HL Deb 16 February 1971 vol 315 cc483-97

2.52 p.m.

THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)

My Lords, I rise to move the Second Reading of this Bill which, as the Title implies, is a measure of law reform, but I think in this case something, more. It is a Bill the principal object of which is to help what are called "limping marriages"—I apologise for the term. It is the convenient but somewhat disagreeable jargon term we use for the unhappy situation which arises, alas! all too often, when a man or a woman is regarded by the law of one country as of married status, when the law of another country regards him or her as single or, worse still, as married but to a different partner.

This is a situation which can always arise in theory where there are two inconsistent laws relating to marriage and divorce in two separate territories. At the best, it gives rise to acute misery and frustration, often to innocent third parties—for instance, children. At the worst, it can give rise to criminal prosecutions for bigamy, as happened, as your Lordships will remember at the beginning of this century to the then Earl Russell. In theory it can arise even between different portions of the British Islands or the United Kingdom, since for the purposes of divorce law Scotland, Northern Ireland and England and Wales are three separate territories. The Bill which I now bring before the House is designed to reduce the number of limping marriages. It is designed to enable us to ratify _the provisions of the Hague Convention on the Recognition of Divorces and Legal Separations. As I shall be showing, it goes a little further than is strictly necessary for that purpose. Its main provisions here before the House are based on the recommendations of the two Law Commissions—the Law Commission and the Scots Law Commission—and I render my customary thanks to the labours of these two bodies on our behalf which are none the less sincere for not being couched at greater length.

The possibility of a limping marriage depends on two conflicting factors in the laws of different countries (and, I hasten to add, in the case of the United States of America of fifty different States, since the law of divorce in the United States of America is fifty-fold and not threefold as it is in the United Kingdom). These two factors are the differences in the substantive law of divorce, and differences in the criteria which different divorce laws apply to give jurisdiction to their courts. The resulting confusion creates a situation in which the courts of one country will not grant recognition to a decree of dissolution pronounced in the courts of another. All countries which recognise divorce at all apply some criteria, which for want of a better generic term I call criteria of link, between one or both of the parties to a marriage and the country whose courts have jurisdiction to pronounce decrees affecting its status. A French couple, for instance, residing and domiciled in France could not normally succeed in obtaining a divorce recognised in France by proceeding to the Isle of Man and getting a divorce there.

The criterion which English law and Scots law have always applied is the somewhat refined legal concept known as domicile, which is a difficult and complicated test of mixed law and fact, which I need hardly remind your Lordships differs profoundly from residence and also from nationality. To this fundamental test applied by the common law of this country there have been several statutory additions in recent years. Other countries have different rules, some basing their jurisdiction on nationality, some on residence, others on a combination of different factors. There is, in truth, no uniformity and, as I have pointed out, the confusion is rendered more complete by the fact that some countries, such as the United States and the United Kingdom, can be sub-divided for this purpose into a number of parts.

These differences of criteria reflect themselves in differences in the extent to which divorces are reciprocally recognised as putting an end to the marriage. For instance, a "domicile" country may not recognise the divorce in a "residence" or a "nationality" country, or vice versa. Some countries demand reciprocity of recognition; sonic do not. Indeed, the permutations are infinite because some unhappy couples may have to have the same status in three or more countries for different purposes.

I would say that all this clearly makes international agreement imperative, and some time ago The Hague Conference on Private International Law undertook the preparation of an international Convention. I hope your Lordships will be glad to hear that in the negotiation of that Convention the United Kingdom delegation played a prominent part. The Convention was finally opened for signature on June 1 last year, and it was signed on that day as one of the last acts of the previous Administration. So far I believe we are the only signatories, but the Dutch, I am told, are also on their way. The present Government have carried on the work of the previous Government and desire to ratify the Convention, which will require some amendments in our own law which this Bill is designed among other things, to achieve.

In the meantime, while all this was going on, our own judge-made law has been moving. As a result of the decision of the House in its judicial capacity in a case known as Indyka, it moved in the direction of greater liberality in the recognition of foreign decrees. That was good; but, unfortunately, with greater liberality came greater uncertainty, and that was bad. Another object of the Bill is to retain the liberality but to restore certainty. This was the reason for referring the matter to the Law Commission, who have recommended the Government not merely to fulfil the requirements of the Convention but to go a little further—and we have done so at least in two respects, to which I now turn.

The first respect in which we go further than the Convention is that the Bill applies to all overseas countries and not merely to parties to the Convention. That is because this is not simply an essay in international solidarity: it is an attempt to reduce human unhappiness and to inject a little more clarity and certainty into our own law. The imagination quails before any attempt to apply two codes of recognition, one applicable to the parties to the Convention and the other to non-parties. By universalising our criteria we avoid this unnecessary complexity. Secondly, by Clause 1 of the Bill. English and Scottish courts are to recognise divorces granted in each other's courts and elsewhere in the British Isles, notably the Channel Islands and the Isle of Man. At least in theory they need not do so now, and we think they should. We also hope that the Legislatures of Northern Ireland, the Channel Islands and the Isle of Man will reciprocate, and we expect they will. As they may wish to do so by their own legislation, I may have to make one or two technical Amendments in Committee.

Clauses 2 to 6 contain the real nub of the Bill, since they deal with overseas divorces and separations. The requirements laid down for recognition are as follows: first, that the divorce should have been valid in the country where it was pronounced; and second, that the divorce should be recognised if either spouse was habitually resident in (or, in the case of a "domicile" country, domiciled in) or else a national of the country of the court pronouncing the decree. Clause 4 deals with cross proceedings and legal separations which subsequently ripen into divorce, as in some countries they do. In some, in fact, it is the only road to a divorce.

Clause 5 implements Article 6 of the Convention, which provides an easy and practical presumption regarding proof of facts required to give the court pronouncing the divorce jurisdiction. Clause 6 of the Bill preserves recognition of foreign divorces based on domicile or based on existing statutory recognition, but with these exceptions it puts a stop to further changes in the judge-made law. This is a move towards codification which can be taken now since the rest of the Bill moves towards greater liberality of recognition.

Clause 7 implements Article 11 of the Convention by removing an inconsistent provision of our judge-made law. Clause 8 envisages certain exceptions to recognition. These are three in number. The first is where the original marriage did not exist or had already been brought to an end. The second saves the principle of natural justice. The third is the exception of public policy, which obviously requires explanation, but at the moment I think I need say no more than that it reproduces the exact language of the Convention and is designed as a safety net against gross injustice. Clause 9 is technical, as is the most part of Clause 10 except, perhaps, for subsection (3), which covers dependent territories which have developed citizenships different from our own; and subsection (4), which applies recognition to existing divorces with a saving for vested property rights obtained as the result of a judicial decision.

There are possible Amendments which could be discussed on Committee, and I think I should point out that there are one or two things that the Bill does not do. Your Lordships may have noticed a decision of the divorce courts some time ago which gave recognition to the Muslim practice of Talak in this country by an extra-judicial proceeding. The extent to which this is altogether satisfactory without recourse to the courts of this country obviously calls, I should think, for discussion. I do not myself know quite what the answer is, as there are powerful arguments on both sides. What I feel is that it needs Parliamentary discussion, and if some noble Lord would put down an Amendment about this to raise the subject we could discuss it in Committee if it was thought right.

I should also like to emphasise (although this is of the nature of the Bill and is inherent in it) that the Bill does not affect the substantive law of divorce in any part of the United Kingdom; that is to say, the substantive law of divorce here will remain as it is under the newly enacted law. Nor does it affect the jurisdiction of the courts here to grant a divorce. It is concerned with the recognition of divorces granted elsewhere. In those circumstances, my Lords, I commend this Bill to the House. To some extent I fear that it is an act of faith, because we do not know how it will fare in another place. But I hope that there, as here, it will have a welcome from all Parties, and that Members will co-operate to see it on the Statute Book this Session, remembering, as I hope they will, that it is designed to help unhappy people in the tangle they have got into by the inconsistencies of different legal systems.

LORD WELLS-PESTELL

My Lords, before the noble and learned Lord sits down I wonder whether I could ask him if there will be any provision in the Bill for facilities in relation to the enforcement of payment? I imagine that quite a number of these divorces and legal separations which the Bill seeks to recognise will have in them money payments. Will there be facilities for enforcement?

THE LORD CHANCELLOR

No, my Lords the Bill is simply a Bill about status, and the question of reciprocal enforcement will, I fear, have to be discussed in other contexts. I am only too aware, in reply to the noble Lord, that the situation about mutual and reciprocal enforcements even within the Commonwealth, let alone in foreign countries, is most unsatisfactory, but it cannot be dealt with in this Bill and is no part of the Convention to which this Bill gives effect. I beg to move.

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

3.18 p.m.

LORD STOW HILL

My Lords, I am sure the whole House is grateful to the noble and learned Lord for the great clarity with which he has explained the purposes and the features of this most important Bill. As I listened to him, I found myself so entirely in agreement with everything that he said that my own task in answering from the Opposition Front Bench must, I think, be considerably curtailed. I would just add, if I may, one or two points, one of which can be said to be not wholly unconnected with the question which my noble friend Lord Wells-Pestell has just raised. The noble and learned Lord did not point out, and the House might like to be reminded, that one feature of the Bill, contained in subsection (3) of Clause 8, is to exclude the application of the Bill to any order for maintenance, custody or any other ancillary matters in the proceedings. The noble and learned Lord—quite rightly, if he will allow me to say so—pointed out that this is a Bill which deals wholly with status, and it is perhaps useful to add that matters such as maintenance, custody, and so on, are in terms specifically excluded from the ambit of the Bill.

My Lords, I greatly welcome this Bill as a measure of major law reform. As the noble and learned Lord pointed out, it has as its objective the relief of suffering in the cases of a great many unhappy people who do not know what their marital status may be because, in effect, of an accident of international law. I would add this, if I might, to what the noble and learned Lord said. As the result of the state of existing English law, not only is there uncertainty as to whether "A" is married to "B" in England; but that question may be resolved only years and years later after the overseas divorce has taken place. The English law recognises a divorce pronounced in a foreign country if the parties, at the date when that divorce was pronounced, were, in the English sense, domiciled in that foreign country. As the Law Commission pointed out, there have been some slight changes of that principle but it still is broadly the principle upon which the jurisdiction of English courts to recognise foreign divorces is based.

The persons, "A" and "B", might have been married overseas 30 years ago; they might have been divorced overseas 20 years ago. Twenty years after that divorce the question may arise in England, when they have settled in this country and when property rights or something like that are involved, as to whether that divorce, pronounced over 20 years ago in an overseas country, was a valid divorce or not. I would add that to what the noble and learned Lord said. It is another consideration which, I should think, reinforces the cogency of the argument that one should do everything one can to make for certainty as to the marital status of persons conceivably involved in these questions of a conflict of law.

The noble and learned Lord told the House that a number of points may arise on Committee which your Lordships may wish to investigate further. It would not assist to go into them in any detail; but may I mention one which I think arises on Clause 5(1)(b)? In terms of Clause 5(1), the English courts will not recognise a finding of fact on which a foreign divorce is pronounced unless both parties took part in the proceedings. There is., however, a saving provision that even if both parties did not take part in the proceedings or appear in the proceedings, nevertheless the English court is given a discretion to recognise that foreign finding of fact if in its discretion it thinks it appropriate to do so.

Is that really quite a satisfactory position if one envisages the sort of case that I instanced a moment ago stretching over a period of 30 years? Twenty years after the foreign divorce was pronounced it might be necessary to try to ascertain as a fact whether the divorced parties had appeared in or taken part in those proceedings 20 years before, whether a person had had notice of them, and so on. Records may have disappeared years before, and it is, in my view, making for a state of uncertainty to leave the law in that position. The Law Commission recommended—and one sees the force of the argument that they adduced—that that situation should be dealt with as it arises by the English court as a matter of discretion. I would respectfully offer this criticism: that that does not make for certainty; that people may be uncertain as to the position years after the divorce was pronounced, when it may be a matter of great importance in this country to ascertain whether or not that divorce was valid. That is a matter which might be looked at in Committee.

The noble and learned Lord mentioned the Pakistani system of divorce by Talak. He said that maybe some noble Lord might wish to put down an Amendment to the provisions of Clause 3 of the Bill, possibly retaining something of the present jurisdiction vested in the English courts to decline to recognise the efficacy of a foreign decree if it was unfair or pronounced under a system of law which was unfair in all the circumstances. That is not quite an accurate statement, but it is broadly sufficient for the purposes of the point I wish to make. On a personal note, I hope that the House might welcome the suggestion that the noble and learned Lord who puts down that Amendment, if an Amendment be put down, might be the noble and learned Lord, Lord Simon of Glaisdale, who shortly is to join us and to w1ose arrival his many friends look forward with great anticipation: because not only is he the President of the Probate, Divorce and Admiralty Division but he is the learned Judge who gave judgment in that case.

That case was simplicity itself, but your Lordships may like to know a little more about it. A doctor who had stared life as an Indian but who became a Pakistani and who was resident in England but retained his Pakistani domicile, married a lady who was Indian and who had been resident in India but was now resident in England. They were married at an English register office in England, and the ceremony was followed by a religious ceremony in accordance with Pakistani law. Differences having arisen, the husband then followed the Talak procedure of divorce which required that he should say: "I divorce you, I divorce you. I divorce you". And that is what he did.

The question before the court was: was that a valid divorce? By Pakistani law it is valid—provided, at any rate, that an arbitrator subsequently tries without success to bring the parties together. The learned President of the Probate, Divorce and Admiralty Division found that in those circumstances the divorce was a valid divorce. In the course of that judgment, as the noble and learned Lord the Lord Chancellor pointed out, Lord Simon of Glaisdale embarked on an extremely interesting and useful discussion as to the principles on which the British courts would decline to follow what seemed to be an undesirable result of the application of an unfair foreign system. It was suggested in that case that the jurisdiction might be available. The noble and learned President said that in those circumstances it was not.

Clause 8, as the noble and learned Lord the Lord Chancellor pointed out, contains, as it were, the residual powers necessary to enable the British courts, if really it revolted against the conscience that it should have to do otherwise, to decline to follow a decree pronounced in a foreign court. He referred to paragraph (b) of subsection (2) of that clause. The wording there is: if its recognition would manifestly be contrary to public policy. Those are words which I know that lawyers always view with some hesitation, because it seems to impose upon the courts the duty of deciding the very difficult question, often highly controversial, of where public policy lies. I myself think that the Law Commission were right in recommending to the Government, and the noble and learned Lord was perfectly right in accepting that advice, that nevertheless that test should be embodied in this clause. The words are "manifestly contrary to public policy". I should have thought that the presence of the word "manifestly" rather eases the task of the English court which is called upon to apply those words.

I warmly welcome the advice given by the two Law Commissions in their Report that the Bill should not be limited to countries that were contracting countries in terms of the Hague Convention. They have applied the provisions of the Bill to divorces pronounced in any country, and, as the noble and learned Lord has pointed out, they did not retain some of the restricting provisions at present embodied in the Hague Convention. I am sure that they were right to do so. I think the result is that we have an extremely valuable measure to consider this afternoon in the Bill which is before the House. I should like to conclude my observations by warmly associating myself with the expression of thanks that the noble and learned Lord the Lord Chancellor uttered to the members of the two Law Commissions.

3.20 p.m.

BARONESS SUMMERSKILL

My Lords, I must confess that when the noble and learned Lord the Lord Chancellor introduced this Bill I was under the impression that the provisions were going to be much wider than those embodied in the measure. Recognising that the Divorce Reform Act, which I contested at every stage in its passage through this House, was coming into force this year, I realised that there was a great injustice which still had not been remedied. Throughout the passage of that Act I pointed out to the House that the women who would particularly suffer were those who were not guilty of any matrimonial offence but for whom there was no adequate provision in the Bill; and I said that they must have further consideration by this House. Unfortunately, no further legislation was introduced.

I also recognise that these women suffer in another way; that is, that outside the Commonwealth maintenance orders of all kinds are not reciprocal; they are reciprocal only within the Commonwealth. I accept the fact that perhaps I was over-optimistic in believing that here was a measure coming along in 1971, when the Divorce Reform Act was being operated, which would at least remedy one injustice. I can only say now that, although I welcome the fact that this Bill will improve the status of many people involved in divorce, nevertheless it does not contain a provision which could well have relieved so many unfortunate families; namely, those who have been involved in divorce and the wage-earner has gone to another country where the allowances are not reciprocal. I hope that the noble and learned Lord who sits on the Woolsack will, in his compassion, think of these people. I had hoped that there would be a clause in this Bill which would meet their case; but apparently there is not. So still we wait. I hope that this will be the beginning of more legislation which will relieve all those people for whom the noble and learned Lord obviously has great compassion.

3.23 p.m.

THE LORD CHANCELLOR

My Lords, I should like to thank the two noble Members of this House who have taken part in this debate, and I begin by thanking the noble and learned Lord, Lord Stow Hill, for the kind words with which he welcomed the Bill. I think he did right to point out that, quite apart from the hardship of the limping marriage, there is the uncertainty created by the long time which can elapse before the true situation is even discovered. The noble and learned Lord raised a number of points which may be considered on Committee, but I should like to give one or two thoughts about them.

The first point related to Clause 1(b). He pointed out, quite rightly, that after a long time records might be lost; and he suggested that the discretion given by that paragraph was perhaps too uncertain to meet the needs of the case. This is something which I think we should like to discuss on Committee, but I should like to place the countervailing argument before the House. By a curious coincidence, when I left my office to come to the Chamber this afternoon I was in process of signing a letter to a Member of the other place relating to a woman who wanted to know, rather as the noble Baroness, Lady Summerskill, wanted to know, what we were doing for wives who had been deserted in England, the defaulting husband having gone elsewhere.

In this case the defaulting husband had gone to Canada, where he had obtained a divorce valid according to Ontario law. I cannot say, because I do not know enough facts, whether or not that divorce would be recognised. But the wife in question claimed (and again one cannot tell, without hearing both sides, whether the claim was justified) that the divorce had been pronounced entirely without her knowledge. She came to ask her Member of Parliament for legislative provision for her, so as to establish her rights. I had to tell her that the difficulty did not reside in any absence of legislation in this country. The problem resides in the fact that the husband has gone off to a country over which this country has no jurisdiction. That is a practical problem which can be dealt with only by international agreement for reciprocity, Suppose you took away the discretion in Clause 1(b) to which the noble and learned Lord, Lord Stow Hill, referred. The effect would be (assuming that the Ontario divorce in this case was one to which recognition would otherwise be given) that the court would have no hold on the husband at all, and no alternative but to recognise as valid the ex parte divorce in Ontario. The result would be that the wife would have no remaining hold of any kind on her husband. So the uncertainty, to which the noble and learned Lord quite rightly referred, as a result of conferring a discretion in Clause 1(b) may not be the worse evil. This is one of the things which I think we shall have to consider; but I will take further counsel, if I may, about the point raised by the noble and learned Lord and try to come armed in the Committee with a more positive answer than I have been able to give in one direction or the other.

The noble and learned Lord also referred to the Muslim Talak. I should have said in my opening speech that this is not the only type of extra-judicial divorce at present being pronounced in this country. There is the Beth Din get; and there is also, I believe, a Greek Orthodox divorce which takes place in a Greek Orthodox ecclesiastical court in this country. I think this gives rise to considerable problems on both sides of the fence. The arguments are very evenly balanced, but I feel a certain hesitation—without criticising whether the substantive customary law under which these things may take place is just or unjust—about ending an English marriage pronounced in a register office by a process which takes place in England but is not judicial.

There are very strong arguments the other way, and the noble and learned Lord, Lord Simon of Glaisdale—whom I hope we shall welcome shortly and to whom the noble and learned Lord, Lord Stow Hill, referred—set them out with great cogency in the decision he made. I have also been instructed about such divorces by the Registrar-General's Office. They are not as rare as I had hoped they were, and all I can say at present is that I think we must discuss the situation in Parliament. Whatever conclusions we arrive at—personally I am very reluctant to put on Whips in matters of this kind—I think we must argue it out in this House and in another place, even if it takes a few moments of our time; because it does give rise to issues of public policy which I think need to be ventilated in the light of the way things are going now.

I am glad that the noble and learned Lord supported what I said about the residual public policy saving in Clause 8. I think that, without that saving, the sort of situation which was inherent in the learned President's decision, and in the Qureshi case to which I referred, some of these reciprocal recognitions would become intolerable. Injustice would be caused particularly in the case of a divorce in which one of the parties, usually the wife, is given no positive say at all, either because it is obtained by subterfuge or because the inherent divorce law does not give her any right to avoid being divorced.

That brings me to what the noble Baroness, Lady Summerskill, said. I hope she will accept that I sympathise with both parts of what she said, because she raised two quite separate points. The first related to the recent divorce law, which provides in the last sub-paragraph of Section 2(1) for unilateral divorce after five years' separation. I warned the other place at the time the Bill was going through Parliament—the previous Parliament—that I thought it would cause injustice; and I still think that it will. But, to begin with, I do not think that we can deal with that issue except by Private Members' legislation, because in these matters the Government cannot put on Whips.

Secondly, I do not think that we can alter the law so soon after it has come into force. It has been in force, I think, for about six weeks, and this is perhaps too soon to amend the law even in the light of experience. I do not want the noble Baroness to think that I do not sympathise, because I tendered exactly similar advice in another place to that which she has tendered to the House with much greater vigour and skill, and I was very sorry that the sponsors of the Bill did not make some amendment of it. We have made one or two countervailing changes in the law which may limit the amount of injustice caused. As Chairman of the Rules Committee, I insisted that special notice should be given to any wife against whom this type of remedy is sought to advise her of her rights and to alert her to the danger of letting a petition go through without resisting it. I think I was entitled to do that, and the Rules Committee very kindly agreed.

The other point the noble Baroness raised was about the reciprocal enforcement of maintenance orders. Here I must tell her that it does not matter how many laws we pass in this country to achieve this: if a wife is deserted and goes abroad, or if her husband goes abroad and does not obey a maintenance order obtained here, there is no law in other countries to give her her rights. What is wanted is an international convention for the reciprocal enforcement of maintenance orders; but in the absence of such a reciprocal convention, Parliament here is powerless. We have no power to enforce orders in the jurisdiction of another independent country, so that we must press on so far as we can with private international law on the lines of such a convention; but it would need a fresh convention, with different subject matter, in order to take the matter further.

My Lords, I hope that, with that explanation, I can now put the Question. I would again say that I am very grateful to those noble Lords who have spoken and for the kind reception this Bill has had.

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