HC Deb 20 July 1973 vol 860 cc1085-92

Lords Amendment: No. 1, in page 13, line 12, at end insert: ( ) Notwithstanding anything in section 6 of the Recognition of Divorces and Legal Separations Act 1971 (as substituted by section 2 of this Act), a divorce which—

  1. (a) has been obtained elsewhere than in the United Kingdom, the Channel Islands and the Isle of Man, and
  2. (b) has been so obtained by means of a proceeding other than a proceeding instituted in a court of law, and
  3. (c) is not required by any of the provisions of sections 2 to 5 of that Act to be recognised as valid,
shall not be regarded as validly dissolving a marriage if both parties to the marriage have throughout the period of one year immediately preceding the institution of the proceeding been habitually resident in the United Kingdom."

2.45 p.m.

Mr. Ian MacArthur (Perth and East Perthshire)

I beg to move, That this House doth agree with the Lords in the said amendment.

I hope that I am in order, in my opening remarks, in expressing my deep thanks to the noble and learned Lord Simon of Glaisdale for his handling of the Bill in another place and doing so with such constructive help to the purpose of the Bill.

A number of right hon. and hon. Members on Second Reading and later in this House recalled the colourful words of the Master of the Rolls when he said that the existing state of domicile, whereby a wife's domicile was dependent on that of her husband, was the last barbarous relic of a wife's servitude.

I have never claimed that the Bill goes as far as that, but it does at least correct what I regard as a substantial injustice to women in the present state of the law.

The amendment, moved by the noble and learned Lord Simon of Glaisdale in another place and accepted by their Lordships, affects Clause 16. The House will recall that Clause 16 has an important bearing on the matrimonial lives of the immigrant communities in this country. Because of that the Government were good enough to announce that there would be a programme of publicity between now and the end of the year to call the attention of immigrant communities to this change in the law. Therefore, I think it is right for me to remind right hon. and hon. Members of the central purpose of Clause 16, which affects immigrant communities, and to explain, not at great length but I hope adequately, the nature of the change which Lord Simon of Glaisdale proposed in another place.

The House will recall that on Second Reading I explained that the central purpose of Clause 16 was that those who reside in this country should obtain their divorces in a court of law just as they have to marry in accordance with the Marriage Acts.

I suggest that non-judicial divorces are objectionable for several reasons. They can enable a wife to be discarded by the unilateral action of her husband. They deprive a court of jurisdiction over the financial arrangements for the wife and children of the marriage. Further, they can produce evidential difficulties in proving a person's matrimonial status—for example, that he is free to re-marry.

Therefore, Clause 16 invalidates non-judicial divorces obtained in the British Isles. But that provision is open to the comment that it could in some cases be evaded by a man who made a brief and fleeting visit to a nearby country for the sole purpose of divorcing his wife by pronouncement of a non-judicial formula there.

I am told that the availabilty of this evasion would be restricted to a very few cases. Nevertheless, it would exist and I understand that the possibility is very real.

If the parties were domiciled as well as resident in the United Kingdom—there is a distinct difference between the two words which we thrashed out in extenso in the earlier stages of the Bill—our law would not recognise a divorce obtained overseas unless it satisfied the requirements of the Hague Rules. That would rule out the recognition of what I describe as a "day trip" divorce—for example, by means of a trip to Calais or Dublin. which can be done in a day —unless the parties had some real connection with the country in which it was pronounced. But if the parties, though resident here, were domiciled in a foreign country which recognised a non-judicial divorce obtained in those circumstances it would have to be recognised in the United Kingdom under Clause 2 even if the parties had no real connection with the country where the divorce was pronounced.

I am advised that that situation, which is that persons resident here may still be domiciled in their country of origin such as Pakistan or Egypt, is thought to be not uncommon, and there is therefore a real possibility that the clause might be evaded in this way. I suggest, therefore, that it is desirable to forestall such evasion in so far as it can properly be forestalled in the Bill. That is the purpose of the amendment which the noble and learned Lord, Lord Simon of Glaisdale, moved in another place I understand that the terms of the amendment had to be drawn with great care to make sure that it does not offend the Hague Convention as reflected in Sections 2 to 5 of the Recognition Act 1971. Section 2 of that Act makes no distinction between judicial and non-judicial overseas divorces for the purposes of recognition in United Kingdom law. The factor which determines recognition is whether the parties had the necessary jurisdictional connection with the country in which the divorce was obtained. The House will know, of course, that the term "non-judicial divorce" covers a wide range of proceedings, including divorce by the administrative machinery of the State in addition to informal procedures such as talak.

If a Muslim of Egyption or Pakistani nationality—and there are other groups, as my right hon. and learned Friend the Lord Advocate said in Committee in a colourful intervention—who is habitually resident here goes back to his country of origin and obtains a divorce under Muslim law there, it would have to be recognised in the United Kingdom by virtue of the Recognition Act, whether it was obtained by judicial or non-judicial means. I am told that it is neither possible nor desirable to alter that situation in the light of the Hague Convention.

I am also advised that the most that can properly be done in a Statute of the United Kingdom without offending the Hague Convention is to invalidate non-judicial divorces obtained in the British Isles and, secondly, to prevent United Kingdom residents from evading that provision by a fleeting day trip visit to a neighbouring country with which they have no real connection sufficient to satisfy the Hague rules. The first of those objects is achieved by subsection (1). The second object would be achieved by the new subsection which the other place inserted on the proposal of the noble and learned Lord, Lord Simon of Glaisdale.

By confining the amendment to cases where the parties have been habitually resident in the United Kingdom for one year the amendment avoids any criticism that it might be making it impossible for some people to obtain divorces at all. Where that condition is satisfied, the courts of the United Kingdom will have jurisdiction under Clauses 5(2), 7(2) or 13(2) and there is nothing to prevent them from obtaining a judicial divorce if the necessary grounds can be established.

I believe that the amendment makes a small but desirable improvement to the clause, and I invite the House to agree with it.

Mr. S. C. Silkin (Dulwich)

It is important that the Bill should receive the Royal Assent this Session, and therefore nothing that I say about the clause should be taken as indicating that I should advise the House to vote against it. Getting the Bill through is a desirable end in itself, because this is a valuable and important measure. It is also desirable to get the Bill through because of the excellent and careful work that has been put into it by the hon. Member for Perth and East Perthshire (Mr. MacArthur).

None the less, having said that, I have to tell the House that I do not feel the utmost enthusiasm for the amendment. I have the highest respect for the noble and learned Lord, Lord Simon of Glaisdale—indeed, I regard him as a personal friend—but it seemed to me that when the hon. Gentleman explained the purpose of the amendment he clothed in the courteous language that he used the fact that the amendment is intended to deal with circumstances that are likely to be extremely rare, and therefore this is an amendment that is really for hard cases rather than for altering any principles of our existing law.

One sees that by looking at the examples which the noble and learned Lord gave in another place when he spoke about taking a day trip to Calais, or going from Belfast to Dublin, and one wonders whether, in such circumstances, there are likely to be many people who will have the necessary qualifications by domicile to pronounce a Talak or other informal divorce in those countries.

Nevertheless, there are occasions when there could be evasion, and having recognised and realised that advantage of the clause one ought to consider the difficulties from other points of view. The most usual case is where a husband and wife living in this country fall out and the husband departs, leaving his wife here. The fear that is expressed in the clause is that the husband will go somewhere where he is in a position to obtain an informal divorce and but for the clause that divorce may be recognised in this country. But if the husband goes somewhere where he can obtain a divorce by the informal method of talak, or whatever it may be, then the clause is producing a limping marriage situation which both the Law Commission's Report and the Bill are designed to eliminate so far as possible.

The husband will be divorced in his own country and in other countries which recognise the divorce, but unless the conditions that are regarded as valid in this country obtain the wife will not be regarded as divorced. The party who has gone may be the party responsible for the breakdown of the marriage and he may be free to marry again in some other country, whereas the party deserted and living in this country will not be able to marry again, and that seems to be an undesirable situation.

3.0 p.m.

There is the proviso that the parties must have been living in this country habitually for at least a year immediately preceding the institution of the proceedings. This produces other difficulties because in many cases, a husband having deserted his wife, the wife may not even know whether he has been habitually resident in this country for a year and in particular whether he has been 'habitually resident in this country for a year immediately preceding the informal divorce in some other country.

There are likely to be many difficult circumstances upon which the courts may have to pronounce, where a court would have to be persuaded by the wife who was seeking to say that her marriage was already dissolved, that the date upon which the husband obtained his informal divorce was a date upon or immediately succeeding that upon which the husband had been habitually resident in the United Kingdom, even though the informal divorce was pronounced outside the United Kingdom.

The effect of that would be great uncertainty which, in the illustration I have used, would mean that the deserted wife would be left in this country in uncertainty while the husband, having gone to a country where the informal divorce is recognised, would be validly divorced and need not worry.

Having made these criticisms, which I hope are not far fetched but are real. may I suggest to the Lord Advocate that although we may accept this amendment it would be right for the two Law Commissions which have examined the matter in great depth, and to whose report we are giving effect, to have another look at this matter and to advise whether they regard this new provision as satisfactory or whether some better solution can be found to the problem envisaged by the noble and learned Lord Simon.

I wish now to make a general point which I have previously aired in the debates on Lords amendments. It could have been made in relation to the amendments to the Hallmarking Bill which attracted a lot of discussion on both sides. Our procedure for dealing with Lords amendments in these circumstances, whether in Private Members' Bills or not, is not wholly satisfactory because we are required to accept an amendment or reject it on very little debate in circumstances in which there is held in terrorem against us the possibility that a desirable piece of legislation will not go through.

In dealing with a complicated and far-reaching provision such as Clause 16 it is desirable that this House or a Committee of the House should give proper consideration to an amendment which may be substantial, as in the case of the Morris Committee's recommendations on the jury which were inserted in another place in the Criminal Justice Act 1972 during its passage through Parliament. We should have a proper opportunity of examining amendments. Maybe it would be better to do so in Committee rather than on the Floor of the House.

Having made those criticisms, I do not intend to do anything or to give any advice which would be likely to hold up the Bill. Nevertheless, it is a pity that we have not been able to give as thorough an examination to this amendment as I should have liked.

The Lord Advocate (Mr. Norman Wylie)

I am grateful to the hon. and learned Member for Dulwich (Mr. S. C. Silkin) for the assurance which he has given that the passage of this legislation on to the statute book will not be delayed. I think that he and I recognise the value of this legislation. I think that all hon. Members will wish to congratulate my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) on the way in which he has piloted the Bill through the House and on the way he has promoted the Lords Amendment.

The loophole which Lord Simon of Glaisdale seeks to close is one of almost minimal significance having regard to the everyday facts of life. On the other hand, the noble Lord was intimately concerned with case law on this subject. As the hon. and learned Gentleman well knows, it was the decision of the court in Qureshiv. Qureshi which gives rise to the introduction of the clause to which the amendment relates.

With those qualifications, I am bound to say that I endorse what my hon. Friend said and what my noble Friend the Lord Chancellor said in another place. I am the first to recognise that in this sphere whenever a change is made the door is being opened to the possibility of other complications. I should not seek to deny the validity of that observation. I shall certainly read with interest what the hon. and learned Gentleman has said. I noted what he said about further consideration of this issue and I will take up that matter with my noble Friend the Lord Chancellor.

I commend the Lords amendment to the House. The important thing is that it does not offend against the agreed principles of the Hague Convention as embodied in the 1971 legislation. If it did so it would be entirely unacceptable. The relevance of the amendment to the legislation following on the Hague Convention has been examined with care and we are satisfied that it does not conflict with recommendations which have been made and does not impinge on the provisions of the Recognition of Divorces and Legal Separations Act, 1971. I commend the Lords amendment to the House. I express my appreciation to the hon. and learned Gentleman for the co-operation which he has shown throughout these proceedings and my appreciation of my hon. Friend who has promoted the Bill.

Question put and agreed to.