HL Deb 21 July 1958 vol 211 cc15-24

3.9 p.m.

Order of the Day read for the Bill to be considered on Report.

LORD MESTON

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Lord Meston.)

On Question, Motion agreed to.

Clause 2:

General rule

2.Subject to sections five and six of this Act, a person's domicile is in the country in which he has his home and intends to live permanently.

THE LORD CHANCELLOR (VISCOUNT KILMUIR) had given Notice of ten Amendments to Clauses 1 to 6, the first being in Clause 2 to omit "sections five and". The noble and learned Viscount said: My Lords, the first ten Amendments on the Marshalled List are necessary in order to give effect to the view which found general support on the Committee stage, that the law should be changed so as to put a married woman, for the purpose of the law of domicile, in the same position as any other person of full age and capacity. I am entirely in the hands of your Lordships, but the noble Lord, Lord Silkin, will remember that he moved an Amendment on the Committee stage, and it may be for his convenience, and that of other noble Lords who are interested, if I deal with the first ten Amendments together and indicate the way in which I am dealing with the problem.

LORD SILKIN

That will be perfectly Convenient.

THE LORD CHANCELLOR

I think it would be convenient if your Lordships would take them with this grouping. Amendments No. 1 and 6 form the first group. Amendment No. 1 paves the way for Amendment No. 6, which is to leave out Clause 5. The reason is that Clause 2, when read with Clause 1, and subject to the presumptions contained in Clause 3, will now provide the rule for determining the domicile of a person of either sex, there now being nothing in the Bill to exclude the provision in the Interpretation Act, 1889, that words importing the masculine gender are to include females. The noble Lord, Lord Silkin, may remember that I wondered whether an Amendment would be required to Section 18 (1) (b) of the Matrimonial Causes Act. I have discussed that with my noble and learned friend Lord Merriman, and we agree that no such Amendment would be necessary.

The second group of these Amendments comprises Nos. 2, 3, 4 and 5, the substantive Amendment being the omission of subsection (3) of Clause 3. The other three Amendments are consequential on this. The presumption contained in subsection (3)—that is, that if a person lives in a country mainly because he works there and has a wife or children whose home is in another country, he is presumed to intend to live permanently in that other country—is inappropriate once it becomes possible for his wife to acquire a different domicile from her husband. The presumption is unnecessary where the marriage has not broken down and wrong where it has.

The final group of Amendments, Nos. 7, 8, 9 and 10, are made necessary by the abolition of the rule that a wife's domicile follows that of her husband. The proposed new subsection (2) of Clause 6 deals with the case where the custody of a child is given to two persons jointly who are domiciled in different countries. This happens sometimes through the operation of foreign law where the custody is given, for example, to two sisters who may be living in different countries. The child's domicile is to be in that country with which the child is more closely connected. It was always possible for this question to arise under the provisions of certain foreign legal systems. Now that it will be possible for husband and wife to have different domiciles, the question is of greater importance and requires express provision in the Bill.

The effect of passing the Amendments which I am moving will be that Clause 6 (3), will read as follows: Where a person entitled to the custody of a child changes his domicile, or a person whose domicile is not the same as a child's becomes entitled (or exclusively entitled) to his custody, the child's domicile does not thereby change if that person intends him to live in a country other than that in which that person has his domicile. The Amendments to subsection (3) are required to take account of the possibility that a child in the joint custody of two persons with different domiciles (as in the new subsection (2) substituted by this Amendment) might have his domicile changed for him by the death of one of them.

Your Lordships will, I hope, forgive me for having to put down so many Amendments. We have tried to deal with all the possibilities that might arise and to give effect to the undoubted view of the House as to the change in the wife's domicile. I beg to move.

Amendments moved—

Clause 2, page 1, line 8, leave out ("sections five and") and insert ("section").

Clause 3, page 1, line 11, leave out ("the following provisions") and insert ("subsection (2)").

Clause 3, page 1, line 15, leave out (", subject to the next following subsection.")

Clause 3, page 1, line 18, leave out subsection (3).

Clause 4, page 2, line 1, leave out paragraph (b).

Leave out Clause 5.

Clause 6, page 2, line 10, at end insert— ("(2) If each of two persons domiciled in different countries is equally entitled to the custody of a child, the child's domicile is in that one of those countries with which he is more closely connected.")

Clause 6, page 2, line 15, leave out ("the custody of a child passes to")

Clause 6, page 2,line 16, leave out the first ("the child's") and insert ("a child's becomes entitled (or exclusively entitled) to his custody,")

Clause 6, page 2, line 17, leave out from ("if") to ("intends") in line 18 and insert ("that person").—(The Lord Chancellor.

3.15 p.m.

LORD SILKIN

My Lords, I am sure the whole House will be grateful to the noble and learned Viscount, not only for the way in which he has honoured the undertaking he gave but also for his clear explanation of these Amendments. They are, of course, highly technical, and unless one is an authority on the law of domicile one is bound to take a great deal on trust, as I do. I have been through the Amendments, and I am certainly not in a position to challenge the fact that they carry out what is intended, and what was intended under the Amendment that I put down on the Committee stage which was supported by a number of my noble friends.

The only doubt I have—and I hope I shall not be regarded as being ungracious and looking a gift horse in the mouth—is whether it would not have been preferable, from my point of view, if the making of this change had been made apparent on the face of the Bill itself. I accept the fact that the Amendments on the Paper put both sexes in the same category, but we have been so accustomed to the idea that the wife has the domicile of her husband that one would have expected the change to be stated in terms somewhere in the Bill itself. While, no doubt, it is there by implication, and in consequence of the Interpretation Act "he" includes "she" and so on, I cannot help feeling at the back of my mind that there may still be a slight element of doubt. Nobody knows better than the noble and learned Viscount that what is said here does not count at all when the Bill comes to be interpreted.

While I myself cannot see any flaw in the Amendments, I should have preferred some words on the face of the Bill which would indicate that we were making this change and which would put the question beyond any possible doubt. I am not in a position to make any suggestion except putting in words—I have in mind possibly in Clause 2—to the effect that we are talking of the domicile of a person "including that of a married woman." That would make it quite clear that the domicile of a married woman was dependent upon what was her home and where she intended to live permanently. I think it is only right that that point should be mentioned, because that is an apprehension which a number of noble Lords felt; and if it were possible to add to the conciliatory spirit in which this Amendment is being put forward something in terms, I should be most grateful. There is one further small point. In the Amendment to Clause 4, on the list of Amendments I have it says "Leave out paragraph (6)". Should that not be "paragraph (b)"? I am sure it is a misprint.

LORD MESTON

My Lords, I should like to associate myself with everything the noble Lord, Lord Silkin, has said about what the Lord Chancellor has done in this Bill. At the same time, I should also like to associate myself with what the noble Lord said about the question of construction. I always speak under correction in your Lordships' House, but I understand that in Common Law it is an absolutely irrebuttable presumption that a married woman takes the domicile of her husband. I know that sometimes that presumption has been partly rebutted in, matters relating, for example, to the distribution of property, for the simple reason that the Inland Revenue authorities in this country and in some other country have point-blank refused to come to any agreement as to the domicile of the husband and the wife. It happened some years ago as between the Inland Revenue authorities in this country and the Inland Revenue authorities in Canada. But, subject to these apparent exceptions, it is an absolutely irrebuttable presumption at Common Law that the wife takes the domicile of her husband. It is not so stated in this Bill, and when the ordinary average person comes to read this Bill will he understand that the domicile of a married woman is or is not that of her husband unless the married woman desires to obtain a domicile of her own? Perhaps I have not expressed myself very clearly but it will not be for the first time in my life. As various other noble Lords wish to mention the same subject, I will say no more about it.

3.22 p.m.

LORD PETHICK-LAWRENCE

My Lords, I should like to preface my remarks to your Lordships by saying that I have had a conversation with the noble and learned Lord, Lord Denning, and broadly what I am going to say to the best of my ability will express his views and not merely my own. He first of all said that he greatly regretted that his other duties prevented his being present here this afternoon, and he asked me to express his thanks to the noble and learned Viscount on the Woolsack for his endeavours to meet the point that was made in the Amendment before the House in Committee. He also asked me to express his view, which is also my own, that of course we knew that the noble and learned Viscount the Lord Chancellor would so faithfully interpret his words, and therefore it was not a surprise to us when we found everything done to meet the wishes of the House.

At the same time, this point which has been raised by my noble friend Lord Silkin and also the noble Lord, Lord Meston, does appeal to him as well as to myself. I think it can be expressed in this way. Here has been a practice which has been the interpretation of the Common Law of the country for a great number of years. Had that been a Statute I am quite sure the noble and learned Viscount the Lord Chancellor would agree that somewhere in this Bill there would be a definite revocation of that Section in the Statute. It is not a Statute; it is Common Law, and in consequence of that the noble and learned Viscount the Lord Chancellor (he said he was going to consult the Attorney General) has thought it not necessary to include that revocation explicitly in the Bill. Of course, I am aware of the Interpretation Act, that the word "he" covers "she", and also that the word "person" now means a person of either sex. I notice that the noble and learned Viscount the Lord Chancellor, in defending his proposals, used the words "persons of either sex". Of course, that is not in the actual Bill, but he used the words "either sex" because of the result of the Interpretation Act.

The question that really arises is this: this matter of domicile may at some time or other come before the courts, and the courts have been in the habit of holding, in accordance with Common Law, that the domicile of a married woman is that of her husband. Someone will get up and say that that ceases to be the law, if this Bill becomes an Act, because of the new Act, the Domicile Act, in which such and such things are done. The court may say that if that were the intention of the new Domicile Act, to abrogate the existing Common Law, why on earth does it not say so in so many words? And it may well be that some court—it may be in some other country than this—is not so well aware of things here, and may hold that as it is not expressly stated in this Bill that this principle of the Common Law is abrogated, it was not the intention of Parliament in passing the Bill so to do. What I would venture to suggest, in humility, but with, I think, the concurrence of a much greater authority than myself, the noble and learned Lord, Lord Denning, to the noble and learned Viscount the Lord Chancellor is that if he is not prepared to accept this to-day he will consider the matter very carefully between now and Third Reading, and perhaps, if necessary, introduce a small Amendment, a matter of a few words, which would make it perfectly clear that this Domicile Bill was specifically changing what was the law before it was introduced.

3.25 p.m.

LORD CHORLEY

My Lords, I am rather surprised at these doubts. Probably the noble and learned Viscount will reassure us about them, but I should have thought it was trite law that when you get clear words in a Statute overruling the Common Law the Common Law is overruled. The words in Clause 2— a person's domicile is in the country in which he has his home and intends to live permanently"— applied among others to married women and were sufficiently clear. However, the noble and learned Viscount will no doubt be expressing a much more authoritative view than I can.

I rise to put to him two problems Which have been giving rise to a certain amount of discussion among some of those who are interested in this Bill and who are very grateful to him for the way in which he has responded to the strong feeling among a large section of the community that a married woman in respect of domicile ought to be treated like any other person. The noble and learned Viscount explained that this series of Amendments was necessary in order to cover the various implications which arise from this change in the law, and one of the matters which has been a little under discussion in some circles is a purely practical one which does not seem to be provided for.

Suppose that an Englishman goes abroad, say an English soldier who is stationed in Germany for a time, and marries while over there a German woman who lives with him there. When the time comes for him to return home the German woman says, "I propose to stay on here in Germany; I am not coming to live in England with you". I imagine there is no question that under this Act (as it will then be) she will have German domicile, having remained there in Germany. Suppose she takes proceedings, as she will presumably be able to do, in a German court to obtain a divorce from her husband, and gets a decree against him; will she then be able to come over to this country and obtain an order for alimony on the basis of this decree which she has obtained in a foreign court by virtue of her new domicile under this Act? Because I can foresee that if that happens, as one would expect it might happen not infrequently, it will be very difficult for the English husband to raise any defence to an application for alimony in circumstances of that sort. It might very well be that it was altogether the foreign woman's fault that the divorce proceedings had come about, and to make an order for alimony against the husband in this way would lead to injustice. I hope that these doubts about the matter are not justified and that the noble and learned Viscount will be able to set them at rest. But I felt that the point was one which ought to be dealt with.

The other matter is this: that some question has been raised as to what happens in the event of insanity in any case of this sort. Suppose that a person changes his place of residence after becoming insane. Is that going to affect his domicile? Can he then have an "intention to reside"? How much insanity, so to speak, is necessary to remove the intention required under the clause? It is obvious that there may be difficulties here. Possibly it is a little unfair to put them to the noble and learned Viscount in this way, but if, on the spur of the moment, he can throw any light on these matters, many people will be most grateful.

THE LORD CHANCELLOR

My Lords, may I first deal with the points that were troubling the noble Lords, Lord Silkin, Lord Pethick-Lawrence and Lord Meston? The answer which I give has really been foreshadowed by the noble Lord, Lord Chorley, but I should like to make one addition to it. If noble Lords will look at the Bill they will see that Clause 1 says: The rules set out in sections two to seven of this Act shall be applied in determining a person's domicile. That is a mandatory, statutory provision and overrides any rules of law. That is the view I took. I should like the noble Lords to know that I considered it most carefully; but in view of what they have said and the quotation from my noble and learned friend Lord Denning, I shall certainly consider it again. I should not like noble Lords to think that I did not consider it —I did. I considered it care-fully, not only with my colleague the Attorney General but with the Parliamentary draftsmen, who are very familiar with the application of the Interpretation Act. But I will certainly consider it again and if there is the slightest doubt I shall make the position clear. Noble Lords will appreciate that one does not want to throw doubt on the useful rule of the Interpretation Act if it can be avoided, but the first thing that I want to do is to make quite clear, now that we have agreed in your Lordships' House on making a considerable reform, that that reform is well and truly made—so I will look at it again.

The noble Lord, Lord Chorley, has raised two points on which, as he rather indicated, I should like to give him a considered opinion at leisure. What I say now will be tentative and I shall of course write to him about it. But I should have thought that the Bill did not alter the governing principle—namely, that when one is considering the validity of divorce in a foreign country one has to consider the grounds, the jurisdiction or the basis on which it is granted. That is made easier by the wife's having a separate domicile. One has to consider also the grounds and the recognition of divorces in that regard. I should not have thought that in view of the second point, the need for the grounds to be recognisable, even with a person domiciled in that country, there would be any change in position. However, I will look into it again and will write to the noble Lord.

On the second point, again if I may give my provisional view, the noble Lord will have appreciated (I think he had it in mind) that Clause 3 (1) will now read, after we have made these Amendments: Subject to subsection (2) of this section a person who has a home in a country is presumed to intend to live permanently in that country. I should have thought that the presumption of intention would not easily arise in the case of a lunatic, who might have to be conveyed at once to an institution simply for the public safety, and in regard to whom it might be difficult to move him. Again, I do not think that he would be put into any difficulty; but in view of the possible troubles in regard to his estate and its administration I should like to discuss that not only with my right honourable and learned friend but with those who are under me who are constantly dealing with questions of lunacy, to see whether there are any rules which need looking into on the point. After I have done that I will communicate with the noble Lord. But, broadly, the answer is that I do not think they will cause difficulties. I am sure he will not mind my writing to him about it.

LORD CHORLEY

My Lords, I am grateful to the noble and learned Viscount for what he has said and for his indication.

LORD MESTON

My Lords, I do not want to waste time unnecessarily, but I understand that Clause 1 will now read: The rules set out in sections two to six of this Act shall be applied in determining a person's domicile.

On Question, Amendments agreed to.