§ 4.19 p.m.
§ Order of the Day for the Second Reading read.
§ LORD HENDERSONMy Lords, I beg to move that this Bill be now read a second time. It is a short Bill and I believe it will be regarded as non-controversial. Its main purpose is to remove doubts that have been raised as to the validity of some ninety-two marriages which have been solemnized "within the lines" by Naval and Air Force chaplains. These marriages were solemnized under the provisions of Section 22 of the Foreign Marriage Act, 1892. That Section provides:
that all marriages solemnized within the British lines by any chaplain or officer or other 129 person officiating under the orders of the Commanding Officer of a British Army serving abroad, shall be as valid in law as if the same had been solemnized within the United Kingdom with a due observance of all forms required by law.Early legal opinion advised that an Air Force overseas could be deemed to be "a British Army serving abroad" for the purpose of the Statute. Some seventy-five marriages have been solemnized "within the lines" by R.A.F. chaplains. In addition, seventeen marriages have been solemnized during the war by naval chaplains within the lines of Mediterranean stations and elsewhere. So far as is known, the validity of none of these marriages has ever been challenged. A recent legal opinion, however, has now expressed doubt as to whether a Royal Air Force unit serving abroad could be treated for the purpose of, the Statute, as "a British Army serving abroad," and also as to whether the naval chaplains to whom I have referred could be considered as acting under the orders of the Army Commanding Officer. I am sure your Lordships will agree that these doubts should not be allowed to persist in future as a possible source of worry and distress to those concerned, whose marriages have been entered into in the belief that they were valid. Hence the need for the Bill.The Bill does three things. First, it validates all these marriages, with retrospective effect. A saving clause, however, has been included, the effect of which is to avoid creating the offence of bigamy by retrospective legislation. Such a danger might conceivably arise in the unlikely event of a party to one of these marriages having married again during the lifetime of the other party. We have no reason to think that any such second marriage has occurred, but if a second marriage has taken place before the Bill becomes law, Clause 1 (1) will not affect the present legal position of either marriage. In this case we are leaving the law exactly where it stands at present, and are not inclining to either the first marriage or the second.
The second thing the Bill does is to specify the conditions governing future marriages under a new Section 22. In future a marriage will be valid if it is celebrated by a Naval, Army, or Air Force chaplain (or any other person specially authorized for this purpose by the Commanding Office) between the parties, one of whom is a member of His Majesty's Forces serving in foreign territory, or a 130 civilian employed in that territory in a prescribed capacity. The purpose of this latter provision is to include in the scope of the Bill marriages of personnel of the Control Commission in Germany and Austria, and to enable ancillary personnel to be covered if desired. The expression "foreign territory" is defined, and I think noble Lords will agree that it satisfies the intention of the Bill, which is to provide special marriage facilities only in countries outside the United Kingdom where recognized facilities are lacking under the local law. It will be noted in this connexion that a British ship which is for the time being in the waters of any foreign territory will be "foreign territory" for the purposes of the Bill. Section 12 of the Act, providing for marriages on board His Majesty's ships on a foreign station, is deleted. This provision is now unnecessary in view of the new Section 22. I understand that the original facilities have never been used.
The Bill does not apply to Dominion Forces. It does, however, provide for the recognition in the United Kingdom of a marriage entered into under similar legislation of a Dominion. Statutory provision already exists for the registration of Army and Air Force marriages, but there is no provision for the registration of marriages of naval personnel abroad, or marriages under Section 22 of the Act where both parties are civilians. This omission is now repaired. The Bill also gives the same protection to marriages solemnized under the new Section 22 as is given to other marriages tinder the Act in Section 13 (2). Noble Lords will have noted the reference to orders in Council in Clauses 2, 3 and 6. It is provided that such Orders in Council shall only be laid before each House, without the negative Resolution procedure. That is the procedure governing Orders in Council made under the Act, and it would be rather incongruous to have two different procedures under the same Act. Moreover, it is most unlikely that these Orders in Council will be controversial.
Thirdly, the Bill brings the Act up to date by one or two amendments of detail. The Registrar-General or Superintendent Registrar has power to dispense with the need to obtain the consent of parents or guardians for the marriage of minors in England and Wales in cases where the parents or guardians are not available. There is no similar dispersing power in 131 connexion with the marriages abroad of minors. It is now proposed to remedy this deficiency by inserting a proviso at the end of Section 4 (1) of the Act giving the Secretary of State or Registrar-General similar power to dispense with such consent. Section 18 of the Act deals with the registration by Consuls of marriages celebrated in foreign countries in accordance with the law of those countries. Hitherto registration under this section has been permissible only when a Consul has been able to satisfy himself by personal attendance at the ceremony that provisions of the local law have been fulfilled. Clause 6 of the Bill enables provision to be made by Order in Council for the Registrar-General to receive copies of certificates, and to issue certified copies of these certificates, even when the Consul was not present at the ceremony. Such certified copies will have the same evidential value as the original certificates.
I have dealt with the objects of the Bill. As I said at the beginning, I think they are non-controversial. To put aside any uncertainty which may trouble the minds of those men and women involved, who entered into their marriages in all good faith, and to place marriages under the Act on a firm basis for the future, I hope that your Lordships will give the Bill a speedy passage to another place. I beg to move that this Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Henderson.)
§ 4.28 p.m.
§ VISCOUNT SIMONMy Lords, I imagine that everybody will be in sympathy with the purposes of this Bill. As the noble Lord who moved the Second Reading said, it can never be desirable, when two people believe they have been validly married to one another, and enter upon the status of man and wife, that out of a mere technicality which can be cured, as this Bill seeks to cure this technicality, they should be put in doubt as to whether their marriage in fact has satisfied all the legal conditions. As I understand it, there is no doubt that the marriage of a soldier, celebrated behind the lines (which I suppose means behind the front line) not necessarily by the chaplain, but, it may be, by an officer who has been specially authorized to conduct the ceremony and 132 to marry such man with the lady of his choice, would normally be valid. I am not concerned with the apparently conflicting legal opinions which have been offered at different times, because it is desirable not only to validate that which is only accidentally invalidated, but to remove doubts which might greatly distress the married couple.
There is one provision in the Bill, a provision of detail, which, as it stands, I think needs to be very closely examined. I doubt very much whether it is right. It is in subsection (2) of Clause 1 of the Bill. Clause 1 provides that if there is any doubt because the parties have been married by a chaplain of the Air Force or the Navy, that doubt is to be removed, and they are to be regarded as having been validly married from the start. I think that is quite right. Subsection (2) deals with the difficulty which may conceivably arise if one or other of the parties goes through a second ceremony with somebody else, the second ceremony not being invalid in point of form. No doubt that is necessary, because if, in all good faith a man, let us say last year, contracted a perfectly valid marriage with a lady, he could not be regarded as having committed bigamy because ten years before he had gone through a ceremony with somebody else —a ceremony which was in fact invalid. It is very unfortunate, especially for the lady, but there is no doubt that a man does not commit bigamy unless the earlier of the two marriages is a good marriage.
What this Bill provides, however, is something entirely different. It gives an opportunity of a very strange kind; it gives notice, so far as any Statute of this sort gives notice, that if a man at this moment is, as he believes, married to a lady under the authority of the Act of 1892, and nothing further has happened to him, none the less he may now go to his solicitor and say, "If, before the passing of this Bill, I can manage to marry the lady I now like very much"—and the passing of the Bill will not take place, I dare say, for two or three months—" then the Government have been so good as to propose that that will be quite all right. They will not validate the first marriage, because I have been married again, with all due form and ceremony, in a real marriage before the passing of this Bill." I cannot think that that is what the Government mean to do. What 133 they mean to do, I feel sure, is to validate the past ceremony if and in so far as it was invalid for technical reasons.
They mean to say, of course: "We cannot do that if, before we make these proposals, either the man or the woman has married a second time, when their first marriage was invalid." But there is no reason on earth why they should go on to say: "Between to-day, when this Bill is given its Second Reading, or perhaps when it was first introduced, and the day when the Royal Assent is given to it, months hence, there is an opportunity for anybody who is tired of the wife he married perhaps ten or fifteen years ago. He had better go to his lawyer at once and ask whether, since the ceremony was conducted by a Naval chaplain, it really was not an effective marriage at all. If he gets good advice and thinks fit to act upon it (perhaps he does not like his former wife at all; he has quarrelled with her and there is another lady whom he loves very much), he can say, Let us lose no time; let us get ourselves married with due ceremony in church and declared to be man and wife before this Bill passes.'" I cannot believe that the Government desire to do anything of the kind.
That may be a very unlikely case but, having called attention to the possibility of some of these marriages in the past not being valid, surely the right provision is that unless one or other of the parties has validly married already, the previous marriage should be validated as from this moment and not from the passing of the Act. I suggest that that is ordinary common sense. Although the case may be improbable, once you are touching this business of marriage you have to think of even the individual instance. I cannot conceive any reason why a man should not be held by the validating provisions here—which merely remove a technical objection—from this hour. I cannot see why anybody should think fit to give him the opportunity, if he wishes to use it, of availing himself of an interval (which I presume will be an interval of a month of two) to get himself married to somebody else and then to say, "The Act does not in the least affect the invalidity of my previous marriage." It is purely a Committee point. I ask only that it shall be considered, because I find it very difficult to believe that any of us here seriously 134 desire to give that further opportunity in the case I have described.
I ask the second question with more hesitation, because I have not looked into it closely. I undestand from the noble Lord that whereas the previous Section 22 may have been broader in its operation, the revised Section 22 will only operate provided that one at least of the parties to the marriage is "a member of the Forces serving in the territory," and so on. I am asking for information, and not necessarily putting the noble Lord to the trouble of answering now. Is the impression one gets at first sight right—namely, that Section 22 of the Foreign Marriage Act, 1892, provided for a valid marriage between any two parties if it was a marriage solemnized within the British lines by a chaplain or officer? If so, of course, you are cutting that down by saying: "We impose the condition now that one at least of the parties must have been a serving soldier, sailor or airman." I should not think it was a very common thing for people who were not serving to be married in this exceptional way by a chaplain behind the lines, but I do not know whether the Act of 1892 did go to that length. It may be quite right to cut it down. I am merely putting this forward as a matter to be considered hereafter.
The first point I regard as a serious one, because in these matters one cannot get rid of it by saying: "This is very unlikely," or, "This will happen in but very few cases." If it happened in one case, it would be undesirable and I do not see why we should not alter the Bill in Committee to make it operate so as to exclude not second marriages which take place before the passing of the Act, but second marriages which take place from this moment.
§ 4.38 p.m.
§ VISCOUNT MAUGHAM:My Lords, I would suggest that it would be highly desirable that the Order in Council which is referred to in various parts of the Bill should be passed on the day, or on the day after, the Bill comes into force. I will not explain why that seems to be necessary, but I think the noble Lord in charge of the Bill will realize that since there are references to conditions which may be prescribed by the Order in Council, the Order in Council ought to exist.
§ LORD HENDERSONAs to the first point raised by the noble and learned Viscount we could perhaps meet it by inserting the words "before April 24, 1947," but that is a point which can be dealt with in Committee.
§ VISCOUNT SIMONThat is exactly my point.
§ LORD HENDERSONI will see that the matter is considered between now and Committee stage. I think we shall be able to meet the noble and learned Viscount on that point. I am not competent to give a firm opinion on his second point. I will merely say that the first section of the Act of 1892 refers to marriages between parties of whom one at least is a British subject.
§ VISCOUNT SIMONA civilian may be a British subject.
§ LORD HENDERSONThat is a matter which can be looked into before Committee stage. I think the same remarks apply to the point raised by the noble and learned Viscount, Lord Maugham.
On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ 4.40 p.m.