HL Deb 25 March 1971 vol 316 cc1043-51

6.12 p.m.

THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 3a.—(The Lord Chancellor.)

On Question, Bill read 3a.

THE LORD CHANCELLOR had given Notice of five Amendments:

Clause 2, page 2, line 2, leave out ("6") and insert ("5")

Clause 6, page 3, line 10, leave out ("overseas divorces and legal separations") and insert ("divorces and legal separations obtained outside the British Isles")

Clause 8, page 3, line 28, leave out ("an overseas divorce or legal separation") and insert ("a divorce or legal separation obtained outside the British Isles")

page 4, line 7, at end insert ("and, subject to subsection (1) of this section, the grounds stated in this subsection shall be the only grounds on which recognition may be refused to the validity of any other divorce or legal separation obtained outside the British Isles")

Clause 10, page 4, line 26, after ("separations") insert ("and other divorces and legal separations obtained outside the British Isles").

The noble and learned Lord said: My Lords, I have put down a number of Amendments which I think can conveniently be discussed together. I rise to move the first Amendment, but I would propose that by leave of the House they be taken en bloc, because, I hasten to say, they are all connected with the same object. If I were sufficiently unscrupulous, I think I could say that they were very highly technical Amendments designed to remedy a minor defect in the Bill; and I do not think that they are controversial. However, I think that I should spend a couple of moments explaining in a little detail what they actually do because, though they are highly technical, they do extend the Bill so as to complete the code of practice contained in the Bill for the recognition of foreign divorce proceedings; and to rule out the influence of the court rule in the Indyka case, which depends on common law. The difficulty was basically in the drafting, and this is remedied by the group of Amendments which I propose.

An "overseas divorce", which is the phrase used in the Bill, is defined in Clause 2 as one which has been obtained "by means of judicial or other proceedings in any country outside the British Isles and" is "effective under the law of that country." These words are entirely apt to cover every divorce obtained by proceedings which are part of the municipal law of the country concerned. By the phrase "municipal law" lawyers will recognise that I mean the law of the country; it has nothing to do with local government. But these words will not cover any divorce obtained in a foreign country under some other system of law. That seems complicated. May I take a concrete instance? If we take a Jewish Get, which is a rabbinical term for a divorce under the Mosaic Code obtained before a Beth Din—a rabbinical court of the Jewish faith—in France, as distinct from a Beth Din in England, French law may, in accordance with its own rules of private international law, either treat that divorce as effective or refuse to recognise its effectiveness. That is a question of French law.

Let us consider both the alternatives. If the French law recognises that divorce, there is no problem under the Bill, because the divorce itself becomes, under the definition which I have given under Clause 2, an "overseas divorce", having been obtained in France and effective under their law. But if we take the alternative position and suppose that French law does not recognise the Get obtained in the rabbinical court, there would be a difficulty here in recognising that proceeding.

In such a situation, the divorce would not be an "overseas divorce" within the meaning of Clause 2 because, although it had been obtained abroad, it would not be effective under the law of the country where it had been obtained: the law of France. Thus it would not be covered by Clauses 6 or 8 as they now stand, with the result that it would fall to be recognised, if at all, by the common law of this country—under the rules of private international law, which I explained at greater length on Second Reading; that is to say, under what we call by a sort of legal shorthand the Imdyka rule. Thus it would be arguable that the divorce would be entitled to recognition in England not only if the spouses were domiciled in Israel but also if they had some substantial connection with Israel. All the uncertainties of the Indvka rule (and it is one of the principal objects of the present Bill to eliminate these) would be preserved, in what is admittedly not a large (but sufficiently large to be significant) class of divorces obtained outside the British Isles. I think that this would be a most unsatisfactory position.

The Bill was intended to contain a complete and exclusive code for the recognition of divorces obtained abroad, and that is why the conclusion of Clause 6 provides that … save as aforesaid, no such divorce or legal separation shall be recognised as valid except as provided in this Act. A divorce obtained in the circumstances which I have tried to describe would not be an "overseas divorce" and would not be caught by those words. The Amendments cure this defect. I need not go into them in detail, because I should be troubling the House unduly, but the Amendments do not affect the validity of any divorce obtained in the British Isles, whether by our own procedure, by Jewish Get, by Muslim Talak or by a Greek Orthodox form of divorce, in circumstances where such a divorce is effective under the law. As I say, it is all rather complicated, but I have tried to set out the unusual circumstances and have done my best to make them intelligible, though I am not sure if I have succeeded. I beg to move.

6.19 p.m.

BARONESS SUMMERSKILL

My Lords, may I ask the noble and learned Lord a question? He has told us that this is a complicated subject, so he will forgive me if I display an ignorance of the law. The Bill says, if its recognition would manifestly be contrary to public policy. What is public policy in this context? Is not the recognition of Talak against public policy in this country? I am sure the House will forgive me, because I am going to take an extreme case. In the last century the burning of widows in India was part of the rituals of marriage. The British decided that this was contrary to public policy and took a strong line and abolished it. Are we not helping to perpetuate a grave injustice if we allow Talak to continue? Where do we draw the line regarding the ill-treatment of women in our own country? Does this encourage good race relations? If it does not encourage good race relations, then it is against public policy.

Let us think of a crowded road where 90 per cent. of the people are monogamous and have the customs of Britain, and the rest of them are polygamous and practise Talak. If, for instance, a Muslim decides to divorce his wife summarily by saying, "I divorce thee" three times, then marries an Englishwoman and divorces her in the same way, does this encourage good relations in the road? Her relations and friends must feel strongly about this. In view of the fact that this element in our population is increasing, one would have thought that we should face up to this problem. Again, we try to instruct our immigrants—and we spend a lot of money doing it—how to adapt to the British way of life. If in one essential way of life, the taking of marriage, and divorce, their life is entirely different from that of their neighbour, surely we are not helping them to adapt to the British way of life. I should like to ask whether Talak is compatible with the attitude that we are adopting in Britain.

My final word is this. We are of course helping to educate, and emphasising the importance of educating, the next generation of our immigrants. But are we going to allow a new generation to be encouraged to treat their women in this unjust manner? Again, I should have thought that that was contrary to public policy. That is why I link everything that I say to the words "public policy" in line 7. If my interpretation is entirely wrong, I apologise for wasting the time of the House, but I should like to hear the views of the noble and learned Lord the Lord Chancellor on this subject.

THE LORD CHANCELLOR

My Lords, I confessed that this was a complicated matter and that I was not absolutely sure that I had succeeded in explaining to everyone's satisfaction the Amendments which I was moving; but I was not aware that I had failed so completely as the noble Baroness's speech indicates that I have. I thought that if there was one thing I had made absolutely plain about these Amendments it was that the practice of Talak in this country has nothing to do with them, and that they have nothing whatever to do with the practice of Talak in this country.

If I may, outside the scope of the Amendments that I have moved, make one or two observations which may—and I hope will; though again they may not—comfort the noble Baroness, I should like to go over quite briefly some of the ground which I tried to cover on Second Reading, and which was the subject of protracted debate on the Committee stage, when I thought that I had the ear of the House. On the second occasion I was supported by the noble and learned Lord, Lord Simon of Glaisdale, whose experience on this subject is enormous and whose particular experience was enriched by the fact that he had decided the leading case of Qureshi which gave rise to a great deal of the discussion.

The first point is that we are not, for the purposes of this Bill or indeed for anything in this Bill, concerned with the morality of Talak, which is a form of repudiation under Islamic religious law, modified in the case of Qureshi by Pakistani secular law to the extent that I tried to explain before. What we are concerned with is in what circumstances, if at all, it is juster to recognise its existence and its having taken place than not to recognise its existence. It is not a question of whether or not we allow it, any more than it is a question of whether we allow the Jewish Get or the Orthodox Greek divorce in the court of the Archbishop of Thyateira, both of which are relevant in this discussion. It is a question in what circumstances it is wise to recognise as being terminated rather than subsisting a marriage which that process purports to termniate.

It is not, therefore, primarily a question of the recognition of foreign divorces at all, or the permission or otherwise which you give to extra-judicial proceedings purporting to terminate the marriage. It is quite clear that where the parties are domiciled in this country the practice of Talak cannot terminate the marriage. It may or may not have, some civil effect upon property—I do not know: I have not considered it—but it cannot terminate a marriage. If parties are domiciled in this country and living here, you cannot terminate the marriage except by going to the divorce court. That must be absolutely plain.

For certain purposes such people do use Talak, because if they are Moslems, then having got a civil divorce they still have to get a religious divorce for the purposes of their own religion; and they have to make some rather peculiar arrangements about property, which I should be the last person to try to expound because I have not studied that particular religious law. Similarly, if you happen to be an Orthodox Jew and get a divorce in the civil court here, it is necessary for some purposes for you to go to the Beth Din for a Get. I have had in my professional life a number of cases where this was sought and refused, or sought and obtained: and indeed any competent practitioner who has to deal with Jewish parties to a marriage here warns them about this particular religious ceremony which, if they are Orthodox Jews, they have to carry out. But whether the marriage is terminated or not depends, in the case of Jews or of Moslems domiciled here, not upon the Rabbinical court of the Islamic court (or if they are Greek Orthodox, upon the Thyateira court) but on the divorce court which for all ordinary purposes is the county court or the High Court.

Therefore, the noble Baroness need not be concerned about people who are domiciled here. If people reside here they go to the divorce court in the ordinary way to the extent that the present laws of divorce in Britain entitle them to do so. There is a residence qualification of which a wife is entitled to avail herself to go to the divorce court here. But the question is, what happens if her husband (or vice-versa, but I will take it in the case of the wife petitioner, because I cannot go on saying the man or woman or wife or husband) gets a divorce by means of a Rabbinical decree?

All that was decided in Qureshi was that if you have two domiciled Pakistanis and the man gets a Talak decree in Pakistan or in Britain, it makes no difference: that marriage is at an end provided, so the learned President said in Qureshi, that no basic injustice has been committed. I am not quoting his actual words, because the noble Baroness gave me no notice that she was going to raise this point, but if she wants the actual words she will find them in the previous debates on the same subject. What the learned President meant by, "basic injustice being committed" would be something connected with property: for example, if the Talak decree deprived her of maintenance or something of that kind which could not be remedied in any other way. However, that is the effect of the Qureshi decision.

The effect of the Qureshi decision we discussed at great length in Committee, again trying to point out that it raised serious problems both in the case of wives who remain here and of wives who do not. But the arguments are not at all on one side, because the object of the Qureshi decision—and, I think, of most people connected with public policy—is not to allow a "limping" marriage; that is to say, to prevent the situation arising when the poor girl, besides being deserted by her husband who is probably by that time living in Karachi, and being deprived by him of maintenance, is not even able to contract a new union with an Englishman who will support her, and the fact that she has a "limping" marriage is much to her disadvantage. If one is going to argue about the merits of this case in terms of justice for women or for men, one must recognise the injustices that arise from "limping" marriages. All this has nothing to do with these Amendments, but it does not do to say, "I do not like Talak, I do not like Get, I do not like the Archbishop of Thyateira, and therefore we are not going to count it here. "You are faced with a human situation of a woman living in this country who cannot get a new marriage, cannot contract a new and decent union with an Englishman, and cannot get maintenance out of her deserting husband, who by that time may be in any part of the world he likes to name. So the arguments from the point of view of justice are rather on the other side.

I told the noble Baroness that I think there is something to be said—and so do the Law Commission—for assuming jurisdiction in these courts in the case of polygamous marriage from which these courts at the moment withdraw precisely because of this problem of maintenance. What the exact terms of public policy mean in this Bill I was careful not to define. The learned President said in Committee that he would have preferred his injustice formula. I am bound to use the public policy formula, because the purpose of this Bill is to ratify a Convention, and the Convention uses the words which are in the Bill and not others. Personally I disagreed with the learned President—as I made quite plain—when he said that public policy could not cover everything which was covered by injustice. It was that point which I undertook to go into with him, and certain other points about which I gave an undertaking to the noble Baroness, before the Bill went through the other place.

On the other hand, I must emphasise—and I come back to the point from which I started—that all these complicated questions we threshed out on Second Reading and in Committee, and they have nothing whatever to do with the purely technical Amendments which we have been discussing now on Third Reading. The technical Amendments which I am discussing have nothing to do with public policy; all they do is to say that where a Rabbinical divorce or an Islamic divorce is obtained in a foreign country it shall be an "overseas divorce" for the purpose of recognition in this Bill; that is to say, it will not depend upon common law, which is both uncertain and occasionally unjust, but will depend upon the code laid down in the Bill which this House has already approved.

I am sorry to speak at such length in this matter, but I hope that what I have said clears up the difficulty that is troubling the noble Baroness, at least to the extent of explaining that there is much to be said for the other point of view on the point which interests her, and secondly that the point which interests her is not touched by the Amendments that I am now proposing.

THE LORD CHANCELLOR

The other Amendments are all bound up with the first Amendment; I beg to move the remaining Amendments, Nos. 2 to 5.

THE LORD CHANCELLOR

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

Bill passed, and sent to the Commons.