MATRIMONIAL CAUSES (WARMARRIAGES) BILL [H.L.] (Hansard, 5 October 1944)

§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, your Lordships 394 will expect me, in moving the Second Reading of this Bill, briefly to explain the situation which necessitates the Bill and then to refer to the nature of the remedy which the Bill provides. It is, as your Lordships will have noticed, purely a war measure. It is confined to certain marriages celebrated after the war began and before a day to be appointed by Order in Council, and it is limited to proceedings for dissolving those marriages begun within five years of the appointed day. It is therefore a Bill which is strictly limited in the scope of its application, but I would submit to the House that it is really needed, and that the absence of some such measure is causing great hardship.
The particular problem with which the Bill deals has arisen from the presence in this island since the earlier part of the war of great numbers of men who are domiciled overseas—soldiers training here and waiting to go to the Continent and the like; mainly Canadian or American—many of whom have contracted marriages here with English or Scots women who were domiciled here: the husband domiciled abroad, the wife before her marriage domiciled here. If such a marriage has unhappily broken down through the infidelity or desertion of one party or the other, as things stand there is, practically speaking, no remedy by way of divorce which is available to the innocent party. Your Lordships who are acquainted with this rather technical subject will at once see the reason why. The existing rule of our Divorce Court—and the same is true in Scotland in this respect—is an exceedingly strict one. The Divorce Court will only entertain proceedings for divorce from a party who is domiciled here. Of course "domiciled" in that connexion does not mean resident: the test is, where is the person's real permanent home? There is a second proposition well known to lawyers at any rate, which also comes in, which is this, that when a woman marries a man she at once acquires the domicile of her husband and loses the domicile she previously had, if it was different from the domicile of her husband.
Therefore if you take the case of an English girl, who has never been out of England probably, who is domiciled here in the fullest sense, who marries a visitor 395 from overseas, she may marry him here and she may, as far as she has lived with him, have lived with him here, but she has no longer got an English domicile because the matrimonal domicile is that of her husband; and consequently she has no recourse to our English Divorce Court if the marriage goes all wrong and she is entitled to divorce. What she would have to do—in many cases it would be perfectly idle and useless advice—would be to cross the sea, go to the particular country where her husband is domiciled—it may be a State of the American Union which is his domicile—she would have to take the evidence and the witnesses over the Atlantic for the purpose, and then under the system of foreign law she might succeed in getting rid of her worthless husband.
The same thing is true if you take the reverse case; both kinds of case happen, unfortunately. It may be that the Allied soldier who is over here training is the most upright and faithful of men. He marries an English girl who is no better than she should be. The marriage may break down because, while he is entirely faithful to her, she goes off with somebody else. Then in ordinary circumstances the basis of a divorce manifestly exists. But what is the man to do? He may be here, or he may be serving on the Continent, he certainly is under orders, he cannot go where he likes for his private purposes. But if he wants to divorce his wife he must go back to the country which is his domicile, and in the Courts of that country he must take proceedings to get rid of his wife. I do not think it can be doubted that in the particular circumstances—and we have had very large numbers of visiting Allies—that does constitute a very serious grievance, and it is no answer that there is in theory the possibility of going to the country of the man's domicile and there taking proceedings.
A similar situation on a much smaller scale arose in the last war, and some of your Lordships may remember that there was legislation passed towards the end of the last war to deal with it, not precisely in this form but dealing with the same matter. But the situation is much more serious now because of the much greater number of visiting men who are here. I do not know whether your Lordships 396 whom I am addressing have had your attention called to individual cases. It is enough to say that in another place a number of questions have been addressed to the Government by members in reference to individual cases, and the assurance has been given that the Government would see what could be done. I do not think I need say more to explain to your Lordships what is the strength of the argument that here is a grievance which we should try to meet if we can.
Now comes the question, what is the proposed remedy? If your Lordships will look at Clause 1 (2) of the Bill you will see very clearly stated the limitation which we seek to impose: The marriages to which this section applies are marriages celebrated on or after the third day of September, nineteen hundred and thirty-nine, but before the appointed day, where the husband was, at the time of the marriage, domiciled outside the United Kingdom, and the wife was, immediately before the marriage, domiciled in England. I think what I have already said has explained that situation sufficiently clearly. I call attention to the proviso which is then added, which denies the relief which this Bill affords in a case where the parties to the marriage have resided together in the country of the domicile of the husband. If in the instance I gave the British-born girl goes and lives with her husband in his own country, sets up a home there and to that extent associates herself actively with the new country, I do not think the case is nearly so strong, and we do not propose to extend our Bill to that case. I am thinking of the case where the girl is here, remains here, has never been away from here, has got the evidence here, perhaps has a child here, and in such a case I strongly think something of this sort is needed.
In those cases, and in those cases only, we provide that the High Court in England (under Clause 2 the Court of Session in Scotland) may entertain proceedings for divorce by either party—it is a reciprocal business—notwithstanding that the matrimonial domicile is not in this country. It is inevitable of course if this legislation is passed that we should also include the provision in Clause 1 (1) (b), the provision that for this purpose the limitation inserted in the Herbert Act of 1937, that there should be no proceedings taken for divorce for three years after the marriage, should not apply.The case 397 we are dealing with is that where the breakdown of the marriage has taken place early and the remedy 'should be available with promptitude.
I need not spend time in expounding the Scottish clause, which is practically the same as the English clause. Northern Ireland may wish to legislate on this matter for itself, and we make provision that it may do so and go on to say what will happen if it does. I ought, perhaps, just to refer your Lordships to Clause 4, which as no doubt the most technical and difficult clause in the Bill. I shall not, unless expressly asked, seek to expound at now, although I think I could. The point of it really is this. We want, as far as ever we can, to create a situation in which the divorces that are granted under this Bill will be recognized as valid and effective divorces ending the marriage elsewhere. As your Lordships know, our strict rule which gives jurisdiction to the Divorce Court only because the matrimonial domicile is here, is not the rule that obtains all over the world. It is not for example, the rule that obtains in some of the States in America where residence—sometimes very brief residence—is treated as giving jurisdiction. But it is important as far as ever we can to secure that the divorces which this Bill will authorize should be recognized as valid divorces everywhere.
One of the ways of securing that would be to provide for the possibility of reciprocity. We do not, of course, seek to legislate for our Dominions. They legislate for themselves; but if a Dominion were to pass a Bill corresponding practically to this Bill, we should then be able, under the terms of Clause 4, by arrangement with the Dominion, to agree that we should recognize the divorces which they pronounce and that they should recognize the divorces which we pronounce. That serious difficulty always arises in connexion with an amendment of the Divorce Law of this kind, and it is one of the reasons why, for my part, I am only commending this Bill to the House as a war measure. Whether there should be any more permanent change in the Divorce Law is a much bigger question and very difficult on its technical side, but I submit to the House that I have proved the presence of a situation that ought not to be left without adequate remedy, and that the remedy which this Bill would provide is 398 clear and deserves to receive the support of your Lordships' House. I beg to move that the Bill be read a second time.

§ VISCOUNT MAUGHAM
My Lords, as this is a very technical matter perhaps I should say that having carefully read the Bill I am satisfied it will tend to remove an injustice in quite a number of cases to unfortunate English girls who have a good cause for divorce but who are unable to institute proceedings in this country owing to the fact that the husbands who married them were not domiciled in England. The same applies to Scotland. I do not think your Lordships should have any hesitation in giving this Bill a Second Reading. I am not satisfied that the proviso in Clause 1 is quite satisfactory and perhaps that matter might be discussed in Committee. It is also possible that the noble and learned Viscount on the Woolsack would like to consider whether the difficulty of proving at the date of a particular petition that the husband is domiciled outside the United Kingdom, might usefully be met by some provision as to what it would be necessary to prove in order prima facie to establish that claim. I shall not add any more than that I warmly support the Second Reading.

THE LORD BISHOP OF WAKEFIELD
My Lords, I should like to say a word or two about this Bill simply on my own authority, not speaking for the Bench of Bishops as a whole. First of all, naturally, with the considerable increase of divorces in our own country and the weakening of the marriage tie, one looks anxiously at any suggestions which might seem to facilitate further divorce, but as I read the Bill and listened to the noble and learned Viscount on the Woolsack, two things are clear. First of all, I have no doubt whatever that there are a large number of these hard cases. Unfortunately, with the war, it is not simply a question of the breakdown of marriage between British girls and some of our troops from the Dominions or the United States. There are very many other cases. This Bill deals with a particular difficulty, and I am convinced that there is a sufficient number of these cases to make it desirable that a Bill on these lines should be brought 399 forward. Secondly, however much we may regret divorce, nevertheless it seems to me to be quite indefensible to suggest that the barriers to divorce, mentioned by the noble and learned Viscount, should continue in these cases. We are not going to safeguard marriage by making it extraordinarily difficult for people, by compelling them to travel over to the United States or Canada to obtain divorce. Meanwhile, the individual is suffering through the unfortunate breakdown of the marriage, and perhaps the innocent party has been very grievously wronged. Therefore, so far as I can see, on grounds of necessity and also on grounds of true morality, your Lordships ought to be ready to give your consent to this Bill.

§ THE EARL OF LISTOWEL
My Lords, after the extremely interesting speeches to which we have listened, it is evident that this short measure will find support in all quarters of the House. We are all aware that since the beginning of the war there have been thousands of marriages between English girls and members of the Dominions and Allied Forces passing through or residing in this country. Most of these marriages have no doubt been successful, but in such a large number there are bound to be a few that have failed. Surely nothing could be more undesirable than that in such cases the unfortunate women who have suffered should be debarred from obtaining relief by the accident of their husbands' domicile which prevents access to the British Courts. This Bill, as the noble Viscount has explained, overcomes this obstacle to relief in these deserving cases. It will give those concerned in days to come a chance of re-marriage and starting a family, if they so desire, later in life. I am sure your Lordships will approve such a humane piece of legislation.

§ LORD JESSEL
May I ask the Lord Chancellor whether this Bill is on the same lines as legislation in the last war?

§ THE LORD CHANCELLOR
It is not quite on the same lines.

§ VISCOUNT SAMUEL
My Lords, like other members who have spoken, I am of opinion that the Lord Chancellor has made out fully the case for the Second Reading of this Bill. At the same time 400 I feel, with the right reverend Prelate, that the House should rightly be careful of any new measures for the relaxation of the marriage laws. When, in 1937, the Bill to which the noble and learned Viscount has referred was before this House it gave rise to much controversy and many exceedingly animated debates. That was because many members of your Lordships' House felt that the tendency in the present day to careless and lighthearted marriages resulting in the breakdown of the family and the denial to the children of the marriage of a proper home, is a tendency greatly to be deprecated in the interests of a right social life for the nation.
Therefore, although in the case of that Bill good reasons were given for the changes, as has been the case to-day, I do not think that your Lordships welcome this Bill for the tendency that it indicates, except for the reason that it is a special case. Undoubtedly it has nothing to do with general principles of family life whether a husband and a wife are living in the same locality or whether, owing to causes that are inevitable and beyond the control of the parties, one is at one side of the Atlantic and the other at the other side. It is not a question of morals, it is a question of geography, and if a divorce is right and proper when the parties are close neighbours it does not become wrong merely because one of them is living at a great distance. Since the point is purely one of legal procedure in determining how far domicile should be a controlling factor, that is a sufficient justification for the enactment of this Bill.
There is only one point I should like to clear up. The Lord Chancellor has made it plain that this is a war-time measure and it is provided for in the Bill that its operation shall apply only to marriages that have been made before an appointed day. But when one turns to the definition of "the appointed day" in Clause 5 one finds that it means "such day as His Majesty may by Order in Council appoint." I should like to ask what is the intention of the Government with regard to that, for if no Order in Council is made then this Act would apparently apply to all marriages irrespective of date—that is, if my understanding of the actual wording of the Bill is correct. Perhaps it is wrong, 401 but in any case I should like in conclusion to put the point to the Lord Chancellor and ask in what way it is intended to provide that this measure shall truly be of a temporary character.

§ THE LORD CHANCELLOR
My Lords, answering the question just put by my noble friend Lord Samuel, he is well aware of this phrase "the appointed day"—" such day as shall be appointed by Order in Council." It constantly occurs in Acts of Parliament. It must be used here because nobody knows when the war will end. The intention is—and I can make the statement as an assurance to the House—that the Order in Council which will fix the appointed day will be made at the end of the war. That will secure that the Bill, as its title indicates, really is a war measure. That is all I intend and I am prepared to assure the House that that is all the Government intend.
In answer to Lord Jessel I would say that the Bill is not on the same lines as the Bill of 1919. He will find the Bill of 1919 on the Statute Book. That Bill was based on securing reciprocity of agreement between countries. I am sure it is hardly possible to do that in advance and that we must take the lead in this matter. As long as we act perfectly fairly and reasonably I am sure the result will be that that will be recognized and in many cases corresponding arrangements will be made elsewhere. I may say that after consulting the Dominions we learn that no Dominion raises any objection. 402 New Zealand has sent an assurance of its positive approval and I think in the case of South Africa they would like us to go even further.
I think we are on safe ground and can proceed with some confidence on the lines of this Bill. I would like to thank the House and noble Lords who have spoken for the welcome they have been good enough to give to the measure. That is of good augury. I shall take the opportunity, if I may, of consulting my noble friend Lord Maugham on the two points that he mentioned and we shall together discover whether there are some adjustments that should be made.