CLAUSE 41.—(Liability to maintain wife or husband, and children.) (Hansard, 5 March 1948)

§ Mr. Nield
I beg to move, in page 28, line 31, at the end, to insert: 697 Provided that the primary liability to maintain his wife and her children shall be that of the husband and the liability of the wife under this section shall only arise if he is unable to fulfil his obligations owing to infirmity of mind or body. Hon. Members will have in mind that the Clause immediately following this one provides for the recovery of the cost of assistance from persons liable for maintenance. In other words, there is preserved in this Measure the right to proceed against those who are liable to maintain the assisted person, and to recover in whole or in part the cost of that assistance. Two issues arise here: the first is the spouse and children; the second is to ascertain whether it is not right to include step-children as being entitled to be maintained by their step-fathers. The view I am advancing to the House is that, first, one should be able to determine where the primary liability to maintain lies and, secondly, that step-children should be included.
As the Clause stands, one finds that, for the purposes of the Measure, a man shall be liable to maintain his wife and his children, and a woman shall be liable to maintain her husband and her children. This matter was raised in Standing Committee and we were told that that imposes no primary duty that each spouse is equally liable to maintain the other. The first point I desire the House to consider is that the old rule that the husband is primarily liable for maintenance of his wife should obtain, and we seek to give effect to that in the Amendment. The second point is that where a man, for example, marries a widow with children, he obviously accepts the responsibility of maintaining those children, and that should also be given effect to in this Measure.

§ Mr. Molson
I beg to second the Amendment.

§ Mr. J. Griffiths
This Clause defines the liability to maintain relatives under this Measure, and I am sure the House will realise that we are making a radical departure from the old Poor Law. The liability here is confined to a man being liable to maintain his wife and his children and to a woman being liable to maintain her husband and her children, "children" being defined as those under 16 years of age. One point raised by the Amendment is, where does the primary responsibility lie? We have sought to meet 698 that by the wording of the Clause which begins: "a man shall be liable," and then we follow with the wife. I quite appreciate the point, which was raised in Standing Committee, that this declaration of liability is only for the purposes of this Measure. It will, therefore, have no effect upon the relative liability of husband and wife in any other Statute or at common law. The reason we have put it this way is because there may be cases in which a child has to be assisted where the husband cannot be found but the wife can be found. If the wife has means and could maintain that child, there is no injustice done in asking her to maintain the child, even though the husband cannot be found. I believe the question of primary responsibility is secured definitely in the way we have worded the Cle use, and I must ask the House to reject the Amendment.
The other point raised, the question of step-children, is not covered in the Amendment. I think the position was explained in Standing Committee, that here we had to make a choice between English and Scottish law, and the right hon. and gallant Member for the Scottish Universities (Lieut.-Colonel Elliot) will be glad to know that in this case, being a Welshman, I decided for Scotland against England.

§ Mr. Speaker
The hon. Member can speak again only with the leave of the House. He has already seconded the Amendment.

§ Mr. Molson
I beg to ask leave of the House to speak again, Mr. Speaker, because I am not quite clear about the right hon. Gentleman's explanation. In the Standing Committee I asked whether the view of the Government was that the first liability rests upon the father and the second liability upon the mother, because paragraph (a) comes before (b) and paragraph (a) deals with the father's responsibility and paragraph (b) deals with the wife's responsibility. I understood the Parliamentary Secretary to agree about that, but subsequently I had a courteous letter from him in which he writes on the matter of interpretation: In Standing Committee "C" you asked whether the manner in which the Clause was as drafted carried any implication about the priority of liability as between 699 husband and wife. I have since made inquiries and understand that a lawyer would not regard it as carrying any implications on this point… If the father and mother were both in a position to contribute to the maintenance of the child it would be for the court to decide as, a matter of equity how much each should be called upon to contribute and the Clause would not fetter them in exercising a complete discretion in their decision. We feel that in cases where either the father or mother is able to make a contribution, that responsibility should rest first on the father, and not on the mother. I thought from the speech of the right hon. Gentleman today that that was his intention. We are not going to press the point, but if it is his intention, I would call attention to the fact that the Parliamentary Secretary tells me in the letter that it is not conveyed by the Clause as at present drafted. If the right hon. Gentleman will look at the matter again, perhaps it can be dealt with in another place.