§ 4.13 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Meston.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD TERR1NGTON in the Chair]
§ Clauses 1 to 4 agreed to.
§ Clause 5:
§ Domicile of married woman
§ 5. The domicile of a married woman is that of her husband unless there is in force an order of a court by virtue of which she is not bound to cohabit with him.
LORD SILKIN moved to leave out all words after "woman" and to insert instead:
shall be determined on the same grounds as if she were a feme sole."
The noble Lord said: I beg to move the Amendment standing in my name and that of other distinguished noble Lords. I should like to say at the outset that, although the majority of noble Lords whose name is down to this Amendment sit on this side of the Committee, this Amendment is in no sense a political one; I have not the slightest idea of what my noble friends think about it and they are entirely free, so far as I am concerned, to take whatever view they please. I hope therefore that noble Lords on all sides will feel themselves able to consider this Amendment on its merits.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
Perhaps the noble Lord will allow me to interrupt. My noble and learned friend Lord Keith of Avonholm has an Amendment down which is not the same as this but is on the same subject matter. I do not know whether he would think it convenient that we should have a general discussion on the matter, and then he can make up his mind whether he wants to move his Amendment.
LORD KEITH or AVONHOLM
I think that would be a convenient course. I intended to speak on the Amendment that is being moved by the noble Lord, Lord Silkin, and, as I shall show later, 356 to support it. My Amendment is something in the shape of a second line of defence.
§ LORD SILKIN
I am happy to hear that, and perhaps we might exchange views later as to which of the two Amendments we should press. Whichever it is, the purpose of the Amendment is perfectly simple: that in this Bill we should now provide that married women should be entitled to be treated as having a domicile as if they were single women; that is to say, that they should no longer be tied to the domicile of their husbands. On Second Reading this matter was fairly fully discussed and the case for this Amendment was put with great force by the noble and learned Lord, Lord Denning; and the fact that he has put forward the case in that way saves me from having to repeat it in detail. I should like to say, however, that it is based upon two points. The importance of domicile is, first, that it often governs the place where divorce or other matrimonial proceedings can be taken, which may be a matter of some importance to a wife: and secondly, that it involves questions of devolution of property—and it may make all the difference in the world as to whether the property devolves in accordance with British law or in accordance with the law of some other country in which the married woman may be deemed to be domiciled.
The noble and learned Lord. Lord Denning, quoted a number of extremely hard cases showing how married women have suffered as a result of the law of domicile both as related to matrimonial affairs and as related to the devolution of property; and I do not propose to repeat those. I base the case on the fact that this is one of the last of the sex disabilities from which women suffer at the present time; and I put forward this Amendment in the interests of justice and the removal of hardship. There is a good deal of support for this principle both from other countries and in our own country. We have recently had the report of the Royal Commission on Marriage and Divorce, and one of their unanimous recommendations was that the law should be altered to provide that a woman should have her own domicile. The Royal Commission were not, of course, in a position to deal with the question of property, which was outside their 357 terms of reference; but so far as matrimonial proceedings are concerned, they were quite unanimous that the law should be altered in the terms of the Amendment that I am now moving. As the noble and learned Lord, Lord Denning, explained, it is the law in the United States of America, on the Continent of Europe and in New Zealand. So we are not venturing into unexplored territory.
The noble and learned Viscount the Lord Chancellor, in speaking on the Second Reading, invited further discussion on this point in Committee, without, of course, committing himself; and this Amendment now appears on the Marshalled List, not necessarily because he invited it (I can assure him that it would have appeared, in any case), but we are glad that he approves of this discussion. In the course of his remarks he drew attention to the Report of the (I think it was) Committee on Private International Law, which referred to the experience of the United States. It would appear that in their view the experience in the United States has given rise to many complications and difficulties, and that, for that reason, the Committee were not in favour of making the change. I do not know what these difficulties are—no doubt they will emerge in the course of the discussion—but in any case I do not think your Lordships' House ought to be deterred from remedying a wrong and putting right a grievance merely because there are difficulties of administration or procedure standing in the way. Whatever complications may arise, I think that somehow we have got to meet them.
After all, as many of your Lordships will know, complications and difficulties can arise even from the simplest of provisions. I think I am right in saying that one provision which has given rise to more legal decisions than any other is the simple expression, an accident "arising out of and in the course of employment." One would have thought that there should not be any difficulty about that. Nothing could be easier, and yet the amount of money that has been spent, and the amount of time taken up by the courts, in getting legal decisions has been colossal. Nevertheless, no one would suggest that that clause should have been deleted from the Workmen's Compensation Act. Whatever difficulties 358 arose they had to be met. So I hope that the complexity of the matter will not be prayed in aid as a reason for not accepting this Amendment, or an Amendment similar to it. Nor can it be said that this is not the time, that this is not the place, and that this is not the Bill. This is a Domicile Bill. It deals with this very point, and if we do not get this Amendment now we may have to wait many many years before this wrong is put right. I doubt whether anybody can suggest that it is not a wrong and not an injustice.
Finally, I want to make this point. We have recently passed the Life Peers Act, and in due course, possibly, we may see Life Peeresses on the Benches. It would be a great pity if this last remaining sex disability were not put right before they came; otherwise we shall probably hear a good deal about it later on. I hope that we shall clear up our House before they come and introduce this simple Amendment into the Bill, thus removing any cause for grievance on the ground of sex disability which women may have. I beg to move.
Page 2. line 6. leave out from (" woman ") to end of line 8 and insert the said new words.— (Lord Silkin.)
§ 4.24 p.m.
§ LORD PETHICK-LAWRENCE
I should like to say a few words in support of this Amendment moved by my noble friend Lord Silkin. He said, quite rightly, that this is a matter of an injustice which ought to be removed. I should have thought that when it was decided that women should get back their right to have a separate nationality from their husbands it would have followed as a corollary that they also obtain separate domicile—though, of course, I would not suggest that the matters are entirely the same: they are subject to different considerations. Nevertheless, I should have thought that one would have been the corollary of the other. My noble friend also said that the present situation is a flagrant injustice. While this Amendment is supported by the women's societies, who have been pressing for a long time past for the removal of the present presumption at Common Law, I should like to make it perfectly clear that they do not do so merely with a desire to have equality for the sake of equality, or 359 merely from any sense of pride or anything of that kind. It is because of the practical disadvantages of the present state of affairs.
Much has been said by my noble friend, and I am sure that many other points will be made by the noble and learned Lord, Lord Denning, who has put his name to this Amendment, but I should like to point out what the present law really involves. I should point out that we are not dealing here with the usual case. The usual case, of course, is that a man and his wife live in the same place and have the same domicile, so no such question arises. But we are dealing with those exceptional cases where the divergence does arise. I will put a typical case—it is not a question of unhappy marriages: this sort of case may perfectly well arise, and does arise, where the marriage is a perfectly happy one and there is no breach of confidence, love or friendship between the parties concerned.
An Englishwoman marries a man—it does not make any difference, for the purpose of this Bill, whether he is an Englishman or a foreigner—and lives happily with him in this country for several years, very likely bears children by him and sets up a home in this country where she resides with her children. It not infrequently happens that a man finds it necessary to go overseas. It may be by his choice or by the necessity of his business, and quite frequently he stays away a considerable part of every year and occasionally, at any rate, stays away for years on end. It may suit his purpose or his business, or whatever it is, that he acquires a domicile in another country. It may be in the British Commonwealth; it my be in another foreign country in Europe; it may be in South America, or some entirely different part of the world. That is by no means an uncommon thing, and, it does not at all imply that the marriage has broken down.
There comes a time when the husband has been away for some little time. He may not even be a good correspondent, and his wife may not know exactly where he is. There comes a time when, in all good faith, she makes a will, and the lawyers of this country prepare a will for her on the assumption that the law which will decide the working out of the 360 testamentary dispositions will be English law. Unknown to the woman, her husband has acquired a domicile in some other part of the world, and when she dies the will is not interpreted according to English law. The people who have to deal with the will find out that at her death her husband was domiciled in this foreign land, and the will is interpreted according to the law of that foreign land.
That situation is really fantastic, because it does not enable the wishes of the woman to be carried out. It is very unfair to the beneficiaries and, as the noble and learned Lord, Lord Denning, pointed out during the Second Reading debate, it may work unfairly to possible petitioners under the will. I can see no reason for that absurdity. The simple fact is that the woman, as an Englishwoman, has retained her nationality. Her husband has gone away and been domiciled in a foreign country, and when it conies to her property she makes a normal English will which is construed, not in terms of English law but in terms of the law of the country where her husband resided and had a domicile. She may know very little about that country and may never have set foot in it in the whole of her life. I venture to think that that is an absurd position. As other speakers will be dealing with other aspects, I will confine myself to that one point, and beg your Lordships to carry this Amendment.
§ 4.30 p.m.
§ LORD DENNING
I said my say on the Second Reading. The noble and learned Viscount, the Lord Chancellor said he was troubled by the United States' experience—the Private International Law Committee had said they were not encouraged to recommend this because of the experience in the United States—and he invited me to look into the matter. I have done so, and it seems to me that the Committee were under a complete misapprehension. The law of the United States as to the domicile of a married woman has from the very beginning, for over a hundred years, been that a married woman is capable of having a domicile separate from that of her husband. They started the law there to remedy the same injustice which occurs here and elsewhere, that if a woman is domiciled in one State, or a husband and wife are domiciled in one State and the husband goes off to a far distant State, 361 there is no reason why she should have to follow him to his domicile in order to get a divorce. So they laid down that a wife could have her separate domicile. The Supreme Court affirmed that in 1869 and United States law affirms it to-day. Dean Griswold of the Harvard Law school, when speaking at our Australian Conference a few years ago, said that the rule was sound and right. Why has the Committee said the contrary? It is not because of any trouble with the married woman's domicile, but because some States., like Nevada, find domicile when they ought not to.
Let me give an illustration of the sort of case which has caused some of the divorce muddle in the United States. A man and woman live in North Carolina on the eastern seaboard, each being married to somebody else. Those two people cross the United States some thousands of miles to Nevada. They live in Nevada six weeks and they each bring divorce proceedings in Nevada. The man says his domicile is there and the woman says her domicile is there. They get divorced in Nevada, marry in Nevada, and then recross the United States to North Carolina. North Carolina says, "We do not like these Nevada divorces. We will prosecute them for bigamy ". Then it is claimed that the Constitution of the United States says that every State must give full faith and credit to the decisions of another State. North Carolina says. "We do not mind about that; we are going to prosecute for bigamy". That was upheld by the Supreme Court of the United States. So you had one State, Nevada, saying that these people were domiciled there, and the other State, North Carolina, saying that they were not domiciled in Nevada. It is the method in which one or two States in the United States find domicile which is the trouble.
May I remind your Lordships that sixty years ago your Lordships' House were concerned with a similar case, because the noble Earl of those days, Lord Russell, went across to Nevada, stayed there the requisite time and obtained his divorce there. He said he was domiciled there, and he married another woman there. Coming back here, he was indicted for bigamy, claimed to be tried by your Lordships' House and was tried here; 160 of your Lordships 362 attended and tried him. He pleaded that bigamy outside this country cannot be tried here, but your Lordships overruled it. When that legal plea was disposed of he pleaded guilty and was sentenced to three months' imprisonment in the First Division.
The trouble is not a question of the married woman's domicile at all; the trouble is that the law of one or two States of the United States of America allow domicile to be found simply on six weeks' residence. If this Amendment is brought in and passed, there is no fear that there will be any such mischief here. Our courts would not recognise a domicile which was not fully and fairly found by a court having jurisdiction over it. So the reasoning behind the report of the Private International Law Cornmittee is unfounded. I may say on that point that I have made inquiries of experts on the other side of the Atlantic Ocean, not only Dean Griswold of Halyard but Dean Read of Canada, Dr. John Morris of Oxford and Professor R. H. Graveson of London. The weight of that authority is all one way: that the fears of the Private International Law Committee on this point are unfounded.
That being disposed of, what do we find? The present law as to a married woman's domicile is indefensible. The married woman, by our English law at the moment, takes her husband's domicile, no matter that they have lived separate and apart for twenty or thirty years, no matter that they are judicially separated. If he goes off to a far country, in point of law she has to follow him there to get a divorce. If she dies here after living here twenty years, her property descends according to the law of the far off country. Everybody recognises that it is indefensible. The Commission under my noble and learned friend, Lord Morton of Henryton, unanimously recommended that it should be changed for divorce. So far as the Private International Law Committee is concerned, they recommended that it should be changed so as to permit a married woman to have her separate domicile after a court order for separation. That does not meet the facts of the case. There ought to be a remedy now to put the law in line with law in the great majority of other countries and to do simple justice.
§ 4.38 p.m.
§ LORD KEITH OF AVONHOLM
I am prepared to support the principle of this Amendment, but in case it might be thought to go too far I have put down another Amendment which is perhaps not quite so extreme. As I was not able to speak in your Lordships' House on the Second Reading of the Bill, may I say now that I think the clause, as proposed in the Bill, is much too limited in effect, and the Amendment now proposed is, I think, sound in principle.
Perhaps at the outset I may make just one criticism. This Bill, I understand, is a United Kingdom Bill: it will apply to Scotland as well as to England—in fact, it would be very unfortunate if it did not.Perhaps I might remind the noble and learned Lords who have spoken on this Amendment that in Scotland Scottish lawyers do not speak Norman French, and I think that there would have to be some slight alteration made to indicate what exactly the effect of this Amendment is. I do not say that Scottish lawyers do not fully understand what it means in the context, though I am not sure whether, in English law, the expression " feme sole" has not perhaps wider repercussions than the Scottish conception might have in Scotland. That is not a matter on which I am able to express an opinion, but clearly I do not think feme sole will do for a United Kingdom Bill without some addition in an interpretation clause or otherwise.
The criticism of this Amendment, as I understand it, is that it suggests disunity in marriage. In a sense, that is true. But it is a clause which I think will work perfectly well. At present, the wife's domicile is supposed automatically to follow that of the husband. Under the present clause the result will be that the wife has the same domicile as her husband, not because her domicile will follow that of her husband but because she chooses to live with him. In the same way, I suppose, it may be said that the husband's domicile is where his wife lives if he chooses to live with her. Thereby you will, I think, establish the principle of the equality of the sexes.
There is one matter upon which I am not quite lear—namely, how this Amendment will fit in with the presumptions on Clause 3 of the Bill. I think there will be no difficulty with regard to subsection (1) of the clause, which reads: 364Subject to the following provisions of this section, a person who has a home in a country is presumed to intend to live permanently in that country.Therefore, a wife who is living with her husband, I suppose, may be assumed to have her home in that country, and her domicile will be in that country it this Amendment is passed. I am not quite so clear about subsection (2), which reads:If a person has a home in more than one country he is presumed, subject to the next following subsection, to intend to live permanently in that one of them with which he is most closely connected.It may well be that a Scottish woman may marry an Englishman; she may have a house in Scotland and lie may have a house in England, and they may shuffle backwards and forwards in perfect amity, both living together in Scotland for part of the year and both living in England for the rest of the year. It may be difficult, I think, to say that this Amendment will not result in a different domicile being given to the husband and wife in that situation, because the wife may say, "My home is in Scotland", and the husband may say, "My home is in England." Under this clause the result will be different domiciles. Thereby it would introduce what I suppose would be regarded by some people as a disunity in marriage. It does not mean that they are not going to live perfectly amicably together, but they are certainly going to have a different domicile. I do not know that that is a very serious objection, although it may give rise to certain difficulties.
There is, perhaps, one point here—namely, that nothing is said in this Bill about domicile of origin. If, say, a Scotswoman who has married an Englishman is to be treated as a feme sole, she may say, "I wish to retain my domicile of origin." That would certainly result in a rather curious position. She may intend to live with her husband all her life and to die when in the husband's home. At the same time, she may say, "I was originally a Scotswoman and I wish to retain my domicile of origin; therefore I hope to die a domiciled Scotswoman." I do not know how the courts would look at that case, because then the situation might arise that arose in the case that was referred to on Second Reading—that of Ramsay v. The Liverpool Hospital. One of the suggested reasons why this particular Bill 365 should be passed is to remedy such a situation. Unless something is done to solve that problem in the case of the wife who wishes to retain her domicile of origin, I think similar difficulties may arise.
I believe that the only way in which it could be made perfectly clear would be to introduce into the Bill something that will deal with domicile of origin in such a case, and to say that if the wife has taken up a home with her husband she must be presumed to have abandoned her domicile of origin. On the other hand, that would entirely meet the situation where she has a home in Scotland and he has a home in England and they both live together from time to time, sometimes in Scotland and sometimes in England. That is just one of the difficulties that might arise under this particular Amendment. I think that this change will have one most important result, because it will extend jurisdiction in divorce decrees. One of the results, I believe, will be to promote, greater recognition of divorce decrees among different countries—in other words, we shall be more likely to accord recognition to divorce decrees in any country where wives are allowed to acquire a separate domicile, and, simiarly, courts of other countries will, I think, be more inclined to grant recognition to decrees granted in this country to a wife who has acquired a separate domicile under this proposed Amendment.
On Second Reading references were made, as my noble and learned friend Lord Denning, has just reminded us, to the difficulties that have arisen, or are supposed to have arisen, in the United States. I entirely agree with his estimate of the position there. The difficulties there I think have nothing whatever to do with the right of the wife to acquire a separate domicile; they are due entirely to a misapplication of the law of domicile, and that misapplication can, and did, arise just as much in the case of the husband as in the case of the wife. It does not matter one whit in the United States, so far as I can see, whether the wife has a separate domicile or whether the husband has a domicile, as he is: entitled to have. The situation that arose in the United States in certain cases which have already been referred to was due entirely to what I see to have been a misapplication of the law of domicile
366 I do not think that there is more that I need say. I am prepared to support this Amendment; but, as I have said, in case it might be thought that it goes too far I have put down an Amendment in my own name. I do not know that I need raise that Amendment at the moment. I can bring it forward if the Committee feel that the present Amendment goes too wide and too far.
§ 4.49 p.m.
§ THE LORD CHANCELLOR
May I first say how grateful I am to everyone in the House who has tried so well to help with this difficult point? I said that I had a perfectly open mind on the matter, and undoubtedly the swing and play of debate have shown an overwhelming desire to make this Amendment. May I say at once to the noble Lord, Lord Silkin, that, following upon what my noble and learned friend Lord Keith of Avonholm, said about the drafting, I shall have something to say on that before I sit down? But, as in all our discussions, that is a minor matter compared with the question of principle. If the Committee will bear with me, I should like to sum up the position as I see it at the present time.
The Committee have heard the strong arguments adduced on Second Reading and during to-day's debate. In dealing with the arguments in favour of this change I should like to enlarge slightly on three points that have been mentioned. The first is the position of New Zealand, which I think the noble Lord, Lord Silkin, mentioned. In the provisional comments on the First Report of the Private International Law Committee sent by the Government of New Zealand on March 30, 1955, it was said:If any alteration of the existing law should be made, the New Zealand authorities incline towards the view that a married woman should be given the capacity to retain and acquire her own domicile in exactly the same way as an unmarried woman. This development would be an extension of a longstanding trend in New Zealand legislation of departing from the principle of unity of domicile. The present common law rule is considered to give rise to many injustices without compensating advantages.Then (a point made by the noble Lord, Lord Silkin) the statement went on:New Zealand law concerning jurisdiction in divorce and matrimonial matters already has abandoned the principle of unity of domicile, although there are still exceptions and gaps.367 From Canada we have received the views of Dean Read of the University of Dalhousie, Halifax—which I understand are not necessarily the views of the Canadian Government. Dr. Read says this:From my rather extended observation of the operation of this branch of the law in the United States I have seen no more practical difficulties arising from their permitting a married woman to acquire a separate domicile, when the fact is that the married pair are no longer making their home together, than arise from the present English and Canadian rule that insists on the maintenance of legal unity of domicile in the absence of a common home in fact. The Committee is in error if it believes that the power of a married woman to acquire a separate domicile under Section 28that is, of the American Restatement of Conflict of Laws—is a significant contributing factor to the so-called ' divorce muddle ' ".It is important that I should state the third point in which there has been a great deal of interest. That is the view expressed by Dr. Morris, of which I have been furnished with a copy, in which he says that the American difficulties are due not to the rule of separate domicile but to conflicting decisions by States which the Supreme Court has to try to resolve. And I think it is important that those who are considering this matter should read the article by Dr. Morris in Volume 29 of the British Year Book of International Law (page 290), in which he sets out his position. I will not go through that article to-day, because my noble and learned friend Lord Denning has summarised it; but, as I indicated on Second Reading, this was a point which worried me, and his arguments appeared to be strong in attributing the divorce muddle in the United States to quite another reason.
Undoubtedly a very strong case has been developed, but I feel that one ought to note the position of the Royal Commission. No doubt my noble and learned friend Lord Keith of Avonholm will correct me if I state it wrongly. That is certainly not my intention. They consider this question in paragraph 796, and again in paragraphs 819 to 826 of their Report; and, on the basis that their recommendation that a wife living apart from her husband should be able to claim a separate domicile for the purpose of divorce proceedings would be imple 368 mented—which I understand was the basis of their further remarks—they think that for other purposes a wife who has not obtained a separation order against her husband should retain her husband's domicile until the marriage had been finally dissolved. In paragraph 820 they adduce two arguments in support of this: first, that the organisation of separate permanent homes is inconsistent with the concept of the lifelong duty of the spouses to cohabit; and secondly, that in practice an element of uncertainty would be introduced into the legal relations of husband and wife by the competition 'of conflicting systems of law. The Commission said:Under the doctrine of unity of domicile a wife may suffer hardship since her husband may capriciously impose a new domicile on her and thus subject the marriage to a matrimonial law that is distasteful to her and at variance with her reasonable expectations. But to allow the wife to acquire a separate domicile would only add to the difficulties. The husband's rights would then become subject in certain respects to the law of his wife's new domicile. At the same time the husband would still be free to exercise rights against his wife based on the law of his domicile.They concluded therefore that husband and wife should continue to share a common domicile.
I hope that I have put fairly the arguments each way and, if your Lordships will bear with me, they can be summarised as follows. In favour of the complete abandonment of the unity of the domicile there are these arguments. First, to retain the principle of unity at a time when foreign systems which take the law of domicile as the personal law are tending to make married women capable of acquiring a separate domicile would be unwise. The result might well be that our concept of domicile would differ from theirs increasingly. Secondly, it would be of some advantage that jurisdiction in all matrimonial suits should be able to be based on domicile and no longer on residence or on the place of celebration of the marriage. There is no danger that our Courts would tend to recognise Reno (Nevada) divorces more readily since the "domicile" which would have to be sufficient to ensure recognition of them would have to be domicile in our sense of the word.
Thirdly, those who support women's rights are likely to continue to resent this dependence of married women in this 369 field, however little justification there may be in practice. Fourthly, it seems doubtful whether any real difficulties would arise, either in the sphere of matrimonial jurisdiction (we cannot tell if the number of "limping" marriages would be increased or diminished, but my own guess would be that instead of about twenty annually which come to light they would diminish to about ten) or in the sphere of property relationships; and the fears about disputes in succession being encouraged are conjectural only.
I have only stated the argument of the Commission the other way, and I would only point out to your Lordships that the solution proposed in Clause 5 of this Bill can be supported on three grounds. First, it has the merit of certainty and of ensuring that a married woman would be able to have a separate domicile only when it has been proved to the satisfaction of the Court that the marriage has broken down and when the relationship has been placed on a clear basis. Secondly, there is the danger that the complete abandonment of unity of domicile might encourage disputes about domicile in the field of succession when the propositus is dead. Thirdly, if the marriage is subsisting in a real sense there is no reason why a wife should have a separate domicile, and the Royal Commission point out that recognition of separate permanent homes is inconsistent with the concept of a lifelong union and the duty of spouses to cohabit.
With the greatest respect to my noble and learned friend Lord Keith of Avon-holm, who has not developed his own Amendment, I should say that it raises this difficulty. The words which he uses.the spouses are living separate and apart in circumstances from which it can reasonably be inferred that cohabitation between them is not likely to be resumed,go further than the present Bill and, where the marriage has broken down, are an attempt to recognise the realities of the situation more fully than does the present Bill. Against that, however, the Bill provides a simple test of the cessation of cohabitation, and my noble and learned friend's suggestion might involve the risk of litigation, involving an investigation of the spouses' matrimonial affairs, probably after the death of both or one of them. If the change is to be made, I myself would rather go the whole way 370 than leave that difficult question of fact outstanding.
However, this is a Private Member's Bill, and I am sure that the noble Lord, Lord Meston, would agree with me that, when we have had such unity in debate on the side of the Amendment, he, As the sponsor of the Bill, and I, as representing Her Majesty's Government at this Dispatch Box, should be very hesitant not to accept the position. I do not think that that would be consistent with my duty to your Lordships' House. Therefore I feel that we ought to go further in this matter, and I now come to the point which has already been raised by my noble and learned friend Lord Keith of Avonholm—that is, as to the formalities of the Amendment.
May I say how the matter appears to me? I think it will probably be easier to achieve the result which Lord Silkin has in mind by leaving out Clause 5 altogether, with a consequential Amendment in Clause 2. Then I think we should have to consider the desirability of retaining subsection (3) of Clause 3 and subsection (2) (b) of Clause 4, because, if the unity of domicile of husband and wife is no longer to be preserved, the presumption contained in subsection (3) of Clause 3 ceases to be appropriate. I think that Lord Keith of Avonholm had that in mind. In addition, Clause 6 would need to be amended to make provision for the case in which two people domiciled in different countries are equally entitled to custody of the child. I do not know whether my noble and learned friend Lord Merriman has made a final consideration of this point; but I think he would agree with me that if a wife is to be able to acquire a separate domicile it will he necessary to consider whether any Amendment is desirable in Section 18, subsection (1), paragraph (b) of the Matrimonial Causes Act, 1950, which gives the court jurisdiction in the case of a wife who has been ordinarily resident in this country for three years immediately before commencement of proceedings. That provision was designed to mitigate the hardship caused to married women by the present rigidity of the rule, and the need is less clear where a married woman can acquire a domicile of her own.
I should like your Lordships' permission to work out these Amendments. I 371 should also like to consult my right honourable friend the Attorney General upon them, but I should be very willing, before the Report stage comes, to meet, not only the noble Lord, Lord Meston, who is in charge of the Bill in this House, but also the noble Lord, Lord Silkin, and the noble and learned Lord, Lord Denning, having, I hope, had the advantage of discussing them with my noble and learned friend Lord Merriman before that stage. If that course commends itself to the House I would ask my noble and learned friend and the noble Lord, Lord Silkin, not to press the Amendment to-day, on the understanding that I, as representing the Government, have given: that I am not doing anything to discourage the inclusion of the Amendment in the Bill.
§ LORD SILKIN
I am very grateful indeed, as I am sure are all my noble friends who supported this Amendment, for the very clear and full explanation which the noble and learned Viscount has given. Of course we realise that this matter is not free from difficulty and that a case can be made, as generally it can, against the Amendment. As he rightly says, however, I am quite sure that, in these days, the prevailing opinion is in favour of giving married women a separate domicile; and the noble and learned Viscount, as I understand him, has accepted that principle and is prepared to go through the Bill to see what are the correct Amendments to be made to it. I accept the fact that the Amendment which is in my name may have been effective in raising the matter but that it is probably not entirely effective in carrying out our desires. In those circumstances, I beg leave to withdraw the Amendment.
I should like to raise a point as to what the noble and learned Viscount the Lord Chancellor said on one matter. Did the Lord Chancellor say that Clause 5 of the Bill should be omitted altogether? I understand the Common Law of this country at the present moment to be that a married woman automatically takes the domicile of her husband.
§ THE LORD CHANCELLOR
I think that is why we had to consider whether a statement of that principle 372 should continue to be set out. I should like to go into the minutiæ of the drafting with the noble Lord, Lord Meston, and I will consider the point. That is certainly one of the points that I think needs consideration.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Remaining clauses agreed to.
§ House resumed.