HL Deb 14 May 1971 vol 318 cc1593-601

2.35 p.m.

LORD GARDINER

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.—(Lord Gardiner.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD JESSEL in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3 [Bars to relief where marriage is voidable]:

LORD SIMON OF GLAISDALE moved Amendment No. 4: Page 2, line 16, leave out ("by virtue of section 2 of this Act").

The noble and learned Lord said: Amendments Nos. 4 to 10 lead up to Amendment No. 11. The purpose is this. The Bill as a whole does not affect the law very much. In one respect, as I ventured to complain the last time the Bill was discussed in Committee, it perpetuated an anomaly, and I do not propose to raise that again. But in Clause 3 there is a substantial improvement in the law in subsections (1) and (4). The matter was discussed by the Law Commission in its Paper, and I think noble Lords will have been convinced by its arguments that the new law as laid down in subsections (1) and (4) is a great improvement on the existing law, which is far from clear and far from satisfactory. But as the Bill stands, Clause 3 bites only on those marriages which are dealt with in Clause 2; that is, marriages which take place after the commencement of the Act. I venture 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. That is the purpose of the Amendments. I beg to move.

THE LORD CHANCELLOR

I can well understand the enthusiasm and desire of the noble and learned Lord, Lord Simon of Glaisdale, to apply the bright new provisions of Clause 3 to all marriages and proceedings, whether before or after the passage of the Bill. The matter was considered rather carefully by the Law Commission, which probably shared the noble and learned Lord's enthusiasm, and it came to the conclusion that some rather undesirable complications would be involved.

Clause 3 is summarised as Bars to relief where marriage is voidable". The object of the Amendments, as my noble and learned friend has frankly admitted, is to apply the newly formulated powers to relief in Clause 3 to proceedings which relate to marriages celebrated before the commencement of the Act.

Let me give two kinds of disadvantage that would follow. One ground of nullity is lack of consent. It is probable (though I gather not absolutely certain) that at present, before the Bill is passed, lack of consent makes a marriage void. When the Bill is passed it stops being made void, as I explained on Second Reading, and becomes a voidable marriage. Thereupon, if this Amendment were carried, Clause 3(2) would apply, and a three-year delay would lose the right to relief altogether. The result would be, in relation to a pre-existing marriage, that the marriage would still be void, not voidable, under the existing law, but it could not be annulled after three years because the new three-year time limit relating to voidable marriages would affect it. I should have thought that this was not an acceptable consequence.

Another unacceptable consequence of the passing of the Amendment would be to re-open matters which are already closed under the present law. In other words, there would be a degree of retrospection. A present-day voidable marriage can be voided in some cases only if proceedings are brought within one year. That is the present law. Examples are where there is mental disorder, venereal disease or pregnancy. If the Amendment were carried, Clause 3(2) would extend this period of delay to three years. If it were applied to present-day marriages, it could give power to a petitioner to bring proceedings which were barred under the present law. This, again, seems undesirable, because, after all, marriage is an affair of status, and it seems undesirable that a matter which is fixed under the existing law should be able to be re-opened in this way.

A third and less important complication, but one which I recommend the Committee not to disregard wholly, is that if the Amendment were accepted there would have to be rather a complicated rearrangement of the Amendment to Clause 7(3). At present, Section 9 of the Matrimonial Causes Act 1965, which now contains the additional grounds of nullity introduced in 1937 and the bars which relate to them, is repealed as regards marriages after the passage of this Bill, but is left in force as regards marriages before its passage. This would require a complicated, though not impossible, Amendment to leave the grounds in force but repeal the bars to relief in the case of the earlier marriages. I suggest to the Committee that, while one understands the reasons underlying these Amendments, the balance of advantage lies against them. I ask my noble and learned friend whether that is not possibly the right view.

LORD GARDINER

I cannot help thinking that there is a misunderstanding here. The observations the noble and learned Lord the Lord Chancellor has made were as if this was an Amendment to provide that Clause 3 should apply to all relevant proceedings for nullity of marriage, whether such marriage takes place before or after the beginning of this Act. If that had been the case, I should have agreed entirely with everything that the noble and learned Lord said. However, it seemed to me, if I may respectfully say so, that he appeared to have read the Amendment as if it said "subsections (1) to (4)". The objections would all arise out of subsections (2) and (3).

LORD SIMON OF GLAISDALE

Certainly my intention was what the noble and learned Lord, Lord Gardiner, takes it to be.

THE LORD CHANCELLOR

I read it (though I may be wrong, as there is a whole series of Amendments) that the total effect of Amendment No. 4, to Clause 3 on page 2 at line 16, to Amendment No. 11, to Clause 3 on page 2 at line 40, all of which are being taken together, was what I suggested. If I am wrong, I have been wrongly advised and I withdraw what I have said.

LORD SIMON OF GLAISDALE

I put in in Amendment No. 11 the words "subsections(1) and (4)". The noble and learned Lord, Lord Gardiner, is quite right.

LORD GARDINER

Perhaps the Lord Chancellor will consider this before the next stage of the Bill.

THE LORD CHANCELLOR

I certainly will. I was apparently under a misapprehension.

LORD GARDINER

Perhaps the noble and learned Lord, Lord Simon of Glaisdale, would be prepared, on that undertaking, to withdraw the Amendment.

LORD SIMON OF GLAISDALE

I should be very happy to take that course. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.47 p.m.

LORD SIMON OF GLAISDALE had given Notice of an Amendment (No. 5): Page 2, line 17, leave out ("that section") and insert ("section 2 of this Act").

The noble and learned Lord said: This Amendment is consequential on the Amendment which was originally Amendment No. 1. I think that the Committee felt that there was something in Amendment No. 1. It was pointed out, and I was convinced, that my Amendment was much too widely drawn. It was also suggested that what I sought to achieve might be achieved by other means, although I was doubtful about that. I trust that the matter will be reconsidered before the Report stage and, as Amendment No. 12 is really consequential, I do not propose to press it to a Division.

LORD GARDINER

I think we are on Amendment No. 5 at the moment.

THE LORD CHANCELLOR

Yes. The Chairman rightly called Amendment No. 5. However, in view of what has just passed, I take it that my noble and learned friend will not wish to move Amendments Nos. 5 to 11 inclusive. Then we can discuss Amendment No. 12.

LORD SIMON OF GLAISDALE

That is so. I am sorry to have taken up noble Lords' time unnecessarily.

Clause 3 agreed to.

Clause 4 [Marriages governed by foreign law or celebrated abroad under English law]:

LORD SIMON OF GLAISDALE had given Notice of an Amendment (No. 12):

Page 3, line 10, at end insert— ("(c) preclude the court from making a declaration in relation to the marriage otherwise than by a decree of nullity.")

The noble and learned Lord said: I have already said what I wanted to say on this Amendment, although out of order. Nevertheless, I hope I may be excused from bothering noble Lords by repeating it in order. As I have said, I do not propose to move this Amendment.

Clause 4 agreed to.

Clause 5 agreed to.

Clause 6 [Collusion etc., to relief in cases of nullity or under section 14 of Act of 1965]:

LORD SIMON OF GLAISDALE moved Amendment No. 13.

Page 3, line 1, at beginning insert— ("In proceedings for nullity of marriage commenced after the commencement of this Act (whether or not the marriage in question takes place after the commencement of this Act)").

The noble and learned Lord said: This Amendment is merely to ascertain how far Clause 6(1) is intended to be retrospective. There have been a number of cases in the courts where great expense, delay and trouble have been caused by the fact that an express statement as to retrospection has not been made, as it is, for example, in Clauses 1 and 2 of the Bill, where it is made plain that it applies to marriages taking place only after the commencement of the Act. In this I had to guess at what the draftsman intended. I thought he meant what I have spelt out in Amendment No. 13, but it is possible that he meant to go even further and to apply Clause 6(1) even to pending proceedings. If that was his intention, or even if it was intended to do what I have spelt out in Amendment 13, it has not been done. Clause 6(1) affects not procedure but rights; and, therefore, a presumption arises that it will not be restrospective. It is to ascertain the draftsman's intentions, and to spell it out without any possibility of doubt, that I have proposed the Amendment. I beg to move.

THE LORD CHANCELLOR

I think the drafting of Clause 6(1) is ambiguous and, therefore, will have to be reconsidered. I can answer my noble and learned friend's question, which would be legitimate even if the clause was not ambiguously drafted. It is intended to go the whole way and to make collusion no longer a bar at any hearing, subsequent to the passage of the Act, irrespective of the date of the marriage to which it relates and of the date at which the proceedings were instituted. Everybody is agreed about the first proposition. The second may seem odd, but my opinion is that it is right. If it were not done that way, all that a party who wanted to annul his marriage would have to do would be to discontinue the existing proceedings and start again. That would put him and the court to inconvenience and expense. I trust, therefore, that in these circumstances the Committee will agree to the policy, and to my redrafting the Amendment on Report.

LORD GARDINER

I respectfully agree to what the noble and learned Lord Chancellor has said. As I understand it, this is intended to come into force as soon as the Act comes into force, but it does not actually say so. I should be grateful, therefore, if, before the next stage of the Bill, the noble and learned Lord the Lord Chancellor would consider whether it should not be made rather plainer in the wording.

LORD SIMON OF GLAISDALE

I see no reason at all why what was intended should not be done. It certainly is not done. I am grateful to the noble and learned Lord for his attitude and, in the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.54 p.m.

LORD SIMON OF GLAISDALE moved Amendment No. 14: Page 3, line 26, leave out subsection (2).

The noble and learned Lord said: This is a probing Amendment. Section 14 of the Matrimonial Causes Act enables the court, where there is no certainty whether a spouse has died, to make a declaration of presumption of death and to dissolve the marriage. If the marriage is dissolved already by death, it is not a divorce; but if it be that by chance the missing spouse is still alive, as has happened on a number of occasions, the decree operates nonetheless as a divorce. The second matter that is dealt with in the subsection is collusion. That is an agreement between parties to litigation relating to the conduct of the litigation.

I have three questions to ask. First, what is a divorce provision doing in a nullity Bill? Secondly, if it is rightly in a nullity Bill, why was it said that what I proposed in relation to wilful refusal—namely, that this Bill should be used as a vehicle for implementing the recommendation of the Royal Commission that wilful refusal should be a ground for divorce but that the three-year rule should not apply—was impossible? My third question is: How can one collude with—come to an agreement with—a person who is either dead or presumed to be dead? I beg to move.

THE LORD CHANCELLOR

The answer to the first question is that it depends on the Long Title of the Bill. The Long Title of the Bill says: …to abolish certain remaining bars to the grant of matrimonial relief. To that extent, therefore, it is not limited to nullity; but otherwise it is. I am advised, and I saw no reason to differ from the advice, that what the noble Lord proposed at our last Committee stage was outside that Long Title; but that this particular proposal is within this Long Title. I am sorry, I have forgotten the second question.

LORD SIMON OF GLAISDALE

The noble and learned Lord has answered the second question which was: If one is dealing with divorce, why should the proposal I put forward not be adopted?

THE LORD CHANCELLOR

That does deal with that.

The third question puzzled me a lot, and continues to puzzle me up to a point. It is, of course, theoretically impossible to collude in a presumption of death case. If you are found out colluding in a presumption of death case it can only be because the other panty is still alive. That means the presumption of death case would fail independently from the point of view of collusion.

However, the clause is not limited to collusion in these cases and the Law Commission explained, in their Notes to clauses of the Bill, their reason for putting it in. Admittedly, it is a somewhat strange one. They took the view that, technically, collusion may be a bar to such proceedings, and should be removed in this context as in other contexts. The subsection is aimed at tidying up the law as a prelude to consolidation. I am not absolutely sure that I am wholly convinced by this explanation; but I think it would be imprudent on my part to differ from it when it has been received. My noble and learned friend will notice that the subsection is declaratory and. therefore, the worst that can be said against it is that it will do no good; certainly will not do any harm.

LORD GARDINER

I respectfully agree with what the noble and learned Lord the Lord Chancellor has said.

LORD SIMON OF GLAISDALE

The noble and learned Lord the Lord Chancellor answered the first point completely; that this provision is within the Long Title. I am not sure that he answered the second point completely, because I understood your Lordships' House was not completely 'stultified by the drafting of the Long Title of a Bill. I still, therefore, do not see why what I should like to have as an alternative to Clause 2(b) should not be done. With regard to the impossibility of colluding with a dead person, I agree this cannot do any harm. In the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment.