire.

I supported this Bill, or a similar Bill, on a previous occasion, and I must say that listening to this debate one feels something like astonishment at the want of connection between the arguments that are brought forward against this Bill and the subject matter of the Bill itself. There is one argument that appeals to me strongly, and that is that a Bill dealing with an important matter like this should be introduced by the Government. But are we to wait for the Government to introduce any necessary reforms in our laws? What are the Government doing in regard to legislation?

Nothing.

Nothing. I do not think, in all my experience of Parliamentary life, that I have ever spent the first week of a session in which the time of the House was so much wasted on trivial subjects. Gambling in Natal seems to be a thing risen to such a pitch that it requires immediate treatment. The amendment of the diamond cutting law, which even members sitting behind the Minister say will be useless, and a few minor amendments in the Administration of Justice Act, are all that we have had before us. We have adjourned every day after practically two hours’ sitting. The reason is that the Government have not got their Bills on the Order Paper. Whether they are waiting for the fatal day, the 15th of February, before they show their hand, I do not know. I do not know what their reason is.

They have got their ear on the ground now.

Whatever the reason is, the fact remains that legislation of importance is being put off, and ministers are parading the country giving election speeches. I really cannot understand the mentality of people who say that to allow divorce in cases of incurable insanity or incurable leprosy is giving greater facilities for divorce. Is a man going to get leprosy or insanity in order to get out of his marital ties?

It is extending the grounds, not the facilities.

But the question should be, is the ground a sound ground or not? Unless, of course, the hon. member is one of those who believe that on no grounds whatever should divorce be allowed. I can follow that argument. If he or the hon. member for Winburg (Dr. van der Merwe) believe on religious grounds that for no cause whatever should divorce be allowed, I can understand that. Most countries of the world have abandoned that attitude. They allow various grounds for divorce. Once you allow that, it seems to me that you are permitted and bound to enquire into whether a particular ground on which it is sought to obtain a divorce is sound or not. The hon. member for Winburg (Dr. van der Merwe) talked a great deal about the moral effect of passing such an Act as this. In what way, I want to ask, is the morality of this country going to be undermined where you say if one spouse is incurably insane or suffers from incurable leprosy, a divorce should be allowed? I was struck by the argument of the hon. member for Cape Town (Hanover Street) (Mr. Alexander). It is not—

by a calamity which no one could prevent—it is already broken up. In what way is it going to help morality to tie up one person to a person who can do nothing for the family? Whose morality is it going to assist? It seems to me that when you come upon some condition which destroys the very foundation of married life, and removes the possibility of everything for which marriage was instituted, surely that is a ground for allowing one of the spouses if he or she thinks fit to form a new tie. I am not one of those who believe that a new tie is sacreligious. I do not see how that is going to destroy our Christian religion, and I feel as strongly as any man the sanctity of the marriage tie and family life—

What if he recovers?

Surely that is a misfortune— when a divorce has happened when there was still a chance of recovery. You should make the law as watertight as you can against anything of that kind happening. But that was not the argument the hon. member pressed upon us most seriously. He said it would destroy family life. I quite agree with a good deal of what has been said about the ease with which divorce is at present obtained, and I think our laws ought to be made stricter with regard to obtaining divorce for malicious desertion. Often these applications for divorce on the grounds of malicious desertion are absolutely farcical, and are a collusive arrangement between the parties to get rid of the tie. I am in favour of a court making further enquiry into the circumstances before a divorce is granted for desertion. If, however, desertion is a ground for divorce, on what grounds can we say that incurable insanity or incurable leprosy is not a ground for divorce?

In the case of desertion there it will.

That does not seem to me to be an argument. In one case it is the malicious, wilful act of one of the parties, and in the other case it is an inevitable calamity which destroys the marriage tie and makes the purposes for which marriage was instituted impossible. I am supporting the Bill in the hope that it will impress on the Government the necessity of giving some attention to our marriage law, both in tightening up the causes for which divorce can be given, and seeing whether there are no other grounds for which divorce may be given.

I entertain the view that the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) and the lion, member for Rondebosch (Mr. Close) were quite unnecessarily severe in the snub they attempted to administer to the hon. member (Mr. van Hees) for introducing a Bill of this sort. I do not see why any private member should not introduce such a Bill. I remember a very important Bill to bring industrial diseases under the Workmen’s Compensation Act which was introduced by Dr. MacNeillie. Then there was the Stock Thefts Bill introduced by the hon. member for Colesberg (Mr. G. A. Louw); a Bill to regulate small holdings by the hon. member for Yeoville (Mr. Duncan); a Bill to regulate conveyancers in Natal by the hon. member for Durban (Mr. Robinson); and a Bill dealing with the Masters and Servants Act by the hon. member for Ermelo (Col.-Cdt. Collins). And the hon. member for Rondebosch himself introduced a Bill to deal with the age of consent— a matter of social importance, and not differing in degree and kind from the Bill introduced by the hon. member for Delarey (Mr. van Hees). The hon. member for Rondebosch is also the hon. member responsible for a Bill dealing with wild birds. In recalling this, I am reminded of the old saying—

The hon. member for Delarey is to be congratulated on taking the trouble he has taken in introducing the Bill. Whatever the result of the voting may be this afternoon, this discussion cannot but be productive of good. I am one of those who agree with the hon. member for Yeoville (Mr. Duncan) on this subject. Speaking as a practical lawyer, I say that the present laxity in connection with our divorce proceedings is something which is nothing less than a scandal. I have been in the courts of Johannesburg for the last 18 years as a practising barrister, and divorce case after divorce case comes up in which the plaintiff pleads that the defendant has deserted him or her. The judge knows that it is a put-up case and so, too, do the counsel and everybody else in the court, but they are perfectly helpless. We have, in fact, got to the state of divorce by consent. A married couple have only to agree that their differences are such that they can no longer live together and they can obtain a divorce with the utmost ease, I have known eases in which couples have commenced divorce proceedings within a month of being married. The judges have in vain attempted to stem the tide. I should have thought that the hon. members for Cape Town (Harbour) (Maj. G. B. van Zyl) and Rondebosch (Mr. Close), who rightly view that state of affairs with misgiving, would have jumped at the opportunity which this Bill has furnished them with to remedy this evil. Nothing but good can come from sending the Bill to a Select Committee. Those members who are opposed to any extension of the grounds of divorce can salve their consciences afterwards by rejecting the Bill if it is not suitably amended. The hon. member for Rondebosch says that no member could introduce an amendment into the Bill providing for the establishment of a King’s proctor owing to the expense that would be incurred, but the Select Committee could consider whether the Government Attorney could undertake the duties of a King’s proctor. Again and again, I have been in divorce cases where the judges knew that something was wrong, but there is absolutely no machinery for the carrying out of any investigation. If a suit is brought by a husband against his wife, third parties cannot intervene and have the facts placed before the court, although they may know that the plaintiff is living in adultery with another person. The hon. member for Cape Town (Harbour) read a long list of protests against the Bill from various churches, but protests on this subject from the Roman Catholic Church or the Church of England leave me entirely cold, because these churches do not recognize divorce at all. Their attitude, which I can understand is consistent, for they do not want divorce on any ground, but for them to say that they do not want these particular grounds inserted in a Bill dealing with divorce is entirely illogical. Rather they should agitate for a Bill which will make divorce impossible, as it is in some states in America and many of the Latin countries in Europe. But South Africa does recognize divorce—it is as much a part of our social system is marriage is—and opponents of the Bill, instead of saying they will not discuss it on its merits, should examine the merits of the proposal, and ask themselves whether on the merits it is a right or a wrong thing. If the Dutch Reformed Church recognizes that divorce is legitimate, I agree that some attention should be paid to its remonstrance, but the Dutch Reformed Church has not fully examined the proposals on its merits.

They are against piecemeal legislation.

Speaking with a very long and wide experience of divorce I think the proposals in the Bill merit the very serious consideration of the House. If two persons are married and have an irreconcilable quarrel they can get a divorce, but if one of the parties becomes hopelessly insane they are tied together for life. It is said that to allow divorce on the grounds mentioned in the Bill would promote immorality. I believe, however, that the very contrary would be the case. The experience in England and other countries, where divorce among the poorer classes was almost impossible because of the expense, showed that, in cases where the wife became hopelessly insane, sooner or later the husband took to himself a concubine or paramour. Is it better for a man, whose wife has been insane for five years, to obtain a divorce and allow him to contract another marriage or to force him to live with another woman? One of the first effects of bringing divorce within the reach of the poorer classes in England was certainly to increase the number of divorces, but it also reduced the number of illicit unions. Within limits freedom of divorce is a necessary condition for the permanence and sanctity of the marriage tie. I would not allow a man to divorce his wife simply because she had become insane or contracted leprosy, for there would have to be safeguards. Talk about marriage being for better or worse is not in keeping with modern conditions when, say, one of the parties has become a habitual criminal. It is simply monstrous to suggest in the name of religion, morality or anything else that a woman whose husband has been declared a habitual criminal, should be condemned by our social laws to remain with the yoke around her neck. When hon. members vote on the Bill they should remember that we are living in the twentieth century and not the twelfth, and they should agree to the Bill going to a Select Committee.

An hon. member has quoted the number of precedents for the introduction of Bills by private members in the House. I would like to quote another precedent. The Bill he referred to, the Deceased Wife’s Sister’s Bill, was introduced in 1892 by a private member. So that we have a precedent established in South Africa of such a change in the marriage laws. The hon. member for Winburg (Dr. van der Merwe) quoted evidence given before the Royal Commission in 1912 on the question of insanity. I have a copy of the report of that Royal Commission in which Sir George Savage gave his final opinion. He says—

Not more than 2 per cent. of the total recovered after a period of five years. Those cases which might occur after five years are so small as to be almost negligible. I would like to read the actual finding of the Commission—

1. 1. That insanity certified as incurable, and so found by the court, should be a ground for divorce.
2. 2. That the insane spouse should have been continuously confined under the provisions of the Lunacy Act for the time being in force, for not less than five years.
3. 3. That this ground should only operate when the age of the insane person is, if a woman, not over 50 years, and if a man, not over 60 years.
4. 4. That the initial proceedings should be served on the King’s proctor, who, on the instructions of the lunacy commissioners, should take such steps as they thought fit to safeguard the interests of the lunatic (e.g., by putting in a defence making counter charges producing evidence at trial, etc.).
5. 5. That for purposes of dealing with cases based on this ground, medical experts should be appointed by the court or other competent authority.
6. 6. That, in addition to a denial and to such other defences as might be applicable should be a defence, if it were proved that the insanity was brought about by the conduct of the petitioner.

Any reasonable man who thinks of the sanctity of family life will agree that it is impossible to have that sanctity when the husband is on Robben Island or the wife is in Valkenburg. It is impossible to have a marriage tie with the man in an asylum and the wife outside. Some there are who are always protesting against the law, but the grounds of their opposition are that they are against divorce itself.

What will be the position if the amendment is rejected?

The original motion will then be put.

And we can then vote against it?

Yes.

Question put: That all the words after “That”, proposed to be omitted, stand part of the motion, and Maj. G. B. van Zyl called for a division.

Upon which the House divided:

Ayes—51.

Alexander, M.

Anderson, H. E. K.

Badenhorst, A. L.

Basson, P. N.

Beyers, F. W.

Blackwell, L.

Boshoff, L. J.

Brink, G. F.

Brits, G. P.

Cilliers, A. A.

Conradie, D. G.

Conroy, E. A.

Creswell, F. H. P.

De Villiers, A. I. E.

De Wet, S. D.

Duncan, P.

Fick, M. L.

Fordham, A. C.

Gilson, L. D.

Grobler, P. G. W.

Harris, D.

Havenga. N. C.

Heyns, J. D.

Hugo, D.

Le Roux, S. P.

Malan, M. L.

Mostert, J. P.

Mullineux, J.

Munnik, J. H.

Naudé, A. S.

Nicholls, G. H.

Payn, A. O. B.

Pearce, C.

Raubenheimer, I. van W.

Reyburn, G.

Rood, W. H.

Roux, J. W. J. W.

Sephton, C. A. A.

Snow, W. J.

Swart, C. R.

Terreblanche, P. J.

Te Water, C. T.

Van Broekhuizen, H. D.

Van der Merwe, N. J.

Van Heerden, I. P.

Van Hees, A. S.

Van Niekerk, P. W. le R.

Vosloo, L. J.

Wessels, J. B.

Tellers: De Jager, A. L.; Sampson, H. W.

NOES—25.

Árnott, W.

Ballantine. R.

Bates. F. T.

Brown, G.

Buirski, E.

Close, R, W.

Coulter, C. W. A.

Geldenhuys, L.

Grobler, H. S.

Hattingh, B. R.

Jagger, J. W.

Keyter, J. G.

Lennox, F. J.

Louw, G. A.

Moffat, L.

Nel, O. R.

Nieuwenhuize, J.

Pretorius, N. J.

Rider, W. W.

Straben, R. H.

Stuttaford, R.

Van Heerden, G.

Van Zyl, G. B.

Tellers: Marwick, J. S.; Vermooten, O. S.

Question accordingly affirmed and the amendment proposed by Maj. G. B. van Zyl dropped.

Original motion then put and Mr. Cilliers called for a division.

Upon which the House divided:

Ayes—33.

Alexander, M.

Anderson, H. E. K.

Badenhorst, A. L.

Blackwell, L.

Boshoff, L. J.

Brink, G. F.

Brits, G. P.

Conradie, D. G.

Creswell, F. H. P.

De Villiers, A. I. E.

Duncan, P.

Fordham, A. C.

Gilson, L. D.

Harris, D.

Hugo, D.

Mostert, J. P.

Mullineux, J.

Munnik, J. H.

Naudé, A. S.

Nicholls, G. H.

Payn, A. O. B.

Pearce, C.

Raubenheimer, I van W.

Reyburn, G.

Roux, J. W. J. W.

Sephton, C. A. A.

Snow, W. J.

Te Water, C. T.

Van Heerden, I. P.

Van Hees, A. S.

Vosloo, L. J.

Tellers: De Jager, A. L.; Sampson, H. W.

Noes—43.

Arnott, W.

Ballantine, R.

Basson, P. N.

Bates, F. T.

Beyers, F. W.

Brown, G.

Buirski, E.

Cilliers, A. A.

Close, R. W.

Conroy, E. A.

Coulter, C. W. A.

De Wet, S. D.

Fick, M. L.

Geldenhuys, L.

Grobler, H. S.

Grobler, P. G. W.

Hattingh, B. R.

Havenga, N. C.

Heyns, J. D.

Jagger, J. W.

Keyter, J. G.

Lennox, F. J.

Le Roux, S. P.

Louw, G. A.

Malan, M. L.

Moffat, L.

Nel, O. R.

Nieuwenhuize, J.

Pretorius, N. J.

Rider, W. W.

Rood, W. H.

Struben, R. H.

Stuttaford, R.

Swart, C. R.

Terreblanche, P. J.

Van Broekhuizen, H. D.

Van der Merwe, N. J.

Van Heerden, G. C.

Van Niekerk, P. W. le R.

Van Zyl, G. B.

Wessels, J. B.

Tellers: Marwick, J. S.; Vermooten, O. S.