HL Deb 23 November 1949 vol 165 cc949-56

4.7 p.m.

Amendments reported (according to Order).

Clause 1:

Extension of jurisdiction of High Court in certain matrimonial proceedings.

(2) Without prejudice to any jurisdiction exercisable by the court apart from this section in proceedings for nullity of marriage, the foregoing provisions of this section shall apply to proceedings for nullity of marriage or for a decree of presumption of death and dissolution of marriage as they apply to proceedings for divorce.

LORD LLEWELLIN

had given notice of three Amendments in subsection (2), of which the first was to omit "in proceedings for nullity of marriage." The noble Lord said: My Lords, these three Amendments, which perhaps your Lord- ships will allow me to deal with together, all touch on the same point. As the Bill stands at present, Clause 1, which gives the High Court jurisdiction in divorce proceedings by a wife who has been resident in England for three years, notwithstanding that her husband may be domiciled abroad, applies also to proceedings under Section 8 of the Matrimonial Causes Act, 1937, for a decree of presumption of death and dissolution of the marriage. Until a recent decision of the court, it had been assumed that jurisdiction in such cases would be dependent upon the petitioner being domiciled here at the time of the commencement of the proceedings. In the recently reported case of Wall v. Wall, it was held that the court's jurisdiction in proceedings for a decree of presumption of death was dependent only on the residence of the petitioner. This decision has caused some difficulty in regard to Scotland, because the Court of Session has held that in proceedings in Scotland, under the corresponding provision of the Scottish Act, it is essential that the petitioner should be domiciled in Scotland. It is clearly desirable, in order to avoid the risk of decrees pronounced by the courts of this country not being recognised in Scotland, that the basis of jurisdiction in the two countries should be the same. That is the intention of the Amendment which I now beg to move.

Amendment moved— Page 1, line 15, leave out from ("section") to ("the") in line 16.—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN

My Lords, I beg to move the next Amendment.

Amendment moved— Page 1, line 17, leave out from ("marriage") to ("as") in line 18.—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN

My Lords, I beg to move this Amendment.

Amendment moved—

Page 1, line 19, at end insert— ("() In proceedings under subsection (1) of section eight of the Matrimonial Causes Act, 1937 (which enables the court to make a decree of presumption of death and dissolution of marriage) the court shall have jurisdiction in the following cases only, that is to say—

  1. (a) in any proceedings, if the petitioner is domiciled in England;
  2. (b) in proceedings by the wife, if she is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings;
and in determining for the purposes of this subsection whether a woman is domiciled in England, her husband shall be treated as having died immediately after the last occasion on which she knew or had reason to believe him to be living.")—(Lord Llewellin)

THE LORD CHANCELLOR

My Lords, I should like to say, with regard to these three Amendments, that the noble Lord, Lord Llewellin has stated the law with perfect accuracy. I would add that the President of the Divorce Division, who is unable to be here to-day, has given a great deal of time to the consideration of these matters, and he is in agreement with all the Amendments which are down in the name of the noble Lord. I also agree, and I think that between us we have succeeded in putting forward a very useful little Bill.

On Question, Amendment agreed to.

LORD LLEWELLIN moved to add to the clause: () In any proceedings in which the court has jurisdiction by virtue of this section, of section thirteen of the Matrimonial Causes Act, 1937, or of section one of the Matrimonial Causes (War Marriages) Act. 1944, the issues shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in England at the time of the proceedings.

The noble Lord said: My Lords, this raises a slightly different point. The purpose of this Amendment is to make it clear what law is to be applied by a court when it assumes jurisdiction under the provisions of Clause 1, or of Section 13 of the Matrimonial Causes Act, 1937, or of Section 1 of the Matrimonial Causes (War Marriages) Act, 1944. In all these cases it is possible for the court to have jurisdiction in divorce proceedings though the parties may not be domiciled in this country. Before the passing of the Act of 1937 this was not possible. The court had jurisdiction in divorce only if the parties were domiciled here, and accordingly it applied English law without having to decide whether it did so because it was the law of the parties' place of domicile or the law of the court in which the proceedings were taken. It has generally been thought that the procedure set out in my Amendment is the law. That is the view expressed by all the leading textbook writers, as well as by the President of the Divorce Division, to whom I should like to extend my thanks for the great help he has given in regard to this clause. But despite those authoritative views it has been suggested that there may be some doubt on the point, and the new subsection is intended to set these doubts at rest. I beg to move.

Amendment moved— Page 1, line 19, at end insert the said subsection.—(Lord Llewellin.)

On Question, Amendment agreed to.

Clause 2 [Extension of jurisdiction of Court of Session in certain consistorial proceedings]:

LORD LLEWELLIN

My Lords, perhaps your Lordships will allow me to deal with the next four Amendments to Clause 2 at the same time. They make exactly the same alterations in the clause applying to Scotland as your Lordships have just assented to in the four previous Amendments to the law relating to England. I beg to move.

Amendment moved— Page 2, line 11, leave out from ("section") to ("the") in line 12.—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN

My Lords, I beg to move.

Amendment moved— Page 2, line 13, leave out from ("marriage") to ("as") in line 14.—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN

I beg to move.

Amendment moved—

Page 2, line 15, at end insert— ("() In proceedings under subsection (1) of section five of the Divorce (Scotland) Act, 1938 (which enables the Court of Session to grant a decree of dissolution of marriage on the ground of presumed death of one party) the Court shall have jurisdiction in the following cases only, that is to say—

  1. (a) in any proceedings, if the petitioner is domiciled in Scotland;
  2. (b) in proceedings by the wife, if she is resident in Scotland and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings;
and in determining for the purposes of this subsection whether a woman is domiciled in Scotland, her husband shall be treated as having died immediately after the last occasion on which she knew or had reason to believe him to be living.")—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN

My Lords, I beg to move.

Amendment moved—

Page 2, line 15, at end insert— ("() In any proceedings in which the Court has jurisdiction by virtue of this section or of section two of the Matrimonial Causes (War Marriages) Act, 1944, the issues shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in Scotland at the time of the proceedings."}—(Lord Llewellin.)

On Question, Amendment agreed to.

Clause 6:

Power to vary orders for maintenance in the event of remarriage

6.—(1) The power of the court under section fourteen of the Administration of Justice (Miscellaneous Provisions) Act, 1938 (which provides for the discharge, variation or suspension of certain orders) shall be exercisable—

  1. (a) in relation to any order made tinder section four of this Act; and
  2. (b) in relation to any order for the securing of a gross or annual sum made under subsection (1) of section one hundred and ninety of the Supreme Court of Judicature (Consolidation) Act, 1925, or any similar order made under any enactment repealed by the last-mentioned Act,
in like manner as it is exercisable in relation to the orders mentioned in the said section fourteen.

LORD LLEWELLIN

My Lords, these two Amendments to Clause 6, the first of which really makes way for the second, are intended to meet the objections which the noble and learned Lord, Lord Merriman raised during the previous stages of this measure. Under the new proviso it will still be possible for the court to alter a trust, as the noble and learned Lord, Lord Merriman, called it last time, but, as your Lordships will see, only where the case is one of exceptional hardship. That meets the point raised by the noble and learned Lord, with all his experience in the Divorce Court. I am glad to think that he agrees with this new form of words, and I beg to move.

Amendment moved— Page 3, line 25, leave out from ("1925") to end of line 27.—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN

I beg to move this Amendment.

Amendment moved—

Page 3, line 29, at end insert— ("Provided that in relation to an order made before the commencement of this Act under subsection (1) of the said section one hundred and ninety, the powers conferred by this section shall not be exercised unless the court is satisfied that the ease is one of exceptional hardship which cannot be met by the discharge, variation or suspension of any order made under subsection (2) of that section.")—(Lord Llewellin)

On Question, Amendment agreed to.

LORD LLEWELLIN

My Lords, in line 25 of page 3 we have just taken out the words or any similar order made under any enactment repealed by the last-mentioned Act. Having taken that out, we have to put something in, because there may have been orders made before 1925, and I am now proposing that we should insert the words as printed. I beg to move.

Amendment moved—

Page 3, line 33, at end insert— ("() References in this section to an order made under subsection (1) or subsection (2) of section one hundred and ninety of the Supreme Court of Judicature (Consolidation) Act, 1925, shall be construed as including references to any order which has effect as if it were so made.")—(Lord Llewellin.)

On Question, Amendment agreed to.

Clause 7:

Evidence of access

7.—(1) Notwithstanding any rule of law, the evidence of a husband or wife shall be admissible in any proceedings in England to prove that marital intercourse did or did not take place between them during any period.

(3) Section four of the Adoption of Children Act, 1949, shall cease to have effect.

LORD LLEWELLIN moved, in subsection (1) to leave out "in England." The noble Lord said: My Lords, this is the clause which seeks to overcome the difficulty of the decision in Russell v. Russell. That rule, as we thought, had never applied in Scotland, but on looking into the matter a little further we see that it was only in an original court in Scotland (I believe they call it the Outer House of the Court of Session) where this decision was reached; it has never been on appeal to the Court of Session, the Inner House, or to this House. If we are altering the law in regard to Scotland, as is the case with this Bill in Clause 2, it is as well to make certain that when we are doing away with the rule in Russell v. Russell in English courts, we also intend to do away with it in Scottish courts. We should not be doing that, perhaps, if we left in the Bill the limiting words "in England." For those reasons I beg to move.

Amendment moved— Page 3, line 35, leave out ("in England"). —(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN moved to omit subsection (3). The noble Lord said: My Lords, during the Committee stage of this measure I got into hot water in regard to this matter. I am glad to say that when I was being taken to task for referring to the Adoption of Children Act, 1949, at a time when that measure was still only a Bill, the noble and learned Viscount on the Woolsack came to my rescue and said that he had done similar things. This was only an attempt to cover in subsection (3) what perhaps I may term, without any disrespect, a draftsman's point, 'because in Clause 4 of the Adoption of Children Bill, at any rate as it left your Lordships' House, exactly the same provision was made as is made general by Clause 7 of this Bill now before your Lordships. It was perhaps tidier not to have it partially repealed in one Act, if the Adoption of Children Bill ever becomes an Act, and wholly repealed in another. I undertook then that we would not send this measure back to another place until we had put ourselves in order by ensuring that we did not call a measure which is still a Bill an Act, especially as the other place has not yet agreed to Amendments made in your Lordships' House. Furthermore, I am told that there has been some delay in the passage of the Adoption of Children Bill in another place. So I am asking your Lordships to let me put the matter right. Let us get on with this measure, which contains some valuable provisions, and do all we can to see that it becomes law as soon as possible. Perhaps the House will allow me, in moving this Amendment, to acknowledge with gratitude the great help which I have received in my work in connection with this Bill from the noble and learned Viscount who sits on the Woolsack and from the able officers in his Department. I beg to move.

Amendment moved— Page 3, line 41, leave out subsection (3).—(Lord Llewellin.)

THE LORD CHANCELLOR

My Lords, the noble Lord, Lord Llewellin, has correctly stated the position. I was luckier than he has been; I moved an Amendment in similar form and, as events proved, I had not to wait very long. In his case, unfortunately, there has been a rather longer delay. It is possible that when this Bill goes to another place the Adoption of Children Bill will have become an Act. In that case they will, in another place, put these words back again. If they do, we shall, of course, accept their Amendment. In the meantime, I think the noble Lord is wise to omit these words.

On Question, Amendment agreed to.