HL Deb 28 July 1949 vol 164 cc666-79

4.53 p.m.

Order of the Day for the Second Reading read.


My Lords, this Bill, the Second Reading of which I have the honour to move, has not as its purpose the making of any sweeping changes in the law, such as to extend the grounds for divorce. Its purpose is the much less ambitious one of clearing up some procedural anomalies which are, as I hope I shall be able to convince the House, matters that merit the attention and indeed the support of your Lordships. Before dealing with the clauses, which I am afraid must he dealt with individually because each is concerned with a different topic, I will content myself by saying that the principle underlying and running through this measure is to right some of the anomalies that have arisen in the administration of the branches of the law with which the Bill deals.

I come, quite shortly, to the clauses. Clause 1 seeks to confer on the High Court in England jurisdiction in proceedings by a wife for divorce, notwithstanding that the husband is not domiciled here, provided that: (a) the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings; and (b) the husband is not domiciled in any other part of the United Kingdom or the Channel Islands or the Isle of Man. The period of three years is laid down to prevent a party who has not a real domicile here trying to take advantage of this clause. It is to ensure that people cannot go, as it were, from State to State, as is sometimes done in the United States, in order to obtain a more favourable decision in one place than perhaps they might in another. Paragraph (b), which I have read to your Lordships, is inserted in order to prevent the overlapping of jurisdiction between different courts in the United Kingdom. This clause carries out the recommendation made in that most valuable Report of Mr. Justice Denning and his colleagues, and is referred to at Paragraph 83 (1) of the final Report. Subsection (2) of Clause 1 of the Bill merely applies the same rule to cases of nullity. Clause 2 makes similar provision in regard to the Court of Session in Scotland.

Clause 3 deals with a different point. At present the law of Scotland recognises for the purpose of divorce proceedings in Scotland any relevant period of detention in England under the English Lunacy and Mental Treatment Acts. England has not yet a similar provision in regard to persons detained in mental homes in Scotland. Paragraph (a) serves to put that position right, and paragraph (b) makes similar provision in respect of persons detained in Northern Ireland, the Isle of Man and the Channel Islands. The principle underlying the clause is to ensure that the rights of the parties under our matrimonial law are the same wherever may be the location within the United Kingdom of the mental hospital in which the respondent has been detained.

Clause 4 again seeks to carry out one of the recommendations of the Denning Committee. I would refer your Lordships to paragraph 46 of that Report, the end of which reads as follows: We recommend, however, the more positive step of legislation, on the one hand to enable the magistrates to order higher payments to meet the increased cost of living and, on the other hand, to enable the High Court to order payments up to any amount against a husband who has been guilty of wilful neglect to provide reasonable maintenance for his wife or her infant children, without the necessity of proceedings for restitution. At present the High Court has no jurisdiction to order payment of alimony or maintenance unless proceedings have been instituted for divorce, for nullity, for judicial separation, or for restitution of conjugal rights. Magistrates, of course, can make such an order, and under the Married Women (Maintenance) Bill recently before your Lordships' House, the amount has been raised to £5 a week maintenance for the wife and 30s. for each child. So that Bill has dealt with the first part of the recommendation of the Denning Committee which I have just read to your Lordships, and the provision which is contained in this clause deals with the other part.

If I may, I will now pass to Clause 5. At present, any order made for monthly or weekly payments by a husband to a divorced wife can be discharged, varied or suspended by subsequent order of the court. That is done by virtue of the Administration of Justice (Miscellaneous Provisions) Act, 1938. But so far there is no power to vary an order made for secured maintenance, however much the circumstances may have altered. That matter too, was dealt with in the Denning Report in paragraph 50 (3) which says that: At present there is no power to vary deeds of settlement, which have already been varied by order, that is to say there is no power to vary an order of this character, however much the circumstances may change. Power to make such variations as are required from time to time should be conferred. This clause seeks to put that matter right.

I now come to Clause 6, which seeks to abolish the rule in the case of Russell v. Russell. That matter has also been commented upon by the Denning Committee. Their comments are to be found in paragraphs 65 to 69 of their Report. Perhaps your Lordships will allow me to refer to paragraph 65 which states that: In 1924 the House of Lords in the case of Russell v. Russell…decided that neither spouse may give evidence tending to show that he or she did not have marital intercourse if such evidence would tend to bastardise a child prima facie born in wedlock. The decision was a surprising one. There had been a long standing practice in the Divorce Court to admit a spouse to give evidence of non-access. The trial judge and the Court of Appeal had held that the practice was right and the evidence was admissible: but the House of Lords by the narrow majority of three to two held that it was inadmissible. Now, if I may, I will pass to Paragraph 69 of the Report which states: The rule has been repeatedly criticised. In South Africa it has been expressly repealed by S. 101 (3) of Act No. 46 of 1935. We have had much evidence in favour of its abolition and none for retaining it. We recommend that it should be altered, so far as matrimonial causes are concerned, so as to enable a party to give evidence tending to show that he or she did not have marital intercourse, notwithstanding that such evidence would tend to bastardise a child prima facie born in wedlock. This rule had extremely stupid results during the course of the war in cases such as that of a soldier or a sailor whose wife went off with some other man while the husband was overseas and had a child of which the husband could not possibly be the father. The Service man in that case was not allowed to give evidence to show that he had been parted from his wife for two or three years, that he had been for that time in India, the Middle East or Burma, or wherever it might be. Great difficulty was often occasioned, owing to the necessity of having to get someone from the Record Office or the man's commanding officer, or someone else, to give that simple piece of evidence which because of the rule laid down in Russell v. Russell the husband was not able to give himself. I hope the time has come when we in this House will do as the House of Commons has done and consent to the abrogation of that rule.

Perhaps I may add here that in the course of the Committee stage I intend to mow an Amendment to leave out the words: "for divorce or nullity of marriage," so as to make the abrogation of this rule general to all kinds of matrimonial disputes as it obviously should be. Subsection (2) of this clause rightly makes it the rule that neither spouse's evidence shall be compellable upon a matter of this sort. There was, in this connection, the recent case of Tilley v. Tilley which was decided only last year, in which the court said that the wife could be compelled to answer a question on this very matter although she did not wish to do so. I think your Lordships will feel that it is right that just as in criminal proceedings neither husband nor wife is a compellable witness against the other, the same rule should apply to cases falling within the ambit of Clause 6.

Clause 7 arises from an odd anomaly which has only just been discovered—at least I think that is so, though I may be wrong about it. There was one case which was brought prominently to the notice of a number of people in this connection. The position was that anyone—it did not matter whether he was a father or not; he need not even be a relation of the child concerned—could settle a sum of money on any British infant resident in the United Kingdom and so make that infant a ward of court, without the consent or the parents and without the consent of the court. I think that in the case to which I have referred it was not a stranger who settled the money but a father. He induced his wife, from whom he had been divorced, and their daughter to come back to this country from the place where they had been living overseas, ostensibly to pay a short visit here. While both of them were in this country he settled a sum of money on the daughter, and made her a ward of court. The result was that until that had been put right, the wife could not take the daughter back again to the Dominion, or wherever it was that she had been living with the girl.

The idea of this clause, except for a provision for a very temporary order, made only in cases of necessity, to make a child a ward of court, is that children cannot be permanency made wards of court without the consent of the appropriate Judge in the Chancery Division. So I hope that this very proper alteration of the law will be consented to by this House.

Finally, let me say this regarding the Bill. Although its title is an extremely wide one, the measure has only reached where it has because in another place it was recognised by all Parties—and by the Government, I am glad to say—as a Bill that made some very useful and urgent alterations in the law of this country. Of course, it would never have come to this House if it had been turned into a Bill substantially to alter the grounds for divorce. I should welcome any Amendments which are in line with the present basic principles of the Bill. I hope the House will not insist on any wider Amendments than those which will fall into that category, otherwise this useful measure, which so far has the support of all Parties in another place and will, I hope, have the support of all Parties in this House, will cease to be a measure of that character and will never reach the Statute Book. I commend the Bill to your Lordships and hope that it will be given a unanimous Second Reading. As a result we too shall have played our part in righting several matters in our law which the time has come to alter.

Moved, That the Bill be now read 2a. —(Lord Llewellin.)

5.11 p.m.


My Lords, as one who will have some responsibility for the administration of this Bill, I should like to welcome it wholeheartedly. I shall have one thing to say upon a matter of principle in connection with one clause, but taken as a whole I agree wholeheartedly with the spirit and provisions of the Bill. May I say a word in passing about the question of wards of court, and what has been called the rule in Russell v. Russell? In regard to wards of court, as the noble Lord, Lord Llewellin said, it is true that anybody can constitute a ward of court by settling a sum of money on an infant and then applying to administer the trust. The thing has become absolutely farcical and, of course, is liable to abuse in connection with the custody of children. Oddly enough, it used to be thought that the minimum tariff should be £5 for such a settlement, but that has recently been reduced to 2s. 6d.—a curious inversion of the ratio to the value of money. It is quite time that this procedure was abolished and a positive order of the Court substituted.

In regard to the rule in Russell v. Russell, if the noble Lord, Lord Llewellin, will forgive me, may I make a slight correction in what he said? It is often spoken of as if this were a rule which applied purely to divorce. On the contrary, it is a rule of universal application, and has been so for a very long time. Where the bastardisation of a living child is possibly involved neither spouse can give evidence whether there has or has not been sexual intercourse at a particular time. It was in Russell v. Russell that that was applied to divorce, where it had been studiously ignored for years; and even since the decision of Russell v. Russell, I think it may be said, without breach of confidence, that judges from time to time have been astute to seek some modification or possible way out of the difficulty. But we were pulled up short about six years ago by a decision in the Court of Appeal which left no doubt that there was no loophole whatever. The Court of Appeal gave leave to the petitioner as a pauper to appeal to the House of Lords. It has been rumoured that at any rate that might have given the opportunity for your Lordships sitting judicially, not of course to overrule themselves but, as Lord Sumner once said, to "distinguish" themselves; but that opportunity was frustrated by the fact that learned counsel refused to certify that there was even an arguable case.

The words of the clause read "in proceedings in England for divorce or nullity of marriage." The noble Lord, Lord Llewellin, said he intended that the clause should be applicable to any form of matrimonial proceedings. I am hound to say that I hope he will take a rather wider sweep than that. I should have thought that the proper way to deal with it was to make it of universal application. It seems to me to be a dangerous precedent to say that in a particular type of case some rule of law of evidence shall prevail, but that it shall not prevail in other cases. That is a point for Committee, but I hope that amendment will be made. If it is to be limited to matrimonial cases there should be no distinction in the case, for instance, of judicial separation. People often take proceedings for separation in anticipation of taking divorce proceedings after the three years' bar has elapsed, and it would be manifestly absurd if the rules of evidence were different according to whether or not a case was brought in during the first three years after marriage.

That brings me to the one point of substance about which I wish to make a reservation. I am entirely in favour of Clause 5, giving power for the future to reopen secured provision for maintenance, but I ask your Lordships to consider very seriously whether there is any justification for making that clause retrospective. It is not a matter for argument that the clause is retrospective, because it expressly refers to orders made under the Judicature Act. 1925, by which we are now guided, or by any Act of Parliament which was repealed by that Act. In other words, we are avowedly dealing with orders which may have been made as long ago as twenty-five to thirty years. As regards the future, there can be no possible objection, and I would like to make it plain to your Lordships that it is quite a common thing, in making one of these orders for a secured provision of maintenance, for the court itself to insert a limiting condition, either of wide application, that it shall be only until a further order, in which case the whole thing can be reconsidered, or the narrower condition that it shall be only so long as the wife remains unmarried. But if no such condition is put in, the wife gets what is an absolute trust in her favour. A certain sum is ordered by the registrar, or if necessary on appeal from the registrar by the judge, to be put aside in trust for the wife for life.

I should like your Lordships to know that I have given the gravest consideration to this question. Before I addressed your Lordships on this topic I consulted two very experienced registrars of long standing, and also a very experienced counsel. The utmost care is taken to see that in any given case the right order is made. The order can be made in one of two ways, or in both combined. The noble Lord, Lord Llewellin, was perfectly accurate in what he said about that. We can either have a plain order for maintenance on joint lives—which automatically comes to an end with the decease of the husband and may not afford any sort of security to the wife if he happens to die young—or you may have what is called a secured provision—the matter with which we are now dealing —whereby the husband is ordered to provide out of his capital a certain amount of securities which are then put in trust for the wife for life. Or, of course, you can have a combination of the two.

One thing is quite certain. When the question of the amount of maintenance which is to be secured is considered (if any is to be secured), everything is taken into account—the length of the marriage.. the likelihood of the wife re-marrying, and all the rest of it, and in particular the amount of the husband's capital. Another thing that is certain is that inasmuch, and to the extent that, the wife has a secured provision the amount which she will receive for joint lives unsecured is diminished. Of course, there is no sliding scale which can be applied in all cases, but that is the general principle which is applied universally.

For example, take a case where everybody is agreed that the wife shall he entitled, shall I say, to £1,000 a year. If a third of that were settled it is certain that the totality would be reduced to about £800, £850 or £900, as the circum stances of the case warranted. So that one of these wives who has had an order like this for a long time has suffered a general diminution of her total income because of the very fact that part of it has been secured. The argument that is always used about this principle is that the wife may re-marry. Of course she may. But she re-marries only because her previous marriage has been broken up, against her will, by a husband who has ill-treated her. The Net that she might re-marry has already been taken into account. If she does re-marry she has all the commitments of that new marriage, including possibly a new family, all of which have been entered into on the basis that she has this money absolutely secured to her.

I hope that in Committee this clause will be made to act prospectively and not retrospectively. It is all very well to say that all these things can be taken into account by the court, if you leave it to the court. If Parliament passes an Act deliberately saying that these things may be reopened retrospectively, the court is bound to assume that Parliament meant something by that. I can assure your Lordships that the probability is that there will be—I do not say a flood of applications but at any rate a good number of applications—which will be occasioned by nothing else in the world than that the value of money has changed adversely to the husband. But so it has to the wife.

I asked this particular question (and this will be the last word I say on the subject): whether in their experience the registrars could point to there being any real hardship in this matter. From time to time, when there is a re-marriage or when circumstances otherwise change favourably to the wife, registrars get applications, not, of course, to reopen the secured provision but either to reduce or abolish the unsecured provision. I am told that in practice it is not unheard of, but that comparatively speaking it is rare, for it to be necessary to reduce to nothing the unsecured provision. In most cases the circumstances are met by a substantial reduction in the unsecured provision. That, of course, will still be open to any husband who is aggrieved by one of these secured provisions made in the past. The considered opinion of those who advise me in these matters is that there will be immeasurably more hardship to wives by making this clause retroactive than there can possibly be to husbands with regard to these old cases.

5.26 p.m.


My Lords, I want to add only one word of general agreement with the provisions of this Bill. It obviously tidies up a number of not unimportant matters. From the aspect of Second Reading that is all I desire to say—with one reservation. Clearly, from what the noble and learned Lord who has just spoken has told us, the Bill will require careful consideration in Committee. While accepting in every detail that no controversial matters must be introduced which would be likely to jeopardise the passing of this Bill, I would at the same time express the hope that a matter which I raised, at some length I am afraid, before your Lordships not long ago might find itself the subject of an acceptable Amendment on the Committee stage of this Bill. That matter would arouse no controversy. I laid before your Lordships certain cases in regard to the legitimacy of children who were born of a marriage which was subsequently the subject of successful nullity proceedings. So far as my knowledge goes, from inquiries that I have made, I believe that the remedying of what I regard as an unjust position in the cases of these children would not be regarded as controversial. I therefore trust that when the Committee stage is reached an Amendment will be moved from some quarter to put right the existing state of affairs.

5.27 p.m.


My Lords, I think this is an admirable Bill and the Government are to be congratulated on having given facilities for its further progress. Clause 1 of the Bill removes a very real hardship. Take the case of a married woman whose husband is a blackguard, who has committed some matrimonial offence and who acquires some domicile overseas. In ninety-nine cases out of a hundred it is absolutely impossible, for financial and other reasons, for that married woman to pursue her husband to the country in which he has acquired a domicile and there start proceedings against him for dissolution of the marriage. She must either remain in this country and take proceedings for judicial separation, or do nothing at all. The marriage can never be dissolved, because it is well established in law that, subject to the exceptions of the 1944 Act, a woman must always take the same domicile as her husband.

Clause 1 (2) relates to nullity. As your Lordships all know, the test of jurisdiction in nullity is a morass of difficulties and technicalities. One of the difficulties arises over the question of whether the ceremony of marriage was celebrated in England or abroad. Therefore, merely in order to obtain information on the subject, on the Committee stage of the Bill I intend to put down an Amendment to add at the end of Clause 1 (2) the words, irrespective of whether the ceremony of marriage took place in England or abroad. Clause 4 of the Bill places a great power in the hands of married women; but everybody knows that married women are powerful on all occasions, so it will not make much difference if they have another power put into their hands! At all events, it is the logical outcome of the status of marriage At the present moment, if a husband deserts his wife or fails to maintain her, the most the woman can do is to go to the police court and get an order for £2 a week. After to-morrow that will become £5 a week. But, at all events, she has no better redress. Therefore, it is a matter of satisfaction that the High Courts are to be given the jurisdiction which is conferred upon them by Clause 4 of the Bill.

As to Clause 6 of the Bill I only hope that the rule of evidence as to access will be extended to all matrimonial proceedings. It appears to me to be purely a question as to whether a person is to be believed or not, and. I am unable to understand why any question of law should come into that matter at all. Subject to those few observations I think that this is an excellent Bill, and I hope that in due course it will be passed into law.

5.31 p.m.


My Lords, I think this is a good Bill, and its promoters (this is a Private Member's Bill) were very careful in another place not to embark upon controversial matters. I think they were completely right so to do. That being so I shall do all I can to give assistance to this Bill in order to try and pass it into law. There are many points which will obviously have to be considered in Committee and some of them have been mentioned, notably by my noble and learned friend Lord Merriman; obviously the point he has made needs very careful consideration. And there are also the points made by the noble Lords, Lord Meston and Lord Reading.

I have been wondering whether we should find that measures on the lines of those that. Lord Reading mentioned, are not controversial, and if so I shall be pleased to discuss them with Lord Llewellin and Lord Reading. First of all, I think we might deal with the question of the legitimacy of children of marriages which are voided on the ground of wilful refusal or incapacity to consummate the marriage (your Lordships will remember that Lord Reading gave some illustration of that recently). From soundings that I have made I believe that an Amendment on those lines would prove to be completely uncontroversial.

The second question is as to the possibility of obtaining a degree of nullity on the ground of wilful refusal or of incapacity to consummate the marriage where a child has been conceived after the solemnisation of the marriage. Your Lordships will realise how that question may arise nowadays, and I have reasons for supposing that an Amendment on that point will also prove completely uncontroversial. If that is so I shall be happy if the noble Lords who are interested in these matters will keep in touch with me. I think we shall be wise to follow the same rule here as was observed in the House of Commons: not to embark on any controversial legislation; but, having taken soundings, as I have said, I think neither of these matters will prove controversial and it will be worth while to discuss them to see whether we can include them in the Bill. This is a useful little Bill. The Title I do not like very much, and we must try to think something better. I think this is a Bill which certainly should receive a Second Reading, and should receive careful consideration in Committee.

5.36 p.m.


My Lords, I am grateful to noble Lords in all parts of the House for the reception they have given to this Bill, and particularly to the, noble and learned Viscount on the Woolsack for the welcome he has given it. I was surprised at only one remark that he made: that he did not like the Title very much. I recollect that I once had to draft a document whilst I was a member of the Government. It was brought to me by one of the civil servants working with me, and by the time the document had gore through a great deal of examination the Permanent Secretary of the Department turned up and said: "The one thing I do not like about this document is its title." The other civil servant replied. "That is an awful pity because t -tat is the only bit of the original draft that Colonel Llewellin has left in." And so that had to come out too. However, if, of course, we do not like the Title, I understand that in your Lordships' House we can alter that as well.

All I would say at this stage is that, given your Lordships' support, it is certainly not my intention to cause this worth-while little measure to he wrecked by allowing anything really controversial to he included. I myself very much welcome the suggested two clauses which have been proposed ay the noble and learned Viscount on the Woolsack and do not think they would be controversial. I would further say, in regard to Clause 6, only that that I think it should be made general; I believe it was only because of some technical procedural matter in another place that it was not made general there. In regard to other matters, I hope that we shall have consultations about this Bill, and that in the end we shall be able to pass it through as a completely agreed measure, containing everything worth while and nothing controversial.

On Question, Bill read 2a, and committed to a Committee of the Whole House.