§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
§ Lieut.-Commander Gurney Braithwaite (Bristol, North-West)
Clauses 24 to 28 all appear to have a common objective, the clarification and tidying up of the law regarding matrimonial matters in respect of tax purposes. I want to ask the Solicitor-General a question before we part with this Clause. It relates to subsection (1, b) which deals with the question of separation. It seems to me, as a layman, that the wording is somewhat obscure. It reads:… such circumstances that the separation is likely to be permanent.That might be a little difficult of interpretation unless the Solicitor-General can add a few words which would appear on the record as a guide to those who will have to administer the Act in due course.
One reads from time to time of divorced persons re-marrying—rarely, it is true—but one reads and hears far more frequently of separated spouses burying the hatchet, returning under one roof and living happily ever afterwards. Therefore, I want to ask whether the interpretation to be placed upon the subsection is "judicial separation" or whether the marginal note, of which we are supposed to have no cognisance when considering a Bill, gives the answer in referring to geographical circumstances. If the wife went to America or Canada and had not the financial means to return, would that be regarded as circumstances which are covered by the Clause, or is the onus in a different direction and is it the claimant who has to try to satisfy the authorities that no re-union is likely? The present wording seems capable of many interpretations. If the Solicitor-General would add a few words of his own, or, better still, improve the Clause on the Report stage, it would be to the advantage of the Bill.
§ The Solicitor-General
The hon. and gallant Gentleman has put his finger upon a point of much controversy, and if we have still left the Clause in a state of 941 ambiguity, we have singularly failed in our purpose, which was to try to clarify the law as it was left as a result of a decision called "Nugent-Head v. Jacob," which was decided in the House of Lords last year. These provisions in so far as husbands living with wives are concerned, replace the old General Rule 16. When it came to interpret that Rule the House of Lords said that it was so difficult to construe that it was almost impossible to understand it. That is why I say that if we have still left the matter obscure, we have failed very signally in what we wanted to do.
I agree with what the hon. and gallant Gentleman has said. On the other hand, it is extremely difficult to find better words. We have tried to say that the question which must be asked in any particular case, looked at properly, is whether the separation between the spouses is likely to be one which will last for ever. Although we have tried many forms of words—I have no doubt that those who phrased General Rule 16, the words of which have remained for 150 years, tried to do the same thing—it is difficult to produce a better form of wording, having regard to the very different relationships which may lead to separation, temporary or permanent, between husbands and wives.
The test we have adopted therefore—that is to say, the factual likelihood of permanent separation—is one which we hope and think the courts can apply without any great difficulty. We think that the courts should be able to look at the circumstances of any individual matrimonial disruption and answer the question of fact, yea or nay—is this a temporary situation? For instance, has the husband simply gone to Newcastle on business in circumstances in which he will return in a fortnight—in which case obviously they would say it was temporary—or was this one brought about by a judicial separation, when they would say it was permanent.
The words "geographically separated" in the margin are not intended to be the only cases which refer to subsection (2), which says in effect that where you can say of two spouses that they are geographically separated—for example, one is working in the Colonies and the other here—that, for various reasons, is to be treated as permanent separation. It is not 942 generally the case that it will be permanent, but it is thought that it gives the wife certain taxation advantages when the husband is working abroad in the Colonies, when she may have a small income of her own here, to be placed in the same position as she would be if permanently separated from her husband.
I hope that explanation, which I am afraid is not entirely adequate, will satisfy the hon. and gallant Gentleman.
§ Mr. Charles Williams (Torquay)
Is it quite clear what happens when they come together again? Is it covered in the Bill?
§ The Solicitor-General
If they have been separated in circumstances in which a court has mistakenly come to the conclusion that they were permanently separated whereas it transpires they were not, if they come together again as husband and wife in the full sense, then the income of the wife is treated as the income of her husband in the ordinary way.
§ Mr. Williams
Is it their duty to inform the tax gatherer that they have come together again or ought they to leave it to him to find out?
§ The Solicitor-General
They are in exactly the same position as any other Income Tax payer who earns an income.
§ Clause ordered to stand part of the Bill.
§ Clause 28 ordered to stand part of the Bill.