CLAUSE 2.—(Extension of jurisdiction of Court of Session to certain marriages irrespective of domicile.) (Hansard, 31 October 1944)

§ Mr. Woodburn
Could the Lord Advocate give some explanation of how this Clause is going to affect girls in Scotland who have married Poles, Norwegians, and people of other nationalities? Many of our girls will have no idea how this is going to affect them. I am very glad to say that, although in my own area a 744 great many marriages with Poles have taken place, the question of divorce has never arisen, so far as I am aware. I have had cases of girls and Poles finding it not easy to get married, because of difficulties from the religious and regimental points of view, and of other girls who wished to marry Poles wanting to be assured that their husbands would be allowed to settle in this country after the war, but there has been no question of a divorce. But that does not mean that there will not be great difficulties after the war. There will be girls who have got married and who will want their Polish husbands to get domiciled in this country. I feel that if the Government will take steps to facilitate such a thing, a great many of the cases envisaged under this Bill will not occur. I would like the Lord Advocate to tell us, in simple language, how this will affect these girls.

§ Sir T. Moore
The Committee will appreciate, Mr. Williams, that the Amendments to Clause 2 in the name of the hon. Member for Frome (Mrs. Tate) and of my own name are similar. May I ask, with all respect, if it is your intention to call the Amendment in my name?

§ The Deputy-Chairman
No, I have not selected either.

§ Sir T. Moore
With great respect, those two Amendments deal with the point for which I moved the rejection of the Bill on Second Reading, and which was accepted by the Chair as constituting a responsible Amendment.

§ The Deputy-Chairman
If that was the case the matter was settled on Second Reading, and it is now out of Order.

§ The Lord Advocate (Mr. J. S. C. Reid)
It is a little difficult to explain this Bill in detail in a few sentences, and, therefore, anything I say must be taken subject to the fact that there will be exceptions, which I cannot deal with without exceeding the limits of brevity to which I think the Committee will expect me to adhere. I think it is from the girls' point of view that the hon. Member is asking me to deal with this matter. The position with regard to the man is that if he commits anything which is regarded by the law of Scotland as a matrimonial offence, namely, adultery or desertion, the girl, if she is married within the period to which the Bill applies, 745 and if she raises her action during the period to which the Bill applies, will be entitled to pursue her husband and to apply for divorce, in exactly the same way, and for exactly the same reasons, as if her husband was a Scotsman. If I go into further detail I may obscure the position, but if the provisions of the Bill are adhered to the action will go through in exactly the same way as if the man were a Scotsman who had never left Scotland.

§ Sir T. Moore
As this will probably be my final word on this Bill, I would ask the Attorney-General to take note of what has been said throughout these discussions, with particular reference to Clause 2 and also to the Title. The Solicitor-General intimated on Second Reading that their minds were open to the considerations of a much larger Measure which might, indeed, embrace these cases to which reference is made in my Amendment to Clause 2. I hope the Attorney-General will still keep his mind open with a view to trying to design a broader scheme which will absorb the many thousands of cases left over from the last war which are unrelieved by any Clause in this Bill.

§ Mrs. Tate
I hope the House will reject the Third Reading of this Bill, against which I, most certainly, propose to vote. Under the guise of helping a few hard cases, or perhaps even a larger number of cases, which, I do not deny, it certainly does, we are passing a Measure which will create untold fresh hard cases and untold anomalies, and is a Bill which, whether you like to admit it or not, does very little more than legalise adultery, provided it is committed with somebody domiciled outside these islands. Moreover, it penalises women who go to the country of their husbands' domicile in an effort to make a success of their marriages where they are in danger of breaking 746 down. I cannot support a Measure which, no matter whether it does benefit a few hard cases or not, I consider to be unjust, immoral, badly drawn and a prostitution of justice. I therefore hope that the House will support me in refusing the Third Reading.

§ Petty Officer Herbert
I think we should all like to thank the Attorney-General for his habitual lucid and courteous handling of the Bill. But the more I look at the Bill—and, when I approached it at first, I did my best to approach it in a friendly way because I know the difficulties, and I know that my hon. Friends have tried—the less I like it, and I wonder what would have been said if such a Bill had been brought up on one of our old Private Members' Fridays. I can readily imagine what the Government spokesman would have said: "Hon. Members must not attempt to alter the laws of England in this temporary pettifogging manner; in due course the Government itself will produce a broad and comprehensive Measure." That is what would have been said, and should have been said to itself by the Government.
As a lawyer, I have a great respect for the law. I hate to hear people say that the law is "a hass," because the law ought not to be "a hass," and one of my great objections to the Bill is that it will make the law look like "a hass." May I refer to a letter of mine published to-day, to which reference has been made? I said there, and say again, that when this law has been in operation a few months, I fear the law will again become a mockery. In references made to my letter, some people have thought that it is wrong. I am quite capable of being wrong, hut, if the House will bear with me, I will describe what I assert will be the state of the law when this Bill is carried. There will be numerous categories of citizens married in this country who, after this Bill, will have different rights of access to the courts, and these differences will be due partly to accent and partly to unnecessary illogicalities, either under the present law or added by this Bill, I will read them, and if I am wrong, I hope the Attorney-General will correct me.
In the first case, if an English girl has married a citizen of Eire before the war, or marries one after the war, and the husband, with a domicile in Eire, commits 747 adultery or is guilty of cruelty or desertion, no divorce is possible for that woman under present law. Is that right? But, if she marries a citizen of Eire now, that is, between September, 1939, and the Appointed Day—he may not be a soldier at all, he may be one of those labourers doing excellent work at Tilbury—with nothing especially emotional about the marriage—if there is one act of adultery she can divorce him at once, in spite of the laws of Eire. That is the first contradiction. Am I right or wrong?
Three, an English girl who marries an American, Canadian, Australian or Pole in war-time, and whose husband commits one act of adultery, can have a divorce in England at once. Four, if an Englishman marries an American girl, now or at any other time, and there is one or many acts of adultery, he has got to wait three years and the wife must wait three years. That is the second contradiction. Observe that if the American husband in the former case settles down in England, he may be living next door to number four: and when they meet at a cocktail party, the American can say, "You are a poor sucker; I can get a divorce at once. You are a Briton and must wait three years."

§ The Attorney-General
I said "settled here," not "become domiciled here."

§ Petty-Officer Herbert
The first marriage is to an American, who has settled down but is not domiciled under this Bill. He can get a divorce without the three years' delay.

§ The Attorney-General
I do not know what my hon. and gallant Friend means by settling down. If a man settles down enough, he has changed his domicile.

§ Petty-Officer Herbert
Yes, but he will not be subject to the three years' delay, and the Englishman will. That is the point. Five is the case of an English girl who is married to an American, who, after the war, deserts her to America. She has then got to chase him to America, find out his court and sue him there. That is a combination of the present law and this Bill. But—number 6—under the beneficent provisions of Section 13 of the Act of 1937 if an English girl marries an Englishman who deserts her to America, she can proceed for a divorce in England. That, by the way, seems to 748 point to a solution of the whole of the problem, but I must not go into that now.
Now I come to the really terrible cases of Newfoundland—or Eire. We really ought not to dismiss the fact from our minds that there are British possessions where there is no divorce. An English girl marries a man in war time. Under this Bill, if she stays in England, she can get a divorce at once through a single act of adultery. But if she goes over there she is in a difficulty. It is not an easy country and some very queer things go on over there. All the matrimonial offences possible may be committed yet that girl is tied up for ever. She cannot come home to her mother in this country, obtain a divorce, settle down again and have children in this country. And let us never forget that we want our girls to marry again and have children in cases where the first marriage breaks down. Finally—and this is the crowning absurdity of the whole thing—if that same girl goes to Newfoundland and suffers many matrimonial offences which are no use to her, but then finds a ground for nullity, to which even the churches do not object, such is the extraordinary, and, I think, fatuous state of the law, that she can come home to mother in England and the court says "We have jurisdiction."

§ The Attorney-General
When the husband is not resident there?

§ Petty-Officer Herbert
According to this tome that I have here, yes. If it is wrong, we must see it is corrected.

§ The Attorney-General
I give it to my hon. and gallant Friend as a point.

§ Petty-Officer Herbert
It says in page 36 of Browne and Latey: Nullity of marriage. The court can entertain a suit for nullity of marriage—(1) where the marriage took place in England, apart from the domicile or residence of the parties. That is the law as explained in Browne and Latey. If it is nullity domicile means nothing and the girl can come home from Newfoundland and be freed, but if it is divorce—adultery, desertion, or cruelty, then she is doomed to a life of loneliness. Those are my cases. I challenge the Attorney-General on this. I may be wrong, but I do not think that I am, very badly.

§ The Attorney-General
I think I ought to apologise to my hon. and gallant Friend. The one that I thought was wrong was Number 5. I thought when he spoke of "after the war" it meant after the war began, but it means after the "appointed day."

§ Petty - Officer Herbert
Thank you. That is right. So I leave my case to the jury. Five cases are added by this Bill making the law more contradictory than ever. Wait until the judges get on to the Measure, wait till the people begin to write Members letters and say, "Why cannot I get the benefit of this Bill when the man next door can?" Let Members be sure what they do before they vote for the Third Reading of this Bill. I am very glad that we made this demonstration: I think it was worth it; and I, personally, propose to do more than that. I hoped when we passed the Act of 1937—divorce having become respectable—we could cease to worry about these things.

§ Sir Patrick Hannon (Birmingham, Moseley)
rose—

§ Petty-Officer Herbert
I mean respectable in a Parliamentary sense. But I again propose to take steps to have a Bill or two drafted ready for the day when private Members can start initiating legislation again. I am prepared to discuss two fairly simple remedies—I know it can never be really simple—at once, and my hon. Friend has another remedy. Whatever else we have done—and we have not done very much, as we have not obtained one Amendment—I do not think our demonstration has been in vain. It is most desirable that the House should keep a close eye on the courts and on the legal hierarchy. The slow process of case law does not always keep pace with the customs of the people. Some old rule crops up by accident in 1857, and is passed along by judge after judge: a bit is added here, and a bit taken away there, it is pared and polished, and developed, and at last it is presented, like this rule of domicile, as if it were an inevitable law of Nature, though Parliament has never considered it. So I am glad that we have questioned it to-day; and if the Bill is given a Third Reading the Government should make it clear that they are going to consider the whole question seriously and bring these affairs into line with the customs and conscience of the people.

§ Mr. Boothby (Aberdeen and Kincardine, Eastern)
My hon. Friend said the Bill creates a lot of fresh hard cases. I do not think that that is altogether true. I do not think that it creates a large number of hard cases that would not arise if the Bill were not passed, but it creates a great number of anomalies that would not otherwise exist. I have only risen to make two remarks. The Bill shows this House at its very worst. For 25 years we have flinched from the problem, with the result that our divorce laws are hypocritical beyond belief. The tragedy of the Bill of the hon. and gallant Member for Oxford University (Petty-Officer Herbert) in 1937 is that, through no fault of his own, it did not go to the root of the problem and did not really radically solve it. This Bill is the result. The divorce laws of this country have not stood up to the pressure of war. That is why we are being invited by the Government to pass this temporary ad hoc Bill covering a limited number of cases for a limited period and creating far more anomalies than ever existed before.
The objection that some of us have to the Bill is that it is informed by no kind of principle whatever. There is no principle underlying the Bill, and I defy the learned Attorney-General to bring forward any principle to justify it. The argument of some in this House is that the Bill is one more proof that the divorce laws of the country have to be radically reconsidered and revised in the light of modern conditions and put on to a sound foundation. Although I am not prepared to vote against the Bill, because I think it will bring a measure of relief to a number of deserving people, it is one more proof, if proof were needed, that the divorce laws of this country have to be made adequate by this House.

§ Mr. Baxter
I want to make one or two brief observations, having heard all the Debate to-day. I do not believe that this Rill is necessary at all. The Attorney-General has spoken several times to-day of the right of the courts to take decisions in exceptional circumstances. The war has created exceptional circumstances in the marriages of our women here to soldiers from overseas. In considering cases for divorce by desertion and adultery 751 of these men, surely the courts could have used their discretion and considered this question.

§ The Attorney-General
They have no discretion at all. The only question where discretion arises is in regard to the three years' bar, which is a minor point.

§ Mr. Baxter
I do not mean discretion in the rights and wrongs of the case. I understand from the Attorney-General that, where an exceptional case is concerned, the three years' rule can be waived. Therefore, the war itself has created the exceptional circumstances in which a number of girls marry overseas soldiers and it is wise to waive the three years' rule.

§ The Attorney-General
They could decide to waive the three-year rule, but unless this Bill is passed they could not entertain divorce proceedings at all, where the husband is someone from overseas domiciled abroad.

§ Mr. Baxter
Perhaps the Attorney-General will be patient and regard me as an ordinary uninformed member of the public?

§ The Attorney-General
That is too great a task.

§ Mr. Baxter
I am very glad that point has been brought out, because I think there are some others besides myself who did not appreciate it. I still think, however, that between now and the final stage the Attorney-General should give some thought, especially to the girl who goes out and lives three days with her husband overseas to try to make the marriage good, and thereby all her rights are taken away from her. Finally I think this Bill has taken very little account of the succeptibilities and the feelings of women who have made different kinds of marriages—women in the same street, village and suburb, a girl who has married an Englishman who has gone wrong as compared with the girl who has married a Pole who has gone wrong, and so on. I think it will create bitter feeling and I would urge him, if possible, to try to modify it between now and the final stage.

§ Sir H. Williams
I would point out to the hon. Member for Wood Green (Mr. Baxter) that this is the final stage. There 752 is no further stage of amendment. We either accept the Bill or reject it. I have been agitating for 17 years, as I said on Second Reading, for something to be done. I am sorry this is a temporary Bill and not a permanent one, but to reject it because it creates a few anomalies, seems to me—

§ Mrs. Tate
A few?

§ Sir H. Williams
Yes, in number; in theory a large number, but in actual fact very few. That is the point. Because it creates anomalies, we should not deny justice to about 99 per cent. of the people to whom it will open the door of the court, and that is the fundamental thing. The Attorney-General pointed out to the hon. Member for Wood Green that without this Bill the door of the court is locked, and none of the English girls concerned can go into the court.

§ The Attorney-General
That is right.

§ Sir H. Williams
What we have done by this Bill is to unlock the door of the English courts to every English girl who marries a man from overseas domiciled abroad, provided that the girl does not leave this country. As long as she remains here, the doors of our courts are open to her, and to say that that is not worthy of support I find incomprehensible. It will do a lot of good. It will not do all the good it might, but it will deal with the bulk of the cases, and I shall support its Third Reading.

§ The Attorney-General
I have spoken a good deal this afternoon, and I do not want to repeat what I said on the earlier discussion. I would like to thank all my hon. Friends who have taken part in the discussion for their courtesy, although we have not always seen eye to eye, for the way in which they have put their points. My hon. Friend the Member for East Aberdeen (Mr. Boothby) challenged me to state a principle. I will do so. It can be quite shortly stated. There are two principles. The first principle is this. The Government considered that the special circumstances surrounding or attending these overseas marriages, if I may so describe them, justified extending to them provisions other than those which we think are right for the normally placed British girl. One can disagree or agree with that, but that is a perfectly intelligible principle which I think has been 753 accepted by the majority of the House. The second is this: On some future occasion we can discuss whether it, or something like it, should be absorbed into the permanent structure of our laws, that where someone who is domiciled overseas marries a girl here, if the marriage breaks down before they have taken up their home in the intended country—namely, his domicile, wherever it is—then our courts should have jurisdiction. That is a perfectly intelligible principle, and that is the principle of this Bill.
Many of my hon. Friends say we ought to have made it now. I would like to say this, that I have had many suggestions of different kinds put up to me in the course of this war to which, after consulting the proper authorities I had to say "No, this does not concern either the war or reconstruction." The Government have accepted the war, but we do not ask Parliament to make permanent changes to the law in war time unless they are connected either with the war or with some post-war problem which it is desired to deal with. I think that is true in this Bill. However, I do not want to rouse controversy. We have dealt with this, we think rightly, as a special problem, and for that reason we made the Bill temporary. I believe, with the hon. Member for South Croydon (Sir H. Williams), that it meets 99 per cent. of the cases which we have all had in mind. There are differences between it and the ordinary law, because we think it is right to deal with these cases on somewhat different lines. The people who think they ought to be dealt with on the same lines call them anomalies; I call them sensible differences, having regard to the special circumstances of these matters. I doubt if I shall persuade—and I think I should be wasting my breath if I sought to persuade—my hon. Friend the Member for Frome (Mrs. Tate) not to divide against the Third Reading. However, I hope that she will no, but, if she does, I am confident that the House will carry the Measure.

§ Mrs. Tate
Before the Attorney-General sits down, could I ask one question? I quite admit that owing to the domicile it is impossible to vote against the Third Reading, because it would be penalising a large number of people, but is it not the case that we are being asked to pass this Bill to-day not because we are attempting to revise the divorce laws but 754 because we refuse to revise the laws of domicile?

§ Sir P. Hannon
I do not want to vote sub silentio on the Third Reading of this Bill. I am profoundly opposed to divorce in every shape and form and against Bills on this matter being presented to the House. When my hon. and gallant Friend the Member for Oxford University (Petty Officer Herbert) brought in his Bill in 1937 I did everything I possibly could to prevent it getting through this House, but he succeeded. I think that in these days we ought to concentrate more on stimulating family life and the unity of the home, which is the unit of our society, rather than breaking it up by introducing Bills of this kind in the House of Commons. The case submitted by my hon. Friend the Member for South Croydon (Sir H. Williams) is important because we might place English girls in this country at serious disability if this Bill were not to become law, but I say that we ought to give more attention to the unity and sanctity of family life, and not bring divorce Measures before this House. I should be wanting in my duty to the House and the strong principles I maintain about building up family life in this country, if I did not make my protest against the Third Reading of this Bill.