HC Deb 07 March 1947 vol 434 cc915-24

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Michael Stewart.]

4.1 p.m.

Mr. Garry Allighan (Gravesend)

I wish to call the attention of the House to one or two aspects of divorce procedure which are causing considerable pain and unhappiness to people, and which, I suggest, could quite well be corrected within the framework of existing legislation in order thereby to remove a certain limited grievance under which at least some of my constituents have been suffering.

So long as the divorce procedure involves two people who are equally British citizens the divorce law appears to work comparatively satisfactorily. It is where it is applied to a man who is a British citizen and to his wife who is a citizen of another country that the procedure operates with some degree of pain and inconvenience. I hope to show how this could be remedied within the framework of existing legislation without the need for going outside it or introducing any fresh legislation. What is happening is that the procedure or its impact is not sufficiently known, with the result that men are becoming concerned in divorce proceedings which operate unfairly against them, simply by reason of the fact that steps have not been taken to make the position clearly known. The Government could do two things to correct this. One would be to investigate the proceedings relating to divorce in different countries as they affect British citizens and to make the information known to the public so that the difficulties could be avoided.

To illustrate the case, I propose to tell the House a story of one of my constituents, the romance of a young man called Vincent Brooke, who lives in North-fleet, Gravesend, and who at the age of 24 joined the Royal Air Force at the beginning of the war and was sent to America to go through the air training scheme. While in America he fell in love with a girl in. Hollywood and married her. They set up their home in America for some months until the Air Ministry transferred Vincent Brooke from America and sent him out to Burma, where he gave valiant and valuable service as a fighter pilot.

While in Burma doing his duty, he received a very belated letter which had been slowly following him around the world from America, stating that in his absence his American wife had been to the Superior State Court of California and obtained a divorce judgment against him. After he had got over the shock and had returned to England, he not only discovered that he was divorced by his American wife and received the complete and final judgment of divorce from the Superior State Court of California, accompanied by a letter which stated, "You were fully and completely divorced, and the judgment docketed, on 30th August 1944," which was the decree absolute, but he also learned that his ex-wife was remarried. In process of time Vincent Brooke, himself heart free, fell in love with an English girl. She was a girl in Grimsby, and he proceeded to go ahead with the preliminaries of marriage to this English girl. She put up the banns at a church in Grimsby, and Vincent Brooke gave the statutory 21 days' notice at the registry office in Chatham. On the nineteenth of the 21 days, two days before the wedding, and after the girl had given notice, left her employment, and squandered her few available coupons on her wedding trousseau, he received notification from the registrar at Chatham that he could not be remarried because, in English law, he was still not a divorced man, but still married to the American woman, who had gone through divorce proceedings in America. The situation ceased to be romance, and became almost a tragedy for Brooke. The whole domestic arrangements had to be unscrambled, and he is now in a position of complete bewilderment.

It is only because of the bewilderment experienced in cases like Brooke's, that I am suggesting that steps should be taken to make known the legal position, so that such a situation cannot arise in future. Brooke now realises how near he was to committing bigamy quite innocently. In fact, I have been informed on good authority by legal friends that many young men in similar positions have committed bigamy, imagining that they were completely free, and divorced by American law. He is completely bewildered, because it is difficult for him to explain to himself, or to anyone else, how it comes about that the law of this country can recognise his American marriage, but cannot recognise his American divorce. My right hon. and learned Friend the Attorney-General may tell me that it is open for him now to institute divorce proceedings to free himself. But to Brooke, and people like that, it seems almost farcical to have to go through proceedings of divorce against his ex-wife, who some time ago not only divorced him, but remarried. He is left in ignorance, and is wondering what, as in British eyes his ex-wife is still recognised as his wife, is her position should she come to this country and be arrested for bigamy, as she has remarried. These are some of the puzzles which are bewildering Brooke, and many young fellows. By the new arrangement with America, many British boys will be going there to train, and the same situation will recur.

My right hon. and learned Friend. would be conferring a great deal of help and assistance on the British public if he took steps to institute an inquiry into the operations of divorce laws in all countries as they impinge on British subjects. I have been assured by the United Nations organisation, that it would be possible to refer such an inquiry to the Committee of Human Rights associated with U.N.O., and so have it dealt with on an international plane. Therefore, in submitting this outline of the case and the general situation it illustrates, I request that some consideration should be given to this sort of case in order to ensure that no British citizen should have to go through endless embarrassment, pain and unhappiness.

4.10 p.m.

Mr. Ungoed-Thomas (Llandaff and Barry)

I would like to draw attention to another aspect of divorce injustice. The one to which I refer arises out of the Denning Report and relates to children. I am sorry that the Government have not seen fit to give an opportunity for the House to debate the Denning Report, and I hope that an opportunity may still be possible. The injustice done to children in connection with divorce is probably the most heart rending aspect of divorce. This Report fully recognises that. It says: No subject has caused us greater concern than that of the welfare of children whose parents are, or have been, involved in divorce proceedings. Indeed, that is apparent on the face of the Report itself. What I wish to emphasise is the limitations of the Denning Report in dealing with children. They are not limitations for which anyone connected with that Report is at all blameworthy. It is a most valuable document, which I am sure everyone will appreciate as a big contribution in considering divorce problems. In paragraph 30 of that Report are laid down the limitations. It says, with reference to children: The only aspect which comes within our terms of reference is the administration by the divorce court of the law as to their custody, maintenance and education. In other words, it is dealing entirely with the administration of the divorce court. Though it does refer to administration by the Chancery court, the magistrates' court and county courts, it only does so in connection with its primary obligation of dealing with the administration by the divorce court itself. The conclusions are those which are drawn up within that limitation based upon the assumption that the divorce court is the best, or the only, court within its terms of reference for dealing with the administration of the problems of children. In paragraph 33, under the heading "General Conclusion," it says: These considerations lead us to the conclusion that, if the jurisdiction of the divorce court in respect of the custody of children is to be retained, the procedure should be reformed. Its proposals for the reformation of procedure are based upon that assumption. My suggestion is that the procedure, and, indeed, the substantive law with regard to children and the handling of children's problems in our courts, should be reviewed comprehensively, not merely exclusively, with regard to divorce, but in connection with children's jurisdiction generally. For instance, there are proposals made in regard to Chancery jurisdiction. I would be in complete agreement with the suggestion put forward of abolishing settlements so that the Chancery court could be given jurisdiction, but there are also matters of substantive law that might be considered. May I just mention one aspect?

The law as administered in the Chancery courts law rather inclines to dividing access to the child between both parents, unless there is some very good reason to the contrary, and that inclination is perhaps based upon old historical reasons, that a child with prospects of a fortune should be in touch with both parents and not alienated from either. There is also the good reason that if one parent dies the other should be available to look after the child. Against these considerations there is the consideration, which has become increasingly recognised as important in recent years, in the light of modern experience, that a child should not be unrooted and should not be torn asunder by the competition of two loyalties and two possible homes. It is a very delicate and difficult matter, but it is a matter which ought to be considered. I am not for the moment putting forward any constructive suggestion. All I am suggesting is that these are important matters worthy of consideration at this stage in connection with the contribution which the Denning Report makes towards the solution of these problems.

Owing to the limitations of the terms of reference in the Denning Report, so far as I am aware, no Chancery judge, barrister, practitioner or anybody concerned with the administration of justice in the Chancery Division gave evidence before the Commission. I may be wrong, but that is my impression from reading the list of witnesses at the end of the report. If that is so, it makes it all the more important that this matter should be fully reviewed and that the great wealth of experience which is available for a comprehensive review of this problem should be used. I suggest that the right hon. and learned Gentleman should give consideration to the question of whether or not this is an opportunity for reviewing the general jurisdiction with regard to the welfare of children.

4.18 p.m.

The Attorney-General (Sir Hartley Shawcross)

The hon. Member for Gravesend (Mr. Allighan) and the hon. Member for Llandaff and Barry (Mr. Ungoed-Thomas) have performed a useful service in bringing these matters to notice. It is always well when, owing to the changing circumstances of the time, imperfections develop in our law, that the matter should be publicly canvassed in order that the possibility of alteration may be considered. I am certainly not one of those who think that our law, either in respect of divorce or the custody of children, is always perfect. I am not sure whether a lawyer is supposed to be able to take an objective view about this matter, but, for my own part, I certainly agree that there are, in the matters which both hon. Members have raised, various questions which are open to discussion and some which are open to criticism.

In saying that, I of course express no view about the general grounds upon which divorce should or should not be granted. That question is not really in issue in the point raised by the hon. Member for Gravesend. The question which the hon. Member raises is simply as to the circumstances in which our law should recognise foreign divorces, or in which our courts should exercise jurisdiction to grant divorce themselves. Our law has always adopted in this matter a different principle from that which is applied to other problems in which questions of foreign law may be involved, and the root cause of the difficulty which arises in such cases as that to which the hon. Member for Gravesend referred, is that the jurisdiction in regard to matrimonial matters is founded not upon nationality, not upon residence, not upon where the marriage may have been contracted, not upon the system of law which the parties intended to govern their relationship, but upon domicile; that is to say, the permanent home, or that place which is deemed by law to be the permanent home, of the parties. Added to that is the fact that our law—sometimes with singular blindness to the actual facts—regards the dominant partner in the marriage as the husband, and assumes from that that the wife must necessarily have the same domicile as her husband.

It follows from that, that if, for instance, a husband deserts his wife and makes his permanent home in a country which does not recognise divorce, his wife, although she is an Englishwoman, and although her husband may be an Englishman, cannot get a divorce; and even if the law of her husband's domicile recognises a divorce, the wife cannot get one unless she goes to that country and petitions there for it on the grounds which are open to her in that country. There is a statutory extension to that in the case of war marriages, where jurisdiction has been given to the English court provided that the parties have never lived in the country in which the husband is domiciled, Otherwise, the general rule is that this matter is governed by the domicile of the husband, and the result is that you get the kind of difficulty exemplified by the case which the hon. Member for Gravesend has brought to notice. While a husband or a wife may succeed in obtaining a decree of divorce in some foreign country in which one or the other of them may be resident—perhaps only temporarily resident at the time—that decree will not be recognised as valid in this country, unless it was pronounced in accordance with the law of the husband's domicile.

That may sometimes result in serious inconvenience and even injustice. In the case quoted by my hon. Friend, where the American wife of Mr. Brooke succeeded in obtaining a divorce in one of the American States, the position was that, at all material times in the view of our law, she and her husband were domiciled in England, and the English law consequently—being the law of the domicile of the marriage—did not recognise the validity of the American divorce. Of course, as the hon. Member realised, it would be open to Mr. Brooke to sue in the courts of this country for a divorce, and I apprehend he would have no difficulty in establishing his rights—indeed, I hope that, following the assistance which I was able to give the hon. Member when he first wrote to me about that case.

Mr. Garry Allighan

Would the right hon. and learned Gentleman clear up one point? On what grounds could Mr. Brooke, or anybody in his position, bring an action for divorce against his American wife in these circumstances?

The Attorney-General

I should think that if, as I understand to be the case, Mrs. Brooke has written to Mr. Brooke informing him that she has married somebody else, at least once since she obtained a divorce from him, he would have little difficulty in the courts of this country in establishing that Mrs. Brooke could be guilty of the matrimonial offence of adultery. That is the ground upon which divorce could be granted to Mr. Brooke in this country and I apprehend, I hope, indeed, that he has already taken the necessary steps in order that he may marry the girl from Grimsby on whom he has set his heart.

Mr. Janner (Leicester, West)

Would it be adultery in the case of an individual who was married in another country legally?

The Attorney-General

Unquestionably. I do not want to give a discourse on a matter in which, indeed, I have few qualifications to address the House at all, but there is no doubt that, so far as. English law is concerned, Mrs. Brooke is regarded as remaining married to Mr. Brooke; and if, in the meantime, she has followed some flight of fancy in another direction, and become married to somebody else, that would be regarded as adultery.

Mr. Eric Fletcher (Islington, East)

Would the right hon. and learned Gentleman also deal with the other point raised by the hon. Member for Gravesend (Mr. Alleghan)? Can it seriously be suggester—and this is of public interest—that where, in the circumstances as related, a marriage takes place in this country following upon a divorce abroad, which may or may not be technically valid, there is a risk of prosecution for bigamy in this country?

The Attorney-General

It would be quite impossible for me to give any general dispensation from the operation of the laws of this country in cases of that kind; but I have no doubt that any particular case would be considered, and sympathetically considered, on its merits. Technically, it might well be that had some person got married in the circumstances which have been related, he would have committed the offence of bigamy. But I hope that Mr. Brooke is well on the way to procuring his divorce, and marrying the girl from Grimsby on whom he has set his heart, and that both will be happy for ever after.

Various suggestions have been made from time to time for an alteration in the law in these matters. It has been suggested for this purpose that, if the husband and wife are actually living apart, they should be regarded as having a separate matrimonial residence or domicile, and that, after a period of residence in any particular country, perhaps, for three years or so, we should regard the courts of that country—or of this country if the residence takes place here—as having jurisdiction to grant a divorce, and that a divorce should be given general validity. At present, I can say no more in regard to that matter than that it is one we have very much in mind, and is receiving sympathetic consideration. I cannot give any general indication of the Government's conclusion, or whether it would be possible to introduce legislation in regard to it.

Lieut.-Colonel Lipton (Brixton)

May I put the case of those British wives who may, under the Matrimonial Causes (War Marriages) Act, 1944, divorce their husbands of non-British domicile and are, therefore, legally divorced in this country, but not legally divorced in the country where their husbands are domiciled? That is the case in Canada and New Zealand.

The Attorney-General

I am afraid that I cannot advise on the laws of those countries, but if the law of those countries is as the hon. and gallant Gentleman suggests, I can only suggest that British wives would be well advised not to visit those countries. While they remain here they will remain safe. So far as the different point raised by the hon. Member for Llandaff and Barry (Mr. Ungoed-Thomas) is concerned, I can only say that this question of jurisdiction in regard to various matters affecting the guardianship and custody of children, whether following a divorce or not, is one which raises very wide problems. I hope we shall have some opportunity of dealing with it; and if we do, we shall certainly not lose sight, I hope, of the most careful and conscientious way in which the Court of Chancery exercises its jurisdiction in this matter, as, indeed, it does in all.

Question put, and agreed to.

Adjourned accordingly at Twenty-nine Minutes past Four o'Clock.