HC Deb 27 June 1947 vol 439 cc881-8

Order for Second Reading read.

1.59 p.m.

The Secretary of State for Air (Mr. Philip Noel-Baker)

I beg to move, "That the Bill be now read a Second time."

This is, I think—and I hope the House will think—a short, well-drafted and non-controversial Measure; and I hope it may have a short well-conducted and non-controversial passage through the House. The need for the Bill arises from the doubt which has been cast on the legal validity of 92 marriages of members of the Royal Air Force and Royal Navy. We want to remove the doubt, to make the 92 marriages valid beyond all question, and to ensure that no such doubts can arise in the future in respect of other marriages. I must explain how the doubt arose. In 1892, Parliament passed the Foreign Marriage Act, which is the principal Act. In Section 22, which deals with marriages carried out under the authority of the commanding officer of a British army serving abroad, the exact language is as follows: all marriages solemnised within the British lines by any chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad shall be valid in law as if the same had been solemnised within the United Kingdom, with a due observance of all forms required by law. I ask the House to note the phrases, first, that marriages have to be solemnised by any chaplain or officer or other person officiating under the orders of the commanding officer, and, secondly, that he has to be the commanding officer of "a British army serving abroad." It is out of these two phrases that the doubt has arisen The second phrase, "a British army serving abroad" should be noted It does not say "the British Army" or "part" of the British Army. In 1892, the existence of Air Forces was not foreseen, and no special provision was, therefore, made for the Royal Air Force. Thirty-three years later, in 1925, a legal opinion was given to the Government that the phrase "a British army serving abroad" could rightly be held to cover air forces serving overseas, and that marriages solemnised by persons acting under the orders of the commanding officer of such forces were valid. It was also held, in pursuance of that legal opinion, that marriages solemnised during the war by naval chaplains, in the Mediterranean commands and elsewhere, were valid, there being 75 marriages solemnised by Royal Air Force chaplains, and 17 solemnised by Naval chaplains.

A much more recent legal opinion, however, has made the Government doubtful. The doubt is raised whether the phrase "a British Army serving abroad" can really be held to cover air forces serving overseas, and whether naval chaplains can really be held to be acting under the orders of a commanding officer of a British army. So far no one knows whether the validity of any of these 92 marriages has ever been challenged; the point has certainly never been settled in the courts. Owing to the legal technicalities I have explained, the doubt exists whether these 92 marriages are really valid, and that doubt would, of course, exist about any new marriages.

In Clause 1 (1) we have cleared up the matter, and have removed the doubt about the past and the future. That is the main purpose of the Bill, which, I think, will commend itself to the general support of the House. Clause 1 (2) is also important. One of the parties to any one of the 92 marriages may have married again during the lifetime of the other party. We have no information that any such second marriage has taken place, but it is possible that it has taken place without being brought to the attention of the authorities. If such a second marriage has taken place, and if the first marriage were decided by the courts to be invalid, then the second marriage would not be bigamous, and the party who contracted it must be protected against the charge of bigamy arising retrospectively under this Bill. That is done by Clause I (2).

I ask the House to note that the Subsection makes no change whatever in the existing law. If there have been two marriages, it makes no choice between the two. It does not favour the first against the second, or the second against the first, but leaves the courts to decide, if the case should ever arise, whether such a marriage would be valid or not. If the court should decide that the first marriage was valid, then the second marriage would, of course, be bigamous, and the man or woman concerned would have to take the consequences. If the first marriage is decided by the court to be invalid, the second marriage will not be bigamous. It was thought by the Government to be right to uphold the principle that we must not take away retrospectively a good defence in law. The House will note that this Subsection restricts this safeguard to those who have contracted the second marriage before 24th April this year—that is to say, the day the Bill was introduced in the House of Lords. If we had not done that, as Lord Simon pointed out in another place, we should have encouraged people to make a second marriage in the interval between the introduction of the Bill and its final passing into law, in the hope that the first marriage might be declared by the courts to be invalid.

As we have had to amend the 1892 Act, we have taken the opportunity to clarify and re-enact Section 22, which was not wholly satisfactory, and to make some other minor useful improvements. Clause 2 contains the new redrafted Section 22. It provides that marriages solemnised under the amending Act shall only be valid if one of the parties is a member of the Armed Forces serving in the territory concerned, or is a person employed in such territory in a prescribed capacity— the capacity prescribed in an Order in Council. It is intended to prescribe that these facilities for marriage shall be made available to members of the women's forces and to members of the Control Commission in Germany and Austria, but not to anyone else. That is the present intention. Under Subsection (2), foreign territory is defined as all British territories and protectorates, unless there is a strong reason to the contrary, meaning that where ample local facilities for marriage exist they should be used, which has the further advantage that marriage according to the lex lociis recognised not only in the United Kingdom but elsewhere.

Clause 3 is a consequence of the Statute of Westminster, 1926. It simply ordains that the Bill does not legislate for forces of the Dominions, but enables His Majesty to recognise any similar provisions made by a Dominion Parliament. Clause 4 repeals Section 12 of the principal Act. That Section provided for marriages on His Majesty's ships at foreign stations. Clause 22, as we have redrafted it, provides full and adequate facilities for members of the Navy. Therefore, we delete the original Section 12 from the Act. Section 5 deals with the marriage of minors. In the United Kingdom, the Registrar-General, or the Superintendent Registrar, has power to dispense with the consent of parents or guardians where they are not available. The Bill lists absence, inaccessibility, or disability as causes which would make parents or guardians not available. The Bill provides for the Registrar-General or the Secretary of State, a similar power in respect of marriages of people who have not come of age which are solemnised, under this Bill, in territory abroad. There are other minor matters in the Measure, which can, perhaps, be dealt with in Committee. I hope I have said enough on this occasion to show that this Bill is simple, straightforward, non-controversial—I hope—and necessary.

Dr. Morgan (Rochdale)

So far, my right hon. Friend has discussed only the legality of these marriages. This seems to me to be a somewhat intricate Bill, involving a great many legal problems. I am more concerned about the legitimacy of any children of these marriages. What happens in the case of a child of a marriage which, presumably, is regarded as valid, and then is found subsequently to be bigamous?

Mr. Noel-Baker

I do not claim to be an authority on these matters, and I will take advice, but I should have thought that if a marriage was declared bigamous any children of that marriage would be illegitimate. I hope, however, that no such thing will ever happen.

2.12 p.m.

Mr. Osbert Peake (Leeds, North)

In view of the slight hiatus in our proceedings before the Minister moved the Second Reading of this Bill, I think we are for- tunate that we have had such a clear exposition of it from the right hon. Gentleman, and that he should have been the Minister in charge, for he is, I think, the only Minister who sits on the Front Bench who, when summoned from the further end of the corridor, could have covered the distance in record time, and have arrived with sufficient breath left in his body to be able to explain a Measure of this complexity to the House.

As the right hon. Gentleman has said, this is a good Measure. It has two main purposes. They are, first, to validate certain marriages which took place within the lines on active service, about whose validity doubts have arisen, and, second, to bring into alignment with modern conditions the provisions of Section 22 of the 1892 Act, which deals with foriegn marriages contracted overseas by members of His Majesty's Forces. I would say this about the removal of doubt as to the validity of certain marriages: the Home Secretary knows, or will find out if he does not know, during his term of office, that it is necessary, from time to time, to bring in Bills to ensure the validity of marriages about which doubts have arisen on account of either the possibility of lack of authority on the part of the priest who has performed them, or as to the nature of the buildings in which the marriages have taken place.

The Secretary of State for the Home Department (Mr. Ede)

There was such a Bill about a month ago.

Mr. Peake

Such Bills are brought forward from time to time, and, of course, they are necessary, because it is disturbing to married people who are on the eve of celebrating their golden wedding to ascertain that, possibly, they have been living in sin for half a century. It is, therefore, a human thing, where doubts of this kind arise, to pass an Act of Parliament which validates the marriage with retrospective effect. There are 92 marriages about whose validity doubts have arisen, and it is right and proper that those doubts should be removed. At the same time, however, careful safeguards should be provided to ensure that this Bill does not retrospectively create the offence of bigamy. That is to say, if any of the people who have contracted a marriage, as to whose validity there is doubt, subsequently contract a valid marriage, it would be unfortunate if we were retrospectively to make them guilty of an offence of bigamy.

Dr. Morgan

It they are guilty of bigamy, then any children of their marriage will be illegitimate.

Mr. Peake

It is necessary, in introducing a Bill of this character, to ensure that by giving notice of a change in the law we do not enable persons who have contracted marriages, about whose validity there is some doubt, to cast off the women they have married and contract a new marriage when the Bill is passing through Parliament. This Measure received careful scrutiny in another place, and was amended, to some extent, as a result of the advice given by some of the highest legal luminaries in the land. We on these benches think that in the form which it comes before us today this is a good Bill, and ought to have the general support of all Members.

2.17 p.m.

Mr. Janner (Leicester, West)

I wish to support the Bill, because as the right hon. Gentleman the Member for North Leeds (Mr. Peake) has just said, its purposes are highly commendable. But there is something which needs looking into in the point made by my hon. Friend the Member for Rochdale (Dr. Morgan), and I hope that before the Bill reaches the Statute Book this will be considered. It appears from the first Clause that a peculiar ambiguity may arise. What that Clause purports to do is to make valid marriages, which, hitherto, may not have been valid. The wording of the Clause rather implies that some were in fact invalid. If that is so, it means that any children who were the issue of the first so-called marriage would be placed in an extremely difficult position as, indeed, would the spouse of the first so-called marriage. There is also the question of inheritance to be considered, and a child's mental anxieties, which may be seriously aroused. I hope that suitable words will be found whereby this peculiar anomaly will be put right.

Mr. Peake

Is the hon. Gentleman arguing that where the marriage is subsequently validated by Act of Parliament children of the marriage are not automatically legitimated unless there is a specific provision in the Bill?

Mr. Janner

I rather gather that if the wording of the Clause stands as it is, it would mean that we are making valid marriages which before were definitely invalid.

Mr. Noel-Baker

Will the hon. Gentleman tell me to which words he is referring?

Mr. Janner

I am referring to Subsection (2): Where a marriage purporting to have been solemnized under the said Section 22 would, but for this Section, have been invalid— The obvious inference is that if this Bill had not been introduced these marriages would, but for this Subsection, have been invalid. If the word in the Subsection had read might," r if some word of that nature had been introduced —I am, of course, thinking aloud on this —it might clear up the difficulty. What I am anxious about is that there should not be any reflection cast on, or any difficulty put in the way of, children or wives who thought they were legitimate children or legitimate wives respectively before the introduction of the Bill. For that would mean that the Bill would defeat its own ends. I am quite sure that my right hon. Friend would not want any inference of that nature to be drawn as the consequence of a Bill introduced for such a worthy purpose as he has in mind. This is an important point, and I would ask my right hon. Friend to consider it. It might be held that this means a new situation entirely in which there are two legal marriages. On the one hand, we want, to protect a person against a charge of bigamy who may at present be in a position to prove that because the provisions of the 1892 Act did not cover the first so-called marriage it was not really a marriage; and on the other hand, we want to protect those people who thought they were properly married and whom we now want to consider as having been properly married against any difficulty that may arise. I put this forward in a constructive sense, because I have no desire to criticise, and I hope that my right hon. Friend will take this into consideration.

2.21 p.m.

Mr. Noel-Baker

If I may be allowed to reply to the point raised, the first consideration is whether in any actual case there have been two marriages. So far as we know, in all the 92 pairs of people who have contracted marriages under the 1892 Act, none in fact has made a second marriage. We hope, therefore, that this is theoretical.

Mr. Janner

We must, of course, provide for the exceptional cases.

Mr. Noel-Baker

It is for the exceptional case that the Bill is brought in and hon. Members are entirely right in raising these points. Clause 1 (2) is not intended in any way to imply that either marriage is invalid. I am advised that it might be better to use the word "if" instead of "where," and I will consider that, and if it is right to bring it in, I will do so on the Committee stage. It is the intention of this Subsection to leave it to the courts to decide. If, in fact, there had been two marriages, can the courts hold that both are valid? I can conceive of cases in which it might be natural justice to say that both marriages were valid, but I am afraid that would be repugnant to the principles of the law, which admit only one valid marriage. In that case they would have to decide that one of the marriages was bigamous. I am advised as a necessary consequence of that the children of the marriage declared to be bigamous would, in fact, be illegitimate. That would be a most regrettable circumstance, and I hope that it will never arise, but I gather that that would, in fact. be the position.

2.24 p.m.

Dr. Morgan

I thank the right hon. Gentleman for saying that he will look at this matter again. It is tremendously important that, when the first marriage continues for a certain number of years, the child of that marriage should be regarded as the heir from the point of view of inheritance, because if the marriage is declared by the court to be bigamous, the child is made illegitimate and disinherited, and a subsequent child may get all the inheritance. It is an important point, and I am glad that my right hon. Friend has promised to consider it. I am not very much concerned about the legality of the marriage itself, because the partners can take care of themselves, but I am concerned to see that the children of the marriage are protected from the stigma of illegitimacy and loss of inheritance.

Question put, and agreed to.

Bill accordingly read a Second time.

Bill committed to a Committee of the whole House for Monday next.—[Mr. Michael Stewart.]