HL Deb 12 June 1958 vol 209 cc808-22

3.55 p.m.

Order of the Day for the Second Reading read.

LORD MESTON

My Lords, I beg to move the Second Reading of the Bill known as the Domicile Bill. I feel that we all appreciate the work that was done by the Private International Law Committee, under the chairmanship of Mr. Justice Wynn Parry, who investigated the subject of domicile and published a Report in 1954. From time to time I may refer to that Report.

Let me get to the point at once. A person's domicile is the country in which he has his home and intends to live permanently. The law regards every person as having a domicile, whether it be the "domicile of origin" which the law confers on him at his birth, or the "domicile of choice" which he may subsequently acquire. If a person, having acquired a domicile of choice, abandons it without acquiring a fresh one, the law regards his domicile of origin as having revived until a fresh domicile of choice is acquired, even though in fact he may never have returned to his domicile of origin.

The present law suffers from two serious defects—namely, the excessive importance attached to the domicile of origin, and the difficulties involved in proof of intention to change a domicile. These defects may be illustrated by two cases which were ultimately decided by your Lordships' House, sitting in its judicial capacity. The first case, that of Winans v. Attorney General was decided in 1904. Mr. Winans was born in 1823 in the United States, where he was continually engaged in business until 1850. Between 1850 and 1859 he worked in Russia, where he married a British subject. In 1859 he was advised to winter in England on account of his health, and in 1860 he took a lease of a property in Brighton. From 1860 to 1870 his practice was to spend four months of the winter at Brighton and the remainder of the year in Russia. From 1870 to 1883 he spent more than half of every year in England, the remainder of his time being divided between Russia and Germany. In 1883 he ceased to visit Russia and for the next ten years divided his time between England, Scotland, and Germany. From 1893 until his death in 1897 he lived entirely in England.

It appears that, in addition to the care of his health, Mr. Winans had two objects in life. The first was the construction in Baltimore of a fleet of vessels which would restore to the United States the carrying trade of the world; the second was to develop a large estate at Baltimore. He had lived in England for thirty-seven years because he was unable to obtain control of the Baltimore property, in England he led a secluded life, mixed little with English people and devoted the whole of his time to the care of his health and to the advancement of his schemes. It was held that Mr. Winans had never formed a fixed and settled purpose of abandoning his American domicile and settling finally in England—that is to say, at the time of his death he still retained his domicile of origin.

The other case is that of Ramsey v. Liverpool Infirmary, which was decided in 1930. In that case, George Bowie was born in Glasgow in 1845. He gave up his employment as a commercial traveller at the age of thirty-seven and did no further work during the rest of his life. He moved to Liverpool in 1892 where he lived on the bounty of his brother, at first in lodgings but subsequently in his brother's house on the latter's death in 1913, and he remained there until his own death in 1927. Thus Bowie had lived in England for the last thirty-six years of his life and during that time only twice left this country, and never returned to Scotland. During his life he said that he never wished to set foot in Glasgow again, and had arranged for his burial in Liverpool. Nevertheless, it was held that Bowie had not acquired a domicile of choice in England and that he must accordingly be regarded as having had a domicile in Scotland. May I, by way of improper comment, suggest that when a person is living in Liverpool, has lived in Liverpool for many years and has decided to be buried in Liverpool, one would think he had become a Liverpool man? They said "No", he was still a Glasgow man.

Those two cases illustrate the difficulty involved in the proof of intention to change a domicile. This difficulty will be materially lessened if not substantially overcome, by this Bill. Clause 1 provides that The rules set out in sections two to seven of this Act shall be applied in determining a person's domicile. Clause 2 provides: Subject to sections five and six of this Act, a person's domicile is in the country in which he has his home and intends to live permanently. Your Lordships will observe that the word used is "home" and not "residence". Suppose, for example, that a person lives in England and intends to live permanently in Canada, but dies on the quayside at Halifax. In that case, it ought not to be held that he has abandoned his English domicile. Suppose that, instead of dying on the quayside, he takes a room in a hotel in Halifax and dies in that room on the first night, what then is the position? If it be the fact that he intended to go the next day to Vancouver, it could hardly be said that at the time he died he had acquired Canadian domicile. Thirdly, notwithstanding the fact that he died on the first night in a room in Halifax, if it was his intention to live in various hotels in Halifax for the rest of his life it might well be said that he had acquired a Canadian domicile. It is purely a question of fact in each case, depending upon proof of a person's intention as to where he proposes to live permanently.

Reverting once more to that difficulty, I should like to read Clause 3 of the Bill. Subsection (1) says: Subject to the following provisions of this section, a person who has a home in a country is presumed to intend to live permanently in that country. That is the first presumption. The second presumption is in subsection (2): If a person has a home in more than one country he is presumed, subject to the next following subsection, to intend to live permanently in that one of them with which he is most closely connected. The third presumption, subsection (3), is: If a person lives in a country mainly because he works there and he has a wife or children whose home is in another country he is presumed to intend to live permanently in that other country. Perhaps I might explain in a few words exactly the value of those presumptions. At the present time one has affirmatively to prove what is a person's intention as to the country in which he proposes to spend the rest of his life; and if a person is dead, you can well imagine the difficulty his executors and advisers have in proving that intention. You and I, my Lords, do not walk about with a banner saying, "I intend to live in England for the rest of my life"; we do not even talk to our friends about the subject. What we do is to go on living in one country, and it must be clear to any person that that is probably the country in which we intend to live permanently.

These three presumptions contained in Clause 3 of the Bill alter the burden of proof. If a person has his home in one country, the presumption is that he intends to live permanently in that country, and therefore that country is his domicile. It is true that that presumption can be rebutted by evidence to the contrary. Clause 4 of the Bill excludes those presumptions in the following cases. It says that the presumptions to which I have referred may be displaced by proof of a different intention". It goes on to say: The presumption that a person intends to live permanently in any country is not raise

  1. (a) by his home in that country, if he is entitled to diplomatic immunity in that country or, being in the service of an international organisation or in the public service of that or any other country, he had no home in that country immediately before entering that service".
Then there is another way in which the presumption can be displaced—namely, by paragraph (b), which says that the presumption is not raised by his wife's or children's home in that country, if there is in force an order of a court by virtue of which the wife is not bound to cohabit with him or, as the case may be, if he is not entitled to the custody of the children. I may say that all these matters to which I have been referring so far relate to individuals and not to countries.

I now pass on to something different—namely, the domicile of a married woman. This matter was carefully considered by the International Law Committee, and they came to the conclusion that, on balance, a married woman should not be able to acquire a separate domicile from her husband—subject to one exception. The Committee considered it reasonable that a married woman who has been separated from her husband by an order of a court of competent jurisdiction should be able to acquire a separate domicile. Accordingly Clause 5 of the Bill provides that: The domicile of a married woman is that of her husband unless there is in force an order of a court by virtue of which she is not bound to cohabit with him. I should like to take this opportunity of inviting your Lordships to ventilate the question that a married woman should be enabled to acquire a separate domicile in the same way as an unmarried woman, without the limitations stated in this clause, or without any limitations whatsoever. Having extended that invitation to your Lordships, I may add that it is a subject on which we could talk for forty days and forty nights.

I come now to Clause 6, which deals with the domicile of children. Clause 6 (1) lays down a clear and simple rule that a child's domicile is "that of the person entitled to his custody". Clause 6 (2) provides that the domicile of a child in the custody of an authority shall be the country whose law governs the constitution of that authority. This applies to children in the custody of foreign authorities as well as to United Kingdom authorities. As your Lordships know, in England there are three categories of children who may by Statute be in the custody of an authority. First of all, an order may be made committing a child to the care of a fit person. Secondly, an order may be made committing a child to an approved school; and thirdly, a local authority may in certain circumstances assume parental rights over a child by passing the required resolution.

Clause 7 deals with the duration of a person's domicile. When a new one is acquired the old one is extinguished and cannot be revived. This abolishes the old rule about the revival of the domicile of origin. Clause 8 is the Interpretation Clause. Clause 9 repeals the Domicile Act. 1861 (which is a dead letter in any event), and Clause 10 preserves the court's jurisdiction to entertain divorce proceedings notwithstanding that only one of the parties may be domiciled in this country. That provision may become very necessary if there are any circumstances whatsoever in which a married woman can obtain a separate domicile from that of her husband. Clause 11 of the Bill safeguards the position of certain pensioners of the former Indian Services. Under the Pensions (India, Pakistan and Burma) Act, 1955, as amended by the Pensions (Increase) Act, 1956, increases of pension may be granted to members of the former Indian Services who: in the opinion of the Secretary of State were at the date when the service began domiciled outside Asia. A number of such persons have been granted increases of pension, and applications for increase will be made in the future from time to time as these people reach retiring age. It would clearly be wrong for the Bill to disturb the principles applied by the Secretary of State in determining this question, and Clause 11 deals with that point.

I observe that I forgot to refer to Clause 6 (3) of the Bill which requires careful attention—I hope your Lordships will explain to me what it means. Where a person entitled to the custody of a child changes domicile, or the custody of a child passes to a different person whose domicile is not the same as the child's, if that person does not intend the child to live in the country in which he himself is domiciled, the child's domicile will not change automatically. I am sure that that is clear in your Lordships' understanding, and I doubt the necessity of any explanation. That, my Lords, is the Bill. I am not going to suggest that it is either very simple or entirely free from controversy. It does not try to solve finally any problems whatsoever. What it does is to try to clarify and simplify many of the rules relating to the ascertainment of domicile, and in that modest view of the matter I have no hesitation at this late hour in commending it to your Lordships. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Lord Meston.)

4.15 p.m.

LORD MILNER OF LEEDS

My Lords, I am sure that all your Lordships are grateful to the noble Lord, Lord Meston, for the very detailed information he has given on this Bill. I am sorry that I cannot relate to your Lordships further life histories of the kind he has described. There is no question that the matter of domicile is of very great importance to the individual. English law determines matters very largely, if not wholly, by the test of domicile. On the Continent, however, nationality, and not domicile, is usually the basis of jurisdiction. As I understand it, the Bill introduced by the noble Lord seeks to bring these two conceptions—those of domicile, in this country, and that of nationality, on the Continent and elsewhere—more closely together. One advantage of that, as I understand it, is that it would enable Her Majesty's Government, subject to a statement in regard to the construction of one of the Articles, to sign a draft Convention on the subject which has been approved by the Conference on Private International Law held at the Hague as long ago as October, 1951. That would obviously be a very desirable result. The Bill has the further advantage of clarifying, and in some minor respects altering, the present law of domicile in this country and will be a most useful measure to which lawyers can refer.

There is just one matter to which the noble Lord referred, and which I should like to emphasise. I am not at all happy about the provisions in the Bill whereby a married woman is unable to obtain a separate domicile in exactly the same way as an unmarried woman. Furthermore, as the noble Lord explained, while a woman who is separated from her husband by an order of the court can claim a separate domicile, that advantage is not ordinarily given to a married woman. It appears to me very desirable that the law on this point should take account of the altered status of married women in these modern days. In fact, that status was taken into account, and has already been recognised, by the British Nationality Act, 1948, under which a married woman does not necessarily acquire her husband's nationality upon marriage. It does not appear that the disadvantages of having the law the same in regard to domicile as in regard to nationality would be great, and in my view it is very desirable that legislation should move with the times in these matters affecting the status of a married woman. Subject, as I hope, to further consideration on that point, we on this side approve the Second Reading of this Bill.

4.17 p.m.

LORD DENNING

My Lords, this Bill deals with a very specialised part of the law but it affects individuals mightily in two situations: first, if they want a divorce, and secondly, when they die and leave money or goods behind them; because if they want a divorce they must go to the court in the country where they are domiciled. That is the only court to which they can go for a divorce under English law. Then when they die and leave property behind, that property devolves according to the law of the place where they are domiciled, and they are taxed according to the place where they are domiciled; so the domicile of the individual is of great importance in English law.

Now we have become far too technical. Domicile means only a person's permanent home, and these technicalities are largely swept away by this Bill—and a very good thing it will be when it is passed into law. But there is one technicality which this Bill still retains: that a married woman, by English law, takes the domicile of her husband, not only when she is living with him in one home —that is plain enough—but even when she is living separate and apart from him, in a country perhaps thousands of miles away. Wherever he wanders, if she stays here she takes his domicile by law.

Domicile is different from nationality. Nationality is, of course, the political status of a person. An English woman now remains an English woman when she marries any person in a foreign country, but her domicile goes with her husband wherever he may be; and that is preserved by this Bill. This is an outworn relic of a bygone age. It was the law of this country for several hundred years that husband and wife are one and the husband is that one. Let me give your Lordships a few illustrations of the old law. If a husband beat his wife, his wife could not sue him because in law they were one, and it would simply be a case of the husband sueing himself. So English law said that the husband had a right to beat his wife; and, as Blackstone said, the English people were very fond of this ancient privilege. It was allowed by the law so long as he did not use a stick bigger than his thumb. Also, because the husband and wife were one, all the property of the wife on marriage belonged to the husband. If she had a wedding present of a writing desk or a pair of candlesticks, they belonged to the husband. If she went to work her earnings belonged to the husband because of the rule of English law that husband and wife were one.

During the last 100 years all this has been swept away. The husband may no longer beat his wife, or he will find himself in the matrimonial court or the divorce court. He can no longer take her property. They are equal in the eye of the law, partners in the eye of the law. Since 1948 the wife can have her own separate nationality. But there is just one relic remains: that the wife must take her husband's domicile. Other countries have swept it away. In the United States a married woman can have her own separate domicile. Throughout the Continent of Europe and in places like New Zealand she can have her own domicile. But not in England, even by this Bill.

May I just give some illustrations to show how this outworn relic operates. Only a little while ago an Englishwoman married a Russian Jew at the Holborn Register Office, and they had a child. Shortly afterwards the husband disappeared, went away goodness knows where—no one knew. The Englishwoman stayed here another twenty years till she died. She left her money away to third persons, to the man with whom she was living, giving to the crippled child, the one child of the marriage, nothing. That child applied to the court under the Inheritance Provisions Act for some part of the mother's estate. It was held that the law had no power to give it because the mother, although she had lived in this country all her life and the husband had gone away nearly twenty years before, was not proved to be domiciled in England. Her domicile was in some unknown country where the husband was. So the crippled child got nothing.

Or take another case, where a Scotswoman in Aberdeen married a chief petty officer of the Navy, lived in Aberdeen with him for fifteen years and had four children. Then he went off to Australia. He lived in Australia another twenty years; the Scotswoman lived in Aberdeen with her children. In Australia the husband committed bigamy, had two more children, and never corresponded with the woman in Aberdeen. Nevertheless, twenty years later when the Scotswoman died in Aberdeen, her domicile was held to be Australia because her husband was there, and her property devolved according to Australian law; duty was payable by Australian law and not by English or Scottish law.

My Lords, does not that show that a married woman ought to have a separate domicile of her own? That is only in the field of succession. It is even more a crying inequity in the field of divorce. Take the case of an Englishwoman, for instance, who marries a man from another country—let us say an American. He has American domicile, so automatically her domicile is America. According to our English law she cannot get a divorce in England because her domicile is not here. She has to follow her husband to the United States, find out in which of the forty-eight States he is domiciled and bring her proceedings in the court of that State of the United States. There has been some mitigation of that by legislation; if she has had three years' residence here she may now bring her proceedings here, but that is unsatisfactory because other countries do not always recognise it.

That is on the wife's side. Take the case where an Englishman marries an American wife. The Englishman's domicile is England, and according to English law the wife's domicile is England. They separate; the wife is in America and the husband in England. The wife, because American law allows her to have her separate domicile, can bring divorce proceedings in America, get a decree in America and be divorced and re-marry in America. English law will not recognise that divorce. If the husband re-marries he is guilty of bigamy. In England he is married; in America he is not married. That still remains the law to this day.

Having given those illustrations, I ask whether it is not right, as the Commission under my noble and learned friend Lord Morton of Henryton recommended unanimously, that at all events for the purposes of divorce a married woman should be allowed to have her own separate domicile, as in the United States and all other countries. But why stop at divorce? I have given illustrations from the law of succession. Surely the time has now come when this barbarous relic should be abolished. Indeed, this Bill allows the wife to have her separate domicile if she is separated by an order of the court. In the ordinary way, when the wife went to the magistrates in the old days for a maintenance order they used to put in a separation order by rubber stamp. During the last twenty years or thereabouts, owing to court decisions they hardly ever put it in. It is a matter of chance. It is very rare. Why should domicile depend on the chance whether she has got a separation order by the court? Is not the fact that they are living separate and apart sufficient to enable her to have her separate domicile? In these days, after these 100 years in which a married woman has now achieved equal property rights with her husband and is regarded by the law in nearly every respect as a partner with her husband, I would ask this House in due course, if the opportunity arises, to cut away this last shackle of the wife's servitude.

4.28 p.m.

THE LORD CHANCELLOR

My Lords, I should like to join in welcoming this Bill on behalf of Her Majesty's Government and also to express our gratitude to the noble Lord, Lord Meston, for introducing it. I agree with my noble and learned friend Lord Denning, that although the subject matter may give the Bill the appearance of being the concern of lawyers alone, its provisions, if they become law, will affect the lives of ordinary people in a variety of ways. For this reason I think it is a useful and not unimportant measure of law reform. Again I thank Lord Meston, and remind your Lordships that later in the afternoon he will be rendering another service to the cause of law reform.

Your Lordships have heard that this Bill is based on the proposals of the Private International Law Committee. I think your Lordships would like me to pay a tribute to the Standing Committee which was set up, under the chairmanship of Mr. Justice Wynn Parry, by the noble and learned Viscount, my predecessor, in 1952. It has since done a great deal of most valuable work in advising the Government on a number of questions, which have been, for the most part, of very considerable difficulty. It is the sad fact that generally the work of this Committee receives even less than the very moderate publicity which is given to that of the Law Reform Committee, and I am therefore especially glad to be able to take this opportunity of giving public expression to the Government's gratitude to the Committee.

There is another point which the noble Lord, Lord Milner of Leeds, had in mind, and which I should like also to underline as a reason for welcoming the Bill—namely, that it will make legislative provision which which will clear the way for the Government to ratify, subject to a minor reservation, the Convention to Regulate Conflicts between the Law of the Nationality and the Law of the Domicile, which was approved by The Hague International Law Conference in October, 1951. The Hague Conference, of which this country is a member, performs a most useful task, but, as all lawyers will readily believe, an extremely difficult one. It attempts to introduce some harmony into the most divergent legal systems in the member States, and, of course, the greatest of these divergencies is between the Common Law system, which is our own, and the Continental systems of law. For this reason it has unfortunately not been possible for this country to adhere to many of the International Conventions prepared by the Conference in the past. It is all the more gratifying, therefore, that there is now a good prospect that we shall be placed in a position to adhere at not too distant a date to this Convention, which is calculated to simplify the task of the courts and all who give legal advice on a peculiarly difficult legal question.

At this stage I do not wish to make more than two brief remarks about the provisions of the Bill itself. As the noble Lord, Lord Meston, has indicated, the Bill as it stands makes no special provision for Northern Ireland. I am informed that the Government of Northern Ireland wish the Bill to apply, and I shall put down an Amendment for that purpose on the Committee stage.

I now come to the point on which we have just heard so eloquent a speech from my noble and learned friend Lord Denning—that is, Clause 5 of the Bill, which raises the controversial question of the dependent domicile of married women. I am sure that my noble and learned friend—and indeed, before him, Dr. Cheshire's writings, which are so authoritative on all questions of Private International Law, speak for many people—when he says that the dependence of a married woman on her husband's domicile represents the last surviving relic in English law of the married woman's subjection to her husband"— I quote Dr. Cheshire, but I think my noble and learned friend almost ipsissimis verbis agrees. This is a most important question, and my mind is by no means closed on it. It is essentially the sort of question, like the one I mentioned earlier this afternoon, on which this House is so well equipped to give a view, because this House can speak with the great weight of your Lordships' Judicial as well as your Legislative experience.

I hope that we shall consider the question fully on the Committee stage; and as an aperitif to that, and only going so far, I should like to place on record the quotation from paragraph 17 of the Report which has troubled me on this point. It is at the middle of page 9, at sub-paragraph (1) of paragraph 17. After dealing with the question of the British Nationality Act the members of the Committee go on to say: It is also true that in the great majority of cases the practical results of allowing a marred woman to acquire a separate domicile would not be very great, for in any event her domicile would normally be the same as her husband's by virtue of the rules which we propose in Article 2 of the Code. Nevertheless, quite apart from considerations of social policy, we think it desirable that the doctrine of the unity of domicile of husband and wife should be maintained so as to avoid the many complications which in practice follow from the solution which we are considering. It is the next sentence on which I feel, with all sincerity, that I need the help particularly of my noble and learned friend Lord Denning. That sentence says: We do not think that the experience of the United States has been such as to encourage us to recommend its adoption in this country. The noble and learned Lord knows just as well as I do the series of cases and the litigation which the members of the Committee had in mind, and he will find them conveniently discussed in a recent article which I am sure he has read. I Should be most grateful, however, if, on the Committee stage, my noble and learned friend would deal with that point made by the Private International Law Committee and give your Lordships his view on the defects of the provisions concerning separate domicile in the United States. I must confess that I thought the Committee had a good deal on their side on the question of these complications. But, as I say, my mind is not closed on that. I thought that it would be convenient if I told my noble and learned friend what had had some effect on me, so that I might have the advantage of hearing his views on it at a later stage in the progress of the Bill. I think that would be most helpful.

The remaining words in the paragraph are not so important, because the paragraph goes on to say: Nor is the fact that in most European countries a married woman can acquire a separate domicile of much relevance in this connection in view of the much smaller importance which the conception of domicile has in the legal systems of those countries. That is true and has some effect, but to my mind is not so important either way as the preceding sentences which I have read. Therefore I hope that I may ask my noble friends in this House to consider this point and perhaps give us the benefit of their views at a later stage of the Bill. It is an important point and, as I say, I approach it at the moment with an open mind, in the hope that I shall hear a number of important speeches from my Judicial colleagues. Having mentioned those points, I think that we ought to conclude by again expressing our gratitude to the noble Lord, Lord Meston, for the trouble he has taken in putting this Bill before the House.

4.39 p.m.

LORD MESTON

My Lords, I should like to thank the noble and learned Viscount the Lord Chancellor for the kind words which he has said, and I should also like to thank all the other noble Lords for what they have said in support of the Bill. I need hardly remind your Lordships that it does not apply merely to matrimonial matters; it applies also to the making of wills and the distribution of property—in fact it applies in all matters. I was particularly interested in what the noble and learned Lord, Lord Denning, said about the subject of a wife's domicile, and, without wishing to take any sides, I hope that a certain Amendment may be moved by a certain person at a later date. Having made those observations, I thank your Lordships for the support you have given the Bill.

On Question, Bill read 2a, and committed to a Committee of the Whole House.