HC Deb 12 July 1971 vol 821 cc165-74

10.19 p.m.

Mr. S. C. Silkin (Dulwich)

I beg to move Amendment No. 1, in page 2, line 6, at end insert ' act or '.

The purpose of this Amendment and Amendment No. 3, in Clause 3, page 2, line 11, after 'date', insert 'of the act or ', which I believe that you, Mr. Speaker, indicated would be taken with it—

Mr. Speaker

Order. If that meets the convenience of the House, so be it.

Mr. Silkin

It would be convenient for me, at any rate, Mr. Speaker.

The purpose of these Amendments is to attempt to resolve a difficulty in the framing of the legislation. It is a difficulty which I believe the Solicitor-General has recognised as a real one, and one which we ought, if we can, to resolve.

The purpose of this legislation is to give effect in this country to the provisions of the Hague Convention on the Recognition of Divorces and Legal Separations. The object of that Convention is to avoid what are called "limping marriages"—and I suppose one could also say limping legal separations—that is, the situation in which a man and a woman can be regarded in one country as being divorced, or legally separated, but in another country—and so far as the Bill is concerned this country—as still married and bound to cohabit. We are leading the world in legislating to give effect to the intent of the Convention.

The difficulty which has arisen, however, is one which springs from the wording of the Convention itself—not that we are bound to follow the precise wording of the Convention; indeed, in the Bill we are seeking rather to go beyond it than to stay entirely with it. The intent of the Convention is, I think, reasonably clear. It is that where a divorce or legal separation is obtained in another State, then that divorce or legal separation, except in certain specific circumstances, which are referred to in Articles 7, 8 and 9, and which are reproduced in Clause 8(2)(a) and (b), shall be regarded as being as valid in other countries as it is in the country in which it is obtained.

There are exceptions, but the wording of the Convention provides what, on the face of it, appears to be a qualification, because it uses the language obtained in another contracting State", and which follow judicial or other proceedings officially recognised in that State and which are legally effective there. and the Bill has sought generally to follow that language.

The term "judicial proceedings" is, I think, reasonably clear. What is not clear is what was intended by those who drafted the Convention when they spoke about "other proceedings". I think it is clear enough—at any rate I am persuaded so—that they did not mean some other form of quasi-judicial proceedings. I think that they had in mind something wider than that. Indeed, the preparatory discussions which led to this form of wording undoubtedly produced a situation in which it was generally accepted that the wording would be intended to comprehend, for example, divorces of the type of the Muslim talak divorce, which do not involve any form of court proceedings, or anything of that kind. It would probably also be accepted that the legal considerations intended to be comprehended by the Convention were not necessarily the kind of legal separations which are obtained by means of some form of court proceedings.

We are therefore left with the question : what was meant by "other proceedings"? I take the view that the term "proceeding" connotes a sequence of events rather than a single act or event. The wording of the Convention and the wording of the Bill—which both talk about the "institution of the proceedings"—tend to support that view, yet the talak divorce and similar types of event are difficult to square with that obvious meaning of the term "proceedings". That is where the difficulty lies in the Convention, and we have reproduced the difficulty by using the same words—"judicial or other proceedings"—in the Bill.

We know that we intend to include such forms of divorce as the talak divorce and separation which are not necessarily the result of any form of judicial or administrative procedure, but the wording that we have used, because it follows that of the Convention, does not seem clearly to explain precisely what is intended.

I appreciate that the hon. and learned Member has thought long and deeply to try to find a better form of words which would more clearly express what is intended, because it is more important to give effect to the intent of the Convention than to follow its wording. But I conclude that it is the concept of a sequence of acts or events that is inherent in the word "proceedings" that causes the difficulty.

At this stage we are not concerned with the question whether the act or event that gives rise to a divorce or a legal separation in a foreign State is one that we should recognise. That limitation seems to be the function of Articles 8 to 10 of the Convention and Clause 8 of the Bill.

10.30 p.m.

In Clause 2 we are making the type of process—if I may use that neutral word—which is the subject matter of the Bill as wide as it can be, so that it is subject only to the limitation explicitly provided for in Clause 8, which, in terms, says that Subject to subsection (1) of this section, recognition by virtue of this Act … of the validity of a divorce or legal separation obtained outside the British Isles may be refused if, and only if and then follow the circumstances set out in Article 10. What is missing from the Convention and the Bill is the concept of a single act as distinct from a sequence of events, which is understood by judicial or other proceedings. The single act, which may be judicial or non-judicial so long as it is recognised in the country of origin as giving rise to divorce or legal separation, is that which the Convention intends to be recognised in the foreign State and which the Bill should intend to be recognised here, subject only to the limitations in Clause 8.

If there is any doubt left about the interpretation of the Clause, there is a real danger that we may not be giving effect to the intent of the Convention. I recognise the difficulties of this matter, but the sort of distinction which the Solicitor-General drew in Committee between what the Bill should and what it should not recognise was not logical. The real distinction is between what the foreign country accepts as a divorce or legal separation, provided that it does not conflict with the Bill, and what it does not so accept. If that is so, then one can put the wording right, as the Amendment suggests, to cover not only the sequence of events but the act itself.

The Solicitor-General (Sir Geoffrey Howe)

The hon. and learned Member for Dulwich (Mr. S. C. Silkin) has understandably returned to the point which caused him and all of us who have considered the Bill some anxiety on Second Reading and in Committee. The Bill is unexceptionable. It is designed to implement the Hague Convention. We are blazing the trail for other countries by passing these provisions into our domestic law.

It is clear that the draftsmen of the Convention themselves probably did not finally resolve what they meant when they included the words "judical or other proceedings officially recognised" in Article 1. Those words extended as far as was felt necessary by the countries which drafted the Convention. It would not be satisfactory for this House to content itself with saying "At least we have not made it more confused". It is plainly our duty to see that we get it as clear as we can.

The hon. and learned Member has said—I echo this—that it is extremely difficult to find an appropriate form of words to do what we want to do. What we are trying to do is to make it plain that the recognition which is to be afforded under the Bill should not be confined to recognition of judicial proceedings alone. Plainly, we intend to extend recognition to such things as the talak divorce.

Having reached common ground on the objective, I do not find it possible to accept the hon. and learned Gentleman's second or third shot at amendment as being any more apt or appropriate than the words already in the Bill. The Bill speaks of "judicial or other proceedings," and the Amendment proposes the insertion of words to make it read "judicial or other act or proceedings."I suggest that the inclusion of the words" or other proceedings "at least makes it plain, first of all, that the other proceedings need not themselves be judicial, as I think the hon. and learned Gentleman accepts.

It follows that the other proceedings can include administrative proceedings, including possible registration in a Government office or divorce by legislation. It can also include proceedings which do not involve the intervention of an official; a formal series of steps following a strict legal pattern such as those taken in a talak divorce, where the official plays no part and where no official step is necessary to register them.

The hon. and learned Gentleman's point is so far so good, but "proceedings" implies a sequence of measures, a degree of formality and bureaucracy and judiciality which could result in excluding from the Bill some single act taken by the parties resulting in divorce by the country in which that act is being taken. The difficulty is that if one takes a single step like that, an act as opposed to proceedings, or even a proceeding—which was one of the alternatives I thought of at one time—one might arrive at a proceeding so informal as to make it difficult to bring it within the framework of this kind of recognition.

The Bill, and any Bill of this kind, must depend on the possibility of identifying a particular moment of time jurisdictionally at which the act or proceeding can be identified between that act and the jurisdiction under whose law the matter would be valid—

Mr. Silkin

Would the informality matter so long as the country concerned accepted the validity of the divorce or legal separation resulting from it? Is not that the key to the intent of the Convention?

The Solicitor-General

I hestitate to go back to analysing the intent of the Convention, but in terms of finding the key to what is workable and acceptable in this country the point must be that if we are providing for a quick, automatic machinery for the recognition, which is really what the Clauses do, it should be possible to identify quickly and automatically the nature of the act or proceedings which qualifies for recognition and be satisfied that at the time the act or proceeding was taken or was taking place the necessary jurisdictional link of nationality or whatever it may be could be fulfilled.

If one looks at that in the context of the word "act", for example, rather than "proceedings" and then at a judicial act, one immediately runs into possible difficulties in deciding whether the judicial act in question is the service of the petition or the granting of the decree nisi or of the decree absolute. One is not then able to identify it with any clarity because under Clause 3 as it stands we have … at the date of the institution of the proceedings …". If we insert … at the date of the act or of the institution of the proceedings … we become a little uncertain on that ground.

I suggest to the hon. and learned Member and to the House that the answer to his problem is to say that when we reach a proceeding or act as informal as that which he has in mind, the parties would have to rely on the provisions of Clause 6 which enables a divorce and legal separation which is valid by virtue of a rule of law arising from the domicile of the parties still to be recognised in this country, but it requires it to go through an admittedly rather more complex means of proof and establishment of recognition. But that is the long stop and the safety net, which is sufficient to deal with this problem.

As the hon. and learned Member mentioned, I have considered alternative ways of defining the meaning of "proceedings" by confining them to something in which an official intervenes, which would not be sufficient, or by saying that some formality should be regarded as the only essential for "proceedings", but even that would give rise to difficulty. I have thought of using the word "proceeding" rather than "proceedings", but I am not sure that that does more than perpetuate or conceal the difficulty.

I hope that the House will accept that there are difficulties about "act"; that, in the context of the Bill and the Convention as a whole, the phrase "judicial or other proceedings" will enable all those divorces which involve formal steps following a strict legal pattern, including certainly talak, to secure recognition under the law of this country and, beyond that, that Clause 6 will operate as a sufficient safety net or long stop, and that the Clause as drafted is the most effective way of dealing with this matter as clearly as we can.

Accordingly, I ask the House not to accept the Amendment.

Amendment negatived.

Mr. Silkin

I beg to move Amendment No. 2, in page 2, line 9, at end insert : (2) For the purposes of this Act a legal separation exists when any legal obligation to cohabit has been terminated. The Amendment arises out of a difficulty which was expressed in Committee, but a difficulty which is, perhaps, not quite so formidable as the one we have been discussing. The difficulty here is to decide what was meant in the Convention and what is meant in the Bill by the expression "legal separation". Clearly that term can be capable of a wide variety of meanings, from the separation obtained by means of some kind of court order to the separation which is consensual, under which the parties agree not to live with one another again. It is not expressed in either the Convention or the Bill just how far that term is intended to go.

We discussed this in Committee, and as a result the hon. and learned Gentleman, who has taken the utmost trouble over trying to get accuracy and precision about the Bill, was good enough to write to me, and in his letter he said that he had reached the conclusion that … such a separation connotes some overt step, taken at an identifiable moment of time, which produces (possibly among others) the result that the spouses are no longer under any legal obligation to live together. 10.45 p.m.

I agree with that definition. The Solicitor-General has put it so well that

I think it should be written into the Bill. The wording of the Amendment follows as closely as possible the wording of the hon. and learned Gentleman's letter to me, in that it defines "legal separation" by saying : For the purposes of this Act a legal separation exists when any legal obligation to cohabit has been terminated"— that is, when the spouses are no longer under any legal obligation to live together, as the hon. and learned Gentleman says in his letter. There may be other results, as the hon. and learned Gentleman rightly says, but this is the critical result. This is what is crucial to a legal separation. How the position has been arrived at that the parties are no longer under a legal obligation to live together does not seem to matter provided that it is, in the words of the Convention and of the Bill, recognised and effective in the law of the country concerned.

I hope that the hon. and learned Gentleman will be ready to accept his own words by way of annotation of the Bill. It is in this spirit that I offer them to him.

The Solicitor-General

It would be tempting to respond to the tribute paid to these words by the hon. and learned Gentleman by falling over myself with enthusiasm to accept them as an addition to the Bill. The difficulty is that the hon. and learned Gentleman's tribute goes too far and overlooks the qualifications in the wording which I adopted, because I said that a separation was something which produces possibly, among other results, the result that spouses are no longer under any legal obligation to live together.

It would not be appropriate to define "legal separation" in this way. I was not proffering a draft of legal separation. The form of words adopted by the hon. and learned Gentleman would, as drafted, include a decree of divorce or annulment, because each of those things would produce a situation when a legal obligation to cohabit has been terminated". It is clear that we could not accept the Amendment, because in Clause 4(2), for example, a distinction is drawn between a legal separation and a decree of annulment or a decree of divorce. The definition would not be appropriate as the hon. and learned Gentleman has tried to draft it by borrowing my own words.

Mr. William Wilson (Coventry, South)

Has the Solicitor-General thought of this possibility under the Amendment? If adultery is committed, the legal obligation to cohabit has been terminated. Would that come within the wording of the Clause— the recognition … of … legal separations … which— (a) have been obtained by means of judicial or other proceedings"?

The Solicitor-General

The hon. Gentleman is speaking of the impact of English law. We would not always be concerned with that. We might be looking at the impact of other systems of law. Any situation which could arise by implication from the law that a spouse was no longer bound to cohabit with her husband, for example, would not be a legal separation arising from judicial or other proceedings. Therefore, it would not be a legal separation for the purposes of the Bill. It might be if we were to adopt the Amendment, because if we could argue on the system of law in question that an obligation to cohabit had been terminated by virtue of a state of fact—namely, adultery—we could argue that a legal separation existed for the purposes of the Act. It may be that that is not what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) intended.

Mr. Silkin

Not only is it not what I intended, but it would not follow because the words are qualified by the following words which the Solicitor-General pointed out to my hon. Friend the Member for Coventry, South (Mr. William Wilson). The legal separation, however we define it, must have been obtained by means of judicial or other proceedings.

The Solicitor-General

I think that that is probably right; but I suspect that it goes beyond my function to try to resolve the ambiguity which arises from the Amendment. Therefore, I ask the House, if only because I am incapable of understanding all the difficulties of the Amendment, to count that as an additional reason for not enthusing over it and for not accepting it.

Mr. Silkin

It is rather a pity that the Solicitor-General is not willing to accept the Amendment, although it was founded upon language of his which I accept, and has not been able to put forward a better definition, because in the absence of a better definition—and this is, I understand, the last opportunity there will be to define the term—the expression is left in the indecisive state which we all agreed it bore when we discussed it in Committee.

It is a pity that we have not said precisely what we mean but have left it to the courts to decide what is intended by the term "legal separation", which we all agree can embrace a wide variety of situations, albeit they must all be obtained by means of judicial or other proceedings. The Solicitor-General had his opportunity to cap my Amendment with a better one. I regret that he has not taken it.

Amendment negatived.

Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed, with Amendments.

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