COLONIAL AND OTHER TERRITORIES (DIVORCE JURISDICTION) BILL [H.L.] (Hansard, 18 April 1950)

§ THE LORD CHANCELLOR

My Lords, to understand the object of this Bill it is necessary to consider the existing Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940. The 1926 Act was passed to remove the hardship caused to British subjects having an English or Scottish domicile. Your Lordships will remember that, broadly speaking, divorce is based on domicile. A man may go out to India and be in India all his working life and at the same time retain his domicile in England. But for the Act, the courts in India would have no power to deal with his case and the courts over here would not recognise any decree a court in India made. The object of the Act was to enable the Indian courts to pronounce a decree which would be regarded as valid here. Section 2 of the Act enabled the same provision to be applied by Order in Council to any part of His Majesty's Dominions other than a self-governing Dominion, and the Act has been extended to the Colonies of Hong Kong, Jamaica, Kenya and Singapore, but no provision was made for the application of the Act to Protectorates. 949 Protected States and Mandated Territories, because in 1926, when this legislation started, no problems of this kind had arisen in those territories.

The 1926 Act was amended in 1940 to deal with changes in the English divorce law introduced by the Matrimonial Causes Act of 1937, and although the need for extension to Protectorates, Protected States and Mandated Territories was then recognised, the amending Bill escaped the notice of the Colonial Office until too late for amendment to be secured. So the present position is that the divorce facilities which are available in the Colonies to which the 1926 Act has been extended are not so available to British subjects of English and Scottish domicile living in those large and, in many cases, rapidly developing territories. The anomalies of the present position are clearly shown if we consider the East and Central African territories. While in Kenya British subjects there resident who are still domiciled in this country can bring an action for divorce in the High Court which would be recognised here, it is not possible to bring such an action in the courts of the neighbouring Protectorates of Northern Rhodesia, Nyasaland and Uganda, nor in the Trust Territory of Tanganyika. Representations for the rectification of this anomaly have been received at various times from the Governors of Northern Rhodesia, Uganda and Tanganyika, and the number of cases in which hardship is being caused by the absence of the facilities afforded by the Act is increasing with the increase in the British non-domiciled population in those territories. In Tanganyika, for example, the British non-domiciled population has greatly increased and there is a similar large and growing British resident but none-domiciled population in Northern Rhodesia.

Your Lordships will observe from what I have said that the Indian and Colonial Divorce Jurisdiction Act extended only to British subjects having an English or Scottish domicile. It did not deal with British subjects domiciled in Northern Ireland, because in 1926 there was no form of divorce obtainable in Northern Ireland. By the Matrimonial Causes Act, 1939, of Northern Ireland, divorce proceedings have been made possible there and, that being so, there is now no reason 950 why the 1926 and 1940 Acts should not be also extended to British subjects domiciled in Northern Ireland, so that a British subject resident, for example, in Northern Rhodesia but domiciled in Northern Ireland can have the advantage of these Acts just as be would if lie were domiciled in England or Scotland.

This Bill does two things: it provides for the amendment of the Indian and Colonial Jurisdiction Acts, 1926 and 1940, so that they shall extend to British subjects domiciled in the United Kingdom and not only to British subjects domiciled in England and Scotland, as hitherto; and it provides that those Acts, as so amended, shall extend to Protectorates, Protected States and Trust Territories. The extension of the Acts to British subjects domiciled in the United Kingdom is affected by Clause 1 of the Bill, which extends the Acts in question to persons domiciled in Northern Ireland. Provision for the application of the two Acts to Protectorates and Must Territories is made by Clause 2. The position in Protected States is more complicated, since in most of them there is no such jurisdiction as would entitle Parliament to confer powers on the local court. Clause 3 (1) of the Bill, therefore, provides that if the local Legislature confers powers on the local court His Majesty by Order in Council may provide that the decree of the local court shall be recognised and effective here.

Clause 3 (3) of the Bill deals with the special complication of a group of territories—namely, the Federation of Malaya—which consists partly of territories which by themselves would fall under Section 2 of the 1926 Act or Clause 2 of the Bill, and partly of Protected States. The subsection provides for treating the whole group in the same way as a Protected State is treated under Clause 3 (1). Clause 4 effects a minor amendment of the 1940 Act. Clause 5 is a saving clause in respect of the legislative powers of the Northern Irish Parliament, and is required in view of the terms of Section of the Government of Ireland Act, 1920. The short title of the Bill, given in Cause 6 (1), was adopted rather than the title of the Acts it amends and amplifies, because under Section 17 of the Indian Independence Act, 1947, those Acts ceased to apply to India. This is a completely uncontroversial Bill, so far as I know, and it re- 951 moves an anomaly, a hardship and an arbitrary distinction between Colonies and Protectorates and Protected States. I beg to move.