§
Lords Amendment: In page 1, line 15, leave out:
in proceedings for nullity of marriage.
§ Sir P. MacdonaldI beg to move, "That this House doth agree with the Lords in the said Amendment."
This is a drafting Amendment as is the subsequent Amendment in line 17, at end, insert:
as they apply to proceedings for divorce.I suggest that we consider them together.
§ Mr. Manningham-BullerI beg to second the Motion.
§ Lieut.-Colonel LiptonAlthough these may be described as purely drafting Amendments, nevertheless they provide me with an opportunity, within the Rules of Order, of asking my right hon. and learned Friend the Solicitor-General or the hon. and learned Member for Daventry to dispose of this problem which arises in connection with petitions for nullity. As both the Solicitor-General and the hon. and learned Gentleman know, petitions for nullity in the case of voidable marriages may be presented, among other things, where either party is of unsound mind at the time of the marriage or subject to recurrent fits or epilepsy. They may also be presented where the respondent is suffering from venereal disease in a communicable form at the time of the marriage. The third category, which is not perhaps quite as important as the other two in this regard, arises where the respondent at the time of the marriage was pregnant by some person other than the petitioner. In all three categories proceedings must be instituted within 12 months of the date of the marriage, in addition to which, of course, the petitioner has to prove that he or she was ignorant at the time of the fact alleged in the petition.
How is that to be reconciled with the governing clause in another part of the Bill that the aggrieved wife in such circumstances must have resided, after having lost her domicile and having returned to this country, for three years in this country before being in a position to institute proceedings of any kind at all? I should be very grateful if this rather important point, which does not seem to have been discussed in another place, can be disposed of to the satisfaction of those who see in this a difficulty which has apparently not been envisaged by those who have hitherto interested themselves in this Bill.
§ Mr. Manningham-BullerInteresting though it may be, I do not think this point arises on this Amendment—
§ Mr. Deputy-Speaker (Mr. Bowles)The hon. and learned Member has spoken once.
§ Mr. Manningham-BullerPerhaps, by leave of the House, I may speak again. I was not quite sure whether, in fact, I 1625 had seconded the Motion or whether someone else had done so. I think two of us tried to second it. Interesting though this may be, and is, I do not think it arises from these Amendments because they are, in fact, purely drafting in character. The effect of this Clause in the Bill without these Amendments, and indeed with them, quite clearly extends the jurisdiction of the English court and at the same time does nothing to restrict any of the existing jurisdiction. It may be that it has not been extended enough, but we shall see in practice whether that is so. Views may differ about it. I do not feel that any useful purpose would be served at this time by my seeking to answer the points so ably put by the hon. and gallant Member.
§ Lieut.-Colonel LiptonBefore the hon. and learned Member sits down—
§ Mr. Deputy-SpeakerThere is a strict rule against speaking a second time when the House is sitting as a House.
§
Lords Amendment agreed to: In line 17, at end, insert:
as they apply to proceedings for divorce.
§
Lords Amendment: In line 17, after the words last inserted, to insert:
(3) In proceedings under subsection (1) of section eight of the Matrimonial Causes Act, 1937 (which enables the court to make a decree of presumption of death and dissolution of marriage) the court shall have jurisdiction in the following cases only, that is to say—
and in determining for the purposes of this subsection whether a woman is domiciled in England, her husband shall be treated as having died immediately after the last occasion on which she knew or had reason to believe him to be living.
§ Mr. Manningham-BullerI beg to move, "That this House doth agree with the Lords in the said Amendment."
This is an important Amendment and it is not one which has been considered in this House, so I hope the House will forgive me if I say a few words in explanation of the new subsection and of the purpose it is intended to serve. Recently, in a case known as Wall v. Wall, reported in "The Times" on 10th November, it was decided in the High Court in England that the court had 1626 jurisdiction in proceedings under Section 8 of the Matrimonial Causes Act, 1937, for a decree of presumption of death and dissolution of the marriage where the petitioner was resident in this country. On the other hand, there has been a decision in Scotland, in the Court of Session, that the petitioner must be domiciled in Scotland in order to obtain a decree founded on the corresponding provision of the Scottish Act. That being so, if the law were left as it is at the present moment, it is clear that there would be a conflict between the law of Scotland and the law of England in that residence would entitle one to sue in England and domicile would be required to bring proceedings in Scotland.
I should have thought, and I hope the House will agree, that it is clearly desirable that the basis of jurisdiction in the courts of the two countries should be brought into line, and it is with this object that this subsection has been added to the Bill in another place. The effect will be to reverse a decision in Wall against Wall so far as proceedings by the husband are concerned. He will in future only be entitled to seek a decree on the ground of presumption of death when he is domiciled in England, and also he will do so, of course, when he is domiciled in Scotland. It is not thought that the change in the English law will involve any hardship because, after all, a man is free to change his domicile. So far as proceedings by a woman are concerned the effect of this subsection is to bring it into line with the earlier parts of this Clause—that is to say, to secure that she will be able to have recourse to the courts of England if she has been resident in this country for three years.
§ 8.0 p.m.
§ Mr. Paget (Northampton)Will the hon. and learned Gentleman forgive me? I have been trying to make out why this is necessary. Does not Clause 1 do it as well?
§ Mr. Manningham-BullerI am sorry if I have failed to deal with it. Clause 1, as it now stands in the Bill, does not deal with decrees of presumption of death and dissolution of marriage, and this new subsection is limited to that. The hon. and learned Gentleman may remember that when this Bill was in Committee of this House, I endeavoured to 1627 move Amendments into it to deal with the question of decrees of presumption of death and dissolution of marriage—unsuccessfully, like the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton)—because the Title of my Bill was not wide enough to enable me to do so. It is, therefore, necessary now to have this special provision of this subsection, in view of that recent decision, to bring the law of Scotland and the law of England into line.
I hope, without taking any more time, that I have made the effect of this new subsection clear to the House. I would only add that the last few words of this new subsection (3) are intended to make it clear that a wife petitioner shall be at liberty to establish that, by virtue of her husband's presumed death, she has acquired a new domicile of choice in this country, if she desires to do so.
§ Sir P. MacdonaldI beg to second the Motion.
§ Mr. Eric Fletcher (Islington, East)I hope very much this House will not agree with the Lords in this Amendment. If I may respectfully say so I do not think there is anything the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) has said in his speech which would justify the House in accepting this Amendment, which I regard as a retrograde step.
I would ask the House to recollect that in every other single provision of this Bill changes have been made in the law with a view to giving additional relief to spouses who are anxious to obtain relief from matrimonial ties. This provision, which is being inserted at the last moment at the request of another House, is not intended to make it easier to get divorce. The object of this subsection is to make it more difficult to get a divorce in England. The only possible justification—and I think it is quite intolerable—which this Clause can have is the desire to bring the law of England into line with the law of Scotland. As the hon. and learned Gentleman has pointed out, this particular subsection was thought of at the last moment in another place—not until the Report stage—because of a decision of Mr. Justice Pearce in the case of Wall against Wall. I have the report of that case here.
1628 I hope the House will follow this. As the law stands today, in accordance with this decision of Mr. Justice Pearce, which is reported in the Weekly Notes as recently as 18th November, 1949, the courts of this country today have jurisdiction to grant a decree of presumption of death and dissolution of marriage if the wife petitioner is resident in this country. The object of this subsection introduced by the House of Lords is to take away that right, and is to amend the law in order to provide that a wife petitioner shall not be entitled to petition for presumption of death and dissolution of marriage unless she is either domiciled in England or has been resident here for a period of three years.
At the present moment she can petition if she is resident here at the time of the petition. Residence alone is, and has been for a very long time, the basis of the jurisdiction of these courts, based on the jurisdiction of the former ecclesiastical courts in giving decrees of presumption of death, and, consequently, dissolution of marriage.
The reason for that distinction is a vital one. A decree of presumption of death, to which a decree of divorce is afterwards tacked on as a necessary corollary, is something totally different from jurisdiction to dissolve a marriage or to decree an annulment of marriage. The reasons for that distinction are made perfectly clear in the judgment of Mr. Justice Pearce, and I can only surmise from the remarks of the hon. and learned Gentleman that he really has not followed the reasoning of Mr. Justice Pearce, because I think it is completely convincing, and I see no adequate reason why this House should overrule it merely in order to bring it into line with the law of Scotland. If that is the only reason, I should prefer that the law of Scotland should be brought into line with the law of England.
This Bill is an enabling Measure. This Bill originally, let me remind the House, was a Bill of three Clauses when it was first introduced, and has gradually grown and grown; all credit to the promoters of this Bill, that it has gradually grown, from the time when it was first introduced as a Bill of three Clauses, to being a Bill of eight Clauses; and its title has been changed, and changed again. It is a matter of great regret to a great many 1629 Members of this House and to a great many people outside the House that we have not had still further new Clauses, including the one my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) wanted to move, to enable people who have been separated for seven years to petition for a decree of divorce. Now that Clause, which was one of great consequence to the people of this country, has been left out, owing to the Ruling of Mr. Speaker, which is accepted. No doubt, one day it will be considered.
However, this Bill, as it was originally introduced, has developed and changed and grown with a great variety of different Clauses, and has been designed with the sole object of improving the law, of remedying defects, facilitating measures of relief in hard cases, removing hardship, and so forth; and now, at the last moment, for some quite extraordinary reason, we are asked to take a step back and say that the women of this country, who, at the moment, are entitled to' petition for a decree of presumption of death on the mere ground of residence in this country, should in future have to wait for three years. Now, I am concerned about this matter not merely because I think it is one of general interest but because I happen to have a person in my own constituency whose case is particularly affected by it, and the facts of which, with the leave of the House, I will indicate in a moment.
But I think it is important to remind the House of the distinction between a decree of presumption of death and a decree of nullity or divorce. It is given in these words by Mr. Justice Pearce in the decision of the case of Wall against Wall, which, for some extraordinary reason, we are now being asked to overrule. His Lordship said:
Although in many cases death had in fact already dissolved the marriage, the safeguard would take effect in the occasional cases where the person presumed dead was alive and an existing marriage would in fact have been dissolved by a decree of the court.… There is to my mind a fundamental difference between deliberately dissolving a marriage which the court knows to exist and dissolving (ex abundanti cautela) a marriage which the court presumes not to exist. Although there must always be some risk that the decree may alter status, owing to the party presumed dead being in fact alive, yet the degree of risk in each case should not be a large one. In practice the alteration in status, if it occurred, would not be severe.… Then must that risk deter the court from accepting jurisdiction?,1630 In my view relief under s. 8"—of the Matrimonial Causes Act, 1937, which is the Section 8 referred to in this Amendment—
is not primarily or in essence dissolution of marriage, and was not intended to be so. The dissolution was added as a safeguard.The essence of the jurisdiction under Section 8 is a decree of presumption of death. Now the class of person who will be affected by this proposed change in the law is that of a lady who lives in my constituency, who since the war has married, in this case a Russian subject in Germany, a person who was then a displaced person; the union was not a success; they lived together for only two or three days; the husband's domicile was in Germany; she came back here, and has reason to believe that her husband is dead, although there is no possibility of proving it conclusively.As the law stands at present she, being a resident in this country, is entitled to ask for a decree of presumption of death on facts which she can establish. If the change proposed by this Amendment is made she will have to wait three years from the day when she came back here "from Germany. I ask "Why should that be so?" and the reason I am given is that it will bring the law of England into harmony with the law of Scotland. Since when has it been a good ground for changing the law of England that to do so will bring it into harmony with the law of Scotland? I have great respect for Scots law, but when we are dealing with the question of removing hardship and anomalies I very much hope that this House will not, without much greater consideration, to the details of which I shall be very ready to listen, accept the Amendment proposed by another place.
§ Mr. Marlowe (Brighton)The argument of the hon. Member for East Islington (Mr. E. Fletcher) was, I think, founded upon a false conception of the purpose of this Bill. He began by saying that he objected to this Amendment on the ground that the main purpose of the Bill was to facilitate divorce. That, of course, is a complete misunderstanding, because there is nothing in this Bill about facilitating divorce. The object of the Bill is to remove certain anomalies and to make the whole of the law of divorce more logical. That is precisely what this Amendment does; it brings the law into 1631 line in many respects. If the hon. Gentleman understands that perhaps he will find it easier to accept the sense of this Amendment. The only alternative that I can see to accepting this Amendment is to leave the matter until some unfortunate litigant has to take the question to the House of Lords. That would be a far more expensive way of arriving at unanimity of decision as between English law and Scots law.
§ 8.15 p.m.
§ Mr. E. FletcherThere are plenty of respects in which the law of England differs from the law of Scotland. The law of England has been laid down by a judge of the High Court, and I do not think it matters if in this respect the law of England does differ from the law of Scotland.
§ Mr. MarloweThe hon. Gentleman may not think so, but there are a lot of people who do think that in this particular matter it is very convenient to have the two in line. It may give rise to singular anomalies if in a matter of this kind there is this distinction between the laws of Scotland and England. The point I was making when the hon. Gentleman intervened—and I am sure he would not disagree with this—was that as a matter of case law they could be brought into line by somebody taking the question to the House of Lords, but that would be an extremely expensive business. It is far better that it should be done by this means.
It seemed to me that the hon. Gentleman argued his case from the particular to the general in the most unfortunate way. He gave an example which I suppose nobody is ever likely to hear again, of a woman who married a Russian displaced person in Germany, came to England, and would be affected by this subsection if it goes through in its present form. That must be a most exceptional case. On what the hon. Gentleman said it becomes even more surprising, because I gather that the lady can have only just arrived in this country, because he said she will have to wait three years. He did not tell us when she arrived, but if she has been resident here for any period that would count as part of the qualifying period. If she has been resident here for two years the delay would be only a year.
1632 If the hon. Gentleman has, as I presume he has, read the Bill, he will have seen in Clause 1 that the residence qualification of three years is put into the Bill as a matter of general jurisdiction. It therefore seems very desirable that, if the general jurisdiction is to be set out in that form in Clause 1 there should also be precisely the same length of period to qualify for jurisdiction when divorce is sought on the ground of presumption of death. I am bound to say that there seems to be a very good case for treating these matters harmoniously and for trying to remove the illogicality which existed before. What the hon. Gentleman is trying to do is to perpetuate an anomaly which this Bill seeks to get rid of.
§ Mr. Paget (Northampton)I hope the promoters of this Bill will not insist on this Amendment. I believe that they have done a very useful job—a job which will help many people—by bringing forward this Bill; and I believe that they have been very wise in the attitude they have adopted in accepting only reforms which are not controversial. Here they have introduced a subsection which is extremely controversial, and I do not myself feel that it is quite fair on the House to introduce it at this stage. I think that all of us who welcomed and gave a Second Reading to this Bill did so upon the ground that it enlarged the jurisdiction of the divorce court. I do not say for a moment that that was on the basis of making divorce easier. That certainly was not the intention. It was a question of enlarging the jurisdiction of the divorce court so that more people could get justice from probably the only court which was in fact available to them, for financial and other reasons.
To introduce at this stage a subsection which is, if the hon. and learned Gentleman will forgive me saying so, somewhat obscure, which until we have his explanation I, quite frankly, did not understand, and which in effect is simply to curtail the jurisdiction of the divorce court, does not seem to me to be fair at this stage. Those who gave a Second Reading to this Bill did so with the intention of enlarging the jurisdiction of the divorce court, and we ought not at this stage to cut it down without anybody really realising what has happened.
Now, the argument which is advanced for doing so is that it brings the law of 1633 England into line with the law of Scotland. One might perhaps have had a more ambitious and even shorter Bill to say that in future 'the law of Scotland should apply to England. We have had two fundamental systems of law and two different systems of divorce law in these two countries throughout all history. The suggestion which was made by the hon. and learned Member for Brighton (Mr. Marlowe) was that this was a matter of bringing the two systems of law into line which could be solved by the House of Lords. The House of Lords might very well decide, as I think they would, that the law of England was right, or they might equally decide that the law of Scotland was right. One is the law of England and the other the law of Scotland. The ecclesiastical courts are quite different in Scotland. It is quite a different basis of jurisdiction in the Scottish courts. There is no theoretical reason why the two should be the same.
My hon. Friend has quoted a case of someone who married a displaced person. That may be a temporary state of affairs. In the case of sailors, that is very frequent indeed. A woman ordinarily regarded as an English woman marries a foreign sailor. He is domiciled in some foreign country. He disappears on a voyage. She has to remain three years before she can take proceedings in the English courts. That is surely a retrograde step. Surely when we gave a Second Reading to this Bill, we did not intend to curtail the jurisdiction of the Divorce Court in this way. I very much hope that at this stage the promoters will not insist on a proposal on which the House will certainly divide, and divide, I should have thought, in rather unsatisfactory circumstances.
§ Mr. Turner-Samuels (Gloucester)I prefer the view which has been expressed by the hon. and learned Member for Brighton (Mr. Marlowe) to the two views which have been vouchsaved by my two hon. and legal Friends on this side of the House. I will say why. First there are very few cases of this particular kind. The case we are dealing with is an exception to the ordinary rule. Under the ordinary rule in matrimonial cases the test is domicile and not residence. In this particular case, as was decided on the authority which has been quoted, Wall v. Wall—a very recent case which, 1634 I think, was decided only about two weeks ago—the judge held that the test was not domicile, but only residence.
But apart from that consideration, we are in some difficulty here. We are not in the ideal position in which we can say: We like this item and dislike the other; we are going to have this and not going to have that. The House is in the position tonight of either rejecting this Amendment or probably in the end losing the Bill, or on the other hand accepting the Amendment with the definite prospect that the Bill will go through. It is a similar compromise to that which we made an hour or two ago in the case of the Married Women (Maintenance) Bill, and it is probably just as essential to the preservation of this Bill as it was to that Bill.
§ Mr. PagetWhat authority has my hon. and learned Friend for saying that? Is there the slightest reason to believe that the Lords would not accept it, if we did not agree with this Amendment? There is not the slightest reason for thinking anything of the sort.
§ Mr. Turner-SamuelsIt is quite obvious that my hon. and learned Friend has not really thought about this matter, otherwise he would realise that the time factor is a very important matter indeed at the present moment. It is not merely a question of whether the Lords are going to accept the rejection of this Amendment. By the time it has been dealt with, this Bill may have been well and truly lost to the House.
§ Mr. Turner-SamuelsThat is my view, and the mere two-fold croakings of a couple of hon. Members on either side of me does not alter it. In my submission, there is apart from the other considerations some merit in this proposal. It has been argued that it is contrary to what has been decided in Wall v. Wall, that the period before a petition of this kind can be presented should be three years. It is true that in the case of Wall v. Wall there was no time limit. It is equally true that anyone can be the petitioner whether an English woman or not; whether she has come here for five minutes or five years she 1635 would equally have the right to institute these proceedings.
It occurs to me that there is some force in the case against this. If a person has to remain in this country for three years, we get rid of the objectionable possibility that that person may have deliberately come here in order to exploit our legal machinery and for no other purpose, and may then go away. There is also a second protection. In a matter of this kind we are asking the Court to make an order which brings to an end a very important relationship and terminates a very important status. It seems to me that it is not altogether a bad idea that there should be a fixed period of time in order that an opportunity may be given to discover whether the facts placed before the Court on an application to presume death are such that an Order can safely be made. Therefore, even on its merits, quite apart from the strategical reasons by which as I think if we reject this Amendment we may probably be rejecting the whole Bill with it, it seems to me there is also a great deal to be said for it on its merits.
Notwithstanding what the hon. and learned Gentleman for Northampton (Mr. Paget) has said, the decision Wall v. Wall is by no means a unanimously accepted one in the legal profession. Any one who cares to look into the matter, as I myself have had to do recently very carefully, will find that there is a good deal of difficulty about that, and it is by no means certain that if this went to the Court of Appeal or to the House of Lords that the decision would necessarily be the same. Be that as it may, for the other reasons of a meritorious nature to which I have referred, I submit that there would be at least a very good case to be made out for the consideration of this Amendment on those grounds.
§ 8.30 p.m.
§ In those circumstances, I do not think we are called upon to make an invidious choice as to whether we are going to bring the law of England into line with the law of Scotland. I should have thought that where this country could borrow something which is good from Scottish law it ought to do so, and it has done so with advantage on many occasions in the past. It so happens that by the law of Scotland there was this three-year rule, but I do 1636 not think for a moment that the other place intended—
§ The Lord Advocate (Mr. John Wheatley)I do not think that the Debate should proceed on any false assumption in regard to the law of Scotland. It is not a question of bringing the law of England into line with the law of Scotland. The law of Scotland desiderates domicile as the basis of jurisdiction, and this is a compromise between the two: that is to say, if it be the law of England, according to the decision of Mr. Justice Pearce, ordinary residence is sufficient to justify jurisdiction, whereas in Scotland domicile is required. Their Lordships have chosen three years, which is a compromise between the two, bringing it into a uniform pattern with the other parts of the Bill, and precluding difficulties in international law which might otherwise arise.
§ Mr. Manningham-BullerIf a decree were made in this country, based upon residence, against a Scotsman domiciled in Scotland, is it by any means certain that the Scottish courts would recognise that decree?
§ The Lord AdvocateIf residence alone was sufficient justification for jurisdiction in England, and the wife of a Scotsman came down to England and used London as a sort of European Reno and got a decree on the presumption of death, the consensus of opinion in Scotland is that that decree would not be recognised by the Scottish courts. Accordingly, if that woman came back to Scotland and tried to marry again she would be liable to a charge of bigamy. In these circumstances, it is manifestly desirable in the interests of social justice and of the welfare of the country, that there should be a uniform basis of jurisdiction in both countries. If there is a uniform basis of jurisdiction in both countries, there will be no difficulty in the courts of both countries recognising the decrees of each other.
§ Mr. Turner-SamuelsI am very much obliged for the illumination which the intervening debate of my two learned Friends has given to the House. I was about to say, before this intervention took place, that this was just as much an amendment to the Scottish law as it is to the English law. It is not really a question of bringing the law of Scotland into 1637 line with the law of England at all. If it were, that would not necessardy—although I should have to consider it—be an objection to it. On the grounds I have indicated, I think that this is an Amendment which has much merit. In any case, we do not seem to have much option about it, and therefore I strongly advise the House to adopt it.
§ The Solicitor-General (Sir Frank Soskice)It is unfortunate that this difference of view should have sprung up on this Clause, as the House will, I think, agree that this is a useful Bill, at any rate in other respects, if not in this also. What is the position in regard to the Clause? The law of Scotland requires that there should be domicile to found proceedings under Section 8 of the 1937 Act. The law of England as interpreted in the English courts in the case of Wall against Wall, is that domicile is not necessary, and that all that is necessary is mere residence. I cannot agree with the hon. and learned Member for Northampton (Mr. Paget), when he says it does not really matter if the law of Scotland differs from the law of England.
As the Lord Advocate has just explained, quite apart from any other consideration, it may well be the case, and he thinks it would be the case, that the Scottish courts will refuse to recognise a decree pronounced upon this basis in England. I should have thought that to be a compelling reason, making it desirable to approximate the two systems one to the other. We have taken the two opposite points of view, as reflected in the two legislatures of the two countries, and brought them together as a sort of halfway line.
We have said that both in England and Scotland it shall no longer be necessary to establish domicile, that requiring the discharge of a major burden of proof, but, at the same time, we have altered the English law as to bring it part of the way towards the Scottish law by saying that residence shall not be mere residence of fleeting duration but a three-year period. That seems a reasonable way out of this difficulty. It is incorrect to say that we are changing the English law to make it conform to the Scottish law; we are doing nothing of the sort. We are changing laws of both countries in the matter of matrimonial status. It would be unfortunate, for the reasons which the 1638 Lord Advocate has given, and many other reasons, that there should be this marked difference.
There are other considerations. As my right hon. and learned Friend said, we have fixed upon a period of three years' residence, thereby bringing this subsection into accord with the remaining provisions of the Bill, which enable a married woman to obtain a decree of divorce, not for a mere fleeting period of residence but after a three-year period of residence. The uniform period to enable a decree of divorce to be obtained is now three years—three years in the case of nullity and now three years in the case of a decree under Section 8 of the 1937 Act, allowing death to be presumed so that, in consequence, a decree of divorce can be pronounced. It would be illogical and absurd to have a three-year period in all cases, and a period of only five minutes in this case—
§ Mr. PagetThis is not three years from the marriage; it is three years from the disappearance—entirely different.
§ The Solicitor-GeneralThe Bill says that it shall be a three years' residence, and I cannot contradict the express terms of the Bill. It is not as if a right which already exists is being taken away in the large sense in which it is being suggested it will be taken away.
What are the majority of cases in which this sort of thing happens? A woman marries a man, the man disappears and she then wants to find out what her position is under Section 8 of the Matrimonial Causes Act, 1937. She sees that she can present a petition if she can show that there are reasonable grounds for supposing that her husband is dead. Generally speaking, it is known that he has disappeared. Subsection (2) of Section 8 of the 1937 Act says:
In any such proceedings the fact that for a period of seven years or upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.I should have thought that that was a very frequent way of supplying the requisite requirements of proof. Somebody says that the person to whom she was married has disappeared for some seven years. The normal case that would 1639 be affected by this provision is the case of the woman who marries a foreigner. He disappears, and when she is left destitute she comes back here to live and her period of residence expires. She has to wait about seven years because, until that time has elapsed, she cannot furnish the requisite requirements of proof, establishing the probability of his death. In any case much more than three years will have elapsed. Therefore, I should have thought that the practical effect of this is not to take away a right which a married woman would otherwise have. It would affect her only in a case where she had a strong reason to think that her spouse was deprived of his life in some particular accident. But even that is provided for, because if my hon. Friends look at the concluding words they will see they provide:In determining for the purposes of this subsection whether a woman is domiciled in England, her husband shall be treated as having died immediately after the last occasion on which she knew or had reason to believe him to be living.In practice, supposing she last knew him to be living at a particular time, he is deemed from that time to be dead. If she subsequently comes back she can acquire a new domicile in her own country from that time, and in a number of cases she will not be required to reside there for three years. Her spouse may be involved in an accident, and if that accident deprives him so far as she knows of his life, his widow can come back and obtain a fresh domicile in this country, forher husband shall be treated as having died immediately after the last occasion on which she knew … him to be living.In other words, the fact that an accident took place in which in all probability he lost his life is perfectly sufficient under subsection (3, a) to enable her to institute these proceedings.I respectfully submit to the House that this attempted compromise is an effort to get over an obvious anomaly, which causes great distress in particular cases; for example, a woman who gets a decree in England, then remarries, and is subsequently prosecuted for bigamy in Scotland. This Lords Amendment would prevent that kind of thing happening, and, in addition, it tidies up the law and makes it uniform and consistent. For 1640 the reasons I have given, very few women will be in the least disadvantaged by this law. It will be a rare case in which the fears of my hon. Friends will be experienced, and I hope that the House will agree with this useful change to get over a difficulty which has arisen.
§ Mr. MarloweThe right hon. and learned Gentleman did not deal with the point about expediency made by the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels). The hon. and learned Member for Northampton (Mr. Paget) scoffed at the possibility of the Bill being lost unless this compromise is accepted. May we be given guidance on these matters?
§ The Solicitor-GeneralI am not sure that I can give any solid guidance about those matters beyond saying that this Bill has passed through a long stage and has been subject to very minute inquiry by experts in this branch of the law, particularly in another place. I should have thought it was very unlikely that the fears of my hon. Friends would, in fact, enter into it.
§ Lieut.-Colonel LiptonI must confess that the weight of the argument is still against the Lords Amendment. A controversial issue has been raised. I have suffered as much as any Member of this House from the principle that in a Private Member's Bill no controversial issues shall be raised. In fact, an Amendment I sought to raise at an earlier stage was ruled out of Order on the ground that it was a controversial issue.
§ 8.45 p.m.
§ Mr. Deputy-Speaker (Mr. Bowles)The hon. and gallant Gentleman should address himself to the question of whether we agree with the Amendment from the House of Lords or not. He ought also to remember that the Amendment to which he refers was ruled out of Order not because it was controversial, but because it was outside the scope of the Bill.
§ Lieut.-Colonel LiptonIf that is so, Mr. Deputy-Speaker, I shall not pursue that aspect of the matter. The fact remains that in the discussion of this Amendment there appears to be a certain difference of opinion which I interpret as giving rise to a certain amount of 1641 controversy. The Solicitor-General surprised some of my hon. Friends when he stressed the need for this particular Amendment on the ground that it was sought to bring into some kind of harmony and some degree of closer relationship the law of Scotland with the law of England. For that purpose, a period of three years has been chosen, not, so far as I can see, because of any particular merit attaching to the period of three years but merely because "three years "happens to be mentioned in another part of the Bill. So, for that reason, it was decided that this Amendment should also introduce a waiting period.
The Solicitor-General has brought forward the argument that if the law of England remains unaltered a Scotswoman taking advantage of the law would be prosecuted for bigamy if ever she returned to Scotland. I would seriously ask him whether he really believes that the police authorities in Scotland would prosecute a woman for bigamy who had obtained a decree of presumption of death of her husband in an English court? Would he really ask the House to believe that that is a practical possibility that inevitably would arise out of the rejection of this Amendment? I find it hard to believe that that would be the case.
The argument against the Clause applies not only to the principle of bringing the law of England into line with Scottish law. It has been argued that it would only apply to a few cases, but my hon. and learned Friend the Member for Northampton (Mr. Paget) has shown that it would apply to many cases and that there would be particular hardship in a type of case to which reference has not yet been made. In that connection I would present this kind of case: where a woman had been married to a man of non-British domicile and had been living abroad say, for five years or more since her husband had disappeared. She comes back to this country. Let us assume that she returns after her husband has been missing for six years. She has to wait for one year before the seven years are expired after which she can take proceedings under the law as it stands. She would then have to wait another two years, making nine years in all. [HON. MEMBERS: "No."] The same principle applies if the husband has been missing for seven 1642 years. The wife returns to this country and she has to wait another three years, making 10 years in all, before she can take proceedings. [HON. MEMBERS: "No."]
The only effect of insisting upon this provision at this late stage of the Bill will be to induce men and women to take advantage of a semi-official arrangement, the nature of which is not perhaps as well known as it ought to be. Under the arrangement I have in mind it is possible, irrespective of whether a woman is domiciled in this country or whether she has been here for three years, in certain circumstances for that woman to go to any registry office in the country with the man she wants to marry. The registrar will perform the marriage ceremony after having secured a signature on a very simple form, which occupies half a sheet of notepaper. The form is kept in a drawer in every registry office in the country. This document is not even a statutory declaration. It is not an affidavit.
This document which has been in existence for at least six years and which was issued by the Registrar-General, enables any man or woman to go to the registry office and to sign a statement to the effect that the wife or the husband has been continually absent for seven years or more; that all possible inquiries have been made; and that the person who signs fully understands that if it is found that the former wife or husband is still living at the time of the marriage they now intend to make, the marriage will be invalid from the beginning and any children born of it will be illegitimate.
The possibility of a husband or wife who has been absent for seven years or more ever appearing again is fairly remote. It is sufficiently remote not to deter those who wish to marry under the arrangement to which I have referred. It is true that the attention of the parties concerned is drawn to the provisions of Section 8 of the Matrimonial Causes Act, but I feel very strongly that if this House, by virtue of any Amendment or compromise, makes it more difficult than it is already to obtain a decree of presumption of death, more and more people will take advantage of this very simple arrangement which can be entered into in any registry office in the land. They will merely sign a slip of paper and the marriage will take place.
1643 If the husband or wife who has been absent for seven years or more reappears, it is true that the second marriage will be invalid, and that may cause difficulties for that class of the community where there may be trusts or settled land. But those are not the categories of people with whom this Bill and the general Measures of divorce law reform are principally concerned. For these reasons, I suggest that the position might be reconsidered with a view to removing from what we all consider to be a useful Bill a new item introduced at a late stage which will impose hardship in some cases and which, because of that very fact, is not in line with the whole spirit and atmosphere of the rest of the Bill. It is a Bill which, though the hon. and learned Member for Brighton (Mr. Marlowe) said to the contrary, provides facilities for divorce which have not hitherto existed under the present law.
My hon. Friend the Member for East Islington (Mr. E. Fletcher) was right when he said that this Amendment is definitely not in line with the whole tenor of the rest of the Bill. I think that it might be well worth while for the promoters to consider disagreeing with this Amendment I am quite sure that, with the goodwill which has already manifested itself in this House and in another place, the fact that we are asking for this Clause to be withdrawn will not prejudice the advantages we are all hoping will accrue from the passage of the remainder of the Bill.
§ Mrs. Leah Manning (Epping)May I ask the learned Solicitor-General a question? In the case which has been outlined in the last speech, would it be open for a party to apply for dissolution of the marriage three years later and to obtain the discretion of the court in regard to the cohabitation which had taken place in the three years?
§ The Solicitor-GeneralWith the leave of the House, perhaps I might reply to that question? I do not want to be assenting to the description of the practice of registrars which we have just heard. I do not know whether it is accurate or not. With regard to the question I have been asked, if two persons go through a form of marriage together, and, being already married, one then seeks to obtain a dissolution of that marriage, the court would 1644 have jurisdiction to grant the dissolution, provided that the judge in the circumstances of such a case thought that it was proper to exercise his discretion in favour of the petitioner.
§
Lords Amendment: In line 17, after the words last inserted, to insert:
(4) In any proceedings in which the court has jurisdiction by virtue of this section, of section thirteen of the Matrimonial Causes Act, 1937, or of section one of the Matrimonial Causes (War Marriages) Act, 1944, the issues shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in England at the time of the proceedings.
§ Mr. Manningham-BullerI beg to move, "That this House doth agree with the Lords in the said Amendment."
I hope we shall be able to make a little faster progress, because the time for the discussion of this Bill is strictly limited, and it is not, I understand, Government Business. I hope we may progress faster, because most of us will want to see this Bill complete its passage through this House now that it has travelled so far.
§ Lieut.-Colonel LiptonWill the hon. and learned Gentleman allow me to put this question? Are we to understand that the suspension of the Rule today does not apply to this Bill, because that must be a material factor in considering how we are to behave? May I have a Ruling, Mr. Deputy-Speaker?
§ The Deputy-Speaker (Mr. Bowles)I think it does apply to this Bill, and that the Rule is suspended so far as this Bill is concerned. I will find out and will let the House know, and, perhaps, in the meantime, the hon. and learned Gentleman will continue with his speech.
§ Mr. Manningham-BullerI hope we shall—
§ Mr. Deputy-SpeakerIt is Government Business. It is starred on the Order Paper, and I think I was right.
§ Mr. Manningham-BullerI am glad to receive that elucidation, which certainly allays some fears which I felt during the discussion of the last Amendment, when I began to wonder whether we should get this Bill or not.
§ Mr. Manningham-BullerFor once, I am in full agreement with the right hon. Gentleman. This Amendment is an important one, though I do not think that it has aroused any controversy. It arises in this way. Until the passage of the Matrimonial Causes Act, 1937, the courts in this country had no jurisdiction to grant decrees unless the parties were domiciled within this country. Under Section 13 of that Act, for the first time, jurisdiction was given to the English Courts in cases where the wife was deserted by her husband or where her husband had been deported from this country, and where the husband, immediately before the desertion or deportation, was domiciled in this country, the court had jurisdiction. It has always been assumed by text-book writers and others that, when we had cases of that kind arising, the law to be applied was the law of England.
9.0 p.m.
It is desirable that it should be made as clear as it can be what the position is, and that is what this subsection purports to do. The House will see that in any proceedings in which the court has jurisdiction under this Clause of the Bill, under the 1937 Act, or under Section 1 of the Matrimonial Causes (War Marriages) Act, 1944, this new subsection provides that the issue shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in England at the time of the proceedings.
That is quite simple to apply so far as the law of divorce is concerned, but I would not be frank with the House if I did not reveal that that does not, in fact, entirely solve the difficulty with regard to nullity. So far as that is concerned, a lot of hon. Members tonight will appreciate that some marriages are void ab initio and some are voidable. So far as the ones void ab initio are concerned, in some cases the English courts determine the question of capacity in accordance with the law of each party's domicile immediately before the marriage. So far as voidable nullity cases are concerned, the law applicable may be that of the husband's domicile at the time of the marriage, or, alternatively, at the time of the commencement of the proceedings.
There is a good deal of conflict of authority about that, and it has not been 1646 possible in the time since this Bill left this House to resolve all those difficulties. We recognise that in agreeing with the Lords Amendment we are not making much of a contribution to the solution of the problem with regard to nullity. All the same, this Clause as far as it goes, is in my opinion extremely desirable, and I hope with that explanation of it, and with the admission of its limitations, we will not have a prolonged Debate upon it, and can agree with their Lordships that this is a useful addition to a non-controversial Measure.
§ Mr. MarloweI beg to second the Motion.