COMMONS' AMENDMENTS CONSIDERED. (Hansard, 23 August 1860)

THE LORD CHANCELLOR

said, that notwithstanding his great disinclination at 1721 all times to oppose Amendments which the Commons might propose in Bills sent down to them, he deemed it his duty to advise their Lordships to disagree with the alleged Amendments in this Bill. Those Amendments consisted in altogether omitting two clauses from the Bill, which constituted the life and substance of the measure. One was, that a divorce, à vinculo matrimonii, pronounced by a Court in Scotland should have force and validity all over the dominions of Her Majesty. At present, if a marriage was celebrated in England, and the divorce took place in Scotland, the divorce had full operation in Scotland, but none in England; and the parties still remained husband and wife on one side of the Tweed, though they were separated on the other. On the north side the Tweed, they might lawfully marry again, and their children would be legitimate in Scotland; in England the second marriage would be bigamy, and their children bastards. That was an anomaly most inconvenient, most mischievous, and most disreputable to the law of the United Kingdom. The clause to which he referred, provided that when a sentence of divorce was duly pronounced, proper caution being taken to guard against collusion or fraud, it should be operative all over the world. To introduce that enactment, there was a previous clause which protected the Scotch Courts against collusion and fraud. At present the Scotch Courts took cognizance of cases of divorce, if the parties had been resident in Scotland forty days. This induced people to go to Scotland from other countries, and he was sorry to say from England, collusively to obtain a divorce to which they were not entitled in England. Again, the Scotch Courts claimed a right of jurisdiction which was called ratione originis. If a Scotchman born went into another country and abandoned his native land, and acquired a domicile elsewhere, the Scotch Courts said they had a jurisdiction with respect to him to enforce the law of divorce, although he remained domiciled in a foreign country, ratione originis. That seemed to him to be very unreasonable, and contrary to all principle; because the law of divorce ought to be administered in the tribunals of the country where the parties were domiciled, and where they were known. But the existing state of things necessarily led to uncertainty, and even to fraud. If a Scotchman had left his own country and acquired a domicile elsewhere, he had only to return to Scotland to recover his domicile there, 1722 and then he was entitled to a divorce, as though he had never crossed the Tweed. Again, it was said that, ratione delicti, the Scotch Courts ought to have jurisdiction in cases of divorce, although the parties were not domiciled in Scotland. If adultery were to be prosecuted as a crime, it ought to be prosecuted in the country where it was committed; but a suit for divorce was a mere civil proceeding, and the remedy should be given only to those who were domiciled in the country. He might add, that the two clauses in question were approved by all the law Lords; and that Lord Brougham had authorized him to state that he still retained the opinions which he had expressed to their Lordships. These clauses had, nevertheless, been rejected by the Commons—he believed without any discussion—but he was not without hope that if their Lordships sent the Bill back to the Commons, with their reasons for dissenting to the rejection of the clauses, the Commons might, on further consideration, consent to restore them.

Then, on the Motion of the noble and learned Lord, some of the Commons' Amendments agreed to, and some disagreed to: and a Committee appointed to prepare Reasons to be offered to the Commons for the Lords disagreeing to certain of the said Amendments: the Committee to meet immediately: Report from the Committee of Reasons read, and agreed to: and a message sent to the Commons to return the said Bill, with the Amendments and Reasons.