§ The Lord Chancellor
My Lords, this is a modest measure aimed at tidying up the legislation relating to marriage abroad. We are concerned with two types of foreign marriage: first, the consular marriage; that is, a marriage celebrated before or by a British marriage officer, and secondly marriages performed by services chaplains or other authorised people. The principal Act governing this area, although somewhat amended, is now only four years short of its hundredth birthday.
The Bill is narrower in scope than its origins might have led us to expect. In 1984, in the wake of the unenthusiastic reaction from all quarters to the Hague Convention on Celebration and Recognition of the Validity of Marriages, the English and Scottish Law Commissions established a working party to assist in the consideration of the reform of the choice of law rules relating to marriage. Choice of law is a complex and intriguing topic, but one with which in the event I need not trouble your Lordships.
When the Law Commissions, to whom we are as ever indebted, issued their joint report on the topic last July, their conclusion was that the case for comprehensive legislation was not made out. There were no major areas where the existing law seemed to be wrong. And further, since some choice of law rules are still in the process of development, it would not be desirable to crystallise them in statutory form at present.
However the Commissions felt that there was a case for detailed reform in a related area, that of the 966 Foreign Marriage Act 1892. That Act itself consolidated earlier statutesrelating to the marriage of British subjects outside the United Kingdom".The precise meaning of British subject is a topic to which I shall return.
In essence the Act provides two exceptions to the general rule that a marriage which is formally invalid by the law of the country in which it is celebrated is also formally invalid within the United Kingdom: those are the consular marriage and the marriage of members of British forces serving abroad.
Section 1 of the 1892 Act provides that a marriage—a consular marriage—celebrated in any foreign country by or before a marriage officer, and in the statutory form, shall, where one party is a British subject, be as valid as if it had been solemnised in the United Kingdom with a due observance of all forms. Subsequent sections prescribe various, mainly directory, requirements.
In the late 19th century British subject meant, broadly, any person born within Her Majesty's dominions and allegiance, or on board a British ship, and anyone born outside the dominions but whose father was a British subject.
The British Nationality Act 1981 however gives to the term British subject where it appears in legislation enacted before 1983—and so including the 1892 Act—the meaning,a person who has the status of a Commonwealth citizen".That would leave within the scope of the Act citizens of such countries as Australia, Canada, Singapore and Zimbabwe who are not only unlikely to wish to use the facilities provided under it, but whose laws no doubt make their own provision for overseas marriage and which make no reciprocal provision for United Kingdom nationals.
Clause 1 of the Bill therefore, drawing on a precedent in the 1986 Outer Space Act, is designed to exclude from the ambit of the 1892 Act, so far as possible, persons not now holding any form of British nationality. We hope in that way to preserve the original intentions of the 1892 Act while avoiding its encompassing an unrealistically wide range of people.
The Bill includes several disparate, detailed and technical changes to the law relating to consular marriages and for that reason they are not easy to describe briefly. If there is a single theme, however, it is to remove the weighting in the original Act in favour of England and the Anglican church in what is United Kingdom legislation. The practical effect is generally not great; but, as a Scot, I can only commend the shift of emphasis.
The 1892 Act for example requires that the English law as to parental consent shall apply in all cases regardless of whether the person to be married is domiciled in Scotland or Northern Ireland, whereas in fact in Scotland parental consent is not required for the marriage of a minor, and the Northern Irish law is rather stricter than the English law. Clause 2 of the Bill therefore applies the law of that part of the United Kingdom in which the person has his or her domicile. Only those domiciled outside the United Kingdom altogether will continue to be bound by the English law in any event.
967 There are certain amendments to the 1892 Act consequential upon that general principle. For example, the form of the oath as to the satisfaction of the consent requirements is adjusted in subsection (2). Similarly, Clause 3 removes the old requirement that an objection, a caveat, entered against the solemnisation of a marriage should in cases of doubt be transmitted to a Secretary of State and then to the Registrar General for England and Wales for his decision. It is now to be sent to whichever of the Registrars General, for England and Wales, for Scotland or Northern Ireland is appropriate.
Section 8, subsection (2), of the 1892 Act lays down conditions as to the place and times at which and by whom a marriage may be celebrated, and as to the presence of witnesses. It goes on to provide that a marriage may be solemnisedaccording to the rites of the Church of England or such other form and ceremony as the parties thereto see fit to adopt".In that context, your Lordships may accept that the present reference in the 1892 Act to the rites of the Church of England adds nothing. Neither does the declaration in set form required by subsection (3) from those adopting a different ceremony that they know of no legal impediment to their marriage, and that they take their partner to be their lawful wedded husband or wife, even when the chosen ceremony itself contains appropriate declarations to the same effect. Clause 4 seeks to set these matters right.
Section 22 of the 1892 Act in its original form declared the validity ofmarriages solemnised within the British linesby a chaplain or officer. A wider provision was substituted by the Foreign Marriages Act 1947 validating marriages celebrated by a forces chaplain in any foreign territory, where one of the parties is a member of the forces serving there, or a person employed there in such other capacity as may be prescribed. The Foreign Marriage (Armed Forces) Order 1964 prescribed, among others, members of Queen Alexandra's Royal Naval Nursing Service. The section does not at present cover accompanying civilian personnel, school teachers for example, or dependent children. The former can be accommodated by extending the 1964 order. To accommodate the latter, provision is required by primary legislation, and that is achieved by Clause 6. The definition of children in that clause is still needed today, even though the relevant parts of the Family Law Reform Act 1987, which will deal with those born outside marriage, are shortly to come into force.
The Law Commissions recommended finally that the opportunity should be taken to repeal a series of exotic and spent marriage confirmation Acts, including an Act of 1858 validating marriages in Tahiti and Ningpo, and an Act of 1867 relating to marriages in the chapel of the St. John Del Rey Mining Company, Morro Velho, Brazil. These and other colourful specimens find themselves bundled together in an undignified manner in the schedule.
Before concluding I should add one brief comment about the position of Northern Ireland. The Bill extends to Northern Ireland, as this is a topic which has consistently been dealt with by legislation on a United Kingdom basis. Much of the 1892 Act touches upon matters—consular officers, marriages 968 of Her Majesty's forces—which were outside the competence of the former Parliament of Northern Ireland, and since direct rule are reserved or excepted matters. I beg to move.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 7.12 p.m.
§ Lord Mishcon
My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for guiding us through these esoteric provisions with his usual clarity of language and customary lucidity. There are a few matters which deserve comment when an important Bill of this kind comes before the House. After all, it affects the lives and futures of many people within the United Kingdom and outside it.
When he explained Clause 1 of the Bill the noble and learned Lord said that this was obviously a sensible measure in view of the new definitions under the British Nationality Act 1981. That provision, which now makes it very clear that persons who do not now hold any form of British nationality are not covered by this legislation, would appear to be perfectly sound and sensible.
The noble and learned Lord then moved on to explain Clause 2 of the Bill and with a narrowness of view that I refuse to associate with him in any of his speeches said that there was some sort of holiness about Scots law and some sort of preference that Scots law ought to hold. I readily accept that it does so in his heart and mind but it may be a matter at least for doubt that Scots law, as he seems to take for granted, is always the best law even for people who are domiciled in Scotland but who have their ordinary residence outside its borders.
Noble Lords will remember romantic tales of Gretna Green and stories of couples who escaped across the border in order to take part in the holy rite of matrimony even though their parents did not regard their action as quite as holy as they did at that particular juncture in their young lives. Under this clause it is now envisaged that those who have Scots domicile but are resident abroad—or rather who want to travel over the border—can marry without the consent of their parents being required if one of the parties concerned is under the age of 18. If I may say so, as a humble advocate of the advantages of English law and obviously that which appertains to Wales and Northern Ireland as well, I am not quite so sure that that is a very sound provision.
I do not want to interfere with Scots law and the fact that that law does not require parental consent, but I should have thought that anyone under 18 who is a citizen of the United Kingdom and is married in this country should have to have the consent of parents before that marriage is validated. When the noble and learned Lord replies I shall welcome any views he expresses on something that at least ought to be mentioned and not receive just a passing comment on Second Reading of the Bill.
I think that the noble and learned Lord was absolutely right to agree with the view of the Law Commissions that this is not necessarily the time for a comprehensive restatement of the choice of law rules relating to marriage. As we rightly should, we are amending and repealing legislation which is 969 obviously completely out of date and out of harmony with present conditions. But at some time in the future it may be a very good idea to have some consolidating enactment (including the provisions of this amendment Bill) which will set out very clearly the state of our law in regard to the choice of law rules relating to marriage.
§ 7.17 p.m.
§ Lord Meston
My Lords, we owe a debt to the Law Commissions for the thought that has clearly gone into this Bill. Indeed, the shortness of the Bill reflects the conclusions of the Law Commissions that comprehensive legislation was not called for in areas in which the law was either developing or had already developed satisfactorily. My only regret is that it did not touch upon the bewildering topic of the law relating to marriages on ships, which I have never understood, and simply brings to my mind Humphrey Bogart on the "African Queen".
The limited changes in the Bill are nevertheless valuable. Certainty in the law of marriage is always important because it affects status but there must be a measure of flexibility because the right to marry is a basic freedom. How much freedom should be allowed in exercising that right is perhaps not so easy to assess.
Clause 4 of the Bill echoes the 1892 Act in allowing parties to marry:according to such form and ceremony as [they] see fit to adopt.which seems to give scope for exotic invention—providing of course that they state that there is no lawful impediment to their matrimony. There may be an impediment to their exotic invention, I suppose.
Clause 6 of the Bill gives a sensible extension of Section 22 of the 1892 Act to cover civilians accompanying the armed forces serving abroad. I hope that they would take more care than a soldier whom I once represented. He was, I think, serving in Belize and he woke up one morning with a hangover alongside a local lady who was clutching a certificate of marriage. A ceremony had undoubtedly taken place, although he had absolutely no recollection whatsoever of it. He was relieved to have the marriage annulled.
Clause 7 repeals a number of Acts listed in a schedule which are said to be spent. They present an impressive imperial-sounding list. We shall have to do without the Fiji Marriage Act of 1878 and the Basutoland and British Bechuanaland Marriage Act of 1889.
The main rationalisation in the Bill is that touched on by the noble Lord, Lord Mishcon. It is effected by Clause 2, which provides that a Scotsman marrying abroad will no longer have to comply with the requirements of parental consent imposed by English Law. Although the law of Scotland is more relaxed in respect of parental consent and, as the noble Lord, Lord Mishcon, has just said, Gretna Green has thrived on that relaxed view, the fact is that there is at least one other area in which Scottish law is more restrictive.
The English Marriage Act provides that a man may not marry his grandmother. The Scottish Marriage 970 Act is more cautious. It stipulates that a man may not marry his great grandmother. Looking at this Bill in the round, we can conclude that at best it is a useful measure of law reform. At worst it prevents a Scotsman marrying his great grandmother in Fiji. If the noble and learned Lord the Lord Chancellor feels that we can live with that restriction, then we should do likewise.
§ The Lord Chancellor
My Lords, I am very grateful to both noble Lords who have spoken on this Bill. As has been pointed out, the main matter with which the Bill deals is in Clause 2. Clause 1 is important but Clause 2 is the one to which attention has been drawn in the speeches of the noble Lords, Lord Mishcon and Lord Meston.
Section 2 deals with the consent required to the marriage rather than other matters about possible impediments to the marriage. However, in so far as the clause deals with consent, I should like to say a word about the remarks of the noble Lord, Lord Mishcon. I have always been careful to refrain from making comparisons in general between the law of Scotland and the law of England and Wales with regard to their qualities. In Clause 2 we are seeking to provide Scots law for Scots people; English and Welsh law for English and Welsh people; and Northern Irish law for Northern Irish people. Even if I were convinced to a greater degree than I am perhaps at present that the English law on this matter was superior to the Scots, I have difficulty in seeing why it should be applied to a Scots person marrying abroad when it does not apply to a Scots person marrying at home. That is the injustice that this clause seeks to correct. It gives the benefit of Scottish law not to any English person marrying in England or abroad but to Scots people domiciled in Scotland marrying abroad. That appears to me to be just. They must take the law of the country in which they are domiciled when they are getting the benefit of the foreign marriage legislation.
§ Lord Mishcon
My Lords, in his amusing and very erudite discussion, would the noble and learned Lord care to mention the logic of why someone who ought to be subject to English law can go over the Border and can then be subject to Scots law? Why should not English law be equally binding on an English national?
§ The Lord Chancellor
My Lords, this Bill does not touch on that question. This Bill is the Foreign Marriage (Amendment) Bill and it relates to marriages which are foreign. Within the context of this Bill the marriage of an English person at Gretna Green—even if it had advantages—would not be a foreign marriage. Therefore this provision does not operate on it. This gives the benefit of their own law to people who use the arrangement of the Foreign Marriage Act. I believe that your Lordships would think this just, equitable and right. Therefore, with I think the support of noble Lords who have spoken, I renew my Motion that the Bill be read a second time.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.