MATRIMONIAL PROCEEDINGS (POLYGAMOUS MARRIAGES) BILL (Hansard, 5 June 1972)

§ BARONESS SUMMERSKILL
My Lords, I beg to move that this Bill be now read a second time. It will be recalled that last July I moved the Second Reading of a Bill substantially the same as the Bill before the House to-day, and on that occasion all Parties in this House gave the Bill their support. Unfortunately shortage of time prevented its passage through another place in the course of the same Session. However, I am glad to inform the House that it recently passed all its stages in another place and received its Third Reading on May 5. I should like particularly to express my appreciation of the able manner in which Mr. Neville Sandelson, Member for Hayes and Harlington, piloted the Bill through another place and to express my gratitude that when he was fortunate in the ballot he chose this Bill in order that when the time came it could have another Reading in this House. Noble Lords will know that it is now necessary to secure its passage through this House again in this Session before it can go on the Statute Book.
I do not wish to weary the House with tedious repetition, and I have no intention of reminding the House of the historical details which I thought were necessary on the last occasion. I would assure the House, however, that the provisions in the Bill to-day are the same as those approved last July, with the addition of two Amendments made in another place. These are Clause 2, which applies the same provision to Scotland, and Clause 3, which embodies a technical amendment to the Nullity of Marriage Act 1971 which codified the law of nullity. Furthermore, may I say, in order that the House may be reassured, that all the provisions in this Bill have received careful consideration by the Law Commission, who have given me the most valuable assistance in drafting.
17 The immigration here of people with different religions and cultural backgrounds has focused attention on the law relating to polygamous marriage, and on the need for reform. It is over a century ago that the case of Hyde v. Hyde established the basic principle concerning polygamous marriage in English law; namely, that neither party to such a marriage is entitled to matrimonial relief. Over the years a body of law concerning polygamous marriages has developed, and it is now established that the marriage is monogamous or polygamous according to the law of the place of celebration and not the law of either party's domicile. In effect, this means that if an English man or woman goes through a polygamous marriage ceremony in a country where polygamy is lawful, he or she contracts a polygamous marriage although the marriage is not valid in England. On the other hand, if a Muslim domiciled in India or Pakistan contracts a marriage in an English register office, that is treated as a monogamous marriage. Some monogamous countries may recognise the first marriage of a polygamous union for the purposes of matrimonial relief, but in England there is no such distinction. The parties in an Eastern country may change their religion from one which permits polygamy to one which does not, and if the husband changes his domicile from a country which permits polygamy to one which does not, then matrimonial relief will be available.
The rule in Hyde v. Hyde which denies matrimonial relief to either party to a polygamous marriage applies to the proceedings set out in Clause 1(2) and includes a decree of divorce, nullity of marriage, judicial separation, presumption of death, dissolution of marriage and wilful neglect to maintain. It seems to me—and I am sure the House will agree—that the party to a polygamous marriage who suffers the greatest hardship is the wife, who is denied maintenance, and also the children. Of course, in this country we do not allow a mother and her children to starve; consequently they are supported by the taxpayer through social security. Again I should remind your Lordships that Islamic law allows the husband to divorce his wife unilaterally and extra-judicially by a declaration known as Talak and it is now established that the English courts will recognise Talak provided 18 it can be proved that the divorce is effective in the country of domicile.
Of course, these problems have presented themselves to other countries which have a large number of immigrants, and they have attempted to solve them in different ways. In Australia either party to a polygamous marriage may apply for maintenance and other matrimonial relief, including divorce, in certain circumstances. New Zealand allows spouses to apply for maintenance in circumstances similar to those obtaining in Australia. I recognise that the word "polygamy" attracts the attention of legal organisations and particularly the legal organisations of various women's associations. I hope I have again made it clear that this measure will in no sense favour polygamous marriages but that the reverse will be the case. Indeed, since I introduced this measure in the last Session I have received only messages of approval and not one of dissent. I therefore once more commend this Bill to your Lordships' House and again ask for the support—the same, I hope, all-Party support—that I received on the Second Reading last year.

THE LORD BISHOP OF GUILDFORD
My Lords, as a fairly new Member of your Lordships' House I have noticed that from time to time the noble Baroness, Lady Summerskill, has viewed contributions from these ecclesiastical Benches with some disenchantment. So I am glad to-day to speak in support of her Bill; and since I am married to a member of the noble Baroness's profession, a doctor (we are naturally known in my diocese as "body and soul"), she will no doubt feel that anything sensible I say comes more from medical influence than theological insight. We have the best legal authority given in your Lordships' House that the Bill does nothing to encourage polygamy. On a previous occasion the noble and learned Lord, Lord Gardiner, was good enough to warn any exuberant or inexperienced reporter that any headline suggesting that the Bill did so would be utterly false.
This Bill will be helpful, so far as is consistent with English public policy, in making family relationships validly created under a foreign system recognisable 19 in this country. Further, it seems to me clearly undesirable that people should be regarded for some purposes as married and for other purposes as not married. But this is the situation with regard to polygamous marriages in England to-day, which the noble Baroness's Bill seeks to rectify. Nor, I suggest, should the interests of the British taxpayer be lost sight of. At present a man cannot be compelled by the courts to maintain his partner of a polygamous or a potentially polygamous marriage, but can leave her as a charge on social security. So this Bill, it seems to me, will in principle bring necessary substantial relief to those involved, mainly the women—few women, perhaps, but that does not excuse the exercise of Christian compassion expressed with common sense and proper legal safeguards. Moreover, I was glad to note that we have been assured on the best authority of the noble and learned Lord, Lord Simon of Glaisdale, that the Bill is workable. Therefore, I thank the noble Baroness for giving me the opportunity to pay her tribute and I beg to support this Bill.

§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords, I think the Government view ought to come from me and I can state it very shortly indeed. The noble Baroness introduced what was, except for two minor details, an identical Bill last July, and I then gave my full support to it. I do so again to-day, but I need not on this occasion, since the previous debate is so fresh in your Lordships' memory, go to the same length as I did then in explaining my reasons for supporting it. It is in fact part of the Law Reform programme which I have in mind, for which I have again to explain that I have to rely largely on the public spirit of individual private Members. I should therefore like to thank the honourable Member of the other place who introduced it there, and the noble Baroness, for having backed it, its having received the careful support of the Law Commission, and explain that it is very much with the Government's enthusiastic backing that the Bill goes forward.
Before I conclude these very brief remarks, may I say that I think the 20 fact that the noble Baroness previously introduced the Bill—knowing as she did, because I so informed her, that it had no chance of reaching the Statute Book last Session—was an extremely valuable and probably indispensable part of the whole exercise. There was a real danger that, with a Title such as this, the Bill could have given rise to misapprehension. If it had been introduced perhaps late one day in another place it could quite easily have been lost by a mere objection. But it has been publicly ventilated and its real purposes have been fully laid out before Parliament and public opinion last July, and this was one of the ways in which it received such a smooth passage when it came before the other place this Session. Therefore, I would say not only that we are grateful to the noble Baroness for sponsoring this Bill to-day, but that she performed a very necessary public service in sponsoring it before, when she knew that so far as the last Session was concerned there was no chance of its becoming law.
May I add this last word for a particular reason? There is at least one Bill in another place at the moment which has been so blocked. That is a Bill relating to the change in the law of domicile, which I very much wish to see reach the Statute Book. One can only speculate as to the reasons behind the blocking. It is of course part of the indisputable prerogative of Members of another place to object to a Bill when it comes on late without a chance of a debated Second Reading. But I do hope that if possible the subject matter of that Bill could be properly debated here so that those who may be blocking it could realise that they were doing a real disservice to a cause which, if it were fully explained, I am sure they would wish to support. Having said that, I renew my thanks to the noble Baroness and have nothing more to say except that I wish the Bill an easy passage.

§ BARONESS SUMMERSKILL
My Lords, may I thank the right reverend Prelate for his support. I can assure him that I always welcome a contribution of that kind from his Bench. The fact that he had done his homework well made me ask myself whether he had consulted his wife, and from what he tells 21 me I am sure she came into the discussions with him. May I congratulate him on having married a member of my profession. I can assure him that doctors always prove to be good wives. They may talk a lot, but when faced with action they are always reliable. May I also thank the noble and learned Lord who sits on the Woolsack for everything he said. He knows as well as I do (he has been very honest) that one cannot do this kind of thing (and I have successfully helped to pilot a number of Private Members' Bills) unless one has the powerful support of the Judiciary. Last year I sat back in this same place and purred with satisfaction when not only he gave me his support but my noble and learned friend Lord Gardiner gave me warm and powerful support, as also did the noble and learned Lord, Lord Simon of Glaisdale. I should like to tell the House that Lord Simon is upstairs on a case, but just before I spoke he sent a message down to me saying that he was thinking of us and was still with us. So this matter comes happily to a conclusion, and I think the House should feel satisfied when its contemplates the results. All the unfortunate Muslim women throughout our country who have been denied matrimonial relief for many years will now feel emancipated. That is in consequence of the wonderful support that I have had from both sides of this House, and I should like to thank your Lordships very much.