§ 10.30 a.m.
That if the proceedings on the Recognition of Divorces and Legal Separations Bill [Lords] are not completed at this day's sitting, the Commitee do meet on Wednesdays at half-past Ten o'clock.—[The Solicitor-General.]
§ The Solicitor-General (Sir Geoffrey Howe)
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Recognition of Divorces and Legal Separations Bill [Lords] ought to read a Second time.The Bill amends the law with a view to ratification by this country of the Hague Convention on the Recognition of Divorces and Legal Separations. Although it is comparatively short, the Bill deals with an important matter and is the fruit of long consideration and study, both internationally and in the United Kingdom. The problem which the Bill
§ handles is familiar to many, namely, that of the "limping marriage", the case in which one party may secure a divorce which will be recognised in the country where it is granted but will not be recognised in other countries, or be recognised in some but not in others, so that the extent to which either of the parties to the limping marriage is free to remarry in other jurisdiction where he or she may happen to be living is in doubt, and one partner may regard himself as free while the other may not.
§ Plainly, this is a field in which it would be desirable to rationalise and standardise the law of recognition internationally, although this raises difficult matters. It is equally desirable for the law to be rationalised in the context of our own systems of law in this country in the various jurisdictions which comprise the United Kingdom.1549
§ Traditionally, the law in England and Wales recognises a divorce if it is pronounced by the court of the domicile of the parties or if it is recognised by the court of their country of domicile. Additionally, as a result of statutory provisions which have been in force for some years, under Section 40 of the Matrimonial Causes Act, 1965, we recognise decrees where the petitioner has been ordinarily resident for three years or where the parties were domiciled here before the husband deserted the wife.
§ In addition to those basic provisions, the position has been, as some would say, liberalized, or, as others would say, made more complicated, as a result of the decision of the House of Lords in the Indyka case in 1969. There was then added as a new ground for recognising a decree a real and substantial connection on the part of the petitioner with the country in whose courts the decree was pronounced. Subsequently, that was extended to a case in which the decree was pronounced by a country with which the respondent had a real and substantial connection. The law was, therefore, liberalised by extending the range over which we should recognise decrees pronounced in other jurisdictions, but it certainly was not placed upon a very secure or lucid foundation. The judgments in that case suggest, I think, some eight alternative grounds for recognition, although the "real and substantial connection" one is that which has prevailed. Nor is it clear how far Scots law would follow the decision in that case, which was a decision on English law.
§ It is perhaps just as well, therefore, that matters were moving ahead, while that case was going through the courts, towards the solution which is now proposed in the Bill. In 1966, I think, The Hague Conference on Private International Law submitted the first draft for a Convention of this kind. In May of that year, the then Lord Chancellor set up a broadly based Working Party under the chairmanship of Mr. Justice Scarman, Chairman of the Law Commission, to consider what was taking place at The Hague. The Working Party made two reports, which were the foundation of comments and recommendations from this country to those who were at work at The Hague on the draft Convention. 1550 Finally, in 1968, the 11th Session of The Hague Conference settled the draft Convention which gives rise to the present Bill was adopted, having derived great benefit from the contributions made by the representatives of this country.
§ In May of last year, the last Government announced their intention to adhere to the Convention. The matter was referred to the English and Scottish Law Commissions for consideration as to how to implement it in this country. We signed the Convention on, I think, the glorious 1st of June last year and, in November, the Joint Report of both Law Commissions on the Bill was published. In January, my noble and learned Friend the Lord Chancellor announced the intention to introduce legislation, which the Committee may feel to be doubly welcome and convenient in the light of the state of play following the Indyka decision.
§ I said that I should mention certain matters which the Bill did not do and could not properly seek to do. It does not seek to change the substance of divorce law within this country. It does not seek to deal with the separate important matter of matrimonial property, which is still under consideration, nor to deal with the position in relation to polygamous marriages, or potentially polygamous marriages, which are the subject of a report published by the Law Commission in February, this year.
§ It does not seek to alter the basis upon which courts in this country take or accept jurisdiction in respect of matrimonial matters. Specifically, hon. Members may have in mind the question of the extent to which our jurisdiction law still depends on domicile and the extent to which the case has been made out for giving the wife a separate domicile from that of her husband, which has been one of the proposals contained in the Report of the Law Commission's Working Party and made by a number of other people. That is a matter of domestic law.
§ Nor does the Bill deal with the related question of the reciprocal enforcement of maintenance orders, which is complex, important and difficult. Again, work has been going on for some time on that matter, and it is still going on. It will plainly need to be the subject of separate legislation when that work has been completed.1551
§ Nor—and this is more in the context of the Bill—does it deal with the problem considered in another place and thrown up, if that is the correct phrase, by the Qureshi decision. That was a case in which it was held that a divorce obtained in England or Wales by non-judicial means, in other words, other than through our own courts, for example, by means of a Talak, was effective if both parties to that kind of proceeding were domiciled in a country where that form of divorce was recognised and effective.
§ There are, rather to my surprise, about 150 applications a year for licences to remarry on the grounds of such divorces. I am not able to tell the Committee how many are successful. About half are founded on Talaks, and of the remainder about one-third each depend upon Hindu, African and Greek law. The effectiveness of that kind of a divorce, a non-judicial divorce, is not affected by the Bill. The Bill touches upon decrees obtained under the law of any part of the British Isles, and such a decree or divorce would not have been obtained under the law of any part of the British Isles.
§ It touches upon decrees obtained abroad. There are substantial difficulties both of policy and of formulation as to what the right view should be in relation to the Qureshi type of case. The noble and learned Lord, Lord Simon of Glaisdale, moved an Amendment in another place to try to deal with that in the context of the Bill. It was not accepted and the matter is still being considered, at the invitation of my noble and learned Friend the Lord Chancellor, by the Law Commission. The Committee may feel that this is a matter for consideration not so much today, as in Standing Committee, but all the problems arising from that kind of situation have not yet been sufficiently ironed out for one to be able safely to reach a conclusion.
§ Having spent some time saying what the Bill does not do, may I shortly try to explain what it does do?
§ Clause 1 provides that a decree granted in the British Isles shall be recognised anywhere within Great Britain, so that a decree granted by any one of the jurisdictions which make up the British Isles, Northern Ireland, Scotland, England and Wales, the Isle of Man, the Channel Islands, should be recognised anywhere within Great Britain. The Isle of Man 1552 and the Channel Islands can legislate for themselves and Clause 9 gives power to the Stormont Parliament to legislate along similar lines, if it so pleases.
§ Clauses 2 and 5 deal with the separate question of overseas decrees. Clause 2 defines which they are talking about in that sense, as any decree obtained by judicial or other proceedings and effective under the law of the country where it was pronounced. It sets out three grounds on which in England and Wales and in Scotland we will recognise overseas decrees pronounced in the way that I have described. The first is that the court is in a country in which either spouse was habitually resident. That is a new concept in this field, although it is not new in some other parts of our law. The second is if the decree was pronounced in a country of which either spouse was a national. The third is if it was pronounced by the court of the country in which either spouse was domiciled, in so far as domicile is relevant to the law of that country.
§ Clause 4 makes matching provisions for cross-decrees. Clause 5 states the effect within this country of findings and facts arrived at in foreign proceedings.
§ Clause 6 deals in essence with three matters. It preserves the rule that a divorce recognised by the country of domicile should continue to be recognised; it preserves certain statutory provisions; apart from that, it makes the provisions of the Bill exclusive on this question of recognition. Clause 7 provides that if the decree is recognised here, non-recognition of it in any other country shall not impair the recognition conferred in this country.
§ Clause 8 makes certain exceptions. It excludes from recognition cases where the marriage was not effected according to the law of the part of Great Britain in which the proceedings are taking place. It enables recognition to be denied where there was no reasonable notice given to the party in question, or no reasonable opportunity of challenging the proposed decree.
§ Mr. David Weitzman
What is the meaning of the words in Clause 8(2)(b):manifestly be contrary to public policy.What does the addition "manifestly" mean?
§ The Solicitor-General
There are a number of detailed considerations about the formulation of Clause 8(2)(b) and that phrase. It could have been approached on the grounds of its being unconscionable or wrong. It was not thought right to make a series of specific provisions, but there might be cases where a decree had been pronounced according to the law of some country simply upon the basis that one of the parties was of one race and one of another, for instance, a ground for granting a decree which would not commend itself to anyone looking at public policy from the point of view of this country. On the other hand, if one made it simply "contrary to public policy", it would leave the matter very much at large.
The hon. and learned Member will know that public policy has been described as an unruly horse and I think that the expression makes the horse a trifle less unruly.
§ The Solicitor-General
I am not sure that the right hon. and learned Gentleman chose the right question. I think that the word "manifest" is intended to imply a degree of inherent strength in the horse.
§ Mr. S. C. Silkin
I do not want to deflect the hon. and learned Member from his horses, but is not the point that we are simply following the wording of the Convention? The Law Commission commented that the word "manifestly" in our law probably added nothing anyhow.
§ The Solicitor-General
I was coming to the point that these are the words of the Convention. There has been some discussion of whether they are appropriate. Burt they seem to be not inappropriate, and I should have thought that an advocate of the talent of the hon. and learned Member for Dulwich (Mr. S. C. Silkin) would find no difficulty in generating some value from the word "manifestly" if it were a case where he thought it appropriate to do so. At all events, this is the foundation of the wording of the Convention.
In fact, the Bill proceeds a little further than the Convention in some respects. One possibility was that we should afford 1554 recognition only of decrees granted by countries which had themselves ratified the Convention. This would seem a recipe for complexity and uncertainty, so the Bill extends recognition to decrees granted in all countries. Secondly, Clause 1 provides for mutual recognition, as it were, within the British Isles, which goes outside the scope of the Convention.
One other point to which I ought to call attention is that the Bill extends recognition along the lines suggested to all decrees, whenever they have been granted. In doing that, it is not doing any more than judge-made law would do, or has done in previous cases, as happened, for example, in the Indyka decision. That effectively changed the law in relation to existing decrees, whenever they had been granted—it was not merely a prospective change. This seems to be a sensible way of achieving the clarity and certainty which is the objective of the Bill.
It is upon the basis that the Bill achieves that kind of clarity and lays a secure foundation for diminishing and eliminating, as far as possible, the problems created by the limping marriage, that I commend its principle to the Committee.
§ The Chairman
I remind the Committee that this is a Second Reading Committee and that, although there may be Committee points which are perfectly in order, they might be better expressed in the Committee stage.
§ 10.52 a.m.
§ Sir Elwyn Jones
The Committee will be grateful to the Solicitor-General for the lucid way in which he explained what the Bill does not contain and what it does contain. In another place, the noble Lord the Lord Chancellor said that he commended the Bill to his House and he added:To some extent I fear that it is an act of faith, because we do not know how it will fare in another place."—[OFFICIAL REPORT, House of Lords, 16th February, 1971; Vol. 315, c. 487.]I do not know why the noble Lord has so little faith in the House of Commons, with which he played political musical chairs with such distinction. We can assure him and other members of the Government that so long as they confine their legislation to law reform, we shall 1555 give those measures our enthusiastic support. Indeed, for the Opposition it is gratifying to see the Solicitor-General at last doing the job which he ought to have been doing instead of messing about with matters in which legal changes are likely to prove disastrous. But, having made that non-partisan observation on this highly uncontroversial occasion, I certainly indicate at this early stage the Opposition's support for the Bill.
The Lord Chancellor has generously acknowledged that the Bill arises from, and had its origin in the days of, the previous Administration. The United Kingdom delegation to The Hague Conference on Private International Law, which prepared the Convention, played an outstanding part in the deliberation of that Convention. When this country signs Conventions and thereby gives its approval to them, early steps should be taken to make the changes in our law which may be required to give effect to those Conventions. Without being too pompous about it, I think that this country tends on the whole only to sign and ratify Conventions which it intends to carry out. It does so only when the conventions are practicable and capable of enforcement. So we are pleased with what has been done by the Government in following up the work of their predecessor in this matter.
As the Solicitor-General has pointed out, the Bill goes further than the Convention in that it applies to all overseas countries and not merely to the parties to the Convention. That was a recommendation of the Law Commission which, I feel sure, we would support. Having mentioned the Law Commission, I again pay my tribute to the Commission and its members for their continuing admirable contribution in law reform. It would be quite intolerable, as the Solicitor-General has pointed out, if we were to have two codes of recognition of foreign decrees, one applicable to the parties to the Convention and the other to non parties.
The other change which the Bill introduces outside the scope of the Convention, as the Solicitor-General has pointed out, is to be found in Clause 1, by which English and Scottish courts are to recognise divorces granted in each other's courts and elsewhere in the British Isles, 1556 notably the Channel Islands and the Isle of Man. What goes on in the land North of the Border, with their pursuers and their feuers and their Gretna Green, is often wrapped in mystery. But we have no reason to doubt that the principles of natural justice are applied in the courts North of the Border as they are applied in our courts. Indeed, during the years when I had the privilege of holding the office of Attorney-General, I learned much wisdom from North of the Border, and we introduced into our law several of the healthy provisions which operated North of the Border over the centuries.
The Solicitor-General has indicated that the purpose of the Bill is to reduce the number of limping marriages. That is a rather unattractive expression and one is tempted to be frivolous about it, but it is not a frivolous situation. Much misery and frustration arise when there are two inconsistent laws about marriage and divorce in two separate territories which affect the men and women involved. It is painful to have a situation where a man or woman may be regarded by the law of one country as of married status, but by the law of another country as single, or, even worse, as married, but to a different partner. Obviously, that state of affairs, if it is capable of remedy, ought to be remedied.
I am glad, however, that, while the Bill pays due regard to the principle of international comity, Clause 8 has been introduced to establish and assert expressly the principle that the Bill does not require the recognition of the validity of an overseas divorce, or legal separation if it was obtained—this is in subsection (2)(a)(i) and (ii)—in effect contrary to the principles of natural justice in that no notice of the proceedings was given or one of the parties had no opportunity of taking part in them. Then there is added the all-embracing provision in paragraph (b):if its recognition would manifestly be contrary to public policy.In my view, it is clearly right that that principle should be expressely stated in the Bill, lest cases arise in which our courts might be forced to recognise a foreign decree in circumstances in which it would be unconscionable to do so. In this connection, I can do no better than quote the eloquent words of Wharton, 1557 the learned author of "Private International Law":To stretch international law further would be to engraft on free countries the paralysing restrictions of despotism.That is noble language, but language which is not mere wind—if I may descend to a more direct expression on the matter—bearing in mind what went on in Nazi Germany and what still goes on today in some countries.
The field in which the most odious form of discrimination is still capable of arising is racial disqualification and discrimination. Racial disqualification which restricts human freedom by penalising certain classes of the population to the profit of others is intolerable. The old jurists used to call them privilegia odiosa, and odious they indeed are. It would be intolerable if we in this country were compelled to recognise the products of such odious privilege as a necessary part of the law which our courts should enforce.
I had the privilege recently of appearing in the case of Myer v. Myer, in which a decree pronounved in a Nazi divorce court, where the wife concerned was dragooned and intimidated into taking the proceedings, was ruled by the courts of this country not to be a valid decree. It was reassuring that that decision was made to set aside the doubts which were creaed by the earlier case of Igra v. Igra.
Accordingly, I welcome Clause 8. It may well be that we shall discuss in Committee whether the word "manifestly" is necessary. The effect of it would seem to be to restrict the discretion of the court in this respect. I recognise that there is need for certainty, that there must not be too much discretion, and it may well be, therefore, that the word serves a purpose in limiting judicial discretion in the kind of way which Lord Simon of Glaisedale suggested was the appropriate course. However, you have already warned us, Mr. Gurden, about the temptation of taking Committee points at this stage, and I shall not transgress, although it is a matter of importance to be considered in due course.
I support the Bill and we shall do our utmost to give it a speedy passage.
§ 11.3 a.m.
§ Colonel Sir Harwood Harrison
I hope that I shall not transgress your ruling, Mr. Gurden, but I think it right that someone not well versed in the law should say something at this stage. It appears to me that the Bill is well worth while. However, the Solicitor-General used the term "foreign countries" and I am wondering what is embraced by the reference to divorces in foreign countries.
There are some foreign countries which are fairly stable and there are those which split or have revolutions or revolts. One can think of Nigeria, or of Pakistan, where the revolt seems likely to be put down. To bring it a little nearer home, should we recognise Rhodesia as a foreign country for the purposes of the Bill? There has been a great deal in the newspapers about certain divorces granted there not being valid in this country. There is here, therefore, a wide point of principle raised, and I shall be glad if the Solicitor-General will touch on it in his reply. Is Rhodesia, or any other country which might find itself in a similar position, a foreign country in the context of this Bill?
§ 11.5 a.m.
§ Mr. E. S. Bishop
As one of the few non-lawyers present, I should like to ask a few questions. I welcome the Bill, basically, because it is designed to sort out some of the problems in the current situation, and it will help to deal with the growing number of people who come to this country, immigrants and others, who may wish to have their status regularised in relation to their previous marriage.
In the light of the comments made by the Solicitor-General, I think that one will be anxious to make sure that, in covering recognition of overseas marriages which one party may wish to terminate or to have accepted as being terminated, one must be clear that both parties did, in fact, take part in the marriage proceedings and were aware of the circumstances when the divorce was granted. That may be dealt with by Clause 8.
The other factor of some importance in this connection is the question of proof. There are words like "residence" and "domicile" in the Bill. I understand that these words can have different meanings. I have been looking at Joseph Jackson's book, "The Formulation and 1559 Annulment of Marriage". On "residence" alone he has 20 pages, and another 20 on "domicile". One wonders how some of the people who come to the registrar for recognition of their divorce, or marriage, if it ever existed, will be able to prove some of the points which, quite rightly, have to be proved in this respect.
Not long ago, I was in New Delhi as a member of the Inter-Parliamentary Union delegation, and I had the chance of seeing the immigration officer to sort out a point for an Indian constituent of mine who was seeking a husband for his daughter and who had problems in getting the man over for them to marry, and so on. That is immaterial here, but, at the same time, I was made aware of some of the problems of marriage in that part of the world. This applies to a varying extent in other places, too. I understood—I hope I am being fair about it—that about 80 per cent. of the women of the Punjab are illiterate. In such circumstances, some of them may not have been fully aware of the commitments on which they were entering at the time of marriage, and they certainly may not be fully aware of the legal implications of proving a divorce.
Another factor in that part of the world is that there is, in many cases, no proper registration of the initial marriage. If the parties with whom we are concerned are from that kind of background, illiterate and probably unaware of the circumstances of marriage—certainly not aware to the extent that we should be in this country—the burden of proof of marriage or divorce will be very difficult.
There are also problems of impersonation and so on. I saw some women seeking to come to this country and I sat with the immigration officer when they were interviewed, with their children. In one case, a woman said that her husband was in Birmingham. When she was asked his name, I do not think that she was quite clear what it was, and she certainly did not know the date of the marriage. Consequently, there was some problem of ascertaining whether she was eligible to come as the spouse of someone in this country. She did not know the dates of birth of her children. One has to bear in mind that kind of problem, and it will not do for us to sit here in a semi-judicial atmosphere and be unaware of 1560 some of the questions with which we may be faced when the Bill becomes law.
There are the problems, also, of other nationalities and the formal and legal requirements which may have been followed. If we untie a marriage in the legal sense, what will happen to the religious aspects? In some communities there is a civil as well as a religious ceremony, and one may be legally untied in one but not in the other. We can well imagine the confusion, especially with people whose literacy is not as great as it is in this country, in having to sort out situations of that kind.
Both proof of marriage and proof of divorce are of material importance. If people were not really married at the start, and one party or the other claims that there was a divorce, there are problems of inheritance, bastardy, nullity and so on, which are certainly relevant to the issue at the time when the registrar or other authority has to decide on the validity of a marriage or divorce.
I am anxious, in particular, about the position of wives, who may be affected by these situations. Hon. Members will recall my interest in the Matrimonial Proceedings and Property Bill when the Divorce Reform Bill was going through the House. One would like to think that those who may be affected by the legal recognition of marriage or divorce envisaged in this Bill were aware of the full nature of their situation and the consequences. In the Divorce Reform Act, there is a Section dealing with reconciliation and so forth. One hopes that both parties will be aware of what is happening and that wives, in particular, will be aware of the probable loss of rights which could follow from the recognition of their divorce in this country.
I shall not go at this time into the other problems of maintenance, especially the problems of enforcement of maintenance orders if one party goes abroad, a matter which I have raised with the Solicitor-General in recent weeks. But it is important that those who may be affected by this Measure shall be aware of what is happening and the consequences, especially concerning the wives and children.
There are the added problems created when husbands or wives, after recognition of the proceedings, go abroad, with 1561 all the accompany difficulties which that may bring.
Those are some of the points on which, as a layman, I have been concerned. We are dealing here, among others, with people who may be less able to look after their rights or be aware of all the implications of their situation. I hope that the Bill will be followed by measures to make these matters known so that the consequences may not be unexpected at a later date. In any case, if husbands, or wives, are not responsible, as they may be under British legislation, for consequences following divorce, the State may have to assume responsibility. This is another wide point to be considered in due course.
Having looked through the work to which I have referred, "The Formulation and Annulment of Marriage", which has nearly 470 pages dealing with all the requirements of existing British legislation, I can well imagine the immensity of the job before us, especially when we come to consider foreign and other divorces. I hope that the Solicitor-General will be able to give some assurances on the points which I have raised.
§ Mr. Edward Lyons
We welcome the Bill, but it could give rise to some abuse. For the first time, the British courts will recognise divorces granted by the country of nationality of the person obtaining the divorce. As I understand it, he may at present be domiciled in England, so that a foreign national domiciled in England could go to his solicitor wanting to divorce his wife, and the solicitor could say to him, "You have no grounds at the moment in England, but you happen to be a national of X country. Go there for a divorce." Or he might say, "Go to the country of which you are a national, where the laws as to maintenance are more lax, and divorce your wife there".
In other words, from now on, there will be people in this country who will have a choice of where to obtain a divorce according to which place suits them better—England, the country of their domicile, or the country of which they are a national if that country is prepared to divorce its own nationals even though they are not domiciled in the country of which they are nationals.
1562 Therefore, although the Bill would reduce the number of limping marriages, it will give rise to more calculation among lawyers, and it may give unfair advantages to certain people, particularly men, in obtaining divorces more easily and avoiding responsibility for maintenance.
The Bill, as has been said, is silent about the enforceability of the wife's right to maintenance where the divorce is granted overseas. One hopes that there will be legislation soon to enable the courts in this country to ensure that wives living here who had been divorced abroad would have their rights to maintenance protected.
This relates also to the protection of polygamous and potentially polygamous marriages, which arose in discussions on the Nullity of Marriages Bill. The Committee may be aware that, although we will consider someone married who married by a polygamous form, say, in Pakistan, we will not enforce that marriage in terms of maintenance or in any other way in this country. So a wife, who may be the only wife of a husband but who was married potentially polygamously under the religious customs, for example, in Pakistan, can be thrown off by her husband here and she cannot go to the English courts for maintenance. The State may step in and provide her with social security, but the British legal system does not permit her to claim maintenance against her husband.
There are growing numbers of people in this country who were married under a potentially polygamous form, under a religious ceremony, for example, in Asia, and it seems that the time has now come when the wives of those marriages living in England should be entitled to claim maintenance in the same way as any other wife living here can do when the husband is guilty of a matrimonial offence. That, too, produces the complication that if a man has three wives, he is not committing adultery if he confines his attention to only the three, but if he were to have sexual relations with a fourth, not being a wife, the other three wives would be able, and in my submission should be able, to claim maintenance against him. That is rather complex, but it is clear that we will reduce limping marriages by the Bill, but 1563 increase the abilities of certain husbands to prevent their wives from having their just rights, and will enable certain spouses to obtain divorces elsewhere which the law of England would not enable them to obtain.
Although we now permit a wife who is not domiciled in England, or whose husband is not domiciled in England, to divorce here if she has lived here for three years, we do not extend that to wives whose husbands are domiciled in Scotland. In other words, a wife of a Yemeni or a Frenchman living here for three years, if the husband is domiciled in one of those countries, can take divorce proceedings here and get a divorce; but not if the husband is domiciled in Scotland, even though that husband is resident in England. So if a couple live in England and the husband is really domiciled in Scotland and the wife wants a divorce, she cannot do it in England; she has to go to Scotland. Nothing in the Bill alters that situation.
It seems absolutely absurd. First, the woman may be a poor, working woman—the English solicitors do not understand Scots law anyway and the same presumably applies in reverse in Scotland. The consequence is that considerable extra expense has to be incurred for a woman to go to Scotland, to have Scottish legal agents employed. There are also questions of legal aid, because I am not entirely clear that the English Law Society is prepared to give legal aid to an English woman living in England when the husband is domiciled in Scotland and she wishes to divorce him. We ought to reach a stage where if an Englishwoman wants to divorce her Scottish-domiciled husband, she should be able to do so in England, and such divorces should be recognised.
I appreciate that this is not entirely within the scope of the Bill. One would wish, with the world shrinking as it is, for, a Royal Commission to be set up to try to simplify English and Scottish law, to take the best from both, rather than to go on in this curious way when it is easier to get a divorce if one is married to a foreigner and one is living in England than it is to get a divorce if one is living in England and is married to a Scot, which is an absurdity in so small an island as this.
1564 With those comments and reservations, I welcome the Bill.
§ 11.24 a.m.
§ Mr. Silkin
I listened with great interest to the practical remarks of my hon. Friend the Member for Bradford, East (Mr. Edward Lyons), who always has a knack of putting his finger on the points which require to be looked at. Although he rightly said that many of the points he raised were outside the scope of the Bill, there is much to be be said for looking at this whole question, particularly of the assimilation of English and Scottish law, to see what can be done.
I am not sure that I would agree with him entirely that a Royal Commission would be appropriate. The Law Commissions Act expressly stated that one of the functions of the two Law Commissions was to assimilate English and Scottish law. A useful report on this occasion has been produced by the two Law Commissions working in harmony, as so often happens. The Government might feel that the proper course would be to ask those two Commissions together to look at this whole wide subject, to see whether we can move towards a comprehensive family system, embracing everyone living in the United Kingdom.
§ Sir Elwyn Jones
Is my hon. and learned Friend aware that the English and Welsh Law Commission and the Scottish Commission not only work together harmoniously, but recently did so in Cardiff, the capital city of Wales?
§ Mr. Silkin
I am obliged to my right hon. and learned Friend. I must plead the fault of not mentioning the country of my birth and his, which customarily and wrongly one tends to embrace in the term "England".
Tributes have been paid to the Law Commission and others. I think it would be right to pay a tribute to the context of this debate to The Hague Conference on Private International Law, whose efforts produced the Convention upon which the Bill is based. I had the privilege of coming into contact with The Hague Conference a great deal when I was a member of the Council of Europe, and I know what valuable work is done by it.
It is of interest that the countries which took part in the work of preparing the 1565 Convention were limited in number and it is an indication of the forward-looking approach of this country that, although there were only 24 countries represented on the Conference, of which all but four were European countries, and although on the 16th February, when the Bill was introduced in another place, we were the only signatory of the Convention—perhaps the hon. and learned Gentleman would tell us what the present position is—and although the Convention itself does not enter into force until there are three instruments of ratification, where-upon it becomes open to any country, none the less we have gone forward, as the last Government promised, with this legislation. At present we are standing on our own and, as has been said, we are going beyond the bounds of what the Convention would require, and I welcome that.
There are one or two points which I will raise which may be said to be Committee points, and I heed your warnings, Mr. Gurden. I mention them only to give the learned Solicitor-General warning so that he may consider them, and I do not particularly expect him to reply to them today. They occurred to me on reading the Bill and the debates in the other place.
First, it seems to be generally accepted—indeed, much of the debate in the other place was founded upon the assumption—that the Bill will apply so as to recognise those divorces which are not the subject of court proceedings, such as the Talak system. I do not dissent from that intention, but the Bill appears to be orientated very much towards court proceedings.
Several Clauses seem to depend upon court proceedings. For instance Clause 8(2) talks about notice of proceedings and says:This Act does not require the recognition of the validity of an overseas divorce … and if it was obtained by one spouse … without such steps having been taken for giving notice of the proceedings to the other spouse as … should reasonably have been taken.Clause 5 says:… any finding of fact made in the proceedings by means of which the divorce or legal separation was obtained …".Looking at those Clauses in isolation from what was said in the other place 1566 about the intention, one might suppose that we were dealing only with divorces which were the result of some sort of court proceeding. We are told that that is not so.
We have the overall provision in Clause 8(2)(b) which excludes those divorces the recognition of which would manifestly be contrary to public policy, and there may well be a difficult border line between divorces of that kind and divorces which are perfectly proper according to the particular system of marriage giving rise to them, but where there is nothing necessary other than for the divorcer to say, "I divorce you" three times, and that is virtually an end of the matter. For the avoidance of doubt it may be desirable to insert a provision to make it clear that that kind of divorce is covered. The hon. and learned Gentleman might consider that before the Committee stage.
There is another point which the Committee may like to think about in the same way. Clause 4(2) provides that where a legal separation is converted in the country of origin into a divorce, the validity of that divorce is recognised, even if, taken on its own, it would not have fulfilled the qualifications in the Bill as to the date of nationality, or habitual residence, for example. What the Bill does not expressly say is whether, if what is recognised is a legal separation and not a divorce, it is recognised in the sense that it is regarded as being the equivalent of a judicial separation in this country, so that in this country it may in due course be converted into a divorce, given the necessary jurisdiction. One would have thought that that ought to be so, but perhaps the hon. and learned Gentleman will think about that, too.
Having raised those few points and invited the hon. and learned Gentleman to say something about the suggestions of my hon. Friend the Member for Bradford, East, I, too, add my welcome to the Bill.
§ 11.32 a.m.
§ The Solicitor-General
By leave of the Committee; may I shortly reply? I shall not deal with the avowedly Committee points just put to me by the hon. and learned Gentleman the Member for Dulwich (Mr. S. C. Silkin), not because they do not deserve consideration, but 1567 because I have not been able to give them the consideration they deserve.
I very much appreciate the welcome for the Bill by all hon. Members who have spoken and I join in expressing thanks to the Law Commissioners for the prolonged and painstaking work they had to do in order to produce these recommendations. One or two hon. Members seemed to speak with diffidence. My hon. and gallant Friend the Member for Eye (Sir H. Harrison) contributed as a layman in these proceedings, and the hon. Member for Newark (Mr. Bishop) suggested that he, too, was a layman. He is now a semi-fledged expert on these matters and the kind of animal who makes a useful contribution, if he will forgive me for putting it that way, with a foot in both worlds. All hon. Members who take part in these discussions are contributing because we are dealing with human problems on which it is wrong for lawyers to be regarded as having any kind of exclusive prerogative.
The point raised by my hon. and gallant Friend about the position of foreign countries arises in two halves. In general terms, the validity of an overseas decree, if it is to secure recognition in this country, must be something obtained by judicial or other proceedings in any country outside the British Isles and effective under the law of that country. In order to reach, as it were, first base for those purposes, it would have to be established that the country in question was indeed a country.
That sounds like a circular question, but one can imagine the difficult questions that could arise in respect of proclaimed courts in proclaimed break-away countries, whether in the Indian subcontinent, or in Africa. It is a question which would have to be looked at in each case to see whether there was something that could be acknowledged as a country which had an effective system of law. In considering that, our courts would have to apply their usual tests and would, no doubt, in some cases be guided by a certificate from the Secretary of State for Foreign Affairs as to whether we recognised such a place as a country before the question could arise as to whether the decree was effective in the law of that country.
1568 I am sorry if that seems to be an unsatisfactory answer to a question posed in general terms, but I am hesitant to give particular answers to particular hypothetical examples, because they might all be slightly different. One would have to be satisfied that it was a country and that the decree was effective in the context of the law of that country.
Rhodesian divorces have been a matter of discussion and concern, and they have been considered and debated in the House this year. Starting from first principles, the position is that for a decree granted in Rhodesia to be recognised in this country, it would have to be effective under the law of Rhodesia, and whether it was so effective is a question which would have to be determined in the courts of this country by reference to the particular circumstances.
So far, there has been one case before the courts of this country, as hon. Members will know, the Adams case, in which the question arose. The noble and learned Lord, Lord Simon, who was then still the President of the Probate, Divorce and Admiralty Division, held that a decree granted in the Adams case was not valid because the judge in question had been appointed after the unilateral declaration of independence and had not been appointed in accordance with the law in Southern Rhodesia, and as it has remained in force and as laid down by Parliament in this country. He had been appointed under the law claimed to be effective in Rhodesia by the current regime there; so the decision in that case was that a post-U.D.I. appointed judge could not grant a valid decree.
Other possible variations and permutations will obviously occur to hon. Members regarding the validity of the appointment of particular judges. Another case is shortly to come before the courts in this country dealing with one of those variations about which the President of the Probate, Divorce and Admiralty Division made some observations in the Adams case. I do not think that I should try to forecast the outcome on that point.
As a result of the decision in the Adams case, the Southern Rhodesia (Matrimonial Jurisdiction) Order, 1970, was introduced and approved by Parliament in order to mitigate the hardship 1569 that in certain cases valid divorces could not be obtained in Southern Rhodesia and in other cases divorces already obtained there would not be regarded as valid and effective in this country. Speaking broadly, that order confers jurisdiction on the courts of this country to grant decrees in respect of people who were domiciled in Southern Rhodesia and who would not under our ordinary law qualify for divorces in this country, but who are enabled to do so on much easier qualifying conditions than the general law would allow.
I hope that the Committee will agree with me that, although there are questions regarding the position of decrees of divorce pronounced in Southern Rhodesia which need consideration, they are questions which must be considered in the context of the continuing emergency—if that is still the right word to apply to it—and of the law which this Parliament can pass and has already passed to deal with the problems which arise.
§ Sir Elwyn Jones
Does what the hon. and learned Solicitor-General has just said mean that the Bill has no impact upon recognition of Rhodesian court decrees of divorce?
§ The Solicitor-General
The Bill leaves it to the courts of this country to decide whether a decree pronounced in Rhodesia is effective under the law of that country, and it leaves it to Parliament to decide, as it has done in the 1970 Order to which I referred, what, for that purpose, the law of that country should be. The Bill—rightly, the Committee may feel—does not seek to change that, because it would not be right to intrude a particular variation in the context of a general Bill.
The hon. Member for Bradford, East (Mr. Edward Lyons) raised a number of interesting points. I shall not comment on all of them. He drew attention to the possibility that, by reference to nationality as a ground of recognition of overseas decrees, we might be introducing a dangerously wide or new principle. Certainly it is a new principle formulated in that form, although it was one of the foundations of the decision in the Indyka case.
The hon. Member may have overstated the extent of the danger, because at the moment a person claiming foreign 1570 nationality—an American, for example—can secure a divorce decree in a state or states of the United States, dependent not so much on his nationality, as on other very lax qualifying conditions, which would give rise to exactly the sort of danger the hon. Gentleman has in mind. The consequence would be that the wife, if she were left in this country, would be the other half of a limping marriage, because we should not recognise the divorce, although the reality would be that the marriage had come to an end. The consequence even now would be that she would have no effective remedy in respect of maintenance. It may therefore be thought that, by dealing with the "limping" aspect, one is at least clarifying on a wider basis the matrimonial status, although I accept that it is still necessary to try to deal, as we hope to do, with the problem of reciprocal enforcement of maintenance orders.
The hon. Gentleman also mentioned polygamous marriages. He and I exchanged observations about those during the proceedings on the Nullity of Marriage Bill. I must reiterate what I then said: important though the way in which the courts of this country handle polygamous marriages is certainly likely to become, it is much too difficult a question to answer lightly and it is one which—happily, the Committee may think—is outside the scope of the Bill.
The hon. Gentleman also raised the question of conflicting domiciles in the United Kingdom. This is certainly an interesting point and, once again, it is difficult. In its Working Paper No. 28 the Law Commission made proposals for jurisdiction in the course of which it considered whether the basis on which English, Scottish and Northern Irish courts could take jurisdiction could be harmonised. It expressed the view, which seems to me to make sense, that it would be difficult to move in the direction suggested by the hon. Gentleman until the substantive divorce law within those jurisdictions was brought into line.
We must recognise—and I am sure that the hon. Member for Dumfries (Mr. Monro) would wish me to recognise—that the divorce laws of Scotland, England and Wales are founded upon different traditions, backgrounds and patterns of behaviour. The matter is now being considered by another Standing Committee. 1571 When on the Latey Committee we had to consider the harmonisation of the laws about consent to marry as between England, Wales and Scotland, we were surprised by the extent of the variation. It would not be right in the context of procedural matters to try to produce a shotgun marriage between England and Wales and Scotland in substantive law if that had to be done before we could harmonise the jurisdictional considerations.
Therefore, I hope that the Committee will agree that, while assimilation is desirable, it must be undertaken at a pace which both countries will accept, and that it is in that context that we must look at the harmonisation of competing jurisdictions.
§ Mr. Lyons
What would the Solicitor-General say to a simple extension of the present situation, namely, that a three years' residence for a wife in England should be enough to enable her to divorce in England a person demiciled in Scotland in the same way as she can divorce a person domiciled in America, France, or wherever it is? In other words, one would just include Scotland in the present general definition.
§ The Solicitor-General
I would say that that is one of the questions considered by the Law Commission in its working paper upon that footing and upon variations such as a shorter residential qualifying period. But it points out that without changes in the substantive law and without provision for staying competing proceedings in both countries and various other changes, it would be difficult procedurally to move to that. It would lead to the encouragement to forum shopping within this country. People would pop from one jurisdiction to another and would reside there for the necessary period, and so on.
It would seem not to be a rational basis for sorting out the problem in question, although I agree with the hon. Member that I have myself often been irritated when advising people in that kind of situation to find that it is more difficult to advise them when the spouse comes from Northern Ireland than when he comes from North Carolina. However, it is a matter which is the subject of a Law Commission working paper, and I think that it must be considered in the context of jurisdiction.
1572 The hon. Member for Newark referred to a number of interesting matters. He pointed to the difficulties, perhaps inherent under the provisions of the Bill, of proving habitual residence. Unhappily, this is one of the matters about which there probably always will be difficulty. I suggest that it will be a great deal easier to prove habitual residence than to prove domicile, because domicile is a metaphysical concept.
If the hon. Gentleman has studied any of the cases about this and has seen the extent to which one has to delve back into the motivations of people to discover where their domicile is, he will agree that "habitual residence" is better and certainly easier than establishing "real and substantial connection". If he were to say to his constituents, "You must tell me that you have a real and substantial connection", they would understand him less, I fancy, than if he were to say, "You are habitually resident here".
§ Mr. Silkin
I wonder whether the Solicitor-General would take the view on Clause 5(2) that a finding of fact of habitual residence, or whatever it may be that is necessary in order to found the jurisdiction of the foreign court, would be implied from the fact that it had acted, so that one would not need to prove that especially. It would seem a little odd if one had to prove both the divorce and that upon which the jurisdiction of the foreign court was founded.
§ The Solicitor-General
That is a part of the Bill in respect of which there have been some changes in another place. There have been arguments about that, and I would rather not answer at the moment. Certainly we will look at it later.
The other point made by the hon. Member for Newark was that it is important that people should know what is going on and be aware of the consequences of the Bill. I entirely agree. Many of the substantive problems still remain to be solved, partly by improved enforcement of maintenance orders—and we can come to that—partly by alterations in matrimonial property law. Even aside from that, it is important that people in respect of whom foreign decrees have already been pronounced should know that this legislation is going 1573 through, although I dare say that it will appear in lights as the lead headline of every local paper in the country that we are considering this legislation!
§ The Solicitor-General
I think that the right hon. and learned Member is probably right. Nor, I fancy, in the Surrey Mirror. But at least it will be more likely to be observed that Parliament has made these changes than a decision in the courts, which can effect as substantial a change as the Indyka case did. It will be known that we are providing for recognition on this extended basis.
The points raised by the hon. and learned Member for Dulwich will certainly be considered, so that I am in a position to answer them if and when he raises them in Standing Committee. My impression is that Clause 2 makes it plain that this is not concerned only with judicial proceedings. For example, speaking of notice of the proceedings, Clause 8(2) says:having regard to the nature of the proceedings … should reasonably have been takenThis indicates that both kinds of proceedings are in mind, judicial and non-judicial.
One other adherent to the Convention is shortly expected. Indeed, the slowness of progress in securing recruits to the banner may be an additional reason for our proceeding in the way proposed and
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Mr. Gurden (Chairman)||Mr. McCrindle|
|Mr. Ronald Bell||Mr. Madel|
|Mr. Bishop||Mr. Monro|
|Mr. Bray||Mr. Redmond|
|Mr. Harper||Mr. S. C. Silkin|
|Sir H. Harrison||The Solicitor-General|
|Mr. Hiley||Mr. Stokes|
|Sir Elwyn Jones||Mr. Walters|
|Mr. Edward Lyons||Mr. Weitzman|
§ extending these provisions even to countries which do not adhere to the Convention.
§ I hope that I have dealt with the points raised by hon. Members so far as I am able. Others will certainly be looked at before the Bill proceeds to Standing Committee. It is upon that basis that I commend the Bill to the Committee.
§ Question put and agreed to.
§ The Solicitor-General
Perhaps I may be allowed, on behalf of the Committee, to express our gratitude to you, Mr. Gurden, for presiding over us, and in particular for the firmness with which you reminded hon. Members of the fact that Committee points are for consideration in Standing Committee. I am sure that has helped to accelerate the proceedings and bring us to the close of this stage.
§ Sir Elwyn Jones
I reciprocate that expression of gratitude, Mr. Gurden, and say that we hope that we may have your guidance at the later stages of the Bill.
§ The Chairman
I am grateful to hon. Members for helping the expedition of the Bill, and to those hon. Members who did not make a contribution; they helped, too.
That the Chairman do now report to the House that the Committee recommend that the Recognition of Divorces and Legal Separations Bill [Lords] ought to be read a Second time.
§ Committee rose at eight minutes to Twelve o'clock.