§ 4.52 p.m.
§ LORD DENHAM
My Lards, on behalf of my noble and learned friend the Lord Chancellor, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Denham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ LORD BESWICK
May I ask just to fill in the time, for how long it is proposed that we should await the noble and learned Lord who sits on the Woolsack?
I regret that this has happened, and I cannot give the noble Lord a direct answer. Perhaps I may move that the House adjourn during pleasure for five minutes, in which time I will arrange for my noble and learned friend the Lord Chancellor to be in his place.
§ House resumed.
§ LORD BESWICK
My Lords, before the Motion is put to adjourn during pleasure—and in order, I might even say, to provide a little extra time—I would point out that this is a most unusual procedure. It seems to me that the organisation of business on behalf of the Government ought to be carried out in such a way that we do not have to hang around like this, and go into Committee and then go out of Committee again. It would be much better if the Government could arrange for the noble and learned Lord to be here at the time the business comes up.
My Lords, I think that an apology is due to the noble Lord and to the House. I am quite certain that my noble and learned friend the Lord Chancellor was very busy on some other business and was not warned in time.
THE LORD CHANCELLOR
My Lords, I gather from what has just emerged from the noble Viscount that I have kept the House waiting. I hope he will accept my apology, and I hope I have not kept the House waiting long. I was, in fact, only notified that the last Order was coming to an end a moment ago, and I arrived with what despatch I could summon.
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Viscount Goschen.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Recognition in Great Britain of divorces and judicial separations granted in the British Isles]:
THE LORD CHANCELLOR moved Amendment No. 1:
Page 1, line 17, leave out ("Act") and insert ("section")
§ The noble and learned Lord said: I beg to move Amendment No. 1. I think I can honestly say that this is a purely technical Amendment. Perhaps I should 212 explain why it is necessary, but in no more than a few words. Clause 9, which enables the Parliament of Northern Ireland to enact corresponding legislation, comes into force at once. The remainder of the Bill comes into force on January 1, 1972. The phrase in the Bill as drafted, "the commencement of this Act", is therefore ambiguous. The intention is that it should mean the commencement of Clause 1 in this context, and this is made clear by the Amendment. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ 4.58 p.m.
LORD SIMON OF GLAISDALE moved Amendment No. 2:
After Clause 1, insert the following new clause:
§ Non-recognition in Great Britain of divorces obtained in British Isles otherwise than by decree.
§ ".—(1) A divorce obtained in any part of the British Isles after the commencement of this section otherwise than by means of a decree granted under the law of that part of the British Isles shall not be recognised as valid in Great Britain.
§ (2) This section has effect whether or not the spouses are domiciled in any part of Great Britain and, if they are domiciled in some other country, notwithstanding that the divorce would be recognised as valid there."
§ The noble Lord said: I beg to move the Amendment standing in my name on the Order Paper. In doing that, I am addressing your Lordships for the first time, and I am naturally conscious of the fame of this House and also of the many years of distinction that so many of your Lordships have given by way of service to the State. In these circumstances it would, in any event, be a daunting experience to address your Lordships for the first time. But I confess that it is no longer easy for me to address a new forum for the first time, so that when I ask your Lordships' indulgence, it is no mere empty phrase but the expression of a real need.
§ I am also conscious that it is to some extent a presumption that I should be making my first speech in your Lordships' House by way of proposing a new clause. I do it only because the noble and learned Lord who sits on the Woolsack asked me to do so, so that a problem that was raised by the noble Lord, Lord 213 Stow Hill, on Second Reading should have full discussion in Committee. The new clause that I have put down is designed to deal with that problem, though it is only right I should tell your Lordships that I am by no means certain that it is the best way of doing it. I hope, however, that it may be a useful pig for discussion.
§ The noble Lord, Lord Stow Hill, described very clearly what the problem was. Some systems of law allow a divorce by the simple pronouncement by a husband three times of the words, "I divorce you". The divorce under those systems of law is then effective—or, sometimes, effective after a lapse of time—however blameless the wife may have been. By our law we are bound to recognise such a divorce if it is valid by the law of the domicile of the parties. The problem therefore exists independently of this Bill, although it is rendered more acute by two of its provisions.
§ It is by no means a minimal problem these days, with the interpenetration of societies and the great mobility of populations. I have been told that about 150 applications each year are made to Superintendent Registrars of Marriage for leave to remarry after pronouncement of the type of divorce that I have mentioned. There are bound to be more than that, because not all remarriages come before Superintendent Registrars of Marriage. Your Lordships will see that the danger of that system is that the whole of the safeguards of our system of judicial divorce are by-passed. It may well be that not only does the wife suffer an injustice, but her support is thrown on the taxpayer of this country. That is the problem that was pinpointed by the noble Lord, Lord Stow Hill.
§ The new clause which I venture to propose to your Lordships is rendered, I think, the more necessary, or some solution is rendered more necessary, by two provisions of this Bill, although, as I said, the problem exists independently of the Bill. The first is that we now propose to accord recognition to a divorce if it is pronounced, or if it is valid, by the law of the nationality or habitual residence, as well as by the law of domicile. In other words, at the moment it is sufficient that the husband—and therefore the wife—is domiciled in some country according to which the type of divorce 214 that I have mentioned is valid. But under the Bill we shall also be according recognition to divorces of the country of the nationality. For example, if a husband—and therefore a wife—is domiciled in Egypt or Pakistan, we accord recognition at the moment. Under the Bill we shall have to accord recognition even though the husband—and therefore the wife—is domiciled in this country, provided that his nationality is still in his country of origin.
The second respect in which the Bill renders the problem more acute is this. At the moment our law allows the courts in this country to refuse recognition to any rule of foreign law, not confined to divorce or matrimonial law, where to recognise it would cause injustice. That is applied in individual cases. The nearest we get to that in this Bill is in Clause 8(2)(b) on page 4 at line 6, where the court can refuse recognition if the recognition,
would manifestly be contrary to public policy.
I am bound to say that that teems to me to be considerably narrower than the powers that the courts at present enjoy, to refuse recognition when it would be unjust to accord recognition. I think we should all be very grateful to the noble and learned Lord the Lord Chancellor if he could give us an assurance on that matter, or perhaps undertake to consider the matter before a later stage of the Bill.
§ What the new clause proposes is that we should, in fact, refuse recognition of a divorce obtained in the British Isles unless it is obtained in due process of our law; in other words, it takes steps to prevent the safeguards of our own matrimonial law being by-passed. It is, however, only right that I should tell your Lordships that I recognise that that proposal has several disadvantages. The first is perhaps a technical one and it really turns on the word "obtained". That word appears elsewhere in the Bill, it is true, and I think it is liable to cause difficulties. In some countries there has been superimposed on the ancient power of divorce of a husband by mere pronouncement of a "Bill of Divorcement", so to speak, a procedure whereby there shall be an attempt at reconciliation. In Pakistan, for example, to allow for this procedure to be followed the 215 divorce by simple repudiation does not take effect until after 90 days, and there may well be a difficulty in deciding where the divorce was obtained. Is it obtained in the place where it was pronounced, or is it obtained in the place where reconciliation failed?
§ But there are more serious objections which it is only right I should confess to your Lordships. In the first place, it is a serious inroad on the general recognition principle which the Bill so advantageously enshrines. The second objection is this. The English divorce court is not available to a husband unless he is domiciled in this country. If, then, we refuse him a divorce or refuse recognition to a divorce which is valid according to the law of his domicile, we may be refusing him a divorce altogether unless he is domiciled in this country. Even in the case of a wife who has a forum after three years' residence in this country there may still be a difficulty, because if she was married in a country which permits polygamy our courts have no machinery to allow matrimonial relief. That is a matter that the Law Commission has under consideration at the moment, but as the law now stands a wife, even if she were three years resident in this country, would not be able to get a divorce if she had been married according to a law which even potentially allowed polygamy.
§ The third matter is perhaps less substantial, and that is that the machinery which I have ventured to lay before your Lordships could be by-passed by the husband delivering the Talak elsewhere than in this country. He might, for example, deliver it by proxy in a country allowing divorce by proxy. He might merely take a Channel packet to France and deliver the bill of divorcement there. We should be bound, I think, then to recognise the efficacy of the divorce. Lastly, we ourselves now permit a husband who has defaulted on his matrimonial obligations to divorce a wife who has substantially performed hers and even though it would involve her in hardship, though not grave hardship, in which case the courts have some residual powers. So it may seem to your Lordships that it would be more logical and decent for us to recognise a foreign divorce, even though it be by a guilty husband of an innocent wife, provided the English court preserves 216 and retains the power to do financial equity between the parties.
§ It seems to me that that consideration is reinforced because if the wife, in the circumstances to which the noble Lord, Lord Stow Hill, drew attention, has an order for maintenance in an English court of summary jurisdiction, it would not be automatically discharged by the recognition of the divorce—any foreign divorce or, for that matter, an English divorce—and it might therefore be preferable to recognise the efficacy of the divorce and to allow the English courts to award maintenance where it would be equitable notwithstanding that divorce. I confess that that is the measure that I would myself prefer, although I am at request moving to insert this new clause.
§ The noble and learned Lord on the Woolsack might want to consider this matter in the context of legislation on polygamous marriages. It is to some extent connected with that. But I confess I would be very sorry to see this Bill, which is, after all, before your Lordships' House, go by without using it as a vehicle for reform to meet the point the noble Lord, Lord Stow Hill, raised. But with those misgivings, and in order to enable your Lordships to express a view on this matter, I beg to move.
§ LORD GARDINER
I think that this is the second time within about ten days that I have had the pleasure of congratulating a noble and learned Lord on his maiden speech, and it gives me particular pleasure to-day to be able to do so in the case of the noble and learned Lord, Lord Simon of Glaisdale, the President of the Probate, Divorce and Admiralty Division. He is, as he well knows, a most welcome Member in all parts of the House, and I am sure that we all look forward to profiting for a long time from his advice and wisdom in those fields in which he has held such a high office and in which he has so much knowledge and experience.
I think it was my noble friend Lord Stow Hill who suggested that if the noble and learned Lord was here in time, it might be a happy occasion for him, if he thought fit, to introduce the subject matter of this Amendment this afternoon. I only wish that I could conclude by saying that I entirely agree with the Amendment and hope that the Committee will accept it; but, as has been 217 explained, this is a point on which there are two views. If I express a view, it is because the noble and learned Lord the Lord Chancellor thought that this question ought to be raised and discussed, and in expressing a personal opinion I am not, of course, asking anyone sitting behind me to support me, because this subject has nothing to do with Party politics at all.
The noble and learned Lord, Lord Simon of Glaisdale, very fairly summarised a good many of the arguments against this Amendment, and that will save me from doing more than stating very shortly the reasons why I am on the other side of the fence. The first is this. The basic principle of our law is to recognise the status of individuals as determined by the law of their domicile. In the Qureshi case, which the noble and learned Lord himself decided, he decided that a Talak divorce here had to be recognised where the husband was still domiciled in, I think, Pakistan. That was in accordance with the basic principle of our law. Secondly, the object of this Bill is, in the main, to avoid limping marriages. That is the reason why we pressed other countries to try to agree a Convention on the recognition of foreign divorces and separations. By "limping marriages" I mean, of course, those very unhappy states in which two people are married in one country but not in another country; the children are legitimate in one country but not in another country. The whole object of this Bill is to enable us to ratify The Hague Convention, the object of which is to reduce the number of limping marriages.
Now it would seem to me an extraordinary thing if we were then to introduce into the Bill a clause the main effect of which would be to create an additional number of about 150 limping marriages a year. That, I understand, is about the number of these Talak cases, and in most of the cases, particularly of Pakistanis, the people concerned do not give up their domicile but remain domiciled in Pakistan. Moreover, in one sense, but I do not mean in any technical sense, the Amendment seems to be rather outside the scope of the Bill. The Bill, as your Lordships know, really does only two things. First of all, it provides that the courts of Great Britain will recognise their own decisions as between Scotland and England and Wales, Northern Ireland and 218 so on. Secondly—and this is its main object—it is to deal with divorces which take place overseas. It seems rather odd, suddenly to introduce an Amendment dealing for the first time with divorces which take place here.
Then, as the noble and learned Lord has said, as I understand it, Talak does not, in fact, in itself create a divorce. Nothing happens for three months; immediate notice has to be gives both to the wife and to an arbitration council. The arbitration council has the duty of seeing whether it can effect a reconciliation between the parties, and if it comes to the conclusion that it is impossible to effect a reconciliation, it can then order payment of maintenance and return of dower. And, as I understand it, if Talak has taken place in a country other than the home country, say Pakistan, it is the duty of the Embassy or the High Commission to call an arbitration council in the place where Talak was penformed. If the sole objection is really to any non-judicial divorce, there can be no inherent merit in judicial proceedings as the sole means of dissolving marriages; and The Hague Convention itself obliges us to recognise non-judicial ones.
Lastly, and apart from those considerations against the Amendment, as well as certain others which the noble and learned Lord himself mentioned, I do not see what good this will dc. If a Pakistani husband says Talak here, there will follow the arbitration council, maintenance or not, and so forth; but in any case the divorce will be valid according to the law of Pakistan. The parties will no longer be regarded in Pakistan as married. It will create another "limping marriage", and will not really assist the wife if we do rot recognise the divorce. As the noble and learned Lord pointed out, the man has only to go to, say Pakistan (and not only to Pakistan: it may be to France or somewhere else—and I understand that the noble and learned Lord was quite right, as I always assume he is, in saying that by the law of Pakistan a man can say Talak by proxy) and get a proxy there to say Talak, and we shall be bound to recognise the divorce because it would be valid by the law of the domicile where he would be.
Speaking only for myself I feel that the balance of advantage lies in leaving 219 the situation as it is. It may well be that if and when we come to deal with polygamous marriage we should then reconsider the situation. But for the reasons I have given I hope that the noble and learned Lord will at least not press his Amendment to a Division this afternoon.
§ 5.24 p.m.
§ LORD STOW HILL
I hope that the Committee will allow me to intervene for just one moment if only to express the intense pleasure I feel in being able to congratulate a very old friend of mine on his maiden speech in your Lordships' House. He and I have known each other for very many years. We have argued across the Floor of another place; and I hope that we shall have the opportunity to do that on many occasions halfway across the Floor of this House—not right across because he does not sit right on the other side of the House.
I thought, when I considered the Amendment which the noble and learned Lord had phrased, that he had most carefully and wisely gone a little way beyond the rather narrow confines, as he himself described them, of Clause 8 with its reference to "action manifestly contrary" to public policy and that he had perhaps, by his conception embodied in this Amendment, gone just about the right length; and that I should support his Amendment, a thing I very much wished to be able to do on purely personal grounds. I thought carefully upon it and my own approach is very much that of my noble and learned friend, Lord Gardiner, who has just spoken. I should have thought that when dealing with this question of "limping marriages" it is of the utmost importance to try to achieve clarity and finality. It is not really to anybody's interest for two people to be regarded in one country as divorced yet in another still married. I feel sure that my noble and learned friend Lord Simon of Glaisdale will agree with me on that.
His object, as he explained, clearly was to put before the House a suggestion to try to deal with the difficult situation which arises out of the case of Qureshi v. Qureshi, in which he delivered such an interesting and valuable judgment, and to place before your Lordships the arguments on both sides—those in sup 220 port of the proposal he has made and those which could be advanced against it. I thought that he did that, if he will allow me to say so, just about as perfectly as it could be done. He deployed the considerations on both sides and I think he must have made all Members of your Lordships' House feel how fortunate we are to be able to include in our numbers one who can speak with such vast wisdom and experience on such an important yet infinitely complex aspect of our affairs.
Listening to my noble and learned friend Lord Simon, I feel that the three difficulties that he himself raised really tipped the balance against his Amendment. There is a difficulty, having regard to the conciliation procedure, for example, in Talak cases, arising on the words "obtains". It is difficult to think of any other word that could be substituted for it. It would be very regrettable, to take his second point, if the result of the Amendment were sometimes to lead to a situation in which no divorce could be obtained by parties who manifestly ought not to be kept together. Finally, there is the point, at any event if we look at Talak type divorces, that by the exercise of the proxy procedure the noble and learned Lord's Amendment could be evaded.
Starting as I do from the standpoint that clarity is of the greatest importance, and welcoming very much the general objective of this Bill, which is to try to inform people finally and definitely what their marital status is in this country, and bearing in mind, as my noble and learned friend Lord Gardiner said, that really the effect of the Amendment would be to go back from clarity, and to perpetuate in some cases what is described as the "limping marriage", I hope that my noble and learned friend will not think it unfriendly on my part if I say that I feel that, on balance, I should be against the Amendment that he proposes. But I should not like to conclude my remarks without thanking him for putting the rival considerations on both sides so extremely clearly and carefully, to enable me, at any rate, to make up my mind against his Amendment.
§ 5.28 p.m.
THE LORD CHANCELLOR
I hope that I may be forgiven for contributing a 221 little to this discussion although three very distinguished speeches have been delivered on what I regard as an extremely difficult problem. Before I embark on the difficulties I should like to join with the noble and learned Lords who have both spoken from the other side in congratulating my noble and learned friend, if I may still so call him, upon a most distinguished maiden speech: the more heartily because he is a very old personal friend of mine both at the Bar and as a colleague in a previous Government, and because in moving this Amendment he was in fact yielding to the blandishments of the noble and learned Lord, Lord Stow Hill, and myself on the Second Reading of this Bill. He has done not only the House a public service by making his maiden speech on this topic, but certainly me and if think the noble and learned Lord a personal service by enabling it to be ventilated in this way.
The reason why I rather encouraged this procedure is that the more I read of the Qureshi case which my noble and learned friend himself, as President, decided, the more I felt convinced that public discussion of this issue was very much in the public interest whatever way the issue was ultimately decided. My view on this was confirmed by the fact that, while I was a Member of another place, people were constantly writing to me in a constituency fashion (when I was speaking as the spokesman on Home Affairs for the Opposition), pointing out this and a number of very closely related problems which arose out of what I think the noble and learned Lord, Lord Gardiner—or was it the President himself?—described as the interpenetration of different communities; and I felt that Parliamentary discussion is an essential preliminary to clarifying public opinion about this issue.
The advice which I have consistently received from my Department has been that this Bill is probably not the proper vehicle for an Amendment of this kind; even if, despite the objection, it was the ultimate decision which Parliament took. For that reason alone, I shall in due course ask my noble and learned friend to withdraw the Amendment; but before I come to that, I should like to point out some of the complex issues of which the Qureshi case is, to some extent, an illustration.
222 In the first place, I should like to make very plain that it is not only the Moslem Talak which is involved in this complex; there is the Beth Din, for instance, which issues the Get; and two Israeli-domiciled persons, one of whom might very well be a British subject, could be the subject of a Get from one of the Beth Dins in the world, and from the Beth Din in London in particular. Moreover, in the last constituency which I represented before I joined your Lordships, there was a very large Cypriot community. So far as they are of Greek origin they are Greek Orthodox. I am told that the Archbishop of Thyatira holds an Ecclesiastical Court in this country especially for their be refit, and pronounces divorces according to the rites of the Greek Orthodox Church which, by the law of Cyprus, would be recognised.
These last two, the Jewish marriage and the Greek Orthodox marriage, are neither of them even potentially polygamous in the sense in which polygamy is recognised in the courts. Therefore this is not confined either to Pakistani marriages or to Moslem marriages in themselves. The same problem would, of course, arise in any Moslem Talak, because the Talak is not part of the law of Pakistan alone, it is part of the law of Islam; and any two characters who have indulged in a Talak divorce in this country, having been married according to the laws of Islam, would be affected by the Qureshi decision. So there is a very wide complex of kinds of marriage which can be involved in it.
Again, in order to show the complexity of the subject, the Moslem marriage itself is, in Moslem law, potentially polygamous; they have a "war establishment" of four at any one time, although they may not necessarily fill up the "war establishment" to its capacity. That potentially polygamous marriage is a marriage which, if indulged in, and if it does not become monogamous in some way, is one with which the British courts at the moment will have nothing whatever to do. One of the things which I think we have to consider in this complex of cases is whether it is good enough for the British courts simply to withdraw the hem of their jurisdictional garment away from such relationships, and not provide at least ancillary relief; 223 because a wife (I use the word without prejudice) can be deserted in the case of a polygamous marriage—and she may be the only wife—and one asks oneself whether she should not be entitled to maintenance in some circumstances. Certainly the Law Commission is likely to come to the conclusion that some kind of jurisdiction ought to be conferred.
The problem may be rendered even more complex. Suppose a potentially polygamous marriage, which may be pagan or Moslem (which gives rise to a different kind of problem) is entered into in, say, Pakistan, and the parties become domiciled here. As a result of a change of domicile it merges into a monogamous marriage by inperceptible degrees, and the courts here would have jurisdiction. The actual marriage in Qureshi, although between two Moslems, neither of whom had an English domicile, was in fact in an English Registry Office, and was therefore not a potentially polygamous marriage at all, except in religious law. The result of Qureshi—the President will correct me if I am wrong—would have been precisely the same if the girl had been an English girl and the marriage had been an English marriage. She would have been divorced just the same as long as the husband's domicile was Pakistani.
That gives me an opportunity to raise another related issue. The law as it stands is this: the status of marriage, as several noble and learned Lords have pointed out, is on principle based in this country on the law of domicile. In the case of a man, domicile is a question of fact. He starts with a domicile of origin, which it is relatively difficult to throw off, and if he changes his permanent home he acquires a domicile of choice; that is to say, he does not intend to go back to his original country. With a woman, although domicile starts as a question of fact, it ends as a question of law, because if she marries, she acquires conclusively in law her husband's domicile. This gives rise to a number of confusions with which I do not think I need to deal.
The women's societies of course are always pressing one to alter the law as a case of discrimination against women. It is not of course a discrimination against women, because the law of the domicile may be more favourable to a woman as well as less favourable. But I think it is 224 a ridiculous anomaly that the law of domicile should be a question of fact in relation to a man and a question of law in relation to a married woman. I think that will need to be looked at in this particular connection. Personally, I am beginning to doubt whether the law of divorce as recognised in this country ought to be anchored as completely as it is now to the question of domicile at all. We have breached very considerably both by judge-made law and by statutory law, the jurisdictional rule which riveted it to English domicile, and we are going further in the same direction by the provisions in this Bill. One wonders whether we should not turn over to being a residence country, or a national country, and leave domicile only a kind of residual source of jurisdiction. These things, I think, have to be considered very seriously.
There is another problem which I think we have to look at. It is that we are now going in for recognition of foreign divorce in a relatively big way by this Bill and, as I said on Second Reading, I am very much in favour of this. It will save people from these horrible "limping" marriages. On the other hand, as the noble Baroness, Lady Summerskill, pointed out on Second Reading, the question arises as to whether a woman who is deserted here ought not to have some recourse to the courts here for ancillary relief, notwithstanding that her divorce may be recognised abroad. Maintenance orders and other orders for ancillary relief are not easily enforced abroad. Although we are going to do something about that—and I hope that we shall do more as time goes on—I cannot hold out an absolute assurance that there will be complete reciprocity in such a case. A woman may find that her husband comes back here having deserted her and got a foreign divorce. He may have assets here, and it may be that we want to acquire certain ancillary jurisdiction between ex-wife and ex-husband in order to give effect to a wife's rights.
All this, I think, adds up to the fact that we cannot really solve this complex problem this afternoon in this Bill, so I think the technical advice that I have been given is right. I think the balance of advantage coincides with what the noble and learned Lord, Lord Gardiner, said, and what the noble and learned 225 Lord, Lord Stow Hill, said, and what I think the learned President indicated: that we must leave the Qureshi decision status quo for the moment. In the meantime, I have written to the Law Commission to give special consideration to this problem and certain related problems in the course of their examinaton of family law.
Obviously the problems are not confined to England. This is yet another branch of the law in which it is important that English and Scottish law should walk in step. So I have consulted also my right honourable friends the Secretary of State for Scotland and the Lord Advocate about it, and I understand that they will be seeking similar advice from the Scottish Law Commission. I am sure that they will find our debate, and in particular the speech of the noble and learned Lord and his judgment in the case, and the speeches of the other two noble and learned Lords who have taken part, helpful in giving advice to Parliament on this highly complex subject.
The trouble with questions of this kind is that they are extremely technical and difficult, but at the same time the happiness of human beings is closely linked to the right solution of these technical and difficult problems. One is torn between a desire to remedy injustice quickly and the knowledge that if one does so hastily one will create more anomalies than one avoids. In these circumstances, I hope that my noble and learned friend will withdraw his Amendment. Should it be proposed again in another place, I should certainly be disposed to take advantage of the advice that we shall receive in that quarter as well.
§ LORD SIMON OF GLAISDALE
I should like, first of all, to express my profound gratitude for the kind and generous words that the noble and learned Lords who have spoken in this debate have extended to me, although I could not help noticing that the personal friendliness was considerably greater than the friendliness to my new clause. May I make one or two points before acceding readily to the suggestion of the noble and learned Lord the Lord Chancellor.
The noble and learned Lord, Lord Gardiner, said that Talak does not create a divorce in itself. That is certainly true of Pakistan. But, as the noble and 226 learned Lord the Lord Chancellor pointed out, by general Islamic law it does. Then the noble and learned Lord, Lord Gardiner, referred to the power of the arbitration council to award maintenance. Again that is, so far as I know, solely a provision of Pakistani law, and I know of no way in which any order or direction given by the arbitration council can be enforced in this country unless by an order of a court which we recognise under the Maintenance Orders Act. That, certainly, would not be so in the circumstances of an arbitration council sitting in this country in the way described by the noble and learned Lord, Lord Gardiner, and, indeed, as echoed by the noble and learned Lord, Lord Stow Hill. As to the desirability of certainty and the evil and injustice of "limping marriages", one has to weigh that against the injustice that under the present system could undoubtedly be caused in the way described by the noble and learned Lord, Lord Stow Hill, on Second Reading: the injustice to the wife, and injustice indeed to the British taxpayer who might have to stand behind her.
It is for that reason that, if I may say so with respect, I personally favour the suggestion of the noble and learned Lord the Lord Chancellor, that the way to deal with this matter is by giving better powers to English courts to award maintenance after a Talak divorce or any comparable divorce. The problem is much more than one of Islamic law. The Jewish Get has not the same potentialities of injustice to the wife, because, unlike its origin in the Book of Deuteronomy, the wife has to accept the Get before the Beth Din—she cannot simply be repudiated. I think that the procedure in the Greek ecclesiastical courts is similar in that regard: though the noble and learned Lord, the Lord Chancellor, was of course quite right in saying that both those procedures, equally with the recognition of Talak divorce, involved the by-passing of the safeguards of the English or the Scottish matrimonial law. Having said that, and hoping that the noble and learned Lord the Lord Chancellor, will give further consideration to the injustice to wives and those who stand behind them that is implicit in this procedure, I beg to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 2 to 4 agreed to.227
§ Clause 5 [Proof of facts relevant to recognition]:
§ THE LORD CHANCELLOR moved Amendment No. 3:
§ Page 2, line 43, leave out paragraphs (a) and (b) and insert "shall—
- (a) if both spouses took part in the proceedings, be conclusive evidence of the fact found; and
- (b) in any other case, be sufficient proof of that fact unless the contrary is shown."
§ The noble and learned Lord said: This Amendment makes a finding of fact by the foreign court on which its jurisdiction was based conclusive evidence of that fact where both spouses took part in the foreign proceedings, and sufficient evidence (unless the contrary is shown) if they did not. The purpose of the Amendment is to give effect to a criticism made of the draft on Second Reading by the noble and learned Lord, Lord Stow Hill.
§ The present form of Clause 5(1) makes the finding of fact binding on any court in Great Britain if both spouses took part in the foreign proceedings, but enables the finding in any other case to be treated as sufficient evidence of the fact found if the court thinks fit. The noble and learned Lord criticised the lack of provision on the ground that it would lead to uncertainty. He argued that it might be difficult to find out many years later whether both spouses had in fact taken part in the foreign proceedings, and, where they had not, he thought it unsatisfactory that the matter should be one of discretion.
§ There is obviously a good deal of force in the noble and learned Lord's comments. It can also be said that Clause 5(1)(b), and to a lesser extent Clause 5(1)(a), may be criticised as operating solely on the courts, whereas in most cases it is not a court but the Registrar of marriages who is concerned to know whether the foreign divorce is to be recognised. It might be argued that to ask the Registrar to estimate how a court might exercise its discretion would be an unfair burden on him. There is therefore a case for treating the foreign finding as evidence of the fact found, without bringing the court into it. That is what the Amendment does.
§ To achieve complete certainty, it would be necessary to make no distinction 228 between proceedings in which both spouses have taken part and those in which only one spouse had done so. But there are objections to this, and they were summarised in paragraph 32 of the Law Commission's Report. Findings in what are virtually or entirely ex parte proceedings—that is, proceedings in which only one of the two sides is represented—are not always, as one knows by experience, very reliable. There would be an element of unfairness in giving the other spouse no chance to challenge their correctness.
§ The alternative way of meeting the criticism—and this is the way I have adopted in the Amendment—is to create a rebuttable presumption in favour of the correctness of the finding. This will mean that unless there is some positive evidence to the contrary the foreign court's finding will be taken as correct, and there will be no question of discretion. I agree that this does not go quite the whole way to meet the noble Lord's criticism. If, for example, after twenty years, there is no evidence whether the respondent took part in the divorce proceedings or not it may be difficult to say whether the foreign court's finding is conclusive or merely a rebuttable presumption. I do not see any way of avoiding this, but I have done my best to meet the arguments of the noble Lord.
§ LORD STOW HILL
I only rise to express my great gratitude to the noble and learned Lord for having met, in the Amendments he has framed, the points that I sought to raise on Second Reading. I think the Amendments meet the point most amply, and the whole difficulty is resolved by the scheme which he has embodied in his wording. I am most grateful to him. I am very content indeed with the Amendment as it stands, and I hope that your Lordships will be prepared to approve it.
§ On Question, Amendment agreed to.
§ Clause 5, as amended, agreed to.
§ Clauses 6 to 9 agreed to.
§ Clause 10 [Short title, interpretation, transitional provisions and commencement]:229
Page 4, line 27, leave out ("this Act") and insert ("those provisions").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ House resumed: Bill reported, with the Amendments.