§ Order for Second Reading read.
§ 11.5 a.m.
§ Mr. Ian MacArthur (Perth and East Perthshire)
I beg to move, That the Bill be now read a Second time.
I first had the privilege of introducing a Private Member's Bill in 1962. Happily, it was a successful enterprise, in a narrow but important field, which removed a disability in law which affected married women in Scotland. With some trepidation on this occasion I have set out, like many other Scots, on the high road to England, to introduce a Bill applying to the whole of the United Kingdom which improves the legal status of women.
I am grateful to hon. Members on both sides of the House who have put their names to the Bill: my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight), the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), the hon. Member for Inverness (Mr. Russell Johnston), and my hon. Friend the Member for Dorking (Sir G. Sinclair), to whom I am particularly grateful for supporting the Bill because he introduced a similar Bill about a year ago. I think he will agree that if his Bill had any imperfections they have probably been removed in this Bill, and that if any remain they can be overcome at a later stage.
The Title of the Bill may suggest a measure of technical law reform. The Bill reforms the law in important respects but I suggest that they are not purely technical. The main purpose is to remove another of the inequalities which have debased the legal status of women in this 1624 country for so long and to take another step towards putting them on an equal footing with men.
Domicile is a legal concept which defines the country to which, for many legal purposes, a person is considered to belong. I shall have to enlarge on this point to some extent. In case I get into deep waters on legal matters, which is highly likely, I am heartened by the lifesaving presence today of my right hon. and learned Friend the Lord Advocate. I am also grateful for the presence of the hon. and learned Member for Dulwich (Mr. S. C. Silkin), who I hope may feel disposed to give me some assistance.
The legal concept of domicile can be confusing to a layman like me. I dare to suggest that it is perhaps sometimes rather confusing to those who are more learned, because I heard this week of a legal tract published in America entitled "Death and taxes are certain: but what of domicile?"
Everyone in our law must have a domicile, and the domicile indicates the country in which they have their permanent home or which they regard as their permanent home despite the fact that for the time being they may be physically present in some other country. Any man who is adult and of sound mind has the domicile which follows from his particular circumstances and intentions. It may be his domicile of origin or a domicile of choice. However, a woman, when she marries, automatically, and without any possibility of exception, takes her husband's domicile and retains it until he dies or the marriage ends in divorce.
This whole idea of dependency strikes many people as archaic. It also produces the absurd position that where the parties have separated but are not divorced a woman's domicile may be determined by factors which have nothing to do with the course of her own life but depend solely on the course of her husband's life. For example, if he emigrates to Australia she acquires an Australian domicile although continuing to live in England. If he fails to settle down in Australia and moves to South Africa intending to settle there, her domicile becomes South Africa, and so on.
This is nonsensical and, worse, unjust. It has been suggested in the past that 1625 this absurdity could and should be removed by a specific exception for separated spouses. No doubt it could. But the Bill does more than that. It abolishes the rule of unity entirely and provides for a married woman's domicile to be ascertained on the same principles as any other individual's.
I suggest that it must surely be the right principle not to modify but to abolish the rule whereby a married woman's domicile slavishly—I use that word deliberately—follows her husband's. If domicile is a matter of any importance at all, as I believe it to be, a married woman's domicile should surely be determined by reference to her own acts and intentions just as a man's or an unmarried woman's are.
Domicile is important, first, because everyone must have one, and, secondly, because the country of domicile provides the personal law of all individuals, which means that it governs the validity of their marriages, their power to dispose of property by will, their liability to estate duty in some respects, the law of intestate succession, and other matters. It is also the main element in founding matrimonial jurisdiction.
On all these points it is surely right that a woman should be treated as a separate individual and should have her domicile ascertained according to her own circumstances. Of course, this does not mean that every married couple will immediately acquire separate domiciles. In the vast majority of cases where husband and wife are living together amicably, their domiciles will continue to be the same, but they will be the same because the facts make them so and not because the law dictates that they should be. With the increase in the number of international marriages, it may be that in a substantial number of cases they will be different, but I submit that there should be no difficulty about that. It should be no more difficult to ascertain the relevant factors in the case of a married woman than for anyone else. The fact that she is married to a man who is engaged on a particular career will, of course, be a relevant factor, but that is all. It will not provide an automatic answer.
That is the effect of Clause 1, subject to the proviso in subsection (2), which, in the interests of clarity and certainty, 1626 provides that the existing situation will not be upset at once in the case of existing marriages. It will be preserved for the time being subject to the fact that a wife, like her husband, will be able thereafter to acquire a domicile of her own if her acts and her own intentions justify it.
I turn to Clause 3, which reduces the age at which an independent domicile can first be acquired. Under English law 16 is the age at which capacity to marry is acquired. It seems wrong to me that a married person between the ages of 16 and 18 should remain dependent on his father's domicile until he attains the age of 18, which is the present law. Surely, if a person is considered fit to marry and set up his own home there can be little reason why he should remain dependent for his personal law upon his father. This clause will remove that anomaly, but by a wider provision which carries the process of thought to its logical conclusion.
Since 16 is the minimum age for marriage, I suggest that 16 is also the age at which capacity to acquire an independent domicile should be attained regardless of whether a person does, in fact, marry at that age or not. So the clause reduces the age generally to 16. But if a person marries below that age under some system of foreign law which permits earlier marriage it seems right to adopt the actual date of marriage in that special case. I ask the House to approve this clause, which applies to England and Wales and Northern Ireland only but not to Scotland, which, not unusually, is in some way in advance of its neighbours on this point and has no need of this provision.
Clause 4 relates to the independent domicile of minors, or "pupils", which is a Scottish term. By an equally arbitrary rule to that which requires unity of domicile between spouses, the domicile of a child is in general taken from his father's regardless of the circumstances of the case. The parents may be separated. The father may be thousands of miles away from the place where the mother and the child are living, but still the father's domicile applies to the child, subject to an exception of uncertain extent in Northern Ireland, which I do not want to go into today. This is an absurdity which should no longer persist, and Clause 4 removes it. 1627 Under this clause, where the spouses are separated and the child make his home with his mother but not with his father he will take his domicile from his mother, and will continue to do so until such time, if ever, as his father returns and makes a home for him. I suggest that this provision is sensible and fair.
Finally, on Part I of the Bill I should mention Clause 2, which I have left to the last because it is purely a consequential provision. It is necessary because the old law on recognition of foreign divorces, which grew up around the turn of the century, was necessarily based on the supposition that husband and wife had the same domicile. Now that we are changing that in Clause 1 we must provide for the continued application of the rules in the changed circumstances. That is what Clause 2 is designed to do.
I turn to Parts II, III and IV of the Bill. I hope the House agrees that I should take these together, because they make identical provision for England, Wales, Scotland and Northern Ireland respectively. We come to one of the areas where domicile is of particular importance—the jurisdiction of the courts to entertain proceedings for divorce and the like. At one time considerable hardship was caused to wives because jurisdiction to grant a divorce was based solely on the domicile of the parties—that of the husband, in view of the unity rule. A wife could not take proceedings in any country other than that of her husband's domicile even though, for example, he had left her in the United Kingdom and emigrated to a distant country.
This hardship has been mitigated both at common law and by statute so as to allow a wife in these circumstances—that is, where the husband is domiciled outside the United Kingdom—to sue on the basis of her own residence in this country for three years or more, or on the basis of what her husband's domicile was when the matrimonial offence was committed.
This has eased the situation, but it is a long way from removing the discrimination between the sexes. As the law stands, if the husband is domiciled in the United Kingdom his wife can bring divorce proceedings only in the courts of the country in which he is domiciled. As the House 1628 knows, this subject has been reviewed recently by the two Law Commissions—in Scotland and in England and Wales—which had to mind the parallel subject of recognition of divorces, etc., in the international field. It is obviously desirable that so far as possible the jurisdictions which we exercise in the United Kingdom should be based on principles recognised in other countries. Only in this way can problems of limping marriages be reduced to the minimum.
In the result, both the Law Commissions have recommended that in the United Kingdom we should adopt the basis of the domicile or habitual residence of either party for one year. Hon. Members who have read the two Law Commissions' reports referred to in the Explanatory Memorandum to the Bill will have followed the reasoning which led the Commission to take one year's residence rather than, for example, two years or six months as the alternative to domicile. Of course, whether this is the right period—whether it should be longer or shorter—is a matter which we can consider in Committee if my Bill gets that far, as I hope it will.
At this stage all I ask the House to do is to agree with the Law Commissions that in principle the time has come to widen the jurisdiction of our courts so as to recognise the greater mobility of the population and to keep in line with principles internationally favoured on this point. The adoption of either party's domicile as the test is of course, one of the major results of Clause 1.
So much for the substantive Clauses 5 to 14 which introduce these principles. I must mention briefly Schedules 1, 3 and 5, which contain provisions of great detail, worked out after long discussion and anxious consideration between the two Law Commissions, as to how the problem of conflicting proceedings should be dealt with in the United Kingdom. Again, I suggest the details must be open for further study, but the principles which I ask the House to accept are quite simple.
First, the courts should always have a discretion to stay their proceedings if they think the matter can be more conveniently dealt with in other proceedings which are in progress elsewhere. That would apply to concurrent proceedings in any other country whether in the British 1629 Isles or not. Secondly, where such conflicts arise in the United Kingdom, a test is suggested for deciding whether the marriage belongs so much to one country of the United Kingdom that that country only should have jurisdiction and that proceedings in any other country of the United Kingdom must be stayed in favour of those which I describe as the "proper" country. It seems to me that those principles are right, and I hope that they will commend themselves to the House, subject to any points of detail, which may be raised.
For completeness, I should mention that the English and Scottish Law Commissions differed on one point—whether, in a case in which a compulsory stay of proceedings was appropriate, it should be up to the parties to apply for it or the court itself should be bound to impose it of its own accord. The Bill adopts the view favoured by the English Law Commission, that it should be for one of the parties to make an application. In principle, I believe this to be right; but I take it to be a Committee point, and I mention it here only for the sake of completeness.
That is all I need say, I think, about jurisdiction at this stage.
I come now to Part V, Miscellaneous and General. Clause 15 extends the Recognition of Divorces and Legal Separations Act 1971 to Northern Ireland, as has always been intended. This is not only desirable in itself but it will enable the United Kingdom to ratify the Hague Convention on recognition of foreign divorces and speed the day when the convention can be brought into force.
Clause 16 will put right a feature of our private international law which has attracted some attention since the Qureshi case: the fact that extra-judicial divorces may be validly carried out in the United Kingdom. In his judgment in that case, the learned judge said:I confess that I share the misgiving applied by Mr. Justice Lowe"—in an Australian case—at the possible mischief that might accrue if the safeguards inherent in judicially pronounced divorce can be bypassed in this country. But courts of law have no means of judging the possible extent of any such mischief or the repercussions of attempting to deal with them by judicial law-making. The court already has adequate power to refuse to 1630 recognise the legal rule of the domicile where it would cause injustice in a particular case. It seems to me to be preferable for the courts to proceed generally on legal principle, and to leave any necessary modifications called for by public policy to other organs of the constitution.This House is the appropriate organ, and I submit that the last possible justification for enabling people to bypass the courts in this country was removed last year when the Matrimonial Proceedings (Polygamous Marriages) Act became law. The courts of the United Kingdom are now open to the parties of marriage of any kind, monogamous or polygamous, who satisfy the normal bases of jurisdiction, and Clause 16 will ensure that divorces in this country are conducted only in the courts of law. This, apart from ensuring that the proceedings themselves satisfy our normal requirements of justice, will ensure that ancillary orders as to custody, maintenance and the like can be given. This is in the interests both of the parties and of the community in which they live.
Clause 17 contains the usual supplementary provisions and would bring the Bill into force on 1st January 1974. There is one slightly unusual supplementary provision, which preserves the special jurisdiction granted by an order under the Southern Rhodesia Act 1965 to persons domiciled or resident in Southern Rhodesia. This was a special provision introduced to avoid hardship to people caught up in that unhappy constitutional conflict, and it ought to be preserved so long as it is needed. If this subsection were not included, it might be treated as excluded by the new statement of matrimonial jurisdiction in Parts II, III and IV.
As I said at the outset, the Bill contains some technical matters in which it may, like most technical Bills, be capable of improvement as we make progress. But the principles are clear. I hope that my right hon. and learned Friend the Lord Advocate will be good enough to signify the Government's approval of the Bill, and, with all those hon. Members who have sponsored it, I ask the House to give the Bill a Second Reading.
§ 11.24 a.m.
§ Mr. E. S. Bishop (Newark)
The hors. Member for Perth and East Perthshire (Mr. MacArthur) is to be congratulated 1631 on his initiative in bringing in the Bill. As he rightly said, the subject with which it deals calls for clarification at the earliest opportunity. In a personal sense, I am particularly pleased that he has taken this initiative, since for at least two years I have been in touch with the Lord Chancellor on the matter to ask how soon we could expect legislation on these lines. I understand that when a private Member introduced a measure of this sort last year there were problems arising from differences between English and Scottish law, and I hope that they have now been resolved.
This is an appropriate moment at which to pay yet another tribute to the English Law Commission for all that it has done behind the scenes. We are greatly indebted to the Law Commission and, in particular, to its former chairman, now Lord Justice Scarman, for all that he and his colleagues have done.
The Bill will be welcomed as another addition to the considerable line of legislation in recent times which has recognised the modern view of the status of women in our society. Recently we had the Matrimonial Proceedings (Polygamous Marriages) Act, another measure to make easier the overseas enforcement of maintenance orders. We have had the measure introduced by the hon. Lady the Member for Plymouth, Devonport (Dame Joan Vickers) last year making new provision for affiliation orders and extending the period from one to three years in that respect.
My own Bill in 1969, the Matrimonial Property Bill, was probably the starting point for me to become involved and concerned in all these matters. Hon. Members who introduce Bills on this subject soon find themselves on the mailing list of a good many people, especially ladies, and I imagine that the hon. Gentleman himself anticipates that possibility with some pleasure. Finally only the other night, the House gave support to the Anti-Discrimination Bill introduced by my hon. Friend the Member for Fife, West (Mr. William Hamilton).
I mention all that in passing because the Bill before us today fits in with the changes which have come about and 1632 which are yet to come as a result of modern thinking on these matters. In some ways, women are still regarded as chattels and dependants. The change which the Bill will bring about affects the right of a woman to be regarded as an individual and to have a domicile which may be independent of her husband's.
In these days of modern travel, when people go about the world much more quickly and when new ideas are developing on the relationship between the sexes and on marriage generally, problems are bound to arise from time to time, especially, as we know from a recent case, regarding children. I had a letter recently from an English woman married to a Canadian. She deplored the way in which problems of nationality arose, pointing out that her child would have to go through the non-British passport entrance when he came into this country. She greatly resented the fact that they had no right to choose their nationality in such circumstances. Problems of domicile, therefore, come very much into the picture.
The Bill will help also in some of the problems which arise in relation to marriage, separation and divorce. Those of us who are concerned with matters of desertion, separation and divorce know the problems which affect many thousands of women in this country. I speak here not only as chairman of the Equal Rights Group and of the Deserted Families Group in this place but as one who shares the concern which many hon. Members feel about the plight of all those who are pushed around in various situations in different parts of the world. Problems still confront them because English law reform has not caught up with the changes in modern living.
In the same connection, I refer to Clause 3, which looks anew at the age of capacity for marriage. It is right that we should make a change in the age limit for the acquisition of independent domicile, bringing it into line with the earlier age of adulthood and responsibility recently brought in by other legislation.
It is necessary to keep a constant eye on the need to bring our legislation into line with other changes which take place from time to time, and some of us had hoped that the Government of the day would have more courage and initiate 1633 legislation of this sort to keep matters in tune. Through the efforts of people such as the hon. Member for Perth and East Perthshire, however, we are able to make progress.
Although I may have been inclined to comment a little critically on some of the clauses, these are probably Committee points. The hon. Member has outlined the Bill substantially and to the satisfaction of the House, and I would not wish to detain the House any longer because I know hon. Members wish to get on. This is a measure which should have the support of the Government and which will commend itself to the House and be welcomed by the community generally.
§ 11.30 a.m.
§ Miss Mary Holt (Preston, North)
The Bill can be described as one further step in the slow march of every woman towards obtaining equal rights with men in law. It is to be welcomed on that account and also because it implements certain recommendations made by the Cripps Report, upon which action was promised by the Conservatives before the last General Election. The Anti-Discrimination Bill which was before the House on Wednesday last did not attempt to deal with legal rights of this kind or with anomalies in law affecting the position of women.
The Bill seeks to remove certain anomalies relating to domicile of married women and infants and relating to jurisdiction in matrimonial proceedings which are not affected by other measures. The existing law, under which a woman automatically acquires on marriage the domicile of her husband, is a relic of the days when women were regarded as appendages of their husbands. It is absurd that the position should continue under which a woman cannot acquire a domicile of her own choice after marriage and under which her domicile automatically changes with her husband's even though the parties may be separated and even though she may not have seen him for as long as 20 years.
Domicile is most important because jurisdiction in divorce is largely grounded on domicile, apart from certain exceptions such as the case where a woman has been deserted by her husband or where he has been deported from Eng- 1634 land and his domicile before either desertion or deportation was English. She may then obtain a divorce in England when she has been ordinarily resident in England for more than three years before divorce proceedings are begun. But unless a woman can bring herself within one of the exceptions she is bound by her husband's domicile and she may be adversely affected by it in seeking a divorce.
If a woman has been living abroad with her husband and has a foreign domicile, and if he has treated her badly in such a way that by English law she would be able to obtain a divorce, she may find that she is unable to do so because her husband's domicile is a foreign one and she is not resident in England. It is to be generally welcomed that the domicile of a married woman is now to be determined in the same way as that of her husband, by her choice. Henceforth she will be able to acquire a domicile of choice. Domicile is very important because it affects not only a divorce but also such important matters as the distribution of movables on intestacy, testamental succession to movables and the capacity to make a will. It also applies to an infant's domicile.
I do not understand why the age of 16 has been settled upon as being that at which an infant may obtain an independent domicile. The age of majority is now 18 and I fail to see why there should be this exception to the general rule. I can understand that an infant should be able to obtain an independent domicile upon earlier marriage, but I suggest that the age of 18 should be retained in order to keep uniformity in these matters. However, I welcome the fact that an infant resident with its mother may be able to acquire the mother's domicile and will not be tied to the father's domicile.
In every way I congratulate the hon. Member for Perth and East Perthshire (Mr. MacArthur) in bringing this important matter before the House and also for the excellent way in which he proposed it.
§ 11.34 a.m.
§ Mr. William Hamilton (Fife, West)
It would be remiss of me not to congratulate the hon. Member for Perth and East Perthshire (Mr. MacArthur) on bringing in this measure. I believe that he was under some pressure, as were all 1635 Scottish Members in the ballot, to introduce another Bill on a related matter on the reform of the divorce law in Scotland in order to bring it into line with the English law. I seem to remember the hon. Member for Preston, North (Miss Holt) violently opposing such a Bill in Committee in the last Session on various grounds which I think, on consideration, she will probably regret.
§ Mr. Hamilton
We are not debating that at the moment. I merely say that the hon. Member is a little inconsistent in these matters. However——
§ Mr. Hamilton
The hon. Lady should not be so sensitive about these matters. On all-party measures hon. Members must seek their friends where they can find them. I do not want to antagonise the hon. Lady unduly. As the law stands, however, it makes nonsense of divorce. The Bill will be a contribution towards destroying the arguments advanced in that Committee stage last Session against bringing the Scottish divorce law into line with that in England.
As I am sure the hon. Member for Preston, North and others understand, the husband does not have to go to Australia or South Africa, as in the cases mentioned by the hon. Member for Perth and East Perthshire. He has only to cross the border into England. He has only to cross from Gretna to Carlisle and he then decides whether he will have a divorce under the English law.
§ Mr. T. G. D. Galbraith (Glasgow, Hillhead)
Is that really so? Presumably the hon. Member is referring to a Scottish husband who will therefore be domiciled in Scotland. It is not as easy as that to change one's domicile.
§ Mr. Hamilton
The hon. Member must allow me to pursue the argument a little further. Under the new English law a divorce can be granted at the end of two years with the consent of both parties without a matrimonial offence being proved, and at the end of five years one of the parties can get a divorce without the consent of the other. If a Scotsman moves to Carlisle from Gretna he can ask his wife after two years for a divorce. If she will not give him one, he can say that he will stay in England for five years and then, whether she likes it or not, he will go to an English court and get a divorce.
§ Several Hon. Membersrose——
§ Mr. MacArthur
Does the hon. Member agree that the situation he describes springs from the difference between the divorce law in Scotland and the divorce law in England? In the case that the hon. Member outlines, the husband would use whatever would be his domicile in Carlisle and one effect of my Bill is to give the wife an equivalent status to that which the husband currently enjoys.
§ Mr. Galbraith
I believe that the hon. Member is rushing corners. It is not just a simple matter of a man moving from Gretna to Carlisle and then declaring that he had acquired an English domicile. It is a fairly difficult matter to get rid of one's domicile and to re-establish another. That is something which the hon. Member, in spite of all his wisdom, does not seem to have comprehended.
§ Mr. Hamilton
I should be glad if the legal advisers on both Front Benches would explain what the position is.
§ Mr. Clinton Davis (Hackney, Central)
Is there not a very real difficulty to which my hon. Friend has drawn attention—that is, the uncertainty of domicile, a point which I am sure the hon. Member for Glasgow, Hillhead (Mr. Galbraith) will concede? The wife is placed in a position of complete uncertainty as to whether her husband remains domiciled in the particular circumstances in England or whether he is assuming another domicile in Scotland.
§ Miss Holtrose——
§ Mr. Hamilton
I will not give way, because I must get on with my speech.
I should like clarification of the question of the stage at which a Scotsman who goes to live in England is entitled to acquire domicile. If he stays 20 or 30 years, surely he must be able to acquire English domicile.
§ The Lord Advocate (Mr. Norman Wylie)
I do not think it would be appropriate for me to deal with that question now, but obviously it is a matter with which I shall deal when I address the House.
§ Mr. Hamilton
I am much obliged. I shall be very interested to hear what the right hon. and learned Gentleman says.
The point I am making is that what applies to the man does not apply to the woman. However long the woman stays in England, she will not be able to obtain a divorce so long as her husband stays in Scotland. Under the present law her domicile will be in Scotland, and the Scottish divorce law still contains the provisions of the matrimonial offence.
That is why I propose in two or three weeks' time to seek to bring the Scottish law into harmony with the English. I know that there are hon. Members, including the hon. Lady, who still oppose that, even though it makes sense and will make even more sense when the Bill before us is passed. One of the arguments against it will be destroyed if the Bill is passed, as I hope it will be.
As my hon. Friend the Member for Newark (Mr. Bishop) said, the Bill is part of the campaign to destroy the creation of man that a woman is the property of her husband. She is not. She is an individual in her own right. I should like to give what I can only call an obscene example perpetrated by a Government Department of the belief that a woman is the property of her husband. A woman wrote to me a few days ago about a form she received from the Inland Revenue asking her certain questions, such as how much she earned. The form was addressed to the woman, who was working in her own right, but at the top there was a note from the 1638 Inland Revenue saying "Before you answer these questions this form must be seen and signed by your husband as if it had been sent to him." Both the woman and her husband refused to sign it. She said that the form was addressed to her, that the questions applied to her and her earnings and that she was not prepared to do what was asked. Unless women take that stand and tell the Inland Revenue to go to blazes, to treat them as individuals, the situation will not improve.
Of course the hon. Lady was right to say that the Anti-Discrimination Bill did not do anything about such matters, nor could it. That is the responsibility of Government Departments, and so is the Bill.
I do not know whether the Bill is extremely well drafted. The draftsmanship is certainly very complicated. Clearly, the hon. Member for Perth and East Perthshire has rightly had the help of very good legal advisers, including the Law Commissions. I could not draft such a Bill, and I suspect that the hon. Gentleman could not. I am not drafting the Divorce Law Reform (Scotland) Bill; it is being drafted by other people more skilled in these matters than I am. The name of at least one of them appears on the back of the Bill we are now debating.
I very much welcome the Bill and hope that there will be no undue opposition to it. One or two cavemen on the Government benches will no doubt make hostile noises, but I hope that they will not thwart the declared intention of those who are sufficiently interested in the Bill to come here today to express their views on it.
§ 11.44 a.m.
§ Mr. T. G. D. Galbraith (Glasgow, Hill-head)
I suppose that I should congratulate my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) on his good fortune in the ballot, although I cannot entirely congratulate him on his choice of subject. However, perhaps it is a wise choice politically, as anything that can be portrayed as removing the shackles from women is very popular these days and my hon. Friend's female vote in his constituency may well go up in consequence.
§ Mr. MacArthur
My hon. Friend may see the matter in that light, but it is a 1639 question not of politics but simply of justice and common sense.
§ Mr. Galbraith
If my hon. Friend chooses to change the adjective after the word "choice", I do not mind what adjective he uses. "Wise" might suit him better.
It is perhaps rather foolhardy of me even to venture to express doubts, for we know that in matters affecting personal freedomThe female of the species is more deadly than the male.We have had recent examples from the Public Gallery to prove that.
However, I hope it will become apparent that though my rôle may seem reactionary to some, perhaps even antifeminist, it is adopted to protect women in certain circumstances. Therefore, I hope that I shall not run the risk of losing the important female vote in my constituency.
I should perhaps also explain that although I am here alone I am not entirely a lone wolf and that there are several of my Scottish colleagues on both sides, whom the hon. Member for Fife, West (Mr. William Hamilton) could probably name, who are concerned about the possible Scottish repercussions of the Bill. But, Friday being Friday, with all the difficulties that arise on that day for people with distant events to attend, it was decided that I, perhaps having been inured to the hardship of Fridays by many hours spent on the Front Bench on Fridays, should act as spokesman to express our doubts. As I have been in bed with influenza for the past three days I only hope that I can discharge the function adequately and that my voice will see me through.
I have only three short points to make. First, I doubt the wisdom of having the change that the Bill would bring about. Marriage is supposed to be a coming together, a fusion, signified by the fact that a woman takes her husband's name. Perhaps husbands should take their wive's names. I do not think it matters very much which, but there should be unity. Everything we do to create a duality, as the Bill does, creates a climate which favours the break-up of marriages.
1640 The break-up of marriages is already a serious social problem. Before very long it may become a financial problem too, bearing even more heavily on the Treasury, because very few men can support more than one family. Just as the two-or three-car family is now becoming common, it is not too fanciful to assume that with the growth of permissiveness the two-or three-marriage family will become common too, with all the burdens that that will involve for the Treasury.
Because it aids this divisive tendency, I regret the Bill. I fear that soon the sociologists who now stress all the problems associated with the uneasy marriage will be overwhelmed with the problems of dealing with the marital fluidity that they and the Bill are helping to create.
§ Mr. S. C. Silkin (Dulwich)
Is the hon. Gentleman saying that where a marriage has "irretrievably" broken down the obstacles in the way of the wife, but not of the husband, in putting it to an end should remain?
§ Mr. Galbraith
I am sure that the hon. and learned Member does not wish to tempt me to talk the Bill out, but if we are to start going into what is and what is not "irretrievable" I may do so. While there is life there is hope, and I do not think that anything is "irretrievable". The hon. Member shrugs his shoulders, but I do not accept the whole basis of the English divorce law. That is why I will not take up the hon. and learned Member on this issue, for we should be here till kingdom come and I do not think that would be fair to the Bill or to other hon. Members who may have other Bills to bring forward.
I know that the Bill has the support of the two Law Commissions and that those are bodies filled with members learned in the law. But their expertise lies in interpreting the law. Their views on interpretation are paramount, but in saying what the law ought to be their views carry no weight beyond that of any other body of eminent citizens. It is our duty here in Parliament to decide policies and if we allow others to make decisions for us by merely rubber stamping their views, we are failing in our duty.
1641 This leads me to my second point concerning residence as giving grounds for jurisdiction. I am not certain that residence is a good ground—domicile, yes; nationality, yes; because there is a kind of permanent connection between a person and a country that gives rise to such relationships, but residence is an insubstantial connection and a period as short as a year's residence seems inadequate for settling such weighty matters of personal status.
I also feel—and I hope that my hon. Friend will forgive me for saying this—that this provision was drafted not by him but by the tourist association. We know what a reputation swinging Britain now has and how much hard currency Carnaby Street has gained. Perhaps, if the Bill goes through, before long we may find advertisements numbering among the delights of a short stop-over here the possibility of a quick permissive divorce.
More seriously, my right hon. and learned Friend the Lord Advocate—and I am glad to see that he is replying for the Government on a United Kingdom and not merely Scottish Bill, as befits his high office—will be aware that there have been rumblings in Scotland and that the Law Society there thinks that the minimum period should be at least two years' residence. Even two years is too short a period and still has a hint of the Las Vegas atmosphere about it. I think that there should be three years' residence as a ground for jurisdiction, which would place it on a much firmer and much more dignified foundation.
I come to my third point, which may be the most important. It is to what extent in legislating in a country such as ours, where there are two legal systems, is it right to pass a Bill which, while in perfect conformity with the law of one of the countries, provides an indirect means of undermining the law of the other, in this case, Scotland? I cannot believe that such a Bill and such a way of going about things can be right.
The trouble is caused by the fact that the divorce laws in the two countries are not the same. I do not think they ever have been the same. However, on the last occasion when residence—and it was three years' residence—was provided as a ground for jurisdiction, I think 1642 under the 1949 Act, there was a proviso that protected the position of either country by limiting jurisdiction to cases where the husband was not domiciled in some other part of the United Kingdom. This preserved the position of the Scottish law vis-à-vis the English law and the position of the English law vis-à-vis the Scottish law. I wonder why some such protection could not be afforded in this Bill.
I dare say that my hon. Friend will say that a year's residence in England—he almost said it in reply to an interjection—offers an unwilling Scottish wife a means of evading the stricter Scottish law in favour of the more permissive English law. He thinks that this is good because his whole attitude—I do not think I am misrepresenting him—is geared to making the dissolution of marriages easier.
§ Mr. MacArthur
I agree that there are difficulties because of the differences of Scottish law and English law on divorce. My point was that at present a husband coming from Scotland to England, if able to establish domicile here, which may not be as difficult as my hon. Friend suggests, may then seek the jurisdiction of the English court and so obtain what my hon. Friend would call an English divorce. One effect of my Bill would be that a wife would no longer suffer any disadvantage in that respect. If there is an anomaly, she would at least get an equivalent share of it and of any unfairness that now springs from the difference in the laws.
§ Mr. Galbraith
I think that it is more difficult to establish domicile than my hon. Friend or the hon. Member for Fife, West appears to think. My hon. Friend's attitude is geared in the circumstances he has described to making dissolution easier, or at least putting the wife in the position which he thinks the husband has had, but which I think the husband does not have. My attitude is that it is only when there are certain obstacles in the way of dissolution that the parties to a marriage threatened with breakdown will exert themselves towards reconciliation. If everything is too easy, people do not try.
1643 The sort of situation that I envisage and that causes my doubt about the Bill is somewhat different from that instanced by my hon. Friend. I hope that any feminists who are following the debate will note that I am actuated by a wish to help the wife, just as is my hon. Friend. But while he wishes to help her to break up a marriage, I wish to help her to preserve a marriage that is in difficulty. The hon. Member for Fife, West is shaking his head, but if he listens he will understand what I am getting at.
The situation that I envisage is that when a husband has deserted his wife for, say, a year, he then only has to move to England and stay there for a year to be able to avail himself of the laxer English law and to be able to ask his wife to agree to a divorce.
§ Mr. Galbraith
Not two years. He will have already deserted his wife for one year and if he goes to England and spends a year there, that will be two years depending on one year's residence in England.
If he has to rely on Scottish law and the wife is compassionate and anxious for reconciliation, she may refuse divorce, hoping that with the passage of time and the claims of the children and so on, her husband will come to see the error of his ways and return to the marriage. But under English law she could not entertain such hopes to strengthen her resolve at a difficult time. She would know that at the end of five years, under Section 2(1)(e) of the Divorce Reform Act 1969, the husband could demand a divorce.
This has always struck me as a most curious feature of the English law. On this analogy and by the same logic, one could argue that the adulterous husband should have the right to say to his wife "I have just committed adultery and, although you are willing to overlook this conduct, I can now obtain a divorce on the ground of my own shortcoming". It is this very extraordinary attitude which is embodied in paragraph (e) of the English law which is absent from the Scottish law but which the residential provisions of the Bill will now make available to Scottish people who stay in 1644 England for a year. This is an indirect undermining of the Scottish position and I believe it to be bad.
Let us change the law by all means if that is what the people want. But as the hon. Member for Fife, West pointed out, the recent history of measures dealt with in this House seems to indicate that it is not what is wanted yet. If there is to be a change in the law of Scotland, let it be carried out openly and not, if my hon. Friend the Member for Perth and East Perthshire will forgive my saying so, in this rather indirect and hole-in-the-corner manner.
There are my three objections. The first is that a united domicile is probably better than a split one. I do not mind whether it is the husband's or wife's. A year's residence is a derisorily short period for deciding matters of such importance; and it is wrong to change the law of Scotland on such a vital matter in what is an indirect and devious manner.
A year or so ago my hon. Friend and I co-operated in certain amendments on another Bill which he was sponsoring. I hope that the same good fortune will attend this Bill and that he will be able to harken to the suggestions I have made and agree to some of the amendments which, if I am fortunate enough to be on the Committee, I would hope to move.
§ 12.1 p.m.
§ Mr. Clinton Davis (Hackney, Central)
I do not wish to be drawn into a discussion on Scottish divorce law, about which I have a massive ignorance. Suffice it to say that I hope that my hon. Friend the Member for Fife, West (Mr. William Hamilton) will receive the support of the House for a Bill which he is shortly to introduce.
It seems that the Bill we are discussing is based upon justice and it is right that the law of Scotland should be brought into accordance with what is happening in England and Wales.
That may be a little controversial and I must not excite the hon. Member for Glasgow, Hillhead (Mr. Galbraith), about whose speech I want to make some observations. I confess that I saw very little sign in it of his being forced, kicking and screaming, into the twentieth century. He seemed to have a somewhat antediluvian approach to the whole concept 1645 of women in relation to marriage. He said that he was actuated by a wish to help the wife, and apparently he wants to do this by maintaining obstacles, however unjust or artificial, which prevent the most elementary justice being done to a wife who is placed in a position of acute difficulty.
The hon. Member spoke of principle and of the Law Commission interfering with matters of principle. I do not conceive of the drafting of the Bill in that way at all. More particularly, I found it difficult to understand the principle that he was elaborating when he went on to talk somewhat glibly and, with respect, not altogether relevantly about tourist associations, Las Vegas divorces, and the quick, permissive divorce. This is not spelled out in the Bill. I suggest he has confused principles with prejudice.
I congratulate the hon. Member for Perth and East Perthshire (Mr. MacArthur) upon introducing the Bill. It is appropriate that he should have done so in a week when we have had a most important debate on women's rights. I can see nothing hole-in-the-corner about this Bill. Quite rightly, the hon. Gentleman pointed to many anomalies which exist in our divorce law. It is absurd that a woman who acquires the domicile of her husband immediately upon marriage finds that she is bound to that domicile, subject to the qualifications already referred to, even if she is living apart from her husband under an agreement of separation, even if the husband has been guilty of some appalling misconduct, or even if the wife has obtained a judicial separation. She still, in such circumstances, cannot acquire a domicile of her own.
I would have thought that even the hon. Member for Hillhead would have felt that situation to be replete with injustice for a wife. He did not really deal with that sort of situation. He tended to generalise and did not add to a serious study of the Bill. It is true, as the hon. Member for Preston, North (Miss Holt) has pointed out, that some relief was given to wives initially by the Matrimonial Causes (War Marriages) Act 1944, which was designed to give relief to GI brides deserted in this country by their husbands. The concept was enlarged by the Matrimonial Causes Act 1965, Section 40(1)(b) of which provided for the three-year ordinary residence period.
§ Mr. Galbraith
The hon. Gentleman will notice that these Acts preserve the position vis-à-vis England and Scotland. It is because that proviso is not in the Bill that I object to it.
§ Mr. Davis
I thought that the hon. Gentleman's objections were wider than that narrow point. It would be unsafe for me to trespass into Scotland to discuss the differences between English and Scots law. I merely state, as a matter of principle, that I cannot see any real case for maintaining a variation of principle, even though perhaps the system of administering the law will have to remain different. I have been engaged in divorce practice for a considerable time. The three-year period of residence has been shown to be too long in many cases and has created considerable hardship.
For example, where a wife is separated from her husband and she does not know where he is and cannot obtain satisfactory grounds for establishing a case to enable her to obtain an order for substituted service on him, she can suffer a great deal of hardship. This has happened in a large number of cases. It is too easy for the ordinary period of residence to be broken by the wife's being compelled to go abroad for a considerable time to look after a relative, or to administer business affairs. She might be out of the country for a year or so. Then she would have to begin her period of residence again.
This can cause enormous injustice. She may be deprived of her rights within the three-year period if divorce is not recognised in the husband's country of domicile. That has nothing to do with her rights at all. I am pleased that the rights which were envisaged in the 1965 legislation are now to be extended both as to the parties and as to the period. It is now to be one year instead of three years, and it will apply equally to the husband.
I again differ from the hon. Member for Hillhead in believing that domicile creates difficulties. All too often, and in the main, ordinary residence for a reasonable period of time is a better basis for determining jurisdiction. I do not need to point out some of the difficulties in law which are evoked in determining whether a man is domiciled in one country or another. It certainly 1647 creates a position of uncertainty. I often find, for example, when completing an application for legal aid on behalf of a wife who is not able to establish a three-year period of residence that, quite rightly, the Law Society frequently raises questions about the husband's domicile, and in some cases it is very difficult to establish with any degree of certainty what the husband's domicile is. My hon. Friend the Member for Fife, West referred to just such a situation.
One other advantage that flows from the Bill is that it confers certain rights upon the husband—about which I am sure the hon. Member for Hillhead will be thrilled—because Section 40(1)(b) of the 1965 Act entitles a wife to institute divorce proceedings if she has been here for three years. The husband has no right to cross-relief as I understand the position as it was established in 1957 in Levett v. Levett and confirmed in Russell v. Russell. I cannot see any reason for the husband's rights to be limited in this way.
Perhaps it is again appropriate in this significant week that some of us should be holding aloft the flag of the husband, albeit in this somewhat limited way, but I wonder whether the Bill achieves complete parity on this matter. No doubt this is a subject to which the learned Lord Advocate can allude in his winding-up speech, although I must point out that I may be forced to miss it. If I am, I apologise, but there are circumstances which may compel me to leave the Chamber when the right hon. and learned Gentleman is speaking. I hope that, even if the situation cannot be answered now, complete parity in this aspect will be assured in the Committee stage.
I am also a little worried about Clause 16, which deals with non-judicial divorces. This flows from the decision in Qureshi v. Qureshi in 1972 where, as is said in the Explanatory Memorandum,a marriage between parties domiciled in Pakistan was held to have been dissolved by a pronouncement of talaq made in England.I understand the need to bring certainty into the law, and I fully appreciate the reasons behind the drafting of the clause, but if it becomes law it is abundantly plain that it will have to be accompanied by a great deal of information being supplied to members of the Pakistani 1648 and other communities in this country which may not readily understand the significance of the clause.
It would be a dangerous and anomalous position if the practice of conferring some form of divorce within these communities were to continue, and, because of a lack of knowledge, people were to enter into bigamous associations in consequence. I do not know whether that is a real danger, but it appears to me that it is something worthy of consideration, and I hope that at some future stage the hon. Member for Perth and East Perthshire, perhaps having spoken to the relevant Government Departments, will be able to assure the House or the Committee that appropriate steps are being taken to safeguard against that danger. I do not object to the clause as it stands, but I feel that the points I have made ought to be given further consideration.
Having said that—this is really my only major criticism of it—I again congratulate the hon. Gentleman on having introduced the Bill. It will bring to the law a much-needed reform and elementary justice to wives who, in certain circumstances, are very badly treated.
§ 12.14 p.m.
§ Sir George Sinclair (Dorking)
I should like to welcome the Bill and at the same time congratulate my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) on putting this measure forward and explaining it to the House with great skill, patience and clarity.
This is one more measure designed to give legal recognition to the change of attitudes in Britain towards the rights of women, and here I tend to diverge from my hon. Friend the Member for Glasgow, Hillhead (Mr. Galbraith). We are trying, by a number of measures passed by this House, to move away from the old arrangements by which women were regarded as the chattels of men and to treat them, as they are in our present thinking, as individuals and separate persons in their own right.
The Bill seeks to remove an important disability, something left over from the past discarded attitudes. It seeks to give women a choice of domicile in accordance with their own acts and intentions. I do not believe that the Bill will contribute towards permissiveness. What it 1649 does is to recognise that when there are strains in family relations women have rights equal to those of men in seeking redress under the law. This fits in aptly with the passage of the divorce law, and I believe that it is an overdue reform. It is wrong to seek, by the shackles of an outmoded form of domicile, to keep together partners who have decided that, because their marriage has irretrievably broken down, the best course is to part, whether they have decided that themselves or whether the matter has gone further and the courts have decided just that thing. It is wrong, by means of artificial and outmoded legal restraints, to stop a process that has now been recognised by the law.
The second feature which I welcome is the provision in Clause 4 that the child shall be allowed to take the domicile of the mother or the father, wherever the child is living.
There was a great and unresolved difficulty in the earlier Bill which I sought to introduce, that of concurrent jurisdiction both in Scotland and in England. The Law Commissioners both of Scotland and of England have spent much time and skill in trying to get round these difficulties. I believe that they have largely succeeded, but if there are some remaining I hope that they can be resolved in Committee.
I hope that the House will give the Bill a Second Reading.
§ 12.19 p.m.
§ Dame Joan Vickers (Plymouth, Devon-port)
I congratulate my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) on his excellent Bill. I was a little surprised to hear the speech of my hon. Friend the Member for Glasgow, Hillhead (Mr. Galbraith). He seems to think that Scottish people are more permissive than those in England and must be more protected. I do not think that will go down well with women in Scotland.
§ Dame Joan Vickers
That was the impression given by my hon. Friend, but if he is contradicting me I am glad to hear it.
I should like to thank Lord Justice Scarman who has done so much, and 1650 given up so much of his time, to try to make us realise how people can become happier if some laws are changed. Only last year he came to a conference which I organised at Church House to help with matrimonial difficulties.
Speaking as chairman of the Status of Women Committee in this country I can assure the House that the two Bills that we have been anxious to get are those concerned with guardianship and domicile. I am sure that the 29 member women's organisations will be grateful to my hon. Friend the Member for Perth and East Perthshire.
This Bill does not deal only with divorce. There are quite a lot of marriages which have broken down completely where the parties do not want divorce. A woman married to someone from the Republic of Ireland, for example, does not want divorce, because it is against her religion. But she is deemed to be domiciled in the Republic when she may not even have put a foot inside it. The Bill will help in that kind of situation. But I do not think that it will help make divorce easier.
The passage of this Bill and the one concerned with guardianship on to the statute book will obviate situations like the Desramault case. The wife in such a case would not have to seek custody of her child because she would be an equal guardian. What is more, she would not have to trail round the courts of Europe seeking a divorce. I hope very much that sad cases of that kind will be obviated.
The Bill is by no means new. I understand that in the United States these rights of domicile are already recognised. The Australian Matrimonial Causes Acts of 1959 and 1966 recognise them, as does the New Zealand Matrimonial Causes Act 1963. They are also covered in the Canadian Divorce Act of 1968 and, interestingly, in the Law of Domicile 1970 of Kenya. Apparently a number of other countries also recognise these rights. Furthermore, it is another step towards equality as it is outlined in Article 16(1) of the Universal Declaration of Human Rights, and it will conform with Article 3 of the 1968 Hague Convention on the Recognition of Divorces and Legal Separations. This is not a new step. We are simply catching up with countries which are more enlightened than 1651 we have been in the past. I hope that Scotland, which has always been a great coloniser and has done a great deal in the Commonwealth, will seize the chance to catch up with Australia, Canada and New Zealand.
The Bill will change the common law subjection of a wife to her husband which is rightly criticised as discriminating. At present in dissolving a marriage the advantage of unity can be achieved at the expense of the wife in certain cases.
Reference has been made to Clause 16 of the Bill. Having lived abroad in Malaysia and elsewhere I know how different the laws are there. It may be that in Committee we shall be able to ensure that women affected by these laws can be protected from the undoubted disadvantages of the simpler forms of divorce in those countries than exist in Great Britain.
For all these reasons I welcome this excellent Bill.
§ 12.24 p.m.
§ The Lord Advocate (Mr. Norman Wylie)
It may be appropriate if I intervene in the debate at this stage, first, to define the Government's attitude to the Bill and, secondly, following the very clear explanation of the effect of it which we have had from my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur), to give some of the background.
At the outset, I join with those hon. Members on both sides of the House who have congratulated my hon. Friend the Member for Perth and East Perthshire not only on introducing this measure but also on the lucid way in which he explained its provisions. We are dealing with a highly technical branch of the law, although the main purposes of the Bill can be, and have been, shortly and clearly stated.
I can say without hesitation that the Government welcome the initiative of my hon. Friend the Member for Perth and East Perthshire and support wholeheartedly the legislative proposals contained in the Bill. It was my hon. Friend the Member for Preston, North (Miss Holt) who pointed out that it implements an election undertaking given by the Conservative Party. In fact, it goes beyond the scope of that undertaking and, as has 1652 been said on more than one occasion today, it fits into the general pattern of legislation which this Parliament is enacting to improve the status of women generally.
For a very long time there has been strong criticism of the rule of unity of domicile as it affects a married woman because it attributes to her an inferiority of status which many people today regard as wholly inappropriate. That is not to say that the principle has not found support elsewhere, and my hon. Friend the Member for Glasgow, Hill-head (Mr. Galbraith) is no doubt aware that as recently as 1956 the last Royal Commission on Marriage and Divorce supported the principle for, among other reasons, the reason which he gave, that the concept of marriage is unity, and the proposed abandonment of the dependent domicile of the wife was criticised by the Royal Commission on that ground.
Broadly speaking, there has been more criticism of this principle than support. The principle comes down to this. On marriage a woman takes the domicile of her husband, and it attaches to her during the subsistence of the marriage even if the parties should come to live apart or become judicially separated. The law in this respect reflects the notion that on marriage a woman's personality is in some way merged into that of her husband, and in this country as a consequence of that concept her personal law becomes the law of her husband's domicile whatever that may be at any time. I was interested to hear the remarks of my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers) on this point. It is a doctrine which finds no support today in the United States, and on the continent of Europe it has only limited support. As my hon. Friend pointed out, it is rejected in Australia, New Zealand and Kenya.
Part I of the Bill is concerned wholly with the notion of domicile. What I am about to say is well understood by lawyers in this House but others may not be so fully aware of the position. In most of the actions of our daily lives and for the formalities of the transactions in which we are involved we are governed by the law of the place where we happen to be. Obviously that is necessary. But every developed system of law recognises that in addition we carry with us 1653 a personal law the scope of which covers a wide range of family relationships and family property. It covers, for example, the validity of a marriage, the rights and obligations of husband and wife or parent and child, the effect of marriage on property rights of a husband and wife, divorce, wills, disposing of moveable property and the law of intestate succession as it relates to moveable property. Accordingly, what is our personal law is not merely an academic matter but one which affects us directly and materially, and any principle which qualifies a woman's independence here certainly qualifies her position in a very real way. There can be no question about that.
While the need for such a personal law is universally recognised, the test of personal law is by no means universal. For example, in some countries it is based on nationality, a concept which found growing favour in the last century and to which most European countries and Japan, for example, adhere. For our part—and for those jurisdictions based on the English common law tradition; the United States and the British Commonwealth—it has long been settled that these questions fall to be determined by the law of the domicile. If I may contrast these two criteria: nationality tends to yield a predictable but frequently inappropriate law in the case of a person whose connection with his nation State may be little more than purely technical. Domicile, on the other hand, tends to yield an appropriate but frequently less predictable law in the sense that domicile may not always be readily ascertained. Where, of course, different jurisdictions arise within the same nation State—as within the United Kingdom, for example—the test of nationality would be unworkable.
This brings me to pose a question which was raised by the hon. Member for Fife, West (Mr. William Hamilton), who has explained to me that he cannot be here to hear what I have to say on the matter. There have been many attempts by lawyers to give a brief and compendious definition, but they have never really been satisfactory. For example, there is a well-known definition by Lord Cranworth in 1858:By domicile we mean home, a permanent home, and if you do not understand your 1654 permanent home I am afraid that no illustrations drawn from foreign writers will very much help you to it.Domicile clearly imports a legal relationship between a person and a place governed by a single system of law, but it is not easy to state succinctly the nature of that relationship. The central idea is, of course, that it is the place where a man has made his home, but it is not really possible to define domicile simply in terms of home
However, we can get on to firmer ground when we look at some of the basic rules. It is clearly recognised that everyone must have a domicile. By definition no one can have more than one domicile at a time. At first the law attributes to a child the domicile of origin, a derivative domicile. If it is a legitimate child it takes its father's domicile. If it is illegitimate, it takes its mother's domicile.
A foundling child takes the domicile of the place in which it is found. Until it is of an age to acquire a domicile of its own, its domicile changes with that of its parents, but on attaining the necessary status a person may bring about a change of his domicile by the acquisition of what is known as a domicile of choice. That is what introduced the discussion between my hon. Friend the Member for Hillhead and the hon. Member for Fife, West.
Even if a person acquires domicile of choice, the domicile of origin remains in the background, and it is revived in the absence of any other domicile. I shall illustrate that proposition by an example, and I shall take the example which my hon. Friend gave in the course of his opening remarks.
If a person whose domicile of origin is in England decides to leave England and to live, for example, in South Africa with the intention of remaining there, he can acquire a domicile of choice in South Africa when he arrives there. I have used the word "can" advisedly. The two requirements for the acquisition of a fresh domicile are both residence and intention. These two elements, factum et animus, must concur, and it is proof of the element of intention which gives rise to difficulty. Of course, the presumption in favour of domicile increases in strength with the length of the residence.
1655 The hon. Member for Fife, West said that surely after 20 years something would happen. I should have thought that in the ordinary case it would happen well within that space of time. On the other hand, to live in a country for some oblique purpose, such as in the course of employment, would not result in the acquisition of domicile of choice. It can be acquired only by the fact of the residence of the person and intention to remain there.
Conversely, the abandonment of a domicile of choice equally depends on both factors concurring. In the instance which I have given, if a person leaves South Africa with the intention of never returning, he loses that domicile immediately he goes. Should he go to Australia with a similar intention to settle permanently, once again he can acquire another domicile of choice in Australia. However, if he has no such intention to live in Australia permanently or if he has such an intention, until he settles there his domicile of origin reasserts itself. The significance of that, as I have already indicated, is that his personal law is in the meantime governed according to the law of his original domicile.
There are two comments which I should like to make at this stage. They are relevant to some of the observations of my hon. Friend the Member for Hill-head. It is accepted today that it requires a stronger intention to establish the abandonment of a domicile of origin in favour of a fresh domicile than to establish a change from one domicile of choice to another. I think that that was the proposition to which my hon. Friend was referring when he said that a person with domicile of origin in Scotland would not too easily acquire a domicile of choice, for example, in England. There is force in that view.
Secondly, there is now authority for the view that a change of domicile from one country to another under the same sovereign—for example, from Scotland to England—is more easily proved than a change to a foreign country because it is less readily to be inferred that a man intends to settle permanently in a country where he will have the status of an alien than where he remains a national of the same State.
1656 While it is true to say that a person who has a domicile of origin in Scotland would have to satisfy the court in England that he had acquired a domicile of choice, it would be more difficult for him to satisfy the court on that basis than if his domicile in Scotland had already been one of choice. It is equally true to say that if he is a British subject it would be more easy for the English court to draw an inference of acquisition of domicile of choice than it would be in any other circumstances.
§ Mr. S. C. Silkin
I think that the right hon. and learned Gentleman will probably agree with me that the notion of domicile and what amounts to domicile is not necessarily exactly the same in different jurisdictions. Some countries have a different idea about this from others. The right hon. and learned Gentleman's experience of Scottish law is far wider than mine, which is virtually nil. Can he say whether the rules as to what domicile consists of are identical as between Scotland and England and Wales?
§ The Lord Advocate
One could embark on a most interesting discussion of this kind of thing. The hon. and learned Gentleman was probably referring to the interpretation of "domicile" in a civilian system. Although Scotland is basically a civilian system, we have for two and a half centuries been under the influence of English common law traditions. I would go so far as to say that if there are differences in the concept of "domicile" in Scotland as against England and Wales, they are very marginal. But if the hon. and learned Gentleman is referring to the Roman concept of "domicile", that proceeded on a different basis.
This brings me back to the existing dependent domicile of a married woman. The whole of Part I of the Bill is concerned with that. I think that this is the really major change which the Bill seeks to effect. There are clearly, anomalies in the situation whereby a married woman must inevitably accept the domicile of her husband, regardless of all other circumstances. I want to quote from a judgment delivered by the Master of th Rolls, Lord Denning, in 1963, because his words sum the situation up 1657 very well. Many hon. Members have said the same thing in different ways today. Lord Denning said:The fundamental point from which it starts"—the issue in the case—is the rule of law that on marriage a wife takes the domicile of her husband, and so long as the marriage continues she has, and can have, no domicile apart from his. Take the most striking case of all. Suppose a husband deserts his wife and goes to Australia, sets up there another home with another woman, intending to live there permanently. He clearly changes his own domicile. But his wife has never left her home here in England, and intends never to leave it. Yet in point of law, when her husband deserts her, she is still bound by his domicile. Her domicile is not in England where she lives, but in Australia, with all the serious legal consequences which follow from it, not only on her marriage but on her will and many other things. That is clearly the law of this country.— Now what is the reason for that rule, you may ask. It is the old notion"—and this is where my hon. Friend the Member for Hillhead would say, "Hear, hear"—that in English law a husband and wife are one: and the husband is that one.
§ The Lord Advocate
My hon. Friend would be introducing enormous complications. It is not just a question of who takes whose name. It would be a complicated exercise.
Having referred to the changes which have been made over the years—for example, enabling a wife to sue her husband in tort, which she could not do before because she was as one with her husband—Lord Denning went on:The one relic which remains is the rule that a wife takes her husband's domicile; it is the last barbarous relic of a wife's servitude. Yet sitting in this court we must still observe it.It is that last barbarous relic of a wife's dependence that Part I of the Bill seeks to remove, and I entirely endorse my hon. Friend's motives.
§ Mr. Robert MacLennan (Caithness and Sutherland)
Could the right hon. and learned Gentleman help me about the purpose of the removal of the domicile of dependence and about the difficulty which, I apprehend, may arise in the case of the marriage coming to an end? In the case of the husband, the 1658 domicile of origin presumably will proceed notwithstanding the breakdown of the marriage. In the case of the wife, she has perhaps acquired her husband's domicile not by dependence but by other factors—such as going to live with him and other factors which may lead to an assumption that she has the same domicile. If husband and wife are to be in pari materia, would it not be desirable that the Bill should seek in some way to give some guidance as to how the intention of the wife with regard to her domicile or the requisition perhaps of her domicile of origin should be determined?
This is a rather important point because it is conceivable, for example, that a wife with a separate domicile of origin from that of her husband will choose, upon the breakdown of the marriage, to remain in her husband's country until her children are educated but then return to her own country. It might be difficult to establish in advance of that circumstance her ultimate intention in a way which would convince a court. It could have considerable impact upon her liability, for example, to pay English income tax.
§ The Lord Advocate
I do not think that it would be possible in a public general statute to lay down guidelines as to how one ascertains a person's domicile. One of the major criticisms of the concept of domicile is the difficulty of ascertaining the domicile of any person at any particular time. In some cases, it is quite easy and in others difficult. The hon. Gentleman has put his finger on one of the repercussions of this Bill.
If we are taking away the dependent domicile of a wife, we have to look at her situation in isolation, if the question arises, and ascertain what her domicile is. She might, I imagine, in the ordinary way acquire her husband's domicile as a domicile of choice. If she were living in Scotland, for example, with her husband who was resident there, she might well in the ordinary way acquire a domicile of choice in that country. If she married her husband who was a domiciled Scotsman while she was living in England, she would retain her domicile of origin. The hon. Gentleman has raised an interesting point. But one can never lay down guidelines in statute on these 1659 matters but must apply the ordinary rules of law in ascertaining what a wife's domicile is under the Bill.
I pass on now to consider the other area of dependence in our existing law which will continue—the dependence of minor children. I have indicated how a child acquires a domicile of origin derived from the parent. In Scotland the position in law has always been that when a girl reaches the age of 12 and a boy reaches the age of 14, she or he ceases to be what we describe as a "pupil" with no legal capacity and becomes a minor with legal capacity. Among the capacities thus enjoyed is a capacity to acquire a domicile independent of that of the parents. Once again, of course, it would be a question of circumstances. A minor child in Scotland can acquire an independent domicile, and the derivative domicile drawn from the parent could fly off.
As I understand the position, under English law, on the other hand, the domicile has always been linked to the age of majority. My hon. Friend the Member for Preston, North expressed the view—and she is a barrister—that that provision should remain, although I think that the House may well be influenced by the argument put by my hon. Friend the Member for Perth and East Perthshire. If by law it is competent for someone to marry, it is difficult to say at the same time that he should remain incapable of obtaining an independent domicile until the age of 18. With marriages at 16 and majority now at 18 it is difficult to say that we should keep the capacity to acquire an independent domicile at 18. Again, this is the kind of matter which could be discussed at a later stage if a later stage is reached. For reasons of English law Clause 3 is necessary, and for the reasons I have explained it would not have to apply to Scotland.
Clause 4 introduces a substantial change because it embodies proposals which would remove many of the anomalies to which my hon. Friend the Member for Perth and East Perthshire referred in opening regarding the domicile of a child whose parents are separated. Incidentally, there is a decision in the law of Northern Ireland to the effect that where the mother has been granted custody of a child by the court he takes his domicile from her. 1660 That decisison in 1968 has not been followed in England, and there is contrary authority in Scotland. Clause 4, therefore, deals with this situation on a proper basis my making the factual situation the test rather than the existence of a court order. If a child has his home with his mother, he will take his domicile from her. This seems right. I might add that it goes some way towards the approach favoured in the Council of Europe, that the domicile of a child should be taken from the person, whether a parent or not, who has the power to determine the child's place of residence.
I leave the domicile provisions in Part I with the firm recomendation that they should be supported.
As my hon. Friend indicated in opening, Parts II, III and 1V really run together for England and Wales, Scotland and Northern Ireland, and relate to proposed changes in matrimonial jurisdiction.
I am quite sure that those who have read the reports of both Law Commissions will agree that their proposals, which are embodied in Parts II, III and IV, have been carefully and thoroughly thought out and fully argued. I should be the last person to suggest that because a recommendation comes from a Law Commission, let alone both Law Commissions, the House should rubber-stamp it. That would not do. However, I believe that these statutory bodies, which have rather wider statutory obligations imposed upon them than my hon. Friend the Member for Hillhead would suggest, ought at least to influence us considerably when they come forward with virtually unanimous recommendations in this sphere.
The Law Commissions reached the conclusion, I think rightly, that we cannot depart from domicile as one of the tests of jurisdiction in matrimonial causes, and they set out the reasons. But they came equally firmly to the conclusion that the traditional test of domicile by itself was not enough. In their view, in modern conditions a substantial period of residence ought to be treated as sufficient connection with a country for a proper exercise of matrimonial jurisdiction. As my hon. Friend the Member for Hillhead indicated, it is a question of judgment how long that connection should be before it is sufficiently close to justify the court's exercising jurisdiction on a person's matrimonial affairs. After all, the place of 1661 residence is the one most likely to be concerned with the welfare and maintenance of the family.
Having regard to these considerations and to the courts' pronouncing decrees which achieve international recognition—another important matter—the Law Commissions reached the conclusion that an alternative basis of jurisdiction to domicile should be the residence of either party for the period of one year.
Although that period has been criticised by my hon. Friend the Member for Hill-head today, I do not think that it has been criticised by other hon. Members. The Law Society of Scotland, by a relatively narrow majority of the committee which looked into the matter, recommended a two-year period. I think I am correct in saying that the Law Commission in England was satisfied that there was no substantial opposition to the proposal that it put forward, which 'equally was for a period of residence of one year. I think that this is the kind of matter that could be considered in Committee because, in the last resort, it is a matter of judgment, although the one year recommended by both Law Commisions finds favour in, for example, the Hague Convention and elsewhere. It is increasingly recognised throughout Western Europe as a basis of jurisdiction on which international recognition could proceed. For that reason, too, I think that the recommendation of both Law Commissions in this respect should carry great weight.
My hon. Friend the Member for Hill-head made what he described as three major criticisms. I think that I have already covered his first criticism; that the unity of domicile should be retained. I could not, and certainly the Government do not, subscribe to that view. My hon. Friend said that one year was too short. Again, as I have already indicated, that is a matter of judgment which could be considered at a later stage.
My hon. Friend went on to indicate that in his view the Bill was somehow or other a way round the substantive law of Scotland concerning divorce. I know what my hon. Friend was driving at there. I am sure that he would not knowingly accuse my hon. Friend the Member for Perth and East Perthshire of doing any such thing, and the Bill 1662 is not calculated to do that. However, my hon. Friend the Member for Hillhead is entitled to say that if the Bill goes through a Scottish husband could invoke the jurisdiction of the English court on the basis of his wife's domicile if she happens to be domiciled in England or Wales, on the basis of his own domicile should he acquire a domicile of choice there, which he can do already, or on the basis of residence. I have touched on the acquisition of domicile of choice and indicated that it may not be so difficult to transfer one's domicile from Scotland to England as my hon. Friend might suggest. In any event, as my hon. Friend the Member for Perth and East Perthshire said, the Bill seeks to put a wife in the same position as her husband.
I gather from the tone of his speech that my hon. Friend the Member for Hillhead accepts that what is good about the Bill is sufficient to allow it to have a Second Reading, and he expressed the hope that some of the defects, as he described them, might be put right at a later stage. I very much hope that that is the attitude he will adopt.
My hon. Friend the Member for Perth and East Perthshire indicated that there was an area of difference between the recommendations of the two Law Commissions on conflicts of jurisdiction. Last year my hon. Friend the Member for Dorking (Sir G. Sinclair) sought to promote a Bill on these lines. At that stage these differences were not resolved, and, clearly, in this sphere these differences must be resolved within the United Kingdom before changes of this kind can be made. I am happy to note that both Law Commissions have covered pretty well 99 per cent. of this area by agreement. However, one area of difference has been left on which they cannot agree.
I do not wish to pass any further comment on that area of difference at this stage, except that it is a matter on which there must be agreement. What is applied in one country within the United Kingdom must, clearly, be applied in another. I understand that the judges of the Family Division were reluctant to accept the principle of a mandatory stay of proceedings, but conceded, in the interests of agreement, that the Scottish proposal should be accepted. But they felt unable to go beyond that point and accede to 1663 the Scottish proposal that that mandatory stay of proceedings should arise ex proprio moatu if, in the view of the court, the circumstances justified it. They took the view, as is reported in the Report of the Law Commission, that they would exercise this stay of proceedings only on the application of one or other of the parties. The Scottish Law Commission feels strongly about this, but, as I say, this is a matter about which agreement has to be reached. In the circumstances, I think my hon. Friend was right in framing the Bill on this issue in the way that he has.
I have spoken rather longer than I had intended. My hon. Friend went through the clauses very carefully and explained them exceedingly well. I think I should confine myself to these general observations and the general background against which this legislation falls to be seen. I now simply commend to the House—
§ Mr. Clinton Davis
Before the Lord Advocate sits down, may I ask him to allude to the point that I raised concerning the effect of Russell v. Russell and Levett v. Levett? It may be—although I am not sure that it is—that Clause 5(5) is intended to deal with this aspect of the matter. Is that right? It may well be that, because the language of the subsection is somewhat complex, I have misunderstood it.
But there is one other matter on which I should like the right hon. and learned Gentleman to make some observations. It relates to paragraph 48 of the Law Commission's report, at page 18, in which the Commission deals specifically with this matter. It seeks to ensure that a husband would not be deprived of the right to cross-pray within the one year period. The report says:We therefore recommend that where the court has jurisdiction to entertain proceedings for divorce it should notwithstanding any change in the domicile or habitual residence of the parties after the institution of the proceedings have jurisdiction to entertain further proceedings (whether by way of further petition, cross-petition or prayer contained in an answer) for divorce … while the first proceedings are pending.There is a footnote to which I would invite the right hon. and learned Gentleman's attention, No. 62, which states: 1664There may be a few rare cases where a wife who could petition under section 40(1)(a) will be excluded from petitioning under our recommendations because she has no independent domicile in England and has not been habitually resident here for one year.I do not see where that point is dealt with in the Bill. Would an amendment to encompass that situation have the Government's support?
§ The Lord Advocate
I, being a Scots lawyer, have tended to work on the Scottish Law Commission's Report which makes a similar recommendation in recommendation 21, paragraph 118, on this question of cross-petitions. Certainly the provision in the Bill to which the hon. Gentleman referred is intended to cover that.
As to the rather refined point which the hon. Gentleman raises on the footnote on page 18 of the Law Commission's Report, I should not like to pronounce on that right away. Certainly this Bill seeks to implement the recommendations of the Law Commissions, and if that point in footnote 62 has not been picked up—I think it has—the necessary amendment will certainly be considered.
As I have said, I have spoken at rather greater length than I had intended. I should simply like once again to congratulate my hon. Friend on promoting the Bill and on the way in which he presented it, and invite the House to support it.
§ 1.5 p.m.
§ Mr. S. C. Silkin (Dulwich)
May I begin by congratulating the hon. Member for Perth and East Perthshire (Mr. MacArthur) not only on his good fortune in the ballot but, much more than that, on choosing this important subject and in explaining a complex Bill—one which, indeed, departs quite substantially from the model Bill prepared by the Law Commission for England and Wales—and explaining it with such very great clarity and care. It was very helpful indeed to the House.
Secondly, I echo what the hon. Lady the Member for Plymouth, Devonport (Dame Joan Vickers) said when she spoke about Lord Justice Scarman. I think it would be true to say that nobody since Alan Herbert has had so much influence on our family law—so much beneficial influence, I would say, although there 1665 may be some who would disagree—as Lord Justice Scarman. He certainly made a tremendous impact as the first Chairman of the Law Commission for England and Wales. Now he has gone to other fields, and I have no doubt that his impact there will be at least as great.
Thirdly, I should like to congratulate the Lord Advocate on explaining with such care the extremely complex and difficult notion of domicile. Indeed, I think it right to say that there is only one criticism that I would make of his speech, and that is that, having read the passage from the judgment of Lord Denning some 10 years ago, he deprived me of my own opening. None the less I think it is right to say that Lord Denning, whom perhaps I may describe as Master of the Rolls and of the felicitous phrase, put the matter extremely graphically when he spoke of the rule that a wife takes her husband's domicile asthe last barbarous relic of a wife's servitude.If that were wholly accurate, the hon. Member for Perth and East Perthshire would certainly be recorded in the annals of our history with Wilberforce and Parkhurst, but I cannot help feeling that perhaps not everybody would entirely agree that with this Bill the last relic of a wife's servitude is being removed in this country. Perhaps one should only say that Lord Denning, perhaps a little uncharacteristically, was indulging in hyperbole, or possibly one should call it judicial licence. None the less it is curious that although as long ago as 1948 the concept of unity of nationality was abrogated, a quarter of a century has had to pass before it became the hon. Gentleman's good fortune to pilot legislation to abolish the concept of unity of domicile. This seems particularly curious because, while most people have no say in their nationality, domicile is preeminently a matter of choice. But under the existing law the choice is that of the husband, not of the wife or of the minor children.
As the Report of the Law Commission for England and Wales points out in paragraph 13, a woman takes her husband's domicile on marriage and follows any changes which he makes in it during the marriage, even if she is no longer living with him and, indeed, has no idea where he is. This is all the more remarkable when nationality is of 1666 declining importance, whereas domicile governs not only important intimate relationships between man and wife but the many other matters of great practical significance which have been referred to in the debate.
Nationality is no longer the key to automatic entry into the United Kingdom. We now have the concept of patriality, and that in its turn was followed recently by the concept of belonging by administrative rule. But when dissolution of marriage or the consequences of marital disharmony are in issue, nationality, patriality and belonging —whatever that may mean—are no longer relevant matters. Domicile, as the law stands today, reigns supreme, or almost supreme, subject to the special relationship of the United States forces which led to the invention of the concept of ordinary residence for three years.
In that context I refer to the speech of the hon. Member for Glasgow, Hill-head (Mr. Galbraith), who holds strong views on the subject of divorce and the position of both parties to a marriage. It seemed to me that the hon. Gentleman's attack on the Bill was wrongly directed and that he was attacking the principles of English family law rather than what appears in the Bill. We have to accept that law as it is today, certainly for the purpose of the Bill, which, as I understand it, is to create equality of opportunity to use that law as between man and wife, an equality which does not exist today.
The Reports of the Law Commissions and the Bill attack what Lord Denning described as the last barbarous relic of a wife's servitude in three ways. First, a wife will be enabled to have a domicile separate from that of her husband, thus recognising the realities and discarding a technical rule which blatantly discriminates against the female sex. I have already given one example—the man has gone away, perhaps set up another home with another woman somewhere else in the world, yet the wife still has her domicile fixed or changing according to the husband's domicile, be it fixed or changing.
Second, the court will be given jurisdiction if either spouse is domiciled in some part of the United Kingdom. This also is a matter of importance and a considerable change from the existing rule which 1667 requires that jurisdiction shall depend upon the domicile of the husband.
Third, the residential exception to the rule of domicile to which I referred will be expanded so that the court has jurisdiction if either party at the date of the proceedings had been habitually resident in the United Kingdom for at least a year.
Those are considerable steps forward and it may seem almost churlish, therefore, to ask whether the Bill could possibly go a little further in some respects. However, I have one or two matters to put to the hon. Gentleman for his consideration in addition to those already raised by my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) and other hon. Members.
I ask the House to consider, for example, the case of a wife domiciled and habitually resident abroad, perhaps in a country where jurisdiction is founded on the husband's domicile. The husband has disappeared. His last-known domicile was in the United Kingdom, or he had been habitually resident in the United Kingdom, for not less than one year. All one can say about him is that that was the fact when he was last heard of.
As I read it, Clause 5 would in such a case exclude the jurisdiction of the court. I wonder whether that was intended, and whether it would be right to include the jurisdiction, which, as the Clause is drafted, depends upon the matters which stand as at the date of the opening of proceedings. It seems to me that hardship could be caused if all the requirements of the clause are met save that the husband has disappeared for a period before proceedings are brought. Perhaps the hon. Gentleman will consider that.
Clause 6 deals with maintenance applications, and in this respect the Law Commission for England and Wales proposed a third ground of jurisdiction in paragraph 68 of its report. It recommended that the residence of the respondent in England or Wales at the date of proceedings should be a third factor in founding jurisdiction. But the Bill, as I mentioned earlier, is in different terms from the model Bill prepared by the Law Commission for England and Wales and introduces in Clause 6(1)(c), which seeks to give effect to that proposal, the word "habitually".
1668 It must be shown that the respondent is "habitually resident" on the date when proceedings for maintenance, or whatever it may be, are taken. In that case, in contradistinction from the other cases where habitual residence is referred to, no specific period is mentioned. There must be habitual residence on the relevant date. I do not altogether follow the point of changing the proposal of the Law Commission for England and Wales in that respect and it may be that in Committee we can look at the matter.
Thirdly, there is the very welcome provision in Clause 4 which relates to the domicile of minors aged 16, and I agree with the Lord Advocate that the question of whether 16 is the right age can probably be discussed in Committee.
I welcome the provisions of Clause 4 which enable the dependent domicile, as it is called, of the minor to follow that of his mother in certain specified cases. But it seems to me that the effect of the way in which that has been done is that the existing rule—that a minor takes his father's domicile—would continue to apply except in those specified exceptions. Therefore, if the parents are living apart and the minor is not living with either the father or the mother, and has not done so since the marriage broke up, which is a quite possible situation and might well happen in many cases, the question is why in that case the minor, whether male or female, should automatically take the domicile of the father rather than that of the mother. There we certainly have a movement towards the concept of sex equality but we certainly do not go all the way in the Bill.
I have one further point. I am sorry that these are necessarily points of detail but I raise them to enable the sponsor of the Bill to think about them before we reach the Committee stage, which I hope will not be too long. Paragraph 60 of the Report of the Law Commission for England and Wales deals with jurisdiction in nullity. It rejects the proposal made by a substantial number of people that in relation to nullity the place of celebration of marriage should determine the jurisdiction.
I would go further than that and ask the hon. Member for Perth and East Perthshire to consider whether it might not be reasonably argued that marriage in a particular country may—I do not 1669 say that in every case it will—and particularly perhaps in the case of those holding that country's nationality, presuppose an intention to be bound by that country's marriage laws. If that is right, might that not be recognised as providing alternative bases—I would not wish it in any way to abrogate the bases in the Bill—for the jurisdiction of the court? I put it broadly and I do not confine it to nullity on which I think the point was made probably on the basis of convenience rather than of principle.
I have already congratulated the hon. Member for Perth and East Perthshire and the Law Commissions which have done a great service in providing the material for the Bill. It is fortunate that the Law Commissions have differed only perhaps in a matter of detail which has been resolved in the Bill. That brings me, however, to a general matter which it is perhaps right to mention. One of the specific provisions of the Law Commissions Act 1965 was that the purpose of setting up the Commissions should be to try so far as possible to assimilate the laws of England, Wales and Scotland. I know that there are those who were not at the time particularly keen on the proposal, and possibly there are some today who are not particularly keen on it. But many people will recognise that it is ridiculous that by taking a train or aeroplane across the border it is possible to go into a part of the same country where different laws apply. That situation exists in whatever direction a person is travelling.
I wonder whether the time may not have arrived when we should be thinking in terms of one Law Commission comprising Englishmen, Welshmen and Scotsmen who would apply to the task given to the Law Commissions by the Act a unity of purpose which may not be easy as long as there are two separate Commissions. I do not expect that that matter will be decided during the debates on the Bill but I hope that it is one to which thought can be given.
Our family law is, I believe, both enlightened and at the same time protective to those who need protection. For my part, therefore, I do not complain that the Bill will open up the bounties of our family law to many more people than already enjoy them. The report of the English Commission uses the phrase 1670 "forum shopping" and says that it is something to be avoided. I agree that forum shopping is to be avoided in cases where the court cannot control the consequences of its orders. I for my part see no real objection, and it is for this reason that I would support the one year of habitual residence provided in the Bill, to forum shopping if the shopper obtains a just and enlightened system such as we can provide.
The Bill goes a long way in that direction, and I assure the hon. Member for Perth and East Perthshire that it certainly has my full support and, I hope, that of the House.
§ 1.30 p.m.
§ Mr. MacArthur
With the leave of the House, I should like to comment briefly on a number of points which have been raised. First, I thank right hon. and hon. Members who have given their generous support to the Bill and made kind remarks about it. I also thank my hon. Friend the Member for Glasgow, Hill-head (Mr. Galbraith) for the courteous way in which he has expressed some opposition to the Bill. I hope I am right in discerning from the tone of his speech that although he has certain objections to the Bill he may not carry them to the point of active opposition. I am particularly grateful to him for calling attention to what he regards as fundamental points of concern about the Bill.
I am also particularly grateful to the hon. and learned Member for Dulwich (Mr. S. C. Silkin) for signifying the Opposition's approval of the Bill. He has raised at least two very interesting points. The first is what I can describe in shorthand as the case of the vanishing husband. I note what the hon. and learned Gentleman said and shall study the Bill in the hope that there may be a way to cover the point. At first sight, it seems that there may be a deficiency in the Bill in that regard.
The hon. and learned Gentleman also asked whether there might be an alternative basis for the jurisdiction of the court where a marriage in an overseas country might presuppose an intention to abide by the marriage laws of that country. That could perhaps present great difficulties. I should like to take advice on that point also. I hope that we can discuss it and other matters in Committee.
1671 My hon. Friend the Member for Preston, North (Miss Holt) was good enough to welcome the Bill but had certain doubts about reducing from 18 to 16 the age for the capacity to establish an independent domicile. I appreciate my hon. Friend's concern. We can discuss the matter in Committee but I hope that we shall not change the age given in the Bill. Scotland would not be affected, because of the present state of the law there, but it seems to me reasonable that in England the age of capacity for establishment of independent domicile should be the age at which a child is legally allowed to get married. A person who gets married should be able to establish separate domicile.
The hon. Member for Hackney, Central (Mr. Clinton Davis) also raised a very interesting point that I should like to examine more closely, although I suspect that it may be covered by the Bill.
I return to my hon. Friend the Member for Hillhead, who told us that he was also speaking for others. I know that some of my hon. Friends and some Labour Members have certain doubts about the Bill. I think that the biggest doubt arises from the difference between Scottish and English divorce law. I see that my hon. Friend has very real concern, but I do not share his apprehensions that many difficulties are likely to result from my Bill. If there are difficulties, I think that they flow from the fact that the substantive law is different.
Certainly, it is true that a husband or wife would be able to move from Scotland to England and, after meeting the requirements of the Bill, seek the jurisdiction of the English court. But I repeat, as I tried to say in an intervention, that under existing law the husband can already seek the jurisdiction of the English court if he establishes domicile in England.
There may be some disagreement between my hon. Friend and me about the difficulty or ease with which that declaration of domicile can be obtained, but the position was explained very clearly and helpfully by my right hon. and learned Friend the Lord Advocate in what was an example to us all of how to describe a complicated legal matter in simple and clear terms.
1672 The other point that my hon. Friend raised was another matter that we can consider in Committee. But it would be wrong of me to indicate that I should be able to accept willingly any amendment that would undermine the central purpose of Clause 5. However, we could certainly discuss the question of the period of residence, which is at present given as one year. I tend to favour one year, not only because it seems to be the majority view of those who are learned in these matters but because it is generally the period of residence specified in legislation in other countries and proposed by the Hague Convention.
I assure hon. Members that I shall do everything in my power to consider the points raised and seek guidance on them for a later stage. I shall be most grateful if the House will agree to give the Bill a Second Reading, even if it does not go quite so far as to remove the last relic of a barbarous age.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).