Lords Amendment: In page 1, line 13, after Lords Amendment last inserted, insert:
A.—(1) Subject to the provisions of this section, the child of a void marriage, whether born before or after the commencement of this Act, shall be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth for at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid.
void marriage" means a marriage, not being voidable only, in respect of which the High Court has or had jurisdiction to grant
a decree of nullity, or would have or would have had such jurisdiction if the parties were domiciled in England;
disposition" has the same meaning as in the Legitimacy Act, 1926;
and any reference in this section to property settled with a dignity or title of honour is a reference to any real or personal property, or any interest in such property, which is limited by any disposition (whether subject to a preceding limitation or charge or not) in such a way as to devolve with the dignity or title as nearly as the law permits, whether or not the disposition contains an express reference to the dignity or title and whether or not the property or some interest in the property may in some event become severed from it.
(6) In subsection (1) of section seventeen of the Matrimonial Causes Act, 1950 (which enables an application to be made to the High Court for a decree declaring that the applicant is the legitimate child of his parents, and that the marriage of his father and mother or of his grandfather and grandmother was a valid marriage or that his own marriage was a valid marriage) for the words "and that" there shall be substituted the words "or that".
§ Motion made, and question proposed, That this House doth agree with the Lords in the said Amendment.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I shall take only a few moments of the time of the House and I do not want to go into the merits of this very long and somewhat complicated new Clause, nor even to ask for an explanation. I am quite satisfied that the two halves of this new Clause, taken together, do not amount to very much more than rather complicated drafting, but I object to this Clause, either in its old form or its new form. I do so for the same reason as I objected to Clause 1, on which I did not think it appropriate to address the House, having regard to the fact that the Amendments to it were purely of a drafting nature.
In each case, the Clause shifts the line between legitimacy and illegitimacy to a new place and, I think, in each case a completely illogical place. I do not want to go into the merits of that, but I want to register the fact that I object to this new Clause just as I objected to the old one. I should like to see the legal status of illegitimacy abolished altogether. There, I think, I find myself in agreement with the promoters of the Bill. I do not believe it would be controversial to do that, but it would, of course, be far beyond the means of a private Member.
§ Mr. Deputy-Speaker (Sir Gordon Touche)
The hon. Member will appreciate that we are discussing the Lords Amendments to the Bill.
§ Sir H. Lucas-Tooth
I do not want to go into that at all, but I think it a necessary preliminary to what I want to say. It could be said that Clause A, which we are now considering, and Clause 1, with which we have already dealt, are a step in the right direction, that is to say, in the direction I have indicated that I wish to go. It is true to say that the vast majority of those who support the Bill do so because they regard it as a step, or a series of steps, in the right direction. To my mind, it is a step in the right direction in the same sense as a man desiring to land from a ship steps half way and finds himself in the sea. It is not anything like half way.
There are 2½ million people of illegitimate birth in this country. I do not believe that this Bill will affect more than a few thousands of them. So far as I know, it does not deal specially with the most deserving cases.
§ Sir H. Lucas-Tooth
I think, Mr. Deputy-Speaker, that when I have dealt with the point you will see that it is in order.
I put down a Question, to which I received a Written Answer. The Question was addressed to the Secretary of State for the Home Department, and asked whether he would… propose the setting up of a Royal Commission to inquire into the law relating to illegitimate children and to make recommendations for its amendment"—
§ Sir H. Lucas-Tooth
With respect, I am objecting to this Amendment on the grounds of the Answer I received, and I must give the Question so that I can relate it to the Answer:… to make recommendations for its amendment …I received the following reply:No. Sir. We have the Report of the Royal Commission on Marriage and Divorce, and that of the Committee on the Law of Intestate Succession, and if the Legitimacy Bill now 460 before Parliament passes into law we should give the new provisions "—of which this Clause is, of course, one—a little time to operate. These and other considerations point to the postponing of further inquiry.There will, therefore, be well over 2 million people whose cases will have to wait simply because of the passing of this Clause, and the previous one, and it is right that the House should understand that. One of my hon. Friends says "Many more." I agree. Very nearly the whole 2½ million will have to wait. In those circumstances, we might be well advised to discontinue consideration of this Bill in order to have the whole question properly thrashed out.
I considered my attitude to these Amendments, and it seemed to me that as my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) and I divided the House on Second Reading, and had thereafter accepted the provisions without any further Divisions, we ought not at this stage to divide the House again on this Clause. But, in saying that, I make it perfectly clear that for my part I do not accept the principle embodied in this Clause, and that in letting it go I do not accept the principle in my right hon. Friend's reply to my Question. I hope that well before there is any question of trying the effect of this Clause, or any of the Clauses of the Bill, there will be a thorough inquiry into the matter, with a view to the revision of the law generally.
§ Mr. John Parker (Dagenham)
I suggest that the House accept the Lords Amendment. A complete redraft has been made of Clause 2—it is very much longer—but I should like to thank the Parliamentary draftsmen for rewording it. In substance, it is exactly the same Clause as passed this House, but it is adapted to meet the needs of the law. One or two small points have been introduced. For example, it provides that a person benefiting under it must be domiciled in England. That provision was left out of the original Clause, and as the law of Scotland is somewhat different from ours, and Scottish domicile produces or might produce rather different results, it is important that it be included.
I should like to press the point that there is no substantial difference between 461 this Clause and that which passed this House. That Clause was itself the result of a recommendation of the Royal Commission on Marriage and Divorce. In this matter it brings English law into line with that of Scotland and also with canon law generally in Western Europe. Their Lordships enthusiastically accepted the Clause largely because of those two aspects. I therefore recommend the Lords Amendment to the House, and ask the House to accept it.
§ Mr. Philip Bell (Bolton, East)
After the ordeals we went through last week, I apologise to the House for keeping it now, bur. nothing that can be said will stop me from exercising the rights that all hon. Members claim and insist on discharging—
§ Mr. Bell
I had, Mr. Deputy-Speaker, observed a certain restiveness of the House which, I was endeavouring to point out, though it might disturb me, would not prohibit me from exercising my rights as an hon. Member.
What I wish to point out to the House is that this Clause 2 which has been produced by the House of Lords introduces something quite new which no hon. Member, and certainly none of the hon. Members who have spoken so far, has indicated at all. It introduces into the country for the first time in our history a form of polygamy. Polygamy means bearing legitimate children by more than one wife. That is what it is, and that is what Clause 2 means.
As was pointed out by Lord Denning in another place, under the Clause a man can polygamously marry an innocent girl, himself being already married. The children of that polygamous marriage, whether the girl has one child or whether, giving way to circumstances and afterwards knowing the truth, she has eight children, will, under Clause 2, be legitimate. But there is nothing in Clause 2 to prevent this man, who, by my description, is a rogue, going back to his wife, for she may have the power of the purse, and having more children by her.
§ Mrs. Lena Jeger (Holborn and St. Pancras, South)
On a point of order. I am trying to follow the hon. and 462 learned Gentleman. He seems to be talking about Clause 2. I understood that tonight we were supposed to be discussing the Lords Amendment to Clause 2, to which the hon. and learned Gentleman does not yet seem to have referred.
§ Mr. Bell
I am not quite sure whether this is a serious intervention. It is true that I have referred to Clause 2, but the new Clause A is to take the place of Clause 2. I must have been more incoherent than usual if the hon. Lady honestly did not understand me.
I was explaining that under Clause 2 a man can have an unlimited number of children by his bigamous marriage and can, in fact, have, at the same time, an unlimited number of children by his legal marriage. If that is not polygamy then I shall be grateful to hear whatever description is true of it. It may be that hon. Members think that what they believe sincerely in the interests of the children justifies the building of a new system in this country. I do not myself believe that is the balance of the argument for the welfare of either the children or the family.
In another place, when dealing with Clause 1—I am not going to deal with it—Lord Denning introduced it rather attractively, saying that it was, in effect, the last step in amending our laws of marriage and legitimacy. He was talking about Clause 1, but he changed his view when this Clause 2 was introduced. It was he himself—I am only adopting his argument—who pointed out that this new Clause was for the first time introducing polygamy into our Constitution. [HON. MEMBERS: "Nonsense."] It is easy, of course, to say "Nonsense." It is easy to say that my right hon. and learned Friend the Solicitor-General talks nonsense.
I do not know whether hon. Members take the same view as their right hon. and learned Friend the Member for Newport (Sir F. Soskice) who was a Law Officer at the time that this question was dealt with during the Socialist Administration. Hon. Members say, "Nonsense." They should hear the "nonsense" that was spoken by the Solicitor-General of the Socialist Government. This is his 463 "nonsense," not mine. He was speaking on the Law Reform (Miscellaneous Provisions) Bill, 1949.
§ 10.45 p.m.
§ Mr. E. G. Willis (Edinburgh, East)
On a point of order. Is it in order to quote speeches from another place?
§ Mr. Deputy-Speaker
If the hon. and learned Member intends to quote from a past Session in this House it would be in order.
§ Mr. Bell
If the hon. Gentleman would listen he would realise that I was talking about a former Solicitor-General. Also, we would get to bed a lot earlier. The Solicitor-General for the Socialist Government, who, if I understand the observations of hon. Members opposite, talked nonsense, said this: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."—[OFFICIAL REPORT, 5th December, 1949; Vol. 470, c. 1654.]Is that nonsense?
Let us stop there. If hon. Members find the question of legitimacy funny, they are entitled to their sense of humour, but this proposed new Clause does not stop there. In fact, as any lawyer will realise, it has in it great mischief. Let us pause for a moment from thinking of our beds and look at subsection (1). It says:… the child of a void marriage, whether born before or after the commencement of this Act, shall be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth.…Let us reflect for a moment, and ask how anybody is to say that a particular act of intercourse has produced a particular child. That is a fact which has to be decided before this Clause comes into operation.
464 The subsection goes on:… both or either of the parties reasonably believed. …Who is to say what is reasonable in a matter of that kind? How long after is this issue to be tried? The parties concerned may well be dead. It is, in fact, impossible, except by guesswork, for any impartial tribunal to apply subsection (1) of this proposed new Clause to any facts. It would be a sheer guess. And that, in my view, is bad legislation. Whatever the intention is, however we may differ about the dangers of what I call the polygamous system as weighed against the so-called benefit to the child, whatever that may be, this Clause by itself is ineffective, because it is a Clause which puts upon the persons claiming under it a burden of proof they can never discharge.
Therefore, I submit, even though it be at the end of a Session, which should not make hon. Members, though perhaps it does, less discreet, that we should give it careful, judicial consideration. Let hon. Members consider for one moment how evidence is to be produced. The proof that the child was legitimate at the time of intercourse as the result of that, the parties' state of mind, whether they reasonably believed that they were free to marry—which is the sense of the Clause—is, in fact, impossible.
But it does not stop there. The hon. Member for Dagenham (Mr. Parker), who so courageously brings forward this Clause, brushes off subsection (2) as some idea that we should be consistent with international law. If it be right, if subsection (1) be right, I fail to see the logic which says that if the father happens to be domiciled abroad the Bill shall not apply to the child. If it be so good, it should be good even for that child. Not only that, but let us look at subsection (3). Why the distinction? Why should the Bill apply only to children born after the commencement of the Measure while the other subsection deals with the ones before? We find that in subsection (4) the ugly note of property—as hon. Members opposite would call it—creeps in to alter the provisions. If property is attached to the title different provisions are to be brought into play.
465 I suggest, as my hon. Friend said, that this unhappy accident of time and place and circumstance, this Bill dealing with a very vital problem in human relations, the relations between married people and their children, this Bill for unfortunate circumstances, came too late. I wish quite sincerely that the hon. Member who proposed it had had another opportunity to bring it forward earlier, so that we could have had it fully discussed. I deprecate that something dealing with the family, to which we all give lip-service, should be brought forward at this late stage in the Parliament and at this late hour; and brought forward against a good deal of opposition, because you know, Mr. Deputy-Speaker, it was with difficulty that I got a hearing from the House. I have had it, and I am grateful to the House, but I am unutterably opposed to this Clause—not because I disregard the interests of these unhappy children who are to have a title they did not earn but which their parents disgracefully earned. I am indeed sorry for them.
The larger view of the family is the thing which influences me, and I believe this sincerely, if it is proper to talk about sincerity in this House, for I understand one of the most popular debating things is to say. "One cannot answer him: what he says is insincere." I can assure you, Mr. Deputy-Speaker—perhaps I anticipate an unkindness which may not be given—that it is not because of what may be called religious prejudices that I am opposed to this Clause. It is because I sincerely believe that the Clause will have a detrimental effect on the family. It introduces for the first time into this country the idea that a man can have legitimate children at the same time from two different women. That is more than a Christian civilisation can stomach.
§ Mr. Ronald Bell
Like my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell), I find it rather shocking that Amendments of this importance should come before the House in this rather casual way at this stage of the Session. No explanation is being offered to the House, either from the Government Front Bench or from the promoter of the Bill, the hon. Member for Dagenham (Mr. Parker). What is the meaning of these Amendments? If my hon. and learned Friend the Member 466 for Bolton, East had not made his speech, I imagine that these provisions would have been allowed to pass on the nod, although Clause A has never been before the House at all.
§ Mr. Ronald Bell
Clause 2, which has been omitted, has been before the House, of course, but the Lords Amendment, which is Clause A, has not. Therefore, no explanation of its meaning has been given or was being given, yet the Clause makes most important changes in the law of England. These changes in the law on marriage and the family are far more important than most of the legislation that receives a great deal of discussion and time spent on it in the House. These things change the whole shape and character of society.
I think that I and my hon. and learned Friend the Member for Bolton, East were the only two in the lobby who voted against the Second Reading of the Bill. I am not of the same religion as my hon. and learned Friend, but, nevertheless, I find it difficult to understand how, in a Christian society, the proposal embodied in Clause A can find acceptance. [An HON. MEMBER: "The Archbishop?"] I am also not of the same persuasion as the Archbishop of Canterbury.
My hon. and learned Friend has rightly said that the new Clause comes down to this: that if a man who is married seduces a woman, giving her to believe that he is not married, and then has children from that union, both the children that he is having by his wife and the children from that union are legitimate. That is what the Clause says, without any more ado about it, because the woman who is seduced is under the impression that the bigamous union is a genuine marriage and she falls within the definition in the new Clause A.
Therefore, we have a man procreating legitimate children at the same time from two different women. It is possible for hon. Members on either side of the House to take the view that the whole conception of legitimacy and illegitimacy should go by the board. That is a perfectly possible point of view, but I put it to the House that hon. Members who support the Clause should logically and 467 quite frankly adopt that point of view and say, "We do not believe in a distinction between legitimacy and illegitimacy." Once that is said, we have knocked the bottom away from marriage. There cannot be a marriage except in an exclusive sense.
The whole point about marriage as distinct from concubinage is that it is exclusive in its nature, and if one believes in monogamy, which I take it most of us do, then one has to have this distinction between legitimate and illegitimate. What legal consequences one attaches to that distinction is quite another matter. One may have all sorts of ideas in the realm of property, succession, and so forth. What legal and social consequences one attaches is a very different question. But to keep the doctrine of legitimacy and draw the line here is crazy—pure nonsense.
I would ask hon. Members to look at the details of the Clause. According to subsection (5) the Clause applies only to a marriage which is void and not to one which is voidable. So we have the ridiculous position that if a man enters into a bigamous union with a woman, those children are legitimate, but if he enters into a marriage which is only voidable, the children apparently are not legitimate.
§ Mr. Philip Bell
To get the record straight, the child of a voidable marriage is legitimate if it is born beforehand—under the 1947 Act.
§ Mr. Ronald Bell
That would not, I suppose, oddly enough, cover the case of a child born after the decree of nullity in a voidable marriage if there had been fecundae verbera dextrae. That is a rather rare thing, but it illustrates the extraordinary illogicality of a provision of this kind.
We find from subsection (4), reasonably enough, that if this change in the law is to be made the Clause… does not affect any rights under the intestacy of a person who died before the commencement of this Act, and does not … affect the operation or construction of any disposition coming into operation before the commencement of this Act.468 The words in parenthesis are:except so far as may be necessary to avoid the severance from a dignity or title of honour of property settled therewith".Here again, there will be a double standard. If one has a dignity or title of honour one law of succession will apply. If not, then another will apply. It is a very odd provision to make in the law. It is as though those who are proposing this change in the law can say that one result of it might be that under a settlement made by a testator the property will go to one child but the title will go to another, and, therefore, in that case the operation of the rule will be altered ex post facto by this Bill, which seems rather a strong measure. But if, on the other hand, there is no question of a title or honour being separated from some property, then subsection (4) will apply and the interpretation will not be altered. I find that indefensible.
The comment that I want to make is that the Clause is put before us at a quarter to eleven o'clock at night. It has never been before the House of Commons before. It is an absolutely radical change in the law, and nobody rises to say a word about it. There is a certain amount of impatience on the part of hon. Members opposite that anyone should dare to say a word about a provision like this at this stage of the proceedings.
I am certainly not going to withdraw from the debate. If anyone were willing to divide the House on the Clause I should be willing to divide. I have opposed the proposal in the past, and I still oppose it on the same grounds. I hope that I have said enough already to indicate to hon. Members that my hon. Friends and I are not making any frivolous opposition at this stage. We feel quite strongly about this. We feel that it is a drastic and fundamental change in the law of England, being made in a most casual and informal way, and I record my protest at this proceeding.
§ Mr. John Hobson (Warwick and Leamington)
I rise with great diffidence at this late hour, but we find ourselves in great difficulty over the Clause when we consider the history of the matter. First, the Royal Commission made a recommendation, without giving any reasons, or, as far as I know, examining the question. The hon. Member for 469 Dagenham (Mr. Parker), in introducing the Bill, incorporated Clause 2 originally to give effect to the recommendation of the Royal Commission. From the debates in another place it was made clear that the Clause as it first came before us was quite unworkable. Many things were left in the air.
In those circumstances, the other place has sent back this intricate and extremely important Clause for our consideration at this late stage It places hon. Members in the very difficult position of detaining their hon. Friends and hon. Members opposite at this hour of the night, and also in the very embarrassing position of deciding whether or not to divide on the Clause, with the risks to the Bill itself from such a Division.
I have the greatest sympathy for many cases where a void marriage occurs through a technical defect which neither party to the marriage foresaw or understood. Neither may have known that the person who conducted the ceremony was not authorised to do so. Neither may have known that they were within the degrees of consanguinity. There are a hundred and one other technical details which may destroy the marriage and render any children illegitimate.
But the Clause goes much further, and the House should understand what is being done by it as it now stands. It provides that the test of whether a child of a bigamous union shall be legitimate or not depends upon the question whether one of the parties was deceived. We are considering the question whether the offspring of a union that was thought to be a marriage but never was a marriage—and could not be a marriage in law—should be legitimate. In bigamous marriages which form the vast majority of all cases where marriages are declared void, the question whether or not the offspring will be legitimate depends upon whether the parents were honest with each other about their respective positions. If they were, and they both knew that one or both of them was already married, the unfortunate children of the union will remain illegitimate, despite the Bill. But if, by deception, a man has tricked a woman into going through a bigamous ceremony of marriage with him, she thinking that he is a single man, the offspring are legitimate.
470 It seems very odd that the line should be drawn in favour of the children of a bigamous marriage induced by deception and not a bigamous marriage entered into by two people who are frank and open with each other. That is one of the matters which lead me to the conclusion that further consideration should be given to this Clause by everybody concerned.
Although the supporters of the Bill honestly think that they are conferring great benefits by it, in my submission it will do very little for the ordinary offspring of bigamous and other void marriages, because it will not be possible for these offspring to register themselves as legitimate, as could be done by many persons under the 1926 Act. They will be able to register themselves as legitimate children, once the marriage has been declared void, only if they can produce to the Registrar a declaration by the courts under the Legitimacy Act of 1858, which means litigation. It will not automatically confer a benefit on children and enable them to say, "Despite the fact that it has been discovered that the marriage of my parents was void, I am legitimate." The question will still remain: did one or other, or both, parents know at the time of intercourse whether the marriage was void?
No automatic registrations will be possible and, therefore, the unfortunate offspring will be in the position that they alone, unless a question of succession to title or property arises, can bring the necessary action to seek that declaration. One can imagine that a person in such a position would not wish to rake up the unhappy past history of his parents. One remembers the litigation, a few years ago, of the Fitzwilliam family and the unfortunate elder brother, Mr. George Fitzwilliam, who had been looked upon as a member of the family and accepted by the friends of the family. The last thing that he would wish would be that the unhappy past history of the family should be litigated in the courts. He and the members of that family and other families would surely prefer to let such matters lie.
It is only when a question of the succession to a title or property arises that the matter has to be litigated and not until such a matter arises will 471 people seek an approach to the courts with the attendant expense and publicity to find out whether they benefit by this legislation. Such a person will be litigating the question of whether his mother was gullible, or whether she was deceived. Until that happens no benefit will be derived by any of the unfortunate children of such a marriage.
Because of such reasons I feel in a difficult and embarrassing position. I wish that we had longer in which to consider the very important implications in this new Clause. I felt impelled to make those remarks and I apologise to hon. Members for detaining them.
§ The Joint Under-Secretary of State for the Home Department (Mr. David Renton)
This new Clause was first added to the Bill during the Committee stage proceedings in this House. My right hon. and learned Friend the Solicitor-General then advised the Committee against its acceptance and gave his reasons for so doing. Since then the principle of the new Clause has been accepted by the House.
In spite of what has been said by my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell), no Amendment was put down on Report to alter the position reached in the Committee. Not a single speech was made against this new Clause, or against the Bill, so far as I remember, during the Third Reading debate. I should have thought that if the House wished to challenge the principle of the new Clause, the right time to have done so was either on Report or Third Reading. That was the position reached at the end of the proceedings in this House.
In another place the principle of the new Clause was not challenged, but the Clause was greatly amplified. It was the subject of various Amendments, some moved by the noble lord, Lord Chorley, and some by my noble and learned Friend, the Lord Chancellor. The objects of those Amendments were these: they did not attempt to alter the principle of the Clause, but they were designed to make sure that the Clause dove-tailed with other provisions of the Bill, and dove-tailed with previous legislation, especially the Legitimacy 472 Act, 1926, and the Matrimonial Causes Act, 1950.
Further, there were various consequential Amendments thought to be necessary, and with great respect to those of my hon. Friends who have addressed the House tonight, challenging the principle of the Clause, I would have thought that the right thing for me to do now is to attempt to explain the form in which the Clause has been sent to us from another place so that such changes of detail made in another place may be understood. I would have thought it would be wrong for me now to attempt, as some have done, to argue the principle.
I will make only one comment on the principle, based on the speech of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), because he is in the strange position that he welcomes the Bill as far as it goes, but is against the Bill because it does not go nearly far enough. In the difficult political world in which we live, there are times when, I suggest, we should be thankful for small mercies, and say that a small bird in the hand is worth a very big bird in the bush.
§ Sir H. Lucas-Tooth
I think that my hon. Friend is imputing thoughts to me which never entered my mind at all.
§ Mr. Renton
Knowing my hon. Friend as well as I have done for so many years, I did hope that on this occasion, at least, I understood his mind fairly well, and thought that what he was regretting was that the Bill drew artificial distinctions instead of going what he considers to be the whole logical way to abolishing the distinction between letigimacy and illegitimacy. If I misunderstood, I apologise.
The advice of the Government to the House is that as the principle of the new Clause, which was added in Committee and is now before us as amended by another place, has been accepted by both Houses we should accept the new Clause in the form in which it has come from another place. So that I may assure hon. Members who have any doubts about the changes in the form of the new Clause, changes more of detail than of substance, I will explain the changes made.
§ The Clause is based on the recommendations made by the Royal Commission, but it was defective in a number of respects in the form in which it left this House. It implied that a void marriage could be treated as a nullity only when a decree was obtained; it was not clear at what moment the ignorance of the impediment to the marriage must exist, or whether the Clause was intended to apply to children born before the commencement of the Act. Further, no provision was made for succession of property or to titles of honour. The new Clause, while dealing with these points, has given effect, with minor modifications, to the principles underlying the Royal Commission's recommendation.
If we turn to subsection (1) of the new Clause, which was criticised by my hon. Friend the Member for Bolton, East (Mr. Philip Bell), we find that in a slightly different form it restates the principle of the Clause. Subsection (2) says:
This section applies, and applies only, where the father of the child was domiciled in England at the time of the birth or, if he died before the birth, was so domiciled immediately before his death.
§ That follows the precedent of the 1926 Act. It is one of the attempts made by another place to ensure that this legislation does dovetail properly with the 1926 Act. I should point out that the 1926 Act, in its turn, followed what in most countries is the generally accepted view of private international law in deciding that a person's legitimacy is normally governed by the law of the domicile of one or both of the parents at the time of his birth.
§ Subsection (3) also follows, and follows fairly closely, a precedent in the 1926 Act, which is to be found in Section 10 of that Act, so also is subsection (4), which deals with the rights of intestacy. Subsection (5), although it is the longest subsection in the new Clause, is really drafting and contains definitions which clearly indicate the scope of the Clause. Subsection (6) is of some importance because under the existing law there is some room for doubt whether a court has power to grant an applicant a declaration of legitimacy without, at the same time, 474 declaring the validity of the parents' marriage. This, obviously, is inappropriate where a person would be made legitimate by virtue of Clause 2 of the Bill and the subsection makes the necessary amendment by reference to the Matrimonial Causes Act, 1950.
§ My hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) raised a point that I should like to answer, because it is most strictly relevant to the application of this new Clause, that is to say, the way it will work in practice. He has pointed out that there is no automatic registration of legitimacy and has suggested to the House that in every one of the cases which might be beneficially covered by the new Clause it will be necessary to get a declaration from the court.
§ I am able to set his fears at rest because nearly all births which could conceivably come within the scope of the Clause, that is to say, the births of nearly all children of void marriages, will, in the nature of things, be registered in the normal way in the first instance and will appear to be the registration of children born of lawful normal marriages. At first sight, the position will be that the child is always legitimate.
§ It is only when a doubt will arise—and, of course, doubts could arise for various reasons—that it will be necessary for the child or the parents of the child to go to the court for a declaration. Therefore, I hope that my hon. and learned Friend will feel consoled by the thought that it will be only in the more exceptional cases that it will be necessary to go to the court for a declaration.
§ I hope that it will not be counted as a discourtesy against me if I do not deal with all the other points which have been raised because, I say in all sincerity, I believe that I have dealt with all the points which are strictly relevant to the Amendments from another place. For these reasons, my advice to the House, given on behalf of the Government, is to accept this new Clause.
§ Question put and agreed to.
§ Subsequent Lords Amendment agreed to.