§ 4.32 p.m.
§ LORD GARDINERMy Lords, I beg to move that this Report be now received.
§ Moved. That the Report be now received—(Lord Gardiner.)
§ On Question, Motion agreed to.
§ Clause 1 [Grounds on which marriage is void]:
§
LORD GARDINER moved Amendment No. 1:
Page 2, line 16, leave out from ("not") to ("if") in line 18 and insert (", in proceedings instituted after the commencement of this Act, grant a decree of nullity on the ground that a marriage is voidable (whether the marriage took place before or after the commencement of this Act)")
§ The noble and learned Lord said: My Lords, I beg to move this Amendment, Nos. 2 and 3. If no noble Lord objects perhaps the three Amendments might be taken together, since they all deal with the same point. Your Lordships will remember that Clause 2 of the Bill deals with voidable marriages, marriages which are valid unless and until there is a petition to annul them. Clause 3 deals with the bars to petitions to annual voidable marriages. I think that it is agreed on all sides that the re-statement of the law in the form of Clause 3 is a substantial improvement. It is not a clause which applies to any existing marriage. At the Committee stage of the Bill the noble and learned Lord, Lord Simon of Glaisdale, moved an Amendment which would have made subsections (1)and(4)applicable to existing marriages. He said that the Bill was a great improvement on the existing law which is far from clear or satisfactory. But as the Bill stands, Clause 3 bites only on those marriages dealt with in Clause 2; that is, marriages which take place after the commencement of the Act. I ventured to submit that there is no reason why these subsections should not apply in all proceedings commenced after the Act, whether or not in relation to marriages before or after the Act, and every reason why they should so operate. He moved accordingly.
534§ I did not see any objection to that but the noble and learned Lord the Lord Chancellor opposed it on the grounds with which I should have wholly agreed if the Amendment of the noble and learned Lord, Lord Simon of Glaisdale, had been applicable to the whole of Clause 3; that is, to subsections (1) to (4). I think there was some misunderstanding about that. I believe that the noble and learned Lord the Lord Chancellor had read it as if it had said "(1), (2) and (4)" and not as it did," (1) and (4)". He was good enough to say that he would reconsider the matter. Having done so, I think the noble and learned Lord has agreed that there is no reason why this proposal should not be made in relation to subsections (1) and (4). Having had the advantage of assistance from the Parliamentary draftsmen, I have put down Amendments in a somewhat different form from those of the noble and learned Lord, Lord Simon of Glaisdale, but in substance it is accepting his Amendment.
§ The main purpose is achieved by the first Amendment, which removes the reference to section 2 of the Act, and makes it clear that Clause 3(1) applies in any proceedings instituted after the commencement of the Act in relation to voidable marriage whether celebrated before or after the commencement of the Act. The second Amendment is cones quential, in that it is necessary also to remove the reference to section 2 of the Act from subsection (4) of the clause. The third Amendment ensures that Section 9(2) of the Matrimonial Causes Act 1965 continues to apply where the marriage took place before the commencement of the Act. In relation to post-Act marriages, Section 9(2) of the 1965 Act is replaced by Clause 3(2) and (3) of the Bill. It will continue to apply to pre-Act marriages notwithstanding the replacement of the old bars of approbation and ratification, lack of sincerity and so on, by the new test in Clause 3(1) which is achieved by this Amendment. If this saving were not specifically provided for, there might be some doubt about it. I hope that the Amendment may be acceptable in this form to both the noble and learned Lord, Lord Simon of Glaisdale, and the noble and learned Lord the Lord Chancellor.
§ LORD SIMON OF GLAISDALEMy Lords, I rise only to thank the noble 535 and learned Lord, Lord Gardiner, for having met my point fully and far more felicitously than was done in my own Amendment.
THE LORD CHANCELLORMy Lords, it only remains for me to confirm what the noble and learned Lord, Lord Gardiner, has said. This Amendment and the two other Amendments in this group have been prepared entirely with my approval by the Parliamentary draftsmen and I am grateful to the noble and learned Lord for having put them down.
§ On Question, Amendment agreed to.
§ LORD GARDINER: My Lords, I beg to move Amendment No. 2.
§
Amendment moved—
Page 2, line 37, leave out ("by virtue of section 2 of this Act") and insert ("to which it applies").—(Lord Gardiner.)
§ On Question, Amendment agreed to.
§ LORD GARDINERMy Lords, I beg to move Amendment No. 3.
§
Amendment moved—
Page 2, line 40, at end insert (" but, in relation to a marriage which took place before the commencement of this Act, is without prejudice to section 9(2) of the Matrimonial Causes Act 1965.").—(Lord Gardiner.)
§ On Question, Amendment agreed to.
§ Clause 4 [Marriages governed by foreign law or celebrated abroad under English law]:
§
LORD GARDENER moved Amendment No. 4:
Page 3., line 4, leave out (" neither section 1 nor section 2 ") and insert (" nothing in section 1, 2 or 3(1)").
§ The noble and learned Lord said: My Lords, in moving this Amendment may I speak also to Amendment No. 5 which deals with the same point. These Amendments are consequential on my Amendments to Clause 3 and are necessary to prevent the bar of approbation in Clause 3(1) from being applied in a case where the voidability of marriage is determined by an English court under a system of foreign law. As the Bill stands the whole of Clause 3 is related to decrees granted by virtue of Clause 2 and is thus limited to decrees granted under English law. If the Amendments to Clause 3(1) are accepted, the reference to Clause 2 is 536 deleted and the new wording refers only to the grant of a decree of nullity on the ground that the marriage is voidable which would include decrees made under the law of a foreign country which adopted the principle of voidability. It would not be right to import this bar to relief from English domestic law into a case where the validity of the marriage was governed by the law of a foreign country which did not contain any such bar. The general principle in such cases is that the substantive law is taken entirely from the foreign country and only the procedural provisions of English law apply. There is already express provision in Clause 4 which ensures that the grounds for relief are to be determined by foreign law where appropriate and not by Clauses 1 and 2 of the Bill. These Amendments similarly exclude the bar to relief in Clause 3(1) where the void-ability of the marriage is governed by foreign law. My Lords, I beg to move.
§ LORD SIMON OF GLAISDALEMy Lords, these Amendments seem to me to be necessary in view of the earlier Amendments. May I just add this? On Committee stage I ventured to put down another Amendment to Clause 4 which was linked with an Amendment I had proposed to Clause 1. In the subsequent discussion I was convinced that the problems were very complicated indeed, and although there was a point which merited scrutiny I was satisfied that it would be wrong to prevent the Law Commission from looking at the matters raised in the wider context. I therefore have not sought to renew the point at this stage and I merely welcome the Amendment that the noble and learned Lord has proposed.
THE LORD CHANCELLORMy Lords, I am again grateful to the noble and learned Lord, Lord Gardiner, for putting down this Amendment, which has the full approval of the Government.
§ On Question, Amendment agreed to.
§ LORD GARDINERMy Lords I beg to move Amendment No. 5.
§
Amendment moved,
Page 3, line 8, at end insert (" or bar")—(Lord Gardiner.)
§ On Question, Amendment agreed to.
537§ Clause 6 [Collusion etc., not to be bar to relief in cases of nullity or under s. 14 of Act of 1965]:
§
LORD GARDINER moved Amendment No. 6:
Page 3, line 24, leave out (" cease to ") and insert (" not ").
§
The noble and learned Lord said: My Lords, Clause 6 of the Bill reads:
Collusion shall cease to be a bar to the granting of a degree of nullity"—
and so forth. The noble and learned Lord, Lord Simon of Glaisdale, put down an Amendment on the Committee stage of the Bill, with a view, he said, mainly to ascertaining whether this clause was intended to have any retrospective effect or whether it was intended to apply from the start of the operation of the measure. As I understand it, the intention throughout was that it should apply to any cases which came before the court after the commencement of the Act, but it did not actually say so. The noble and learned Lord, the Lord Chancellor, the noble and learned Lord, Lord Simon of Glaisdale, and I all agreed on Committee stage that consideration should be given to this point in order to make it plainer. The Amendment gives effect to that undertaking and makes the effect of Clause 6(1) clear beyond doubt.
§ LORD SIMON OF GLAISDALEMy Lords, this seems to me to be a necessary Amendment if the Bill is to do what was intended. Again, there is nothing for me to say except to express my gratitude to the noble and learned Lord for meeting the point; and, as I meant to do on the earlier Amendments, to extend my thanks to the officials of the Department of the noble and learned Lord who sits on the Woolsack and the draftsmen who have co-operated with the noble and learned Lord, Lord Gardiner.
THE LORD CHANCELLORAgain, my Lords, I have nothing more to say except that this Amendment is a useful clarification, and I am grateful to the noble and learned Lord for putting it down.
§ On Question, Amendment agreed to.
§
LORD GARDINER moved Amendment No. 7:
Page 3, line 25, at end insert (" whether the marriage took place, or the proceedings were instituted, before or after the commencement of this Act.")
§ The noble and learned Lord said: My Lords, I beg to move this Amendment. I should not like to conclude the Report stage of this Bill without thanking the noble Lord, Lord Simon of Glaisdale, for the help he has given to the House over the Bill, which has resulted in two changes in it, both of which I think are improvements.
§ On Question, Amendment agreed to.