New Clause 2

HC Deb 27 May 1970 vol 801 cc1980-2

VALIDATION OF CERTAIN VOID OR VOIDABLE DECREES

Any decree of divorce, nullity of marriage or judicial separation which, apart from this section, would be void or voidable on the ground only that the provisions of section 33 of the Matrimonial Causes Act 1965 (which restricts the making of decrees of dissolution or separation where children are affected) or of section 2 of the Matrimonial Proceedings (Children) Act 1958 (corresponding provision replaced by the said section 33) had not been complied with when the decree was made absolute or granted, as the case may be, shall be deemed always to have been valid unless—

1. (a) before the commencement of this Act the court declared the decree to be void; or
2. (b) in proceedings for the annulment of the decree pending at the said commencement the court declares the decree to be void.—[The Solicitor-General.]

Brought up, and read the First time.

The Solicitor-General

I beg to move, That the Clause be read a Second time.

Our earlier debates have referred from time to time to the possibility that it might be necessary and desirable to validate retrospectively decrees made absolute notwithstanding the fact that there had been a failure to comply with Section 35 of the 1965 Act. The new Clause deals with the problem of decrees which might be challenged as being void or voidable for failure to comply with that Section. As a result of the Clause, such decrees will be treated as having been valid unless already annulled before the commencement of the Bill or subsequently annulled in proceedings then pending.

One of the difficulties in doing what the new Clause sets out to do is that it is possible, although unlikely, that persons will have already, without there having been any formal proceedings to annul such a decree, acted on the assumption that the decree was void. It is theoretically possible, for example, that the executors of a deceased man, who had previously been married but whose marriage had terminated in divorce, might take the view that the decree absolute of divorce was void through failure to comply with Section 33.

For these reasons there is an objection to validating or invalidating retrospectively a decree affecting the status of any person. On the other hand, it is felt that it is not really likely that anyone has done this and it is virtually certain that nobody will have done so since the reporting of the President's judgment in F. v. F., in which he held that the effect of failure to comply with Section 33 was to make the decree voidable and not void.

The courses open to Parliament have been varied, and they have received careful consideration. The treatment of the matter set out in new Clause 2 is the one which the Government recommend to the Committee.

Sir D. Renton

In our haste to get the Bill on to the Statute Book, we should not overlook the fact that here we are engaging in retrospective legislation. We console ourselves with the fact that it is not retrospection as against the subject and in favour of the Government, for such retrospective legislation is always objectionable. This is being made retrospective as against some subjects on behalf of other subjects who are deserving, and I think that this is a right and proper example of our legislating retrospectively in order that justice may be done. I gladly support the right hon. and learned Gentleman, who has been candid about the retrospective character of the new Clause.

Question put and agreed to.

Clause read a second time and added to the Bill.