HL Deb 08 June 1973 vol 343 cc317-30

12.45 p.m.

LORD SIMON OF GLAISDALE

My Lords, 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 Simon of Glaisdale.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3 [Age at which independent domicile can be acquired:]

LORD SIMON OF GLAISDALE

I apologise that I gave no notice to the Chair that I wished to say anything on this clause, but I felt that I should correct a matter I mentioned on Second Reading. I do not think it affected my argument, but I did not want to leave it incorrect on the Record. I mentioned that the age at which one could acquire an independent domicile was now 21. In fact, though the matter was not dealt with expressly in the Family Law Reform Act, that Act indirectly reduced the age of majority to 18 because it reduced the age of majority to 18 for the purpose of any rule of law. On thinking over the matter afterwards, I realised that it was a rule of common law that fixed the age of majority. I felt that I should draw your Lordships' attention to that matter.

Clause 3 agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [Miscellaneous amendments, transitional provision and savings:]

On Question, Whether Clause 6 shall stand part of the Bill?

LORD SIMON OF GLAISDALE

My Lords, I should like to say a word about this clause for the Record. A drafting point arises. At the moment it is a rule of statutory interpretation that the courts may not look at debates in Parliament in order to construe an Act, but that matter is at the moment under consideration with the Law Commission. In case the rule should be modified, I think I should say what I conceive that this clause means. The point arises in subsection (1)(b), where the words are "habitually resident", and in subsection (1)(c), where the word is "resident". The words "habitually resident" occur frequently in the Bill. When the courts see a change of terminology of this sort they are immediately put on the alert that that is intended, as it is. They are bound to ask why (b) has the term "habitually resident" and (c) "resident".

This matter has a rather unlucky history. As the clause was framed first by the Law Commission, it was not precisely in this form, but when the proposal was finally published, the equivalent of (c) contained the word "resident" and (b) "habitually resident". Then, apparently, the Law Commission realised that it would raise the sort of doubt to which I have referred, and before the Bill was introduced, when redrafting it for introduction, they put the words "habitually resident" in (c) as well as in (b).

When the Bill was considered in Committee in another place it was queried whether "habitually resident" was an appropriate phrase for (c). The argument was that one could not be habitually resident at a certain place at a single date. Therefore the Bill was amended to take the form that it has at the moment. The courts might well take that view and say that that is clearly the reason that "resident" is used in (c) and "habitually resident" in (b). On the other hand, they might say—and I should be in sympathy with them—that one could be habitually resident in a place on a certain date. For example, I can be habitually resident tonight in London even though I might spend the night with a friend in the country.

Therefore, it seems to me that there is a real danger that the courts might say that "resident" in (c) must mean something less than "habitually resident"; in other words, merely sojourning. That is not the intention of the promoters of the Bill, nor is it the intention of the Law Commission, as I understand it. I considered inviting your Lordships to reinstate the word "habitually" in (c); but, the other place having made the Amendment, that seemed to me inappropriate. It might delay the enactment of a valuable measure of reform which has been widely welcomed. Therefore, I thought it better to deal with the matter as I have, trying to put on record why the word "resident" and not the words "habitually resident" appears in (c), and that it is not intended to mean merely sojourning.

Clause 6 agreed to.

Clauses 7 to 15 agreed to.

12.52 p.m.

Clause 16 [Non-judicial divorces:]

LORD SIMON OF GLAISDALE moved Amendment No. 1:

Page 13, line 12, at end insert— ("( ) Notwithstanding anything in section 6 of the Recognition of Divorces and Legal Separations Act 1971 (as substituted by section 2 of this Act), a divorce which—

  1. (a) has been obtained in a country outside the United Kingdom, the Channel Islands and the Isle of Man, and
  2. (b) has been so obtained by means of a proceeding other than a proceeding instituted in a court of law, and
  3. (c) is not required by any of the provisions of sections 2 to 5 of that Act to be recognised as valid,
shall not be regarded as validly dissolving a marriage if both parties to the marriage have during the period of one year immediately preceding the institution of the proceeding been habitually resident in the United Kingdom. In this subsection "country" includes a colony or other dependent territory of the United Kingdom.")

The noble Lord said: Your Lordships will remember that the purpose of this clause is to prevent persons habitually resident in this country from being non-judicially divorced by reasons of our rules of common law. It arises mainly in respect of Islamic divorces by instant repudiation, and it was conceived to be a hardship that we should be compelled by our rules of international law to recog- nise the repudiation of a perfectly innocent wife and allow the safeguards of judicial divorces in this country to be bypassed. For example, a wife could be left in this country without any means and thrown on the meagre resources provided by the taxpayer. The general purpose of Clause 16 was to prevent that.

As I mentioned on Second Reading, without going into the facts I was not altogether happy about its form—the clause says "No proceeding in the United Kingdom", and so on; and it would be easy for, say, a Moslem husband resident permanently in England but domiciled in a country which permitted Talak divorce—divorce by instant repudiation by a husband—to take the day boat to Calais and pronounce his Talak there. Equally, a similar husband resident in Belfast could take the train to Dublin and pronounce his Talak there. The proceeding would be outside the United Kingdom, the Channel Islands or the Isle of Man, and we should have to regard it as validly dissolving the marriage if it was regarded as such by the law of the man's domicile or, possibly, by the law of the common domicile. This seemed to me a lacuna in the Bill, a means by which it could be too easily evaded to the detriment of wives.

On the other hand, we are bound by The Hague rules, the rules negotiated at the conference at The Hague in 1969 or 1970—I think in both years—to recognise foreign divorces in certain circumstances. First, we have to recognise them if they are valid under the law of the nationalities, and secondly, if they are valid under the law of habitual residence. It is desirable that this country should be able to legislate as we have legislated, and to adhere to that convention. It prevents limping marriages; in other words, parties being considered to be married in one country and not married in the other.

However, The Hague rules, although implemented in the Recognition Act of 1971, which is mentioned in Clause 2 of the Bill, did not prevent the wider grounds of recognition by our common law rules. Section 6 of the Recognition Act, as sought to be amended by Clause 2, allows the continuation of our common law rules of recognition, modified to meet the case of the abolition of dependent domicile of married women. The result is that there was very little room for manœuvre to meet the case that I mentioned, whereby the provisions of Clause 16 could be evaded. My Amendment seeks to occupy such room for manœuvre as was available. The courts are bound to refuse recognition when both parties to the marriage have, during a period of one year preceding the institution of proceedings—the Talak proceedings or similar non-judicial divorce —been habitually resident in the United Kingdom. Undoubtedly, that will give rise to limping marriages, but it is limited to the case when both parties are permanently resident in this country.

It was in order to limit the ambit and scope of limping marriages that I have ventured to limit the case to both parties being resident here, although it is the residence of the wife here that gives rise to the case of hardship. On the other hand, if the husband is not habitually resident here, the wife has no effective remedy against him in any case. So it seemed right to me to limit it to cases of joint residence in order to limit the possibility of limping marriages to no effective purpose.

The other provision is that there shall be habitual residence for one year by both parties. That is in line with the provision in Clause 5(2)(b), whereby the wife or the husband could file jurisdiction on the ground of one year's habitual residence immediately before the proceedings. In other words, the Amendment does not prevent divorce in this country at all; it merely prevents the recognition of non-judicial divorces on the part of persons who are permanently resident in this country, at least for one year before the proceedings. I beg to move.

THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)

I would advise the Committee to accept this Amendment. It has been very fully explained by my noble and learned friend. It is highly technical, but I have taken very careful advice about this, and it is acceptable to the Government.

On Question, Amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 agreed to.

Schedule 1 [Staying of Matrimonial Proceedings (England and Wales)]:

1.3 p.m.

LORD WHEATLEY moved Amendment No. 2: Page 15, line 4, leave out ("on the application of a party to the marriage") and insert ("whether as a result of informaton furnished in pursuance of paragraph 7 hereof or otherwise—")

The noble and learned Lord said: This Amendment and the corresponding Amendment to Schedule 3 are based on similar considerations, and accordingly I can spare those of your Lordships who have stayed the course the burden of a second speech when I come to the second Amendment. These Amendments relate to the procedure which has to be followed in the event of each partner to a marriage raising similar matrimonial proceedings, such as actions for divorce, in different courts in what is called, in the Bill, a related jurisdiction. As a result of the Bill a husband and a wife may have separate jurisdictions entitling them to raise proceedings in different countries, but seeking the same legal remedy, such as divorce.

In what are called related jurisdictions, provision is made in such circumstances for the court to stay or, as we say in Scotland, sist the proceedings in one of the courts, so that only one of the actions will proceed. The obligation on the court to stay or sist the proceedings is mandatory and not discretionary in such cases. The purpose underlying this is very commendable. It is to have the proceedings tried in the more appropriate court, and the test is set out in paragraph 8(1)(c) of Schedule 1 and the corresponding paragraph (8)(c) of Schedule 3. Broadly speaking, the appropriate court is deemed to be the court of the matrimonial home where the parties last resided together—the court of the country most closely related to the marriage. The related jurisdictions are England and Wales, Scotland, Northern Ireland, the Channel Islands and the Isle of Man.

As the Bill has come to your Lordships' House from another place, the courts could grant this mandatory stay or sist only on the application of a party to the proceedings—a party to the marriage. While standing the general provisions of the Bill, it was manifestly desirable to have provision for such a stay or sist if one considers, for example, the case where a husband and a wife have each raised an action of divorce, one in Scotland and the other in England. They are both seeking the same remedy, divorce. It would manifestly be a waste of public time and of money, public and/or private, to allow both actions to proceed to the end in each case. This is the justification in the Bill for the mandatory sist, and a guide to the determination of the appropriate court in which the action should be carried on.

Your Lordships will observe that in paragraph 7 of both Schedule 1 and Schedule 3 there is an obligation on the parties to the proceedings to furnish information about any other proceedings known to be continuing in another jurisdiction which are in respect of the marriage or capable of affecting its validity or subsistence. This information is clearly for the benefit of the court. The purpose of my Amendment is simply to give the court the right, on its own initiative if need be, to stay or sist the proceedings in the light of the information before it, and not, as would happen under the Bill as it stands, to confine the court to exercising this power only on the application of one of the parties to the marriage.

I fully recognise that in most cases there will be an incentive for at least one of the parties to make such an application to the court, but there may be cases where this is not done. There could be a variety of reasons why it is not done. May I cite one? Both parties may be very anxious to get a divorce as quickly as possible. Each raises the action, but one is raised in England and the other in Scotland. They may agree to allow both actions to proceed with a view to seeing which court grants decree first, in order to get the decree at the earliest possible date. There may be other reasons why parties would not make the application. Even if this situation should arise only on rare occasions—that one of the parties to the proceedings does not make the application to the court—I see no reason why, in logic or in common sense, there should not be given to the court this reserve power to raise on its own initiative the question of the stay or sist of the proceedings, and to grant the stay or the sist even if neither party has made the application for it.

It seems to me that my proposal closes a possible gap in what is otherwise regarded as a very desirable procedure. The fact that the court's power might have to be exercised in this way on only a few occasions seems to me to be no reason for not having it. With the new basis of jurisdiction which this Bill confers and with the continuing differences in the laws of England and Scotland on the grounds for divorce, the situation which I have contemplated might arise more often than some people think. Be that as it may, it seems to me to be wrong to place a court of law in the situation that it knows that there is a similar action pending in a related jurisdiction, that that other jurisdiction is obviously the more appropriate jurisdiction, and yet the court can do nothing about it because neither of the parties has made the application for the stay or the sist. My Amendments are designed to give the court that power.

It may be said that the English Law Commission and the English judges are in favour of the Bill as it stands, whereas the Scottish Law Commission and Scottish judges who have expressed views are in favour of the proposal contained in my Amendment. These may be persuasive arguments one way or the other, but the fact that these views are held, while highly persuasive, is not decisive, and I should not like this matter to be decided on the basis of an international match. I think this is possibly about the only point where there has been a difference of view between the two Law Commissions. It is a highly procedural one, but in my view it is quite important.

The question is one for your Lordships, and I invite your Lordships to consider the issues on their merits. I have tried to explain a technical legal procedure as simply as I can. I must confess that I have found no satisfactory answer to the proposal to give this reserve power to the court to deal with cases where the parties have refused to avail themselves of the right to apply for the stay or the sist. I consider that the Amendment is both logical and supported by common sense. If the basic considerations are to prevent the unnecessary duplication of proceedings and to secure that the court which deals with the action is the court of the country most closely connected with the marriage, I do not see why the court itself should not have the power to see that effect is given to that highly commendable purpose. If there is any good reason, in logic or in common sense, why this should not be done, other than simply that some people do not like it, I shall be very happy to consider that reason. In the meantime, my Lords, I beg to move.

THE LORD CHANCELLOR

We have given very careful attention to this matter, which has been threshed out in private a great many times and at very great length, and we cannot advise the House to accent an Amendment of this kind. As the noble and learned Lord on the Cross-Benches has explained, the position is that the two Law Commissions took different points of view, and we have proposed what is, in effect, a compromise. I must correct him—unless I am myself mistaken—upon an important point in his argument. There is no question of duplication of proceedings here. The Bill, as drafted, fully prevents the duplication of proceedings. The question is whether the court, against the will of the parties and against its own better judgment, should be compelled to stay the set of proceedings which everybody wants to continue. That is the view which the noble and learned Lord, by his Amendment, seeks to impose upon the parties. That seems to me to be wholly unreasonable.

The position really is this. Both courts—I am taking England and Scotland as the typical example, as he has done, although perhaps it is not the only possible case—have jurisdiction under the Bill, but if two sets of proceedings are started it is obvious that one has to stop. The process of stopping is known as a stay in England and a sist in Scotland. Supposing either party applies to stop one set of proceedings, the two courts have each the same set of rules under the other provisions of the Bill to decide which has to stop. To put is crudely, but not accurately, the test applied is where the last matrimonial home was—on which side of the Border. Again, that seems a perfectly reasonable thing to have done. It was, in fact, against the better judgment of the Englishmen, and done as a concession to the Scots; we decided to put it forward as a compromise.

Now the question arises, supposing neither party makes an application to stay the proceedings, because it wants to go on in England rather than Scotland; both want a divorce; both are agreed that England is more convenient to them than Scotland. The effect of the Amendment would be to say that the court is not merely entitled but bound to say, "No, you cannot go on here, despite the fact that you want to; you must go across the Border to the Scots court." Of course, vice versa, the same situation would arise. This seems to me to be wholly unreasonable. I am bound to tell the noble and learned Lord that if he wants to fetter a Scots court in this way, when he comes to Amendment No. 3 it may be that the House would wish to do so, although I should advise it not to. But I must say that when he seeks to fetter the English courts in this way, this is the biggest interference with English affairs done by Scotland since Bonnie Prince Charlie took Derby.

LORD SIMON OF GLAISDALE

In view of what my noble and learned friend, the Lord Chancellor, has said, and judging as best I can the merits of this case, I could not possibly advise the House to accept this Amendment. But before I deal with it, may I express a word of thanks to my noble and learned friend Lord Wheatley. My noble and learned friend; Lord Kilbrandon, had undertaken, if he could, to be present during discussion of the Scottish provisions of this Bill, to see that I did not fall into a grievous error. He could not be present to-day, owing to one of his manifold other public duties, and although my noble and learned friend, Lord Wheatley, came here with the hostile intention of moving this Amendment and the next one, he very kindly consented to perform for me what Lord Kilbrandon had undertaken, if it were necessary. Fortunately, it has not been.

So far as this Amendment is concerned, as my noble and learned friend said, this is a matter on which the Law Commissions differed, but the English judges had already made a very considerable concession. What they wanted, as expressed by a very famous Scots member of the English Judiciary, was that the matter should be left entirely to the discretion of the courts. In order, though, to meet the wishes of the Scots they were prepared to have a mandatory stay or sist—a mandatory stay so far as we are concerned—where the parties apply, but not to go further.

That is where the English Law Commission ended up, the Scottish Law Commission taking the view that has been so clearly expressed by my noble and learned friend. In those circumstances, since I think everybody, including my noble and learned friend, is agreed that the rules ought to be the same in both jurisdictions, the promoter of this Bill, assisted by the official advice that was made available to him, had to decide one way or the other. As my noble and learned friend, the Lord Chancellor, has said, they came down on the side of the English Law Commission's proposal, that being already a compromise.

The matter was debated in another place, where the Lord Advocate explained to the apparent satisfaction of Members there why this decision had been arrived at. I should be very reluctant now, in view of the desirability of seeing this Bill pass into law, to see the matter reopened in your Lordships' House, unless there were an overwhelming case. My noble and learned friend the Lord Chancellor has already explained why this Amendment is unacceptable. May I give two examples, to show that it is largely unnecessary, and may be, in some cases, undesirable?

The typical case will he a wife in Scotland, deserted by her husband who comes to England and acquires a domicile in England. The wife starts proceedings in Scotland, based on desertion or possibly on some other matrimonial offence. The husband starts proceedings in England, based on the irretrievable break-down of the marriage and the separation of the parties for five years. Quite obviously, the wife in that case will apply to stay the English proceedings, so that in the vast number of cases the point that is made by my noble and learned friend, Lord Wheatley, is unnecessary.

But take another case. Take an occasion where the matrimonial home was in Scotland and the parties separate in doubt- ful circumstances. It may be desertion by the husband; it may be constructive desertion by the wife. The wife starts proceedings in Scotland, where she has a forum, based on desertion. The husband starts proceedings in England, where he has a forum, too, on the ground of five years' separation and irretrievable breakdown. If my noble and learned friend Lord Wheatley has his way, on those facts coming to the knowledge of the English court, as they must, the English court must stay its proceedings in England, and say that the wife must continue her doubtful case in Scotland, before they can assume jurisdiction. That seems to me to be highly inconvenient. For that reason, as well as those put forward by my noble and learned friend the Lord Chancellor, I would advise the House not to accept this Amendment.

1.23 p.m.

BARONESS SEROTA

My Lords, as a mere lay magistrate I hesitate to intervene between the noble and learned Lords, who have given the Committee the benefit of their expertise on what, I think we all understand to be a highly technical procedural point, aimed at avoiding duplication of the courts. Having listened both to the noble and learned Lord Chancellor and to the noble and learned Lord Simon, I myself would be inclined to accept the compromise that this Bill presents to the Committee. I do so, not perhaps because I understand it, but for the reasons on which the noble and learned Lord Simon touched and which perhaps I might underline.

I think that those Members who were present during the Second Reading of this Bill will recall the very powerful arguments that the noble and learned Lord Chancellor put to us for proceeding with this Bill in this Session, and for getting it passed into law as soon as possible. Many of us are aware of the long and, in some cases, sad history affecting admittedly relatively few women, but nevertheless a very vulnerable group of women. I know how hard the noble and learned Lord Chancellor has worked to get this piece of legislation to this point. We are very late in the Session. I very much hope that the Committee will agree to this part of the Schedule indeed, of both Schedules—which includes a compromise. I hesitate to inflame the war between England and Scotland, but I believe it is in the wider interest that we should pass the Schedules as at present drafted, rather than risk returning amended Schedules to another place, for that might then result in holding up this very important piece of social legislation. As I said a moment ago, although the Bill affects relatively few women, it has received a very wide measure of support, not only from both Houses, but also among the women's movement.

LORD WHEATLEY

My Lords, may I say that I would not insist in moving the Amendment to Schedule 3 if it were the view of the Committee that my Amendment to Schedule 1 should not be accepted, because manifestly, it is desirable that the same procedure and the same formula should apply in both countries. I can give the Committee that assurance.

Unfortunately, I felt that I was being drawn by the noble and learned Lord Chancellor into the position that I was trying to avoid, namely an international match. One could spend a great deal of time—but not at this time on a Friday—in a spicy argument as to which country interfered most with which. I do not think we would require to go back to the days of Bonny Prince Charlie to get ammunition for that particular argument.

My Amendment was not intended to be hostile. It was not intended to resurrect any old disputes between the Law Commissions in this very narrow field—I repeat, this very narrow field. It was because I thought, and this was the view of my colleagues, that it really improved the Bill. I still think that it would improve the Bill. I still think it is desirable. With all due respect to the noble and learned Lord Chancellor and to my noble and learned friend Lord Simon of Glaisdale, I am not persuaded by the arguments, but I do not think it is worth while occupying your Lordships' time by going into it in any greater detail. I did not think that the examples necessarily met the point. I still think that it leaves a lacuna in the proceedings, and that it is possible that the underlying purpose of this part of the procedure could be defeated on what I had hoped to be the odd occasion and only the odd occasion. In view of the opinions which have been expressed, I humbly beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Remaining Schedules agreed to.

House resumed: Bill reported, with the Amendment.