CLAUSE 1.—(Marriage with a deceased brother's widow not to be void as a civil contract except in certain cases.) (Hansard, 10 June 1921)

§ Sir J. BAIRD
I beg to move, at the end of the Clause, to add the words The said Act, as amended by this Act, shall, so far as it relates to marriages between a man and his deceased brother's widow, have effect as though it had been passed at the date of the passing of this Act. The object of this Amendment is to obviate an anomaly and a hardship which would arise if it were not passed. It is a technical matter, and I am afraid that it is a little difficult to understand without referring to the Act of 1907, which legalises a marriage with a deceased wife's sister. Section 1 of that Act provided that No marriage heretofore or hereafter contracted between a man and his deceased wife's sister"— We have now added "between a man and a deceased brother's widow"— shall be void or voidable by reason only of affinity. The words, "heretofore and hereafter" led to an anomalous position. A man might be married or have gone through a ceremony of marriage with his deceased wife's sister and then, discovering that the marriage was not valid, have ignored it and subsequently married another woman, that second marriage being absolutely valid and legal. As the Clause stood without any further proviso that legal marriage would have become a bigamous marriage, and the irregular marriage with the deceased wife's sister would have been legalised. To meet that point a proviso was inserted in the first Section of the Act of 1907 to the following effect: Provided also that in case, before the passing of this Act, any such marriage shall have been annulled"— That is the kind of marriage with a deceased wife's sister which I have described— or either party thereto (after the marriage and during the life of the other) shall have lawfully married another, it shall be deemed to have become and to be void upon and after the day upon which it was so annulled, 2260 or upon which either party thereto lawfully married another as aforesaid. Without the Amendment that I am now asking the House to accept, owing to this proviso which states that it has effect in cases which occurred before the passing of the Act—before August, 1907—there would be a gap between 1907 and the present year or the date upon which the present amended Bill comes into operation. The sole object of the Amendment is to cover that period and to regularise the position of people who have contracted the kind of marriage that I have described. The object of the Amendment is to prevent the marriage with a second woman which is really valid becoming a bigamous marriage. It is rather a complicated point, but I hope I have made it clear. It is a gap which was certainly not intended by the framers of the Measure, and if the Amendment is not passed there will be an opportunity for great injustice being committed.

Mr. DENNISS
I thank the hon. Gentleman for his very clear statement, but I want to know what is the position of any children that may have been born during the marriage of a man with his deceased brother's wife, and whose marriage has been put an end to by a second marriage to a person who is no relation of the brother. It is a question of legitimacy which I am afraid is not covered by the Clause.

§ Sir J. BAIRD
I think the point is quite clear. What the hon. Member describes as a marriage is not a legal marriage, and therefore any children born of it cannot be considered legitimate.

Mr. DENNISS
I was afraid that was so. It is very hard on those children. If we are to make these marriages legal now the consequences to the children may be serious. The Bill does not provide for the case of unfortunate children who under it will be illegitimate, whereas they would have been legitimate if the Bill had not been passed.

§ Mr. A. M. SAMUEL
Do I understand that if a man has been married to his deceased brother's wife in the last two years and has become the father of children by that woman, that union still goes on and that the children will be legitimised by this Bill in cases where the marriage has not been annulled?

§ Sir J. BAIRD
I understand that the marriage is legalised and everything that necessarily follows from it covers the case of the children. The only effect of this Amendment is to bridge the period between the 20th August, 1907, and the date of the passing of the Bill we are now discussing. If this Amendment be not passed there will be a gap which may give rise to great difficulty, but if the Amendment be passed there is no question then that the marriage will have become valid.

§ Mr. SAMUEL
I want the matter to be perfectly clear. There should be no doubt about it. There is some doubt in the minds of people who have honourably married a woman, and children have been begotten of the marriage. There should be no question as to the legitimacy of those children. If the marriage is legitimised then the children born of the marriage should also be legitimate children.

§ Sir J. GREIG
There is unquestionably some doubt as to the effect of this Amendment where there has been, first of all, a marriage with a deceased brother's widow and where it has been discovered that it was not a legal marriage contract. It would not be right, by the retrospective effect of this Bill, to make an illegal marriage legal. I am not quite certain whether this is actually covered. What I would suggest is that as we are now at the last stage of this Measure, and we know exactly what the intention is, that is, to preserve these legitimate marriages where there are children, the House should accept this Amendment and when the Bill gets to another place there will be an opportunity to see what the Bill actually does and, if necessary, it will be possible to introduce other words which will make quite clear what is the intention of this House.

§ Captain Viscount CURZON
There is one point as to which I wish to ask a question, and I will put a concrete case. It is the case of a woman who married a sailor who was killed in action. She had two children by that sailor. She then married his brother, who was a soldier, and that brother was also killed in action. There was one child by that marriage. I want to know whether her position would be legalised by this Amendment. The Treasury, at the present moment, have withdrawn that widow's pension in respect 2262 of both husbands, because they say her second marriage was illegal, and she had been living in sin. Therefore they withdrew all her pensionable rights, although they still continue to pay the children's pension. Will this Bill legalise that woman's position, and will she be able to draw her pension? There are a great many cases of that kind, and I want to know exactly where we stand.

§ Mr. A. WILLIAMS
I hope that when this Bill goes to another place the Government will consider, not only the point which the Noble Lord (Viscount Curzon) has just raised, but the point with regard to the legitimacy of children which was raised by my hon. Friend the Member for Oldham (Mr. B. Denniss). It seems to me to be quite unnecessary to inflict upon the children of the intermediate marriage the stigma of illegitimacy, and I think it would be perfectly easy to insert in the Bill in another place words, which would be agreed to by everyone, providing that, although the intermediate marriage itself could not be recognised, because a third marriage had taken place, still, the children could be legitimised. I hope that the hon. Gentleman in charge of the Bill will consider that point, and that when the Bill goes to another place it will be put right.

§ Sir F. BANBURY
I hope he will do nothing of the kind. I never heard such a suggestion as that a man's marriage is to be illegal, and yet his children are to be legitimate. Apparently some people in this House have gone mad about legitimising children. The sins of the fathers are visited on the children, and the idea of saying, that in the case of a man who contracts an illegal marriage his children shall remain legitimate is, to my mind, perfectly absurd.

§ Major Sir B. FALLE
It appears to me to be very strange that we should leave this matter to the other House. Why should we not settle it here? I am entirely in agreement with the right hon. Baronet (Sir F. Banbury). Let me put a concrete case. A man goes through this irregular form of marriage and has three or four children. He then finds another lady who is willing to marry him in legal form. She knows nothing about these children, but nevertheless those children, if we pass this Amendment, are to be the legitimate children of that man.

§ Sir J. BAIRD
No.

§ Sir B. FALLE
I understood it to be the case that these children would then be legitimised.

§ Sir J. BAIRD
No, it is the exact opposite. I knew that the matter would prove to be difficult, and I am afraid I failed to make it clear. The two things, however, are quite distinct. The one case, where the man marries the widow of his deceased brother, without any further complications, is covered by Section 1 of the Act of 1907, as amended by this Bill. Section 1 of that Act runs as follows: Any marriage heretofore or hereafter contracted between a man and his deceased wife's sister … and now we are adding, or between a man and his deceased brother's widow. That completely covers the case put by my Noble Friend (Viscount Curzon). If you validate the marriage you legitimise the children, and that is not affected by the Amendment which I am asking the House to accept. I am asking the House to deal with the question raised by the right hon. Baronet (Sir F. Banbury) and by the hon. Member opposite (Mr. A. Williams). That is the case where a man, having established a union with his deceased brother's widow, has gone through a form of marriage, and possibly had children, and has subsequently discovered what he ought to have known at the time, namely, that he could not marry his deceased brother's widow. It was well known that the very anomaly which this Bill has been framed to remove did exist, and it has been a grievance for a large number of years. Therefore, the man must have known that if he had children of that union they would be illegitimate. It is not the object to legitimise children born of an irregular union if subsequently a man has contracted a perfectly valid and legitimate marriage with another woman. A man cannot have more than one wife at a time in this country, and if a man, in such circumstances, has married another woman, it stands to reason that her children cannot be legitimate as well as those of the irregular union. That is going much farther than the Bill was intended to go. It is a totally different subject. The only object of this Amendment is to put the case of the deceased brother's widow exactly on all fours with the case of the deceased wife's sister, neither more nor less. The anomaly that 2264 existed owing to the presence of the words "before the passing of this Act," in the proviso to Section 1 of the original Act, renders it necessary to make the addition proposed in this Amendment.