HC Deb 05 December 1949 vol 470 cc1646-56

Lords Amendment: In page 2, line 28, insert new Clause "A"— A.—(1) Where a decree of nullity is granted in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if it had been dissolved, instead of being annulled, on the date of the decree shall be deemed to be their legitimate child notwithstanding the annulment. (2) Subsection (2) of section seven of the Matrimonial Causes Act, 1937. is hereby repealed.

Mr. Manningham-Buller

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This Amendment is really designed to deal with the situation which arose consequent upon the decision in Dredge against Dredge. It is intended to provide that where a decree of nullity is granted in respect of a voidable marriage, the child of that marriage shall not, ipso facto, be declared illegitimate. I think that in one case the decree of nullity was obtained after the child had reached a considerable age—I have forgotten exactly what it was; I am not sure it was not 17 or 18—and then the voidable marriage being determined by the decree of nullity, that child at that age was then declared illegitimate. I am sure the House will agree that that is wrong. It is not only wrong where the marriage is annulled on the grounds of wilful refusal, but it is wrong if there is a child born of the marriage as a result of artificial insemination or of what lawyers call by a Latin expression.

The effect of this Clause is not to provide that the child of the marriage is declared legitimate but to provide that the position of the child of the marriage should be exactly the same as if, instead of a decree of nullity being obtained, there was a decree of divorce. That is to say, there will be a presumption of legitimacy, a presumption which in certain cases may be rebutted. It would be quite wrong to provide in a Clause of this sort that there should be what would amount to a declaration of legitimacy. That would be going too far. What is obviously wrong, however, and with what this Clause is intended to deal, is that the effect of the decree of nullity where there is a voidable marriage should amount, where there is a child of the marriage, to a declaration of illegitimacy.

The question may be asked why this Clause is limited to voidable marriages as distinct from the cases where a decree of nullity is granted on the ground that the marriage was void ab initio? In the case of a voidable marriage one proceeds on the assumption that the marriage has been in existence for some time—indeed, exists until it is set aside because it is voidable, although the form of the decree takes a rather different form, but in the case of the void marriage, where for instance a person already married goes through a form of marriage, when he goes through that form of marriage there is never any marriage at all. It is, indeed, difficult to say, therefore, that there shall be a presumption of legitimacy in respect of a form of marriage when, in fact, there has been no marriage at all. It is for those reasons that this Clause is drawn in this way. I hope these observations have made it clear to the House.

Mrs. Manning

Before the hon. and learned Gentleman sits down may I ask him a question? In the question of artificial insemination, does it not make any difference at all whether the donor is or is not the husband?

Mr. Manningham-Buller

This Clause deals only with the case where the husband would be the donor. It does not deal with the bigger question, which is a more difficult question, as to any other case of artificial insemination—whether that presumes adultery or not. This merely says that where there is a child of the marriage, produced maybe by artificial insemination, it will be presumed to be a child of the marriage until the contrary is proved, notwithstanding that a decree of nullity is subsequently obtained.

Mr. Marlowe

I beg to second the Motion.

Lieut.-Colonel Lipton

I do not know, Sir, whether you propose to accept the Manuscript Amendment which I have handed in.

Mr. Deputy-Speaker

Yes. The hon. and gallant Member should move it now.

Lieut.-Colonel Lipton

I beg to move, as an Amendment to the Lords Amendment, in line 2 "to leave out 'voidable.'"

The hon. and learned Member for Daventry (Mr. Manningham-Buller) gave what I must say, with all respect, was not a very convincing argument in favour of the differentiation which is being introduced between marriages which are void ab initio and marriages which are voidable. The fact remains that in both cases, where the marriage is void ab initio or where it is voidable, petitions may be presented to the courts for nullity. The distinction that is made between these two categories of marriage in respect of which a petition for annulment may be presented is somewhat artificial.

Mr. Turner-Samuels

Is it not the case that where a marriage is void there is no marriage at all, but where a marriage is merely voidable the parties to it can allow it to go on or can make an application through the courts to bring it to an end. That second marriage, however, does not come to an end until it is so decreed, whereas the other marriage has never been a marriage from the very start.

Lieut.-Colonel Upton

If ray hon. and learned Friend's argument is accurate, I have never been able to understand why it is necessary to go to the court to petition for nullity in the case of a marriage that is void ab initio.

Mr. Turner-Samuels

If I may answer that point—

Lieut.-Colonel Lipton

No, I had better get on.

Mr. Turner-Samuels

But my hon. Friend has put the question to me. He should let me answer it.

Lieut.-Colonel Lipton

Let me try to proceed. My hon. and learned Friend can, no doubt, say what he wants to say afterwards. The point which I am seeking to make is that the distinction between void and voidable marriages, in the view of ordinary people—and here I exclude my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels)—is regarded as somewhat artificial and of no very great consequence.

The position is this. A petition for nullity can be made in the case of a voidable marriage where either party was of unsound mind at the time of the marriage or subject to recurrent fits of insanity or epilepsy. That is a case in which a petition for nullity of a voidable marriage may be presented. A marriage that is regarded as void ab initio is a marriage where one of the parties was insane at the time the marriage was contracted. I would ask the House to consider what is the distinction between a person who has embarked upon a voidable marriage because he was of unsound mind at the time of the marriage, or because he was insane—

Mr. Turner-Samuels

That is usually the case.

Lieut.-Colonel Lipton

If we are going to confer any benefit at all upon the unfortunate issue of a marriage in such circumstances, there seems to be no valid reason why the issue of the marriage in the one case should continue to be illegitimate and the issue of the marriage in the other case should continue to be legitimate. I think we should be doing a very useful service if for the purpose of this Amendment we disregarded the distinction that is made between void and voidable marriages. The whole spirit of the times in which we live is to make as many people legitimate as we possibly can. I think it is somewhat retrograde when we are considering a reform of this kind to limit this reform or boon merely to one class of nullity case and not to the other.

9.15 p.m.

Mr. E. Fletcher

I beg to second the Amendment.

I should like to add one or two words in support of my hon. and gallant Friend. I do not make any apology for doing so in view of your Ruling, Mr. Deputy-Speaker, that this Bill is exempted Business. After all, we are dealing with a very important subject here. We are making a number of changes in the law of the land relating to marriage, divorce, legitimacy, and so forth; and I think it is our duty to spend a little time on these important changes, particularly as, in fact, this is the only opportunity the House has of considering them. I am not complaining that the matter comes before us in this way, but it is worth while pointing out that very important and substantial changes in the law of the land are coming up for discussion tonight on consideration of Lords Amendments to a Bill which was passed by this House some time ago when it was not contemplated that matters of this nature would arise. Therefore, I do not think it would be right for the House to accept these Amendments lightly or without considering what is involved.

I think the first thing to observe with regard to this new Clause is that it will become the ninth Clause of a Bill which already consists of eight Clauses, but when it was introduced, consisted of three; and all of the Clauses deal with a different subject matter. We all support the idea of removing hardships, and of putting an end to the quite indefensible anomaly that hitherto persons born in wedlock of a marriage which was afterwards declared null on the ground that it was a voidable marriage still have the stigma of illegitimacy attached to them.

This Amendment seeks to introduce one further degree of logic into the argument, and to provide that the status of legitimacy shall also be retained by persons born in wedlock of a marriage which is at a later date annulled on the ground that it was a void marriage and not merely a voidable marriage. As my hon. and gallant Friend has said, the distinction between void marriages and voidable marriages is highly technical. One can appreciate the argument that once a marriage has been declared a nullity, as the law stands today, ipso facto the children of that marriage are reduced in status from legitimacy to illegitimacy.

This Clause goes a certain part of the way—but it does not go the whole way—to redress that hardship. Why does it not go the whole way? It would be wrong for me to quote what was said in another place, but it is quite obvious for the speeches that were made in another place why this new Clause gives only a partial remedy instead of a complete remedy—because, as I read the Report of the speeches in another place, some of their Lordships thought it might be controversial if they went the whole way. We have heard so much tonight and on earlier occasions as to what might be called controversial or not, that I think, as my hon. and gallant Friend has thought for a long time, that it is a great pity that some matters that might then have been thought controversial were not introduced into this Bill. We now know that there is no reason for not making desirable amendments in this branch of the law, or for being timid about making them, merely because they may introduce an element of controversy.

I do not know whether or not it is controversial to suggest that this Clause should be extended to confer the benefit of legitimacy to those children, the marriage of whose parents is subsequently annulled on the ground that it was a void marriage and not merely a voidable marriage. If it is controversial, I imagine someone will get up and ask why that is controversial and why this present Clause is non-controversial. I gather it was merely the fear of introducing some element of discordance that prevented their Lordships from going a stage further, making this Clause apply to all decrees of nullity, and saying that wherever a decree of nullity was granted the offspring of the marriage should have the same status as if the marriage had been dissolved.

If one forgets all the historical content in which the law relating to the distinctions between nullity and divorce has grown up, and still more if one ignores the highly technical distinctions between a void marriage and a voidable marriage, it seems to me that we in this House tonight, attempting to do justice to a class of particularly unfortunate people—that is to say, children who at the time they were born were legitimate, who have grown up always thinking that they were legitimate, but who at some later date, for some purely accidental reason for which they certainly could not be responsible, find that the marriage of their parents was annulled—for some ecclesiastical or some other reason—should not perpetuate a hardship on that class of person, and there is no reason why they should relapse from a state of legitimacy into a state of illegitimacy.

I hope that the promoters of this Bill—who I think we all acknowledge have throughout, with the one exception we were debating a little while ago, tried to introduce some very humane and desirable improvements in the state of the law—will accept the logic of these conclusions and grasp the opportunity afforded by the introduction of this Clause in another place, in order to perfect a remedy for which I think they would earn great gratitude.

Sir P. Macdonald

As I am appealed to as one of the promoters of this Bill to accept this Clause, I would point out that these Clauses were introduced in another place by the Government. This Bill is, therefore, now Government business, and before we embark on a controversial discussion I think it is the duty of the Solicitor-General to explain why the Clause has been introduced. Perhaps we might then be able to get this Bill through tonight.

Mr. Fletcher

If the Solicitor-General wishes to reply to that interjection I will certainly give way.

Mr. Deputy-Speaker (Mr. Bowles)

Perhaps the hon. Gentleman would continue with his speech and not have a series of interruptions.

Mr. Fletcher

I have no doubt the Solicitor-General will* reply in due course to that point, particularly as the question was addressed to him and not to me. In so far as I can comment on it, I would only say it does not appear to me that this Bill was a Government Bill in another place. It was sponsored in another place place by a Private Member of that House.

Sir P. Macdonald

I was present during the Debate, and the Lord Chancellor was really in charge of the Bill. Although certain Amendments were moved by a noble Lord who happens to be a Conservative, the fact remains that the Bill has been adopted, that it is Government business, and that during the preceeding stages of the Bill—

Mr. Deputy-Speaker

The hon. Gentleman may make the point in his speech later on.

Mr. Fletcher

I think that this interruption was unfortunate and quite irrelevant. It happens to be contrary to the facts, because the fact is that this Bill was introduced as a Private Member's Bill in this House and in another place. It was sponsored by a Private Member in the course of Second Reading, and in the course of arguments in Committee, the Lord Chancellor made certain observations, and it was throughout hoped that this Bill would go through with the minimum of controversy. I also hope that the Bill will go through with the minimum of controversy, but the object of this Amendment is to suggest that the House should not be unduly timid about doing the right thing merely because it thinks that it may be introducing an element of controversy. Personally, I doubt whether that element of controversy will be introduced. If it is, it is for the hon. and learned Member for Daventry (Mr. Manningham-Buller) to tell us why there is this controversy.

The Solicitor-General

If I may refer for a moment to the observations made by way of interjection by the hon. Member for the Isle of Wight (Sir P. Macdonald), may I say that I shall be only too delighted if I can be of assistance to the House. I thought that the hon. Gentleman was giving the House all the assistance that could be required by way of explanation of the Clause which he was asking the House now to accept. If I can supplement anything which he has said, I shall be only too happy to do so.

This Bill on its inception was a Private Member's Bill, and the hon. Gentleman has been explaining its further progress to the House. May I first deal with the manuscript Amendment which has been moved? While I think that everyone would agree that whatever can be said about the conduct of the parents, the unfortunate children should so far as possibly be protected, I cannot help thinking that this Amendment goes a great deal too far. There are drafting objections, but I will deal first with the substance of the case which could be made against this suggested change.

It is suggested that by leaving out the word "voidable," void marriages could be brought within the scope of the new Clause. If that is done, it would mean that marriages which are void for a great variety of reasons would be within the Clause. Let us, for example, take the case where a man thinks that he is marrying "A" when by fraud he is induced to marry "B." That is a perfectly possible case. It includes the case of marriages induced by duress and by threats, as well as the case where the marriage ceremony is completely inadequate and does not constitute anything which in a civilised country would be regarded as a marriage ceremony. It includes a whole variety of cases.

Take the case of duress or fraud. The effect of the Clause is this. If the marriage becomes subject to a decree of nullity the children of the marriage are, nevertheless, if it could have been dissolved, to be deemed to be the legitimate issue of the two parties of that marriage. I should have thought that, much as one desires to afford every kind of protection to the unfortunate innocent children of any union, it is going too far to say that if a person has been trapped or forced or threatened into the union, which he would never have entered into, or intended to enter into, or knew that he was entering into, he should have the issue of that union declared the legitimate issue of himself and the person with whom he was forced to enter into a spurious bond of marriage. I should have thought that was going a great deal too far.

9.30 p.m.

The effect of the Clause, if it is altered in the sense of the manuscript Amendment, would be that in a case where a person is trapped into marrying someone he did not mean to marry, if he is defrauded into it, it is nevertheless, declared that the issue of that union is a lawful issue.

Mr. E. Fletcher

Will the Solicitor-General indicate why he thinks it is wrong that a child properly and naturally born of such a marriage, and legitimate when born, should subsequently be declared illegitimate because the marriage is annulled?

The Solicitor-General

To talk about it being a marriage is a complete misstatement of the facts. It is a marriage in nothing else but its mere spurious form; it is, in fact, no marriage at all. The circumstances are aggravated by the state of affairs brought about by a trap or threat, and to hold that children born of that spurious marriage are legitimate is going too far. In the case of such a marriage, the effect is not that the court declares that the marriage has subsisted for a certain time, but that there has, in fact, been no marriage at all. As a matter of drafting and machinery, the Clause would not work with the manuscript Amendment. In point of fact, there would have been no marriage to dissolve, because the court makes a declaratory statement to the effect that there was no marriage at all. Therefore, to change the Clause in this sense is to alter the whole basis I have indicated.

I prefer to consider the matter on its merits, because the House will pay more attention to the merits, anxious as Members naturally are to do anything they can for the children of any such union. I submit that it is going too far, because it would bring in cases where declarations of legitimacy would work a great hardship on the persons induced to enter into such a union. On the working of the Clause, I submit that this would introduce an unreal position, because it is assumed that a marriage that has never existed could nevertheless be dissolved. That is a complete contradiction in conception.

For these reasons, I hope the House will consider that we have gone far enough in the Clause. It assists the issue of voidable marriages and greatly extends the scope of Section 7 of the Matrimonial Causes Act, 1937, which in some cases, but only in come cases, legitimates the issue of void marriages. We have not greatly extended it, but we have covered the cases where we think it is proper and possible to assist the issue of a marriage. As I have said, we think it is going too far to call into being a marriage that never existed and say that if that marriage is dissolved the children should be legitimate.

Amendment to the Lords Amendment negatived.