MATRIMONIAL CAUSES (DOMINION TROOPS) BILL. [H.L.] (Hansard, 10 April 1919)

§ THE LORD CHANCELLOR (LORD BIRKENHEAD)
My Lords, this is a war measure which requires, I think, no detailed explanation, but in respect of which it is convenient and proper that your Lordships should be generally apprised of its object and scope. Your Lordships may be aware that large numbers of marriages have taken place between members of His Majesty's Forces domiciled outside the United Kingdom and English women. In these circumstances, in case divorce proceedings become necessary, the law is that the proceedings must be taken in the country of the domicile, and, according to our law, the domicile is the domicile of the husband—in the particular case now under consideration it is the domicile of the soldier belonging to the Oversea Dominion.
Very strong representations were made to the authorities on behalf of the Australian Government and the New Zealand Government, which takes the same view, that a great miscarriage and even denial of justice is likely to follow in the wholly abnormal condition prevailing to-day in the application of the strict rule, and it is proposed in the present Bill to enable the appropriate Courts in the United Kingdom to entertain matrimonial proceedings in cases of marriages contracted during the war by members of His Majesty's Forces with women of this country, even although the husbands in those cases were domiciled outside the United Kingdom.
I need hardly point out that in nearly all these cases, though not in every case, the obligation that the matter shall be decided by the Court of the husband's domicile is one which, having regard to the means of the parties, would make it quite impossible that the matter should ever be investigated in Court at all. The witnesses are very often in this country and they could not be made available (without an expenditure which the parties would be wholly unable to provide) in the country of the husband's domicile. I may perhaps add that this Bill, if it becomes law, will 256 not become operative in the self-governing Dominions until it has been adopted by the Legislatures of the Dominions, nor in a Crown Colony until it has been made effective by the appropriate Constitutional method. My noble and learned friend Lord Phillimore, who has great knowledge of these matters, has been good enough to draw my attention to one or two points in respect of which, as a matter of first impression, I think he is probably right. and one or two Amendments may be required in Committee. I hope, between this stage and the Committee stage, to have the opportunity of discussing his suggestions with my noble and learned friend, and, if necessary, your Lordships will be troubled with them at that stage. I do not think it is necessary to say more. I beg to move.

EARL RUSSELL
My Lords, there is a small point on this Bill which may possibly be covered by the points which the noble and learned Lord mentioned as having been raised by Lord Phillimore. I do not know what the points are. It did occur to me, on looking at the Bill, whether it has been considered sufficiently—no doubt the Law Officers have considered it—as to whether it effects satisfactorily that which it is desired to effect. The object, I think, is quite clear. It is to give a convenient tribunal, and that is obtained in the Bill by making it the tribunal of that part of the United Kingdom where the marriage takes place. I take it that that is not exclusive necessarily of the tribunal of the matrimonial home, apart from the question of legal domicile—the tribunal where the matrimonial home is situated—and the reason I take that is that the last clause of the Bill states that— Nothing in this Act shall prejudice or affect the jurisdiction of any Court with respect to matrimonial proceedings, other than that conferred by this Act. I am not quite sure whether that clause refers to other matrimonial proceedings or to other Courts, but it seems to me that the effect may not be what is desired.
Let me give the noble and learned Lord an example to make clear what I mean. Suppose a New Zealander was married in Ireland while quartered there, and suppose he was removed to England, that his wife has a home in England and that is where 257 he remains for some time, will the proceedings be able to be taken either in Ireland or in England? If so, I think that would be the object desired, but if not I think the Bill would rather inflict a hardship than remedy one. It might not be more convenient to go [...]ither to Ireland or Scotland because that was where the marriage took place and where the matrimonial home is. I think I am right in saying that the law has now been settled so far as this country is concerned—I do not profess to know that of Scotland or Ireland—that proceedings can be taken where the matrimonial home is, even if there is not a legal domicile. This Bill, I take it, would not do away with that right, but I think it would be worth while to consider that point before the Committee stage if it, has not been fully considered.

§ LORD PHILLIMORE
My Lords, the object of the Bill is quite sound, but it strikes me as having been not very carefully considered. No doubt, since your Lordships' House and the decision in the case of Casdagli v. Casdagli made it quite clear that the only competent matrimonial Court is the Court of the domicile and since it is recognised that the domicile is that of the man, it would follow—were this Bill or some Bill like it not passed—that if a New Zealander, or Australian, or Canadian had married an English, Irish, or Scottish girl, the proceedings, if they came to a quarrel, would have to be heard by the Australian, New Zealand, or Canadian Court, notwithstanding that both parties were still in England, Scotland, or Ireland.
But the Bill goes a good deal further, I think, than is necessary. Supposing, for instance, that a Canadian or Australian marries an English girl and that they are living happily together, and go back to Canada, where they live for three or four years and then quarrel. Under this Bill, as I read it, it would be open to either of them—probably to the English woman—to come back to this country and institute a suit in this country and bring the Canadian husband back here to meet it. That is not the only part of the mischief. The law preserves the natural tribunal, which is the tribunal of the domicile, and the Canadian husband might counter her action by bringing his suit in the Court in Canada, while she was bringing her suit in the Court in England. As we know, the 258 law about marriage varies very considerably, the law of Canada, for instance, not granting divorce and some of the other countries granting divorce for other causes than those which are effective in England. It is probable that each party would refer the Court of that country which gave him or her the best remedy or the best defence.
There are other illustrations which I could put before your Lordships, and I venture to suggest, for the consideration of those who have the Bill in charge, that the whole object would be met if it was confined to people while they were resident in this kingdom. if the words "or residence" in line 10 on page 1 were struck out, and if after the word "shall" in the same line there were inserted "if the parties are at the time of the institution of the suit resident within the territorial ambit of its jurisdiction," then I think all that is wanted would be accomplished. That is to say—where a Colonial soldier had married an English girl—while they were still here, and had, unfortunately, matrimonial differences, it should be competent to try them in the Court of this country. If they go away to the home of the soldier, then they ought to settle their differences in that country. The Lord Chancellor has been good enough to say that he will take these matters into consideration. As I have said, the Bill seems to be sound in principle but not sufficiently carefully thought out, and no doubt these matters will be remedied in Committee.

§ VISCOUNT HALDANE
My Lords, my noble and learned friend has pointed out certain difficulties in the way of this measure which I fully appreciate. I rise simply to draw attention to the practical effect of it. I quite recognise the practical consideration which has made this Bill almost a necessity for the time, but what I do not like about it is that it has no time limit. If it had been a Bill for saying that a soldier, for instance an Australian, who had made a war marriage here could find this sort of remedy within a period of, say, twelve months from the passing of the Act, I should not complain. But as the Bill stands the man may live for years, he may have separated from his wife here, and she may begin proceedings here—not in the Court of his domicile—with the result that he may find himself involved in matrimonial litigation in the Courts here which, under ordinary circumstances, would have been quite incompetent. The principle has been 259 accepted throughout the Empire, wherever our divorce laws apply, of the domicile being the criterion, and I think i[...] is a little awkward that for the next half century that principle should be abrogated so far as the cases to which the Bill applies are concerned. It will introduce, I thing, some difficulties in the way of the administration of the law. I quite see the utility of the measure and its fairness, but I should be glad if the Lord Chancellor would consider whether the question of a time limit might not be applied to the operation of the Bill so that we may not abrogate a great principle of law which has now become a second part of our jurisprudence.

§ THE LORD CHANCELLOR
The very helpful and suggestive observations which have been made by your Lordships will certainly receive all the attention which they deserve between the present stage and the Committee stage. The matter is by no means free from difficulty. The question of a time limit was considered, and I am by no means sure that the view for which Lord Haldane has contended to-day is not the better one. It may content your Lordships if I say that between now and the Committee stage I will carefully discuss all the suggestions that have been made, and the difficulties that have been raised.