New Clause. —(PROVISIONS AS TO SEPARATION AGREEMENTS.) (Hansard, 5 December 1949)

§ Mr. Asterley Jones (Hitchin)
May I, with the leave of the House, intervene for the second time in this Debate to say that the promoters of this Bill have now decided to ask the House to disagree with the Lords in this Amendment? I will explain the reasons that have led us to this conclusion. The House will remember that the principal object is to increase the payments which can be ordered by a court of summary jurisdiction to a wife and in favour of the children of a 1577 man who has neglected to maintain, or deserted, or otherwise committed a matrimonial offence against the wife.
During the early stages of the Bill, it was represented to us that it would impose a grave hardship upon those wives who, instead of bringing proceedings before the magistrates, had entered into a voluntary agreement with their husbands out of court for the purpose of securing a certain payment to themselves. It was represented that many such wives had done so knowing full well that if they went to the court they would be able to get only £2 a week, and perhaps 10s. or £1 for the children. It was suggested to us that if we were to say to wives who had such an agreement that their access to the court was barred, it would certainly impose a very great hardship upon them.
During the Committee stage a proposal was put forward to deal with this matter, but the form in which the proposal was put forward did not commend itself to the Committee, and it was then withdrawn upon an undertaking by the promoters that the matter would receive further consideration. It was not until the Bill reached another place that it was possible to find a convenient and workable form of wording to carry out the intentions the promoters had in mind. The Clause now before the House was moved in another place by Lord Crook. It was designed to apply only to agreements entered into before the passing of the Act, which it might be assumed had been entered into by the wife on the assumption that she could get no more by going to court. With that assumption removed, the Clause was designed to enable the wife, not only to go to the court, but to enable the court to decide that there was neglect to provide reasonable maintenance, despite the fact that the husband was keeping up the payments he had agreed to make under the agreement entered into.
When the Clause came back to this House in July, it was very strenuously objected to from various quarters. It was objected to on a variety of grounds. My hon. and learned Friend the Member for Northampton (Mr. Paget) took strong objection on the grounds that it was a wholly unwarrantable interference with the freedom of the parties of a marriage to compose their differences 1578 out of court. My hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) almost as vehemently objected, not only on those grounds, but on a rather different ground, that it unfairly favoured the wife as against the husband. As I understood him, he would have been prepared to agree with the Clause if it had provided an opportunity for the husband also to have the agreement over-ridden by the court.
I understand there was a possibility, had not the Debate been hurriedly adjourned, that the Clause would have been objected to from another quarter on the ground that it was wholly unnecessary because the jurisdiction of the court was perfectly capable of dealing with the situation; indeed, at the present time the wife can go, even without this Clause, to the court and plead her husband's neglect to maintain her, even though he is keeping up his payments. To that, I would say, that there is some substantial doubt which would have been clarified by putting the Clause in the Bill. However, we have been in consultation with the various shades of opinion and with the Home Secretary during the Recess, and we have come to the conclusion, however reluctantly, that this Clause may be of such a controversial nature that it would be unwise to insert it in the Bill.
While I take the view that there is a possibility of injustice which this Clause would have put right without too great an interference with the liberty of the parties, I concede that in all the circumstances it is probably better in a Private Member's Bill, or what started as a Private Member's Bill and has now been officially adopted by the Government, for a controversial Clause of this kind not to be inserted. I ask the House, therefore, to vote against the Motion, and if there should be any Member who may fear that this will precipitate a constitutional crisis with the House of Lords, I venture to suggest that the rather cautious words with which the Lord Chancellor dealt with this matter in another place lead one to suppose that there will be no great resistance to this House reversing their decision.

§ Lieut.-Colonel Lipton (Brixton)
May I very briefly, as one of the hon. Members—

§ Mr. Deputy-Speaker (Mr. Bowles)
The hon. and gallant Member has already taken part in this Debate and can speak again only by leave of the House.

§ Lieut.-Colonel Lipton
May I, with the leave of the House, say very briefly, as one of the hon. Members to whom reference has been made, that I cordially welcome the statement that has just been made? I think it will remove the bones of contention which stood in the way of agreement.

§ Mr. Julius Silverman (Birmingham, Erdington)
I am very glad that this course has been taken. I think it is very doubtful whether the Clause changes the law, because at the present time a contract for maintenance does not oust the jurisdiction of the courts to make an order. If it does change the law, there are many of us who, for various reasons, think that it would be a. very dangerous thing and would open the door very wide, placing husbands who have entered into agreements and have committed no matrimonial offences in a very dangerous situation. I am very glad, therefore, that this Clause is being opposed, and I hope there will be no insistence upon it.

§ The Under-Secretary of State for the Home Department (Mr. Younger)
May I also ask leave of the House to speak again, since the Debate has been taking place in two parts, to say that the Government have come to share the view expressed by my hon. Friend the Member for Hitchin (Mr. Asterley Jones)? It seems to us that his proposal, in all the circumstances, is the right one.

§ Mr. Leslie Hale (Oldham)
I started out to consider this Amendment as one who had the greatest sympathy with what was in the minds of Members of another place when they passed it. If the Bill is to go back to another place I should like it to do so with the assurance—which I am entitled to give on behalf of myself, and perhaps some other of my hon. Friends—that if it were merely a question of saying that in the case of separation agreements made in default of proceedings in court there should be power to raise the payments and allow people benefits that other applicants are to get, that would, generally speaking, be a desirable thing to do. My hon. Friend the Member for Erdington (Mr. J. Silver- 1580 man) says there is a general power to limit agreements of this kind.

§ Mr. J. Silverman
I did not say that.

§ Mr. Hale
My hon. Friend said that it did not make any alteration in the law.

§ Mr. Silverman
I said that an agreement to maintain does not oust the jurisdiction of the courts.

§ Mr. Hale
I agree; my hon. Friend is on strong ground there, because he is on the second point which I want to deal with, and which is the real evil of this Clause. The Clause does not make an amendment of the law because the jurisdiction of the courts is not ousted merely by the existence of a separation agreement, although a non-cohabitation clause is a matter which the courts have to consider. The real trouble with the Clause is this: it is so phrased as to say that the making of a payment by the husband under an agreement shall not of itself preclude the court from finding that the husband has wilfully failed to maintain his wife.
In my view, that is a principle of the greatest possible danger. Very often separation orders are made by agreement, without any question of there being a matrimonial offence at all. The people concerned hate the sight of one another, or perhaps the husband is in the House of Commons and never gets home until very late at night or not at all. Generally speaking, they come to the conclusion that they had better separate. That is one common class of case. Indeed, it is about the most frequent class of case where agreement is resorted to—

§ The Secretary of State for the Home Department (Mr. Ede)
By Members of the House of Commons?

§ Mr. Hale
No, I was merely quoting a class of case. The other class of case is where the wife is the guilty party. The husband says "Notwithstanding all this I will make you an allowance." If the Clause goes through as drawn, it means that the wife, who has been separated from her husband under an agreement, maybe for years, where there has been no marital consortium at all, can allege a new offence. The wife can say, "Notwithstanding the agreement, the sum I am receiving is not adequate for my maintenance, and, therefore, you have been 1581 guilty of the new offence of wilfully neglecting to maintain me." The court would be debarred from considering the surrounding circumstances at the time the agreement was made. Although I was in favour of the general idea of the Amendment when it was made, and had intended at first to dissent from my hon. Friend the Member for Hitchin (Mr. Asterley Jones), I have come to the conclusion that it is unacceptable and that the House ought to disagree with the Lords.

§ Mr. Marlowe (Brighton)
I agree with the view expressed by the hon. Member for Oldham (Mr. Hale). The Clause is an admirable one, but is undesirable. It is only for reasons of expediency that we think it is right to disagree with the Lords in this Amendment. If circumstances were otherwise, and it were possible to be sure of getting the Bill through with the Clause in it, it would be desirable to do so, but I understand that if we do not accept the course which is now suggested, there is a danger of the Bill being lost. I believe that in all parts of the House there is general agreement on the principle of the Bill. Merely as a matter of expediency we have to submit to the Clause not being put into the Bill.