§ 4.26 p.m.
§ LORD SIMON OF GLAISDALE
My Lords, I beg to move that this Bill be now read a second time. This Bill comes to your Lordships from another place where it was introduced by a private Member, though it was based on the recommendation of both the English and the Scottish Law Commissions and was supported by the Government. I have been asked to introduce it to your Lordships' House. I must make two apologies to your Lordships. The first is that the Bill is necessarily technical and complicated. Your Lordships will, I think, have the advantage of advice from the noble and learned Lord the Lord Chancellor, who of course speaks not only as being entitled to advise your Lordships on matters of law but on commanding personal authority. But I must do my best to try to explain, at least in outline, some of the proposals that are put forward in the Bill. My second apology is for the fact that I am afraid I have a cold, and I hope my voice will hold out until the end of this debate.
The Bill is concerned with a branch of the law known as Private International Law, which is concerned with very many rules of law governing transactions that touch a number of different systems of law. I remember that when I was a student one used to be asked a question something like this: What is the answer where a testator who is of nationality in the Sudan, at a time when it was under Anglo-Egyptian condominium, is resident in Syria and domiciled in Greece, makes his will in a Turkish ship in Yugoslav territorial water, in French form, because there is a French lawyer on board, has land in England and movable property in Scotland and his will touches only half of his estate, who then changes his nationality to Norway, his domicile to Sweden and his permanent residence to Denmark, and he dies when he is on a visit to the United States? I am glad to tell your Lordships that you will not be concerned with anything quite so recondite in this Bill. The Private International Law, however, is of importance in three respects. The first is in choosing which rule of law from which system to apply to the transaction. A 937 second is the jurisdiction municipally; that is to say, by the domestic law of the country, which can be invoked for any transaction touching a number of systems of law, and, complementary to that, the recognition which our courts should accord to decisions of foreign courts—in other words, recognition of jurisdiction. All those three matters are dealt with in this Bill.
Your Lordships will see that this Bill is primarily concerned with a particularly important matter, that is, personal law, because it is obviously desirable that a person's personal law should be governed by some legal system with which he or she has a close connection. Therefore the rules of law have been developed in various countries connecting the individual in question with the legal system in question. There are three main "connecting factors", as they are called. The first is nationality, which obtains in many Continental countries. It is obviously unsuitable in these Kingdoms because England and Scotland have different legal systems but are of one nationality. The second system connecting factor is residence. In the early days of Private International Law it was probably the principal one, but in the last century there developed the concept with which this Bill is somewhat concerned; namely, domicile. That can be a very recondite legal concept, but in essence I think it can be described fairly simply as being the legal relationship between the person whose law you are concerned with and a country or territory subject to some particular system of law, that country being his permanent home. For example, if there is somebody who has settled in Australia and regards that country as his permanent home, that is regarded as his domicile. He may come to work in this country and he may come to reside in this country for pleasurable purposes, but his domicile remains in the country which is his permanent home.
For the purposes of this Bill it is necessary to look at two classifications of the concept of domicile, both of which are mentioned in the Bill. One is the classification between domicile of origin and domicile of choice, and the other is the classification between dependent and independent domicile. Those are to a large extent overlapping concepts. In the eyes of English law everyone has 938 a domicile, because he must at any time be able to say that such and such a system is his personal law for such purposes, say, as divorce jurisdiction, his status, and so on. So from the moment of birth there is a domicile of origin, and that is derived from the father, under English law and under all the systems of law which derive from English law, and which largely—I think almost exclusively —have domicile as the connecting factor. But once a person is able, or in the eyes of the law has the capacity, to choose what will be his permanent home, he can make a domicile of choice. He can abandon his domicile of origin. He may be born in this country of an English father with an English domicile, so that his domicile is English; but if he goes to settle in Australia he acquires a domicile of choice in Australia. To some extent, however, he retains his domicile of origin. This takes some shaking off in the eyes of the law, in any event, because if he abandons his domicile of choice without acquiring any new domicile of choice the law says that he always has a personal law and that his domicile of origin revives. So there is the first distinction—between domicile of origin and domicile of choice.
Overlapping to some extent with that is the domicile of dependence as contrasted with an independent domicile. The law says that certain people derive their domicile from others. I have already given one example: a child derives his domicile from his father, generally speaking, although there are exceptions. Another very important domicile of dependence, which lies at the centre of this Bill, is the domicile of a married woman, which the law says is the same as her husband's domicile. I imagine that this goes right back to the Ecclesiastical Law of the Middle Ages, which regarded marriage as constituting a mystical union of husband and wife. The Common Law, building on that, regarded the wife's personality as entirely merged in that of her husband. The great institutional writer of the 18th century, Blackstone, said that was because the fair sex was a great favourite of the law of England. My Lords, I hardly think it would be looked upon in that light to-day.
As your Lordships will have seen, the principal purpose of this Bill is to change that rule as to dependency of a married 939 woman's domicile. That is done by Clause 1(1) and also to some extent by the other provisions, except in the last part of the Bill, which to a certain extent (sometimes more and sometimes less) depend upon that provision. I think that the abolition of the wife's dependent domicile has been very widely welcomed. A number of judges, including my noble and learned friend Lord Denning, have criticised the inconvenience that can sometimes accrue from the dependent domicile of married women, but I should not myself like to put the reform primarily on that ground, because there will undoubtedly be some problems that arise from the abolition of the dependency. I would simply say that in these days the idea that a married woman should not be capable of acquiring an independent domicile—a domicile independent of her husband—when unmarried women and widows can, is simply derogatory of the status of married women. It is on that principal ground that I venture to commend Clause 1 to your Lordships.
Clause 2 carries through the repercussions of Clause 1 into the field of recognition of foreign decrees of divorce and separations. In line 11, on page 2, there is a reference to "the common law rules". They are really twofold in this connection. The first might be called the Le Mesurier rule because it was laid down by the Privy Council in a case of that name but adopted subsequently as a rule of English law. By that, as we ourselves assume jurisdiction in divorce and separation on the ground of domicile, it follows as a matter of reciprocity and comity that we recognise decrees granted by the court of the common domicile abroad. The second common law rule is laid down in a case called Armitage v. Armitage, and by that the Le Mesurier rule is applied at one remove; that is to say, we recognise the foreign decree not only when it is a decree of the court of the foreign domicile, but when it is a decree which would be recognised as valid by the court of the foreign domicile. Those two rules are carried out in the new context of separated domiciles of married men and married women in the new Section 6, subsection (3), that is substituted by Clause 2 for Section 6 of the Recognition of Divorces and Legal Separations Act 1971.
940 Clause 3 deals with the other class of dependent domicile that I ventured to mention to your Lordships; in other words, the dependent domicile of children, which are given their technical names "minors" and "pupils". "Pupils" relate to Scots law, to which Clause 4 applies. At the moment the law says that an independent domicile can be acquired at the age of majority, and although the age of majority was lowered to 18 for many purposes as a result of the recommendations of the Latey Committee, it was not for the purposes of domicile. So the present rule is that an independent domicile can still only be acquired at the age of 21. Obviously with the changes in social conditions, and in view of the changes consequent on the Latey Report, there must be some lowering of the age. The age of 16 has been questioned, but I would venture to recommend it to your Lordships on these grounds: first, it is the age at which a person can marry, both by the law of England and by the law of Scotland. Secondly, it is the age at which a child can live independently of the wishes of the father by English law. Since domicile is closely associated with the home, that seems to be the logical age; it is the age which was recommended by both Law Commissions.
Clause 3 does not apply to Scotland, as your Lordships see by line 30 on page 3. The reason is that the age at which a young person can acquire a domicile independent of the parent by the law of Scotland is already below the age of 16. I have taken the precaution of asking my noble and learned friend Lord Kilbrandon to sit beside me and tug my coat if I say anything too silly about the law of Scotland, but I understand that by that law there is a classification of young people whereby they are either pupils —that is to say, a girl up to the age of 12 and a boy up to the age of 14—or minors—that is to say, a girl between 12 and 18 and a boy between 14 and 18. An independent domicile, as I understand it, can already be acquired under Scottish law by a minor: in other words, below the age of 16. That seems to me an additional reason for adhering to the age of 16 rather than advancing the age to 18, as has been urged in some quarters.
I ought to say, in relation to Clause 1, dealing with the dependent domicile of 941 married women, that so far as I know that is the only provision in this Bill which has aroused any adverse comment, and that comment has been fairly narrow. It has been put forward mainly by a highly respectable and respected body, the Scottish Law Society. They do not like the abolition of unity of domicile, as they prefer to call it, on the ground that that unity of domicile reflects the unity that ought to exist between married people. The argument goes even further: that the abolition of the rule of unity will lead to increased breakdown of marriage. I can only say, with all the experience that I had as a matrimonial judge and naturally turning over in my mind frequently the causes of breakdown of marriage, that it never occurred to me for a moment that the abolition of the dependent domicile of married women could possibly have any effect. I cannot believe that any marriages are saved through unity of domicile, or that any marriages would be endangered by its abolition. There is also the analogy of nationality. For many purposes we already recognise dual nationality in our law, and nobody has suggested that that is derogatory of the unity of the marriage state.
May I go, then, to Clause 4. That puts the wife, the mother, in a more favourable position and a more reasonable position so far as the child's domicile is concerned than does the existing law, and in my respectful submission improves the existing law. Under the existing law, as I venture to remind your Lordships, a child's domicile remains that of the father until the child is capable of acquiring an independent domicile. The mother and father may be separated; the father may have gone away to a far country and acquired a different domicile. There may even have been a separation deed or an order of the court separating the parties. The child may be long resident with the mother. But the law at present says: "But nevertheless the child's domicile remains that of the father"; and of course that is a very considerable inconvenience. The child is living in one country and his personal law will, or might, be that of a widely different country with a widely different system of law.
942 What Clause 4 does is this. The operative subsection is subsection (2), which says:The child's domicile … shall be that of his mother if he … has his home with her and has no home with his father".That seems to me not only to have the advantages which I ventured to mention to your Lordships but also to bring the English law closer to that recommended by the Council of Europe whereby the child's domicile is that of the person with whom the child has his or her home irrespective of whether that person is a parent or not. So I recommend Clauses 3 and 4, too.
Part II and Part III is largely a translation into Scottish terms of the provisions I have already described to your Lordships. Part IV does the same for Northern Ireland. I do not think I need trouble your Lordships with the details of it which could be more conveniently, in all these matters, dealt with in Committee when we shall have the additional advantage that I hope to have my noble and learned friend Lord Kilbrandon constantly at my side and ready to intervene. Part V is "Miscellaneous and General". Clause 15 extends the Recognition of Divorces and Legal Separations Act 1971 to Northern Ireland. There is no reason why it should not apply to Northern Ireland; and extending it in that way enables this country to adhere to The Hague Convention on Recognition, it being a rule of English public international law that we do not sign a contravention without bringing our municipal law into line; and this is a matter for which we legislate for Northern Ireland.
The last provision which I need tell your Lordships about, I think, is Clause 16. Now that arises out of a decision of my own and your Lordships would, I know, think it improper for any Member of your Lordships' House holding judicial office to discuss any decision of his own by way of discussing the merits or demerits before your Lordships sitting in senatorial capacity. But I must explain to your Lordships what the problem is. That was a case where the husband had a domicile of origin in India but a domicile of choice, which he had retained, in Pakistan, and he was a Pakistani national and a Muslim by faith. The wife was an 943 Indian national but on marriage of course acquired by dependence her husband's Pakistani domicile. They were both at the time permanently resident in this country. The marriage came under strain and the wife took maintenance proceedings, and indeed took them successfully. The husband then took refuge in the Islamic law as modified procedurally only by Pakistani law and pronounced what is called Talak; that means that he said, three times: "I divorce you. I divorce you. I divorce you." And according to the law of his domicile that was an effective divorce.
The question arose whether the courts of this country should recognise it. I hope I can without egotism read your Lordships a short passage from the judgment because it will show your Lordships the problem that arose. I referred there to a decision of an Australian Judge, Mr. Justice Lowe, in which he in comparable circumstances had recognised the extrajudicial divorce; and it was said:I confess that I share the misgivings implied by Mr. Justice Lowe at the possible mischief that might accrue if the safeguards inherent in judicially pronounced divorce can be bypassed in this country. But courts of law have no means of judging the possible extent of any such mischief or the repercussions of attempting to deal with them by judicial lawmaking. The court already has adequate power to refuse to recognise the legal rule of the domicile where it would cause injustice in a particular case. It seems to me to be preferable for the courts to proceed generally on legal principle and to leave any necessary modification called for by public policy to other organs of the Constitution.There was an additional reason for leaving the matter to the Executive and Parliament in that case, because there are two possible ways of dealing with the problem. I need not elaborate on them because in fact the one that is proposed by this Bill was the one I myself ventured to put forward by way of Amendment to the Polygamous Marriages Bill. I then, at the request of the noble and learned Lord on the Woolsack, withdrew the Amendment so that the matter could be considered by the Law Commission; and the clause embodies their recommendation. I am not satisfied that it is entirely satisfactory yet, but perhaps that matter could be considered by the Law Commission and by the draftsmen and the officers of the Lord Chancellor's office 944 before the Committee stage. In the meantime, I commend the clause in principle to your Lordships, as I now commend the Bill. My Lords, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Simon of0 Glaisdale.)
§ 5.0 p.m.
§ BARONESS SEROTA
My Lords, may I first congratulate the noble and learned Lord, Lord Simon of Glaisdale, on his initiative in introducing with such thoroughness and skill what appears at first sight to be a highly technical legal measure. Having listened to him carefully I really doubt whether he needed the support of the noble and learned Lord, Lord Kilbrandon, by his side in case he needed to be prompted, even in the very complex field of Scottish law.
On closer study it becomes clear as one reads through this Bill that its provisions take us another pace forward in the long march towards obtaining elementary justice and equal legal status for women by removing, at long last, what are now generally agreed to be totally unacceptable and archaic anomalies and attitudes in relation to the domicile of married women and minors, and of certain aspects of matrimonial proceedings which are dealt with in Parts II, III and IV of the Bill for the whole of the United Kingdom. I am therefore delighted to welcome it from these Benches and to pledge our full and wholehearted support to the noble and learned Lord for its speedy passage through this House as part of our wider objective of removing all discrimination against women from the laws and practices of this country, economic and social as well as legal, for one is quite meaningless without the other, as we all know.
I believe your Lordships will also agree that this Bill, albeit primarily a legal measure, owes much to the persistence of the determined campaigners in the women's movement, like my noble friend Lady Summerskill, over the long years when these views were much less widely accepted and much less popular than they are to-day; to my noble and learned friend Lord Gardiner, who also raised this matter in the debate on the gracious Speech at the opening of the present Session of Parliament. We would all like to pay our tribute on this occasion 945 to the excellent work of both the Law Commissions in recent years in this very complex area of jurisdiction, where their Reports have had a major influence on our whole body of family law.
Having studied all the debates in another place that followed the introduction of this Bill by the honourable Member for Perth and East Perthshire, I do not intend to take up the time of the House to-day either to question or to enlarge further on any of its specific provisions, which were so very fully described by the noble and learned Lord, Lord Simon of Glaisdale. Many of the highly technical legal issues inevitably involved in changing the deep-seated attitudes to the status of women which have become embodied and reflected over time in our law were examined there in great detail and satisfactorily resolved in the Bill which is before us to-day. My main concern, which I hope will be shared by all noble Lords, is that it shall now pass through this House as expeditiously as possible. We shall therefore give it our full support through all its stages so that it may receive the Royal Assent as rapidly as possible, and certainly before the end of this present Session of Parliament.
§ 5.5 p.m.
§ BARONESS ELLES
My Lords, like the noble Baroness, Lady Serota, I, too, should like to join in expressing my gratitude both to the Law Commission for all their work on this subject and particularly, if I may, to the noble and learned Lord, Lord Simon of Glaisdale, for the very clear and simple way in which he explained a most complicated subject with the clarity and simplicity that only an expert can achieve. So, being no expert and having paddled on the edges of this subject for many years, having taken one step I now find myself in very deep waters. Therefore I am only too delighted to think that the noble and learned Lord, the Lord Chancellor, will come after me and either leave me silently to drown or, possibly, bring me to the shores and rescue me.
For many years I have been very moved by the case of de Reneville v. de Reneville, having known one of the protagonists in this case and realised the hardship and frustration which the law of domicile as it affected married women could cause. We saw in 1949 and 1965, 946 partly as a result of this case, extensions of the jurisdiction in relation to matrimonial causes, and I am the first to appreciate—as indeed many of us on all sides of this House who have been fighting for an improvement in the conditions of women within the law appreciate—that the position has been very unsatisfactory. I ask your Lordships to consider, however, whether the solution put forward in this Bill is the right one. It seems to me that we have unleashed a dog and rather let it run away into unknown territory. In the work we did on the Cripps Committee we recommended that a married woman should have the same domicile as her husband while living with her husband, but should have the right to acquire a separate domicile when she was living permanently apart from her husband. In 1969 this was almost considered quite daringly advanced, but we find already, in 1973, that it is no longer acceptable and is very "old hat".
If we remove dependency, on which I think all of us will agree, is it in fact at the same time necessary to remove the rule of unity? We are told that the concept of unity flows from a dependent domicile of the wife, but is there any reason why, if the dependency were removed and some satisfactory alternative method found of establishing a common domicile, the principle of unity of domicile during marriage should not be retained? Abandoning the rule of unity is designed to put us in line, apparently, with The Hague Convention on the recognition of divorces and legal separations. I absolutely agree, in all humility and with respect, with the noble and learned Lord, Lord Simon of Glaisdale, that domicile has never been a cause of breakdown of marriage, but in my limited knowledge and understanding I believe there are two features in Continental law which are very different from our own. One is the definition of domicile, which is based mainly on habitual residence, leaving out the question of the intention of where you are going to live. Secondly, does not the idea of domicile play such an important role in Continental law, and is not the personal law decided upon by nationality, domicile therefore being not of such importance in questions of matrimonial and allied matters? To my knowledge there is no 947 other aspirant signatory in Europe who ascribes such importance to domicile as we do in the United Kingdom. Therefore I should like to suggest that we might look at the meaning of the word "domicile", and if we are going to accept this Bill we should at least try to alter the definition of domicile within the terms of the Bill, so that it would be based possibly on habitual residence or where the permanent home is to be.
It has been said—and I, too, have read carefully the debate in another place —that no problem arises while a happy marriage exists. But it seems to me that there are problems, because supposing an Englishman marries a French woman and they live in France, they may not in fact have decided to remain in France: would the wife retain her French domicile of origin and would the Englishman necessarily acquire a French domicile of choice? You will therefore have cases of very happy marriages where people could quite easily have separate domiciles because they may not have decided at any one stage where their permanent home will be. It seems to me, therefore, that breaking the rule of unity will not help in situations of this kind because marriage will no longer automatically grant an accolade of common domicile.
Then there is the problem of the children. Clause 4 perpetuates discrimination. One of the main purposes of the Bill is that the children should take the domicile of the father except in very specific circumstances. Again it seems to me that this will cause more confusion and more anomalies. Children in the same family may possibly have different domiciles. It will be extremely difficult to decide what was the domicile of origin of a child. During the life of the child as a child, that may not be important, but as the noble Lord, Lord Simon of Glaisdale, has so clearly explained, a domicile of origin can be revived at any time during one's life when some unfortunate person finds himself without a domicile of choice. That again is a very important matter which we should look at before deciding that the Bill has found the right solution with regard to children.
We know of course that taxation will again be affected because married women are taxed with their husbands, and if we can acquire conveniently a separate domi- 948 cile, our income which we do not remit from abroad need not he aggregated any more with that of our husband. There will also be considerable difficulties over estate duty. With concessionary matters as between spouses, if you have a different domicile you will have succession rights. You will have the complications in adoption cases where you have a husband and wife of different domicile, and one may be prohibited from adopting a child if one has a different domicile.
I have indicated some of the points where I think there may be difficulties. I may be entirely wrong, but it seems to me that if the purpose of the Bill is to remove discrimination then it does not wholly succeed because it is retained in Clause 4 with regard to children. It certainly does not remove confusion or anomalies but, as I have attempted to indicate, although I admit I may be wrong, there seems to be more confusion and more anomalies than before. If it is intended to remove hardship and frustration, I am not sure that that will be achieved because there is nothing more frustrating or costly than uncertainty and insecurity in the relationship between an individual and the law. So, my Lords, much as I welcome that the dependency of a married woman's domicile should be removed, I am not wholly convinced that We have yet found the right answer in this Bill. I trust that it can be altered in Committee, that a new definition of domicile might be found, and that some form of common domicile during marriage can be retained.
§ 5.14 p.m.
§ BARONESS SUMMERSKILL
My Lords, may I add one word of welcome. I have listened to the noble Baroness very carefully and I understand that she has some reservations. I have no reservations whatsoever. The women of this country have waited so long and so patiently for the law to be amended that I am quite prepared to accept this Bill without any criticism whatsoever. All I wish to do is to thank the noble and learned Lord. Lord Simon of Glaisdale, for whom I have had such admiration for so many years because of his support of women who find themselves in the most difficult situations in the world, such as divorce and so on. Now he has tackled the question of domicile. On their behalf —and I feel that I can speak on behalf 949 of the women's organisations of this country—I thank him for the fluent and brilliant exposition of this Bill which I hope will soon reach the Statute Book.
§ 5.15 p.m.
§ LORD GEORGE-BROWN
My Lords, may somebody who is really in favour of all citizens being as near equal as it is possible to be say a word of worry about this Bill? May I preface that by saying that the great thing about being in this House—for which I have to apologise to myself every morning—is that one can come in almost every day and find a debate going on which interests and stimulates. I came in and I was interested and stimulated by the noble Lord, Lord Simon of Glaisdale, whom I knew in other days as I should think almost the most human Financial Secretary that has ever been, and the most human Law Officer I have ever known, Party notwithstanding.
But as I have listened to the debate, what bothers me a little (I hope that the noble Ladies, my noble friends, will forgive me for saying it; but if they do not it does not really matter) is that one could be, with respect, driving a point too far and too hard. There must be—we know there are—women who have been badly treated and who come out of the marriage contract very badly. But the marriage contract is more than a contract. There is something else involved, and if we abolish the rule of unity and give each party the right, and the children some rights, to do this or to do that, I respectfully suggest that we are driving the whole thing that makes life worth living on the rocks. Because we are trying to put right some wrongs that have happened in some cases we may well end up with a quite impossible situation.
There has never been a marriage—my own included—that did not have times of difficulty and times when it might have gone on the rocks, but it never did because we never got to the point of deciding to abolish the rule of unity, and exercising, each of us, our undoubted rights. That must be true of innumerable marriages; and in putting right those where people behave badly we can destroy the only institution that enables men and women to live together, to produce children, to excite the world, to invent. I say to my noble Lady friends, and to my noble friend who introduced 950 the Bill, that I worry about it. We are beginning to push it a little too hard and a little too far. By all means put right the law so far as the "aggressed-upon" party is concerned, but to try to say that either of us can claim rights could ruin it and could destroy the whole lot. I do not mind if I am called a rather old-fashioned person here—I am in a way. One could be, and I think we are, in terrible danger of pushing it too far. I shall therefore not congratulate my noble friend as fulsomely as did the noble Baroness on the way in which he introduced the Bill. I shall want to take a little time in Committee with some critical points in mind.
In a society where it looks to me as though pretty well everything in which I was brought up to believe, what in the end when things went wrong one held on to, is being destroyed, I am less than fascinated by this Bill, and I think we ought to be less than adulatory and congratulatory about it. The ladies who are so excited about it are themselves emancipated, anyway. My concern is with a great many (if I may say so without appearing to be arrogant) ordinary working-class, middle-class people, who have to learn to live together, to keep their families together when things go wrong. With great respect to all the learned ladies who support this sort of thing, I simply do not think it helps the people I know best. Every marriage goes wrong at some point, and if my friends go operating on this sort of basis a great many kids are going to suffer, a great many people are going to be divided. If you are a Christian or a Jew or a Buddhist, or you have a religious faith, it is extraordinary how you can hold on even when things are all against you. If we operate on this basis and abolish the rule of unity, many marriages are going to go wrong that otherwise would not do so.
§ 5.22 p.m.
§ LORD WIGG
My Lords, I will not keep the House more than a few moments, but as my noble friend Lord George-Brown has subtracted some of the congratulations to the noble and learned Lord, Lord Simon, may I please put them back again? I do not know anything about the law, but I was struck by the brilliance and simplicity of his explanation, and I cannot understand how 951 Lord George-Brown, who has a clarity of mind which I often envy, could possibly have made the speech he did if he had comprehended what Lord Simon was trying to do. He was not making an attack upon some great moral principle, so strenuously and so devoutly exposed this afternoon by Lord George-Bown; he was dealing with exceptions. The majority of people do what Lord George-Brown has obviously done: when they get near the rocks they stick on the rocks or dodge them, and life goes on again. This is a Bill which does not in any way harm the principles which Lord George-Brown, clearly holds; it deals with the exceptions.
The only reservations I have, and I clearly do not understand them, arise from the brilliant speech—because it made clear to me some of the deficiencies—of the noble Baroness below the gangway; I thought she, too, made a real contribution to the debate, and the points she made have to be answered. But in no way does this detract from the clarity of thought and brilliance of exposition of Lord Simon, and I join with Lady Summerskill in paying my tribute to him. When he was a Law Officer of the Crown, he was not only a lawyer, he was a great human being; and as a Member of the other place, on the occasions when I went to him I was always treated with courtesy—but that is the rule in the other place, behind the Chair—and with human understanding. I am very glad to have the opportunity to put back the congratulations which have been taken away.
§ 5.24 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords. I think I ought to say something about this Bill, although almost everything that could be said has been said by my noble and learned friend on the Cross-Benches. I am more grateful to him than I can say for taking on this burden. I do not know what we should have done, this being a Private Member's Bill, if he had not, with his incomparable experience and knowledge of the subject, undertaken to pilot it through your Lordships' House. I should like in passing to pay an unstinted tribute to my honourable friend in another place. Mr. Ian MacArthur, who piloted the Bill through there, without the incomparable experience and knowledge. How 952 he managed to get it through without the professional attainments my noble and learned friend has I do not know. But I am intensely grateful to both of them.
I hope your Lordships know by now that one of the things I have tried to do during the last three years is to get the programme of law reform continuing to roll, by one means or another, through Parliament, notwithstanding things like Northern Ireland and the European Economic Community legislation, which necessarily take up such an immense amount of the time of Parliament. One of the means that I have adopted has been to try to make use of the generosity of private Members. This Bill, as the noble Baroness, Lady Summerskill, will remember, is something we tried to introduce last Session, but it was blocked in the Lower House by one or two Members, for reasons I never fully understood. It has proved to be a great deal more complicated than I thought it was going to be when I set out upon this course, because I always thought that although very highly technical this is basically a relatively simple matter.
I would venture to put it in this way —and in doing so I hope to still some of the doubts expressed by my noble friend Lady Elles, and even more to dispel the worries expressed by the noble Lord, Lord George-Brown. This Bill has nothing whatever to do with the sanctity of marriage. It is to do with a very highly technical doctrine called domicile, the operation of which undoubtedly does a great deal of injustice. Domicile means your permanent home. I am over-simplifying; the House has heard the better and longer description of what domicile involves from my noble and learned friend. It means your permanent home, and basically this is, or ought to he, a question of fact. Where is a man's permanent home, or where is a woman's permanent home?
In relation to a man this is true, that it is a question of fact. It may be sometimes difficult to ascertain the fact, especially if a number of tax considerations lead one to have a number of homes. This may be difficult, but it is still basically a question of fact—where is the permanent home? Everybody has one in law. The question only is to find out. And nobody is allowed to have more than one, in the case of a woman this is not true. However much and 953 however long she may be separated from her husband, and however much she may have permanently settled anywhere else, or even if her husband has deserted her and gone to the far ends of the world and made a new permanent home, she is saddled with his domicile, whatever the facts may be.
Personally, I do not like legal fictions about questions which are basically questions of fact, and, at bottom, this law has nothing to do with the sanctity of marriage or the unity of happy marriages. It is simply about an artificial legal fiction which saddles a woman, for better or for worse—and, incidentally, she may gain as a result of the fiction, in some cases, though she loses in others—with an artificial permanent home which she does not have. There is the nonsense, and the object of this Bill is basically to get rid of the nonsense, because the nonsense causes injustice. That is why I have been surprised for three years that anyone has found the smallest difficulty about supporting this Bill without reservations. I have been surprised, indeed, that the complications in this Bill proved, as they did prove to be, necessary before we could get rid of a rather simple kind of nonsense.
§ LORD GEORGE-BROWN
My Lords, will the noble and learned Lord the Lord Chancellor allow me to intervene? The noble and learned Lord is very affirmative, very dogmatic and very much against legal fictions. He has said that this Bill has nothing whatever to do with the sanctity of marriage and that it deals with the plight of a deserted lady whose husband has gone to the ends of the earth. I, like the noble and learned Lord the Lord Chancellor, dislike legal fictions. May I invite his attention to the words of Clause 1(1):Subject to subsection (2) below"—which does not really seem to affect it—the domicile of a married woman"—that is, not a deserted women—as at any time after the coming into force of this section shall, instead of being the same as her husband's by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.It seems to me, with great respect to the noble and learned Lord the Lord Chancellor, that that means that on 954 marriage, or at any time after marriage, a married lady may decide to choose some other domicile than that of her husband. Therefore—this is why we abolished the rule of unity—instead of being a married couple, they became two persons with different domiciles, each free to desert the other. May I ask the noble and learned Lord the Lord Chancellor why he is so certain that that does not affect the sanctity of marriage?
§ THE LORD CHANCELLOR
My Lords, the short reason why I am so certain is that I have studied this question for forty years, and have therefore acquired a certain knowledge about it. I do not think the noble Lord will understand it any better if I say it again, but for the sake of clarity I will say it again. Domicile is a question of fact. It has nothing whatever to do with the rights, or otherwise, of one party to a marriage to desert somebody else. I happen to think, as the noble Lord, Lord George-Brown, also thinks, that desertion is wrong, whether a wife deserts her husband or a husband deserts his wife, but it has no more to do with this Bill than the man in the moon. This Bill simply tries to establish this principle. A man's domicile is a question of fact: where is his permanent home? Why should it not also be a question of fact with a woman, whether married or unmarried, whether deserted or herself a deserter? It is not a question of rights, although of course it affects the kind of law which applies to a married woman. It may make it easier for her to be divorced; it may make it more difficult for her to be divorced. All that this Bill says is that, instead of an artificial rule, you should look at the reality of the matter. My noble and learned friend Lord Simon of Glaisdale has said it once, I have now said it twice and the noble Lord, Lord George-Brown, has read it out of the Bill a third time, so I hope that this is now adequately plain.
§ THE LORD CHANCELLOR
My Lords, I do not think I will try it again. Some of your Lordships may by this time wish me to go on to a new point.
My noble friend Lady Elles was also concerned in a different way with what she conceived to be weaknesses in the Bill. 955 With the greatest respect to her, I do not agree with her at all. I happen to think—although it is not relevant for the purposes of this Bill, but it is relevant to the point I am about to make—and I know, looking at the Cross-Benches, although I shall not reveal any confidences, that some of the lawyers think, that domicile ought to play a smaller part in law than it now plays, and that residence or, in some cases, nationality ought to take its place as a criterion for certain purposes. Domicile affects quite a number of things besides matrimonial jurisdiction, and there are perfectly respectable people who think that domicile ought slowly to fade out or else be given a different meaning. That it would not be possible to achieve with this Bill.
I beg my noble friend to believe that in order to get rid of the dependent domicile in this Bill we have had a great deal more trouble than I thought possible in negotiating with various people and with various interests, because domicile has tax effects. It also affects the legal profession in various countries, who are very jealous of the legal profession in others, remembering that there are three countries in the United Kingdom, each with a separate legal profession, or, rather, each with at least two separate legal professions. I would ask her to believe that if it is really important, as I believe it is, to get rid of dependent domicile, it is also necessary to legislate in this particular way. The choice is to do what is now being proposed or to accept the status quo. I fully accept from her that in some cases, though not, I think, in all of the instances she gave, there will be repercussions, probably in the tax field. She may probably leave that to the Treasury experts, who are sufficiently keen to save candle ends in any Government; and, of course, it is a matter of immense public importance that they should. But I do not think she need worry about the Treasury; they will look after themselves.
So far as domicile is concerned, of course in the case of a married couple who are living together it is probable that any tribunal of fact will find that the man and the woman are domiciled in the same place, because that is the usual condition in which married men and married women happen to find themselves. They make their permanent home 956 in the same place and not in two different places. But once they become separate, with different permanent homes, then the Bill will begin to operate, and the difference between the law as it is now and the law as it will be will come to be recognised. I fully recognise that my noble friend Lady Elles has made a number of perfectly valid points and this subject is not as easy as it looks, but I am perfectly satisfied in my own mind that we have chosen the only way by what is, at first sight, an easy road, but is, in fact, full of pitfalls of one kind or another.
If my noble and learned friend had embarked, as I do not intend to do either, upon the jurisdictional problems of Part II and Part III as between English and Scots law, I think the House would have begun to see how very complex this subject is, but I am sure that we have arrived at the right solution. As I have said, perfectly candidly, I have been struggling to get this rather small anomaly removed from our law for three years and I hope that the third time will be lucky. My Lords, I should like to reiterate my gratitude to those who have participated in this debate and particularly to my noble and learned friend, who has taken upon himself the heat and burden of this day.
§ 5.40 p.m.
§ LORD SIMON OF GLAISDALE
My Lords, I should like to thank your Lordships very much for the way in which this Bill has been received, and I cannot be sufficiently grateful for the very flattering personal references that have been made to me. Fortunately for my conceit, I was able to discount practically all of them on the ground of old friendship. The noble Lord, Lord George-Brown, was, if I may say so, entirely characteristic: great personal friendliness with intense and quite misconceived opposition on principle. I should just like to answer one or two points, although before the Committee stage I will of course consider all the other points which have been made.
The noble Baroness, Lady Elles, referred to the concept of domicile in Continental law. She is of course completely right in saying it has quite a different meaning from that which it bears in English law, being virtually equivalent to permanent residence. I 957 think myself there is much to be said for permanent residence as a connecting factor rather than domicile, but this Bill is not the vehicle by which it can be achieved. As the noble and learned Lord on the Woolsack (for whose support I am most grateful) pointed out, this is a useful measure of reform, and there are very much larger questions that loom if we try to extend the concept of domicile or try to substitute permanent residence. As for nationality, which the noble Baroness suggested, I do not think that is possible as a connecting factor in this country because there is a common nationality in the United Kingdom but different systems of law; and I think that rules out nationality completely.
The noble Baroness mentioned taxation. I gather that the Law Commissions consulted the Inland Revenue. The provisions of the Bill will undoubtedly have some repercussions on estate duty, and probably on inland revenue, too, but as far as I can judge it is very much a matter of swings and roundabouts. The noble Baroness refered to Clause 4. If I may say so, she was quite right: it is an exception to the complete principle of equality. We have retained the child's domicile of origin as depending on the father and not on the mother. The reason for that is really contained in the words that the noble Lord, Lord George-Brown, used—"It will not do to carry the point too far." The child must have a domicile of dependence, and it must depend on either the father or the mother. It cannot depend on both because the child will then have two domiciles and two personal laws which might be different, and therefore all the practical advantages are in favour of continuing the present rule.
May I finally deal with the noble Lord, Lord George-Brown? I agree with the noble and learned Lord on the Woolsack: this Bill has nothing at all to do with the sanctity of marriage. I entirely agree with the noble Lord that marriage is much more than a contract, but I do not believe for a moment that abolishing the rule of unity of domicile—or, rather, 958 more correctly, the rule whereby a married woman takes the domicile of her husband—in any way impairs the stability or sanctity of marriage. Marriage as we think of it today is not really a merging of personalities, which is at the back of the legal rule with which we are concerned. It is far more a partnership, whereby personalities complement each other. May I remind your Lordships of the famous words:He is the half-part of a blessed manLeft to be finished by such as she;And she a fair divided excellence,Whose fulness of perfection lies in him.It is in that spirit that I commend this Bill to your Lordships.
§ On Question, Bill read 2a;, and committed to a Committee of the Whole House.