FOREIGN MARRIAGE (AMENDMENT) BILL [LORDS]
Second Reading CommitteeFOREIGN MARRIAGE (AMENDMENT) BILL [LORDS]
10th May 1988
HOUSE OF COMMONS
Second Reading Committee
FOREIGN MARRIAGE (AMENDMENT) BILL [LORDS]
Tuesday 10 May 1988
RESOLVED, That the Chairman do now report to the House that the Commmittee recommends that the Foreign Marriage (Amendment) Bill [Lords] ought to be read a Second time.
Committee rose at seventeen minutes to Eleven o'clock.
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The Committee consisted of the following Members:
Chairman: Mr Michael J. Martin
Aitken, Mr. Jonathan (Thames, South)
Arnold, Mr. Jacques (Gravesham)
Bendall, Mr. Vivian (Ilford, North)
Bermingham, Mr. Gerald (St. Helens, South)
Body, Sir Richard (Holland with Boston)
Carlisle, Mr. Kenneth (Lincoln)
Coombs, Mr. Simon (Swindon)
Evennett, Mr. David (Erith and Crayford)
Fraser, Mr. John (Norwood)
Gardiner, Mr. George (Reigate)
Gordon, Ms Mildred (Bow and Poplar)
Greenway, Mr. Harry (Ealing, North)
Ground, Mr. Patrick (Feltham and Heston)
Primarolo, Ms Dawn (Bristol, South)
Lyell, Sir Nicholas (The Solicitor-General)
Vaz, Mr. Keith (Leicester, East)
Wallace, Mr. James (Orkney and Shetland)
Wise, Mrs. Audrey (Preston)
Helme, Miss P. A. Committee Clerk2 3 Second Reading Committee Tuesday 10 May 1988
[MR. MICHAEL J. MARTIN in the Chair.]
The Solicitor-General (Sir Nicholas Lyell): I beg to move, That the Chairman do now report to the House that the Committee recommends that the Foreign Marriage (Amendment) Bill [Lords] ought to be read a Second time. This is a modest measure aimed at tidying up the legislation relating to marriage abroad. It seems extremely complex, but aficionados of "Beachcomber" or Mr. Miles Kington may find rich pickings in what I am about to say. 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 100th 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 given 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 subject, but one with which, in the event, I need not trouble the Committee. When the Law Commissions, to which we are as ever indebted, issued their joint report on the topic last July, their conclusion was in fact that the case for comprehensive legislation was not made out. There were no major areas where the existing law seemed actually to be wrong. Further, as 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. The Government accept those conclusions. The commissions did, however, feel that there was a case for detailed reform in a related area, that of the Foreign Marriage Act 1892. That Act itself consolidated earlier statutes "relating to the Marriage of British Subjects outside the United Kingdom." The precise meaning of "British subject" is a topic to which I shall return. To emphasise the obvious: this Bill does not affect marriages solemnised within the United Kingdom. I emphasise that strongly, because the matter has been raised in another place. The Act in essence 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: 4 those exceptions 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 provide 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 marriage overseas while making no reciprocal provision for United Kingdom nationals. Clause 1 of the Bill, therefore, drawing on a precedent in the Outer Space Act 1986, 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 theme, however, it is the removal of the presumption in favour of England and the Anglican Church in what is', after all, a United Kingdom statute. The practical effect is generally not great but, as I think the Committee will agree, the shift of emphasis is nevertheless desirable. The 1892 Act requires, for example, 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 Scotland parental consent is not required for the marriage of a minor, and the law in Northern Ireland is rather stricter than the English law. Clause 2 of the Bill therefore, in effect, applies the law of that part of the United Kingdom in which the person has his or her domicile. That is somewhat simplified, in the case of Scotland, by merely disapplying the consent requirement. Furthermore, the Law Commissions concluded—we think rightly—that to apply the domiciliary law on parental consent in all cases would pose practical problems for marriage officers, so those domiciled outside the United Kingdom will continue to be bound by the English law in any event. There are certain amendments to the 1892 Act consequential upon that general principle. The form of the oath as to the satisfaction of the consent 5 requirements, for example, 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(2) of the 1892 Act provides that a marriage may be solemnised "according 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 the Committee might accept that the reference 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 contains appropriate declarations to the same effect. Clause 4 seeks to set those matters right. The freedom to choose "form and ceremony" has not caused insurmountable difficulties in the past and we do not envisage its doing so in the future. Certainly, we do not wish to curtail that choice. Section 22 of the 1892 Act in its original form declared the validity of "marriages solemnized within the British lines" by a chaplain or officer. A wide provision was substituted by the Foreign Marriage Act 1947 validating marriages celebrated by a forces chaplain in any foreign territory, where one of the parties was 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, however, cover dependent children and they are now included by clause 6. 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 1878 validating marriages in Fiji, and an Act of 1858 relating to marriages in the chapel of the Russia Company in Moscow. Those and other colourful 19th century specimens find themselves bundled together in the schedule. Before concluding I should add a brief comment about the position of Northern Ireland. The Bill extends to Northern Ireland as this is a topic that has consistently been dealt with by legislation on a United Kingdom basis. Much of the 1892 Act touches upon matters—consular officers, marriages of Her 6 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 commend the motion to the Committee.
The Chairman: I remind the Committee that this is a Second Reading debate. Therefore, hon. Members are allowed to contribute once only, except by leave of the Committee.
Mr. John Fraser (Norwood): There is no objection to the Bill which, especially in clause 2, recognises the proper rights of the Scots and no longer tries to impose English law on the marriage of a Scot who was married in a British consulate outside the United Kingdom. That is perfectly acceptable. I give one example why clause 1 is necessary. At present, a marriage by a Nigerian man to a Danish woman celebrated at the United Kingdom consulate in Brazil would be recognised in the United Kingdom, because the Nigerian is a British citizen under the old definition, but might not be recognised in Nigeria, Denmark or Brazil. It would be extremely silly if, as a result of the change in definitions of nationality, such a marriage could be celebrated. The change is therefore sensible. Finally, the Bill is not controversial, otherwise we should not be here today. However, it is a great pity that a House which attaches importance to marriage should in other respects—especially in immigration legislation—have robbed marriage of so much of its content, so that marriage no longer means that one's wife or husband can live with one in the country of one's choice. It is unfortunate that a Bill which deals with a minor aspect of marriage—foreign marriages at that—is accompanied by other legislation which has robbed marriage of much of its content.
Mr. James Wallace (Orkney and Shetland): I endorse the remarks of the hon. Member for Norwood (Mr. Fraser). This is a non-controversial Bill but one which, as a Scot, I especially welcome. It sweeps away an aspect of English legal imperialism and colonialism of the last century. To give domiciled Scots their own proper law abroad is especially welcome. We all know the differences in parental consent between England and Scotland—indeed Gretna Green built up a great trade on that basis. We certainly welcome this tidying-up legislation.
Question put and agreed to.
Resolved, "That the Chairman do now report to the House that the Committee recomends that the Foreign Marriage (Amendment) Bill [Lords] ought to be read a Second time.
Committee rose at seventeen minutes to Eleven o'clock.
THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Martin, Mr. Michael J. (Chairman)
Arnold, Mr. Jacques
Body, Sir Richard
Carlisle, Mr. Kenneth
Coombs, Mr. Simon
Lyell, Sir Nicholas