§ 2.10 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The LORD STANMORE in the Chair]
§ Clause 1:
§ Extension of jurisdiction of High Court to certain marriages irrespective of domicile or residence.
§ 1.—(1) In the case of marriages to which this section applies:
- (a) the High Court in England shall, any question of domicile or residence notwithstanding, have the same jurisdiction in and in relation to proceedings for divorce or for nullity of marriage as that court would have if both parties were at all material times domiciled and resident in England;
- (b) Section one of the Matrimonial Causes Act, 1937 (which restricts the presentation of petitions for divorce during the first three years after marriage), shall not apply:
§ Provided that this subsection shall not apply in relation to any proceedings for divorce or for nullity of marriage unless those proceedings were commenced not later than five years after the appointed day.
§
THE LORD CHANCELLOR (VISCOUNT SIMON) moved, in paragraph (a) of subsection (1), to leave out "any question of domicile or residence notwithstanding." The noble and learned Viscount said: I am glad to say that I shall need to detain the Committee only for a few minutes in dealing with the Amendments on the Paper. The first Amendment is to Clause to leave out "any question of domicile or residence notwithstanding." Those words are not necessary. It is desirable to shorten the clause and make
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it more simple. I may explain that if the four Amendments on this page are made, paragraph (a) of subsection (1) will read:
(a) the High Court in England shall have jurisdiction in and in relation to proceedings for divorce or for nullity of marriage as if both parties were at all material times domiciled in England.
§ Perhaps I should explain why the reference to residence is omitted. It was inserted, no doubt, because there may be some doubt as to the proper definition of Divorce Court jurisdiction when the proceedings are for nullity of marriage. Some would say that residence here is enough, without domicile. No instructed person will dispute, I think, that if there is domicile that is enough; there is therefore no need to put in any reference to residence, which only complicates the language of the clause.
§ The other change is merely a change in the form of the words, and not a change which alters the substance of the matter. It is this. It is perhaps desirable not to speak of this new jurisdiction being exercised in a court which has "the same jurisdiction" as in the ordinary case. We have to face the fact that the exercise of the jurisdiction under this Bill may not be recognized all over the world as dissolving the marriage. It would certainly dissolve the marriage in this country and I hope would be recognized elsewhere. But of course the present jurisdiction of the Divorce Court, proceeding on the matrimonial domicile being here, is a jurisdiction which effectively dissolves a marriage and is recognized as doing so all over the world. I think therefore it is more appropriate to omit that word. It does not in the least change the general sense of the clause. Unless any of your Lordships wish a fuller explanation I really do not think I need add anything further. I move the first Amendment.
§
Amendment moved—
Page 1, line 6, leave out ("any question of domicile or residence notwithstanding").(The Lord Chancellor.)
§ VISCOUNT MAUGHAMI have carefully considered this and I know how carefully the Lord Chancellor has considered it. I am quite satisfied that the Amendments which he proposes are right and proper to be made and will improve the drafting of the Bill.
§ On Question, Amendment agreed to.
501§ THE LORD CHANCELLORThere are several consequential Amendments. I beg to move.
§ Amendments moved—
§ Page 1, line 7, leave out ("the same")
§ Page 1, line 9, leave out ("that court would have")
§ Page 1, line 10, leave out ("and resident").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§
THE LORD CHANCELLOR moved to add to the Clause:
(3) This section shall not extend or alter the jurisdiction of the High Court in, or in relation to, any proceedings for divorce or for nullity of marriage where, at the commencement of those proceedings, the parties are domiciled anywhere in the United Kingdom.
§ The noble and learned Viscount said: This is of slightly more interest. If your Lordships look at subsection (2) you will see that the marriages to which this Bill applies are marriages celebrated after the outbreak of war where the husband was, "at the time of the marriage," domiciled outside the United Kingdom. That is the way it ought to go but there is this to be remembered. The test of domicile is a test which is applied in the Divorce Court at the time when the proceedings are taken. You may have a husband who, at the time he was married, was domiciled in country A but who has changed his domicile to the United Kingdom before proceedings were taken against hint, and the crucial question would be, not where his domicile was at the time of his marriage but where the domicile was at the time he was proceeded against. If, indeed, let us say, an American husband who at the time of the marriage was domiciled in America became domiciled in this country before proceedings were taken against him, you would not need this Bill because you would be able to proceed against him under the ordinary law of divorce.
§
It is therefore right to put in, as I propose to do, this subsection (3) and say:
This section shall not extend or alter the jurisdiction of the High Court in, or in relation to, any proceedings for divorce or for nullity of marriage where, at the commencement of those proceedings, the parties are domiciled anywhere in the United Kingdom.
To repeat in the simplest possible terms, the Bill applies to marriages which, at the time the marriage takes place, are between a husband domiciled abroad and a wife who is domiciled hare; but if,
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before the proceedings are taken, the husband has become domiciled here you do not need this Bill. He can be proceeded against under the ordinary law.
§
Amendment moved—
Page 2, line 9, at end insert the said new subsection.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Extension of jurisdiction of Court of Session to certain marriages irrespective of domicile or residence]:
§ THE LORD CHANCELLORThis is the clause which applies the provisions of the Bill to Scotland and the changes which the Committee has made, at my suggestion, in Clause 1, must of course also be made in Clause 2. I should just add that by a mere mistake of printing the first of the changes which were made in Clause 1 is not reproduced on the Paper but I should wish to move, after leaving out the words first mentioned, to leave out "the same" in line 12.
§ Amendments moved—
§ Page 2, line 11, leave out ("any question of domicile or residence notwithstanding")
§ Page 2, line 12, leave out ("the same")
§ Page 2, line 13, leave out ("that court would have")
§ Page 2, line 15, leave out ("and resident")
§
Page 2, line 31, at end insert:
("(3) This section shall not extend or alter the jurisdiction of the Court of Session in, or in relation to, any proceedings for divorce or for nullity of marriage where, at the commencement of those proceedings, the parties are domiciled anywhere in the United Kingdom.")—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.
§ Clause 4:
§ Certain decrees and orders to be recognized ix all British Courts.
§ 4.—(1) The validity of any decree or order made either—
- (a) by virtue of this Act; or
- (b) by virtue of any such law made by the Parliament of Northern Ireland as is mentioned in the last preceding section; or
- (c) by virtue of any law passed or made by any Legislature or other authority having power to make laws with respect to matrimonial causes for any part of His Majesty's dominions outside the United Kingdom, or for any British Protected State, which is declared by Order in Council to be a law
503 substantially corresponding to the provision made as respects Great Britain by the preceding provisions of this Act,
§ Provided that an Order in Council shall not be made with respect to any law of any Dominion within the meaning of the Statute of Westminster, 1931, or of any Province or State forming part of such a Dominion, or of any British Protected State, unless His Majesty is satisfied that adequate provision is made by the law of that Dominion, Province or State forming part of a Dominion, or British Protected State, for the recognition by the courts thereof of the decrees and orders which are by virtue of this subsection to be recognized in British courts other than Dominion courts.
§ THE LORD CHANCELLOR moved, in the proviso in subsection (i), after "Provided that," to insert:
- "(i) as respects the courts of any such part of His Majesty's dominions outside the United Kingdom (not being Dominion courts) as may be specified by Order in Council, this subsection shall have effect subject to such modifications as may be so specified or, if the Order in Council so provides, shall not have effect;
- (ii)".
§ The noble and learned Viscount said: This is the only other Amendment with which I need trouble the Committee. Clause 4 is the clause which provides that the validity of a decree or order made under this Bill in an English Court shall, by virtue of this Act, be recognized in all British courts. Of course we exclude His Majesty's Dominion courts, for the Dominions legislate as they please, but we do make this provision in reference to the Colonies and Protectorates. But it has been pointed out to me that it is possible that there may be a case where a Colony for good reasons, perhaps because it has no Divorce Law, may not feel that it is right to impose this new provision upon it, and I therefore propose this Amendment, which will make it possible by Order in Council to make such modifications as are needed in respect of any particular Colony. I hope that the general effect of the Bill will be that the Colonies generally will regard divorces pronounced here as good, but if there be a case where there ought to be an exception, this Amendment will make it possible.
§
Amendment moved—
Page 3, line 17, after ("that") insert the said paragraph (i).—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
504§ THE LORD CHANCELLORThe next two Amendments are consequential.
§ Amendments moved—
§ Page 3, line 17, after ("made") insert ("under paragraph (c) of this subsection")
§ Page 3, line 25, after ("recognized") insert ("to the extent provided for by this subsection").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 4, as amended, agreed to.
§ Remaining clauses agreed to.