§ 4.45 p.m.
§ Mr. Fletcher
I beg to move, in page 11, line 8, to leave out "cohabiting" and to insert:residing together as man and wife.I gather that it is your intention, Mr. Deputy-Speaker, that with this Amendment we should also consider the Amendments in lines 10, 13 and 33. To some extent it may also be necessary to say something about the Amendment in line 17 after "apply", to insert:when the order is made for a cause or complaint mentioned in paragraphs (h) or (i) of subsection (1) of section one of this Act, orbut that one raises, as I understand it, a separate point, on which my right hon. Friend the Member for Warrington (Dr. Summerskill) will have something to say, and I think that it would be convenient if she were allowed to move it separately.
§ Mr. Fletcher
The object of this series of Amendments, which I am sure is obvious to you, Mr. Deputy-Speaker, is not at first sight obvious to the uninitiated The Amendment which I am moving seeks to leave out the word "cohabiting" and to insert: the words,residing together as man and wife".These Amendments are somewhat different from thcose considered in Committee, and result from a lengthy and useful discussion which we had there following a debate in another place. They are being considered at this stage partly because the hon. and learned Gentleman the Solicitor-General and his right hon. Friend found themselves in a difficulty, with which we sympathise. It is hoped that, as a result of the interval that has elapsed since the Committee proceedings of 5th May, the Government have been able to give favourable consideration to these Amendments.
1414 Perhaps I can best assist the House by first indicating the broad social problem which confronts us in this matter, and then try to explain the legal subtleties which are involved in choosing apt words to give effect to what. I hope, is generally desired.
Clause 7 provides for the suspension or cessation of matrimonial orders in certain circumstances and the operative words are:Where a matrimonial … order is made while the parties to the marriage in question are cohabiting—and "cohabiting" is the relevant word—the order shall not be enforceable and no liability shall accrue thereunder until they have ceased to cohabit; andif in the case of a matrimonial order they continue to cohabit for the period of three months beginning with the date of the making of the order, the order shall cease to have effect at the expiration of that period.In normal social conditions, such a provision in the law would be unexceptionable. Prima facie, it is obviously rational that if a matrimonial order is made in matrimonial proceedings in a magistrates' court, giving either spouse the right to live apart, the right to a certain amount of maintenance, rights about the custody of the children and rights to the other spouse to access and various other consequential provisions, it is natural that such an order should not operate—or, if it does operate, should cease to operate—in the event of the parties to the marriage resuming normal matrimonial relationships—to use a general term.
The reason is obvious. Proceedings are brought in a magistrates' court when the parties are not seeking a divorce and when the marriage has not necessarily broken up permanently and not in circumstances in which one or other, or both, of the parties is seeking a dissolution of the marriage with a view, perhaps immediately and perhaps after an interval, to making some other matrimonial alliance.
1415 In most cases, the proceedings are taken in circumstances in which the marriage still remains afoot. The whole House, not least the Home Secretary, is very much concerned with the whole problem of reconciliation. These marriages have not broken up and in some cases there is a hope that there will be not only reconciliation, but restoration to normal married and family relationships between the parties. The very valuable activities of the Marriage Guidance Council and similar bodies are very much to be encouraged
Therefore, it is quite right that there should be a provision for the suspension of matrimonial orders in appropriate cases, but we are concerned today with the social facts of a peculiar and, I hope, only temporary phase, which must, nevertheless, be borne in mind. Those are the salient characteristics which give rise to this series of Amendments. It is notorious that in the overcrowded housing conditions which exist not only in London, but in many provincial cities as well, when matrimonial differences arise and a wife is deserted, or when the husband commits adultery or cruelty and the wife becomes entitled to leave the matrimonial home, there are circumstances which make it impossible for her to leave.
It may be that she has no money with which to find some other place to live and to which to take the children. Even if she has the wherewithal to look for other accommodation, it may be that there is no possibility of obtaining it. That is a situation which, I know from experience, exists in Islington. There are many cases in which the injured wife—and it obtains in reverse, but it is more often the injured wife than the injured husband—is entitled to matrimonial relief but, through force of circumstances beyond her control, cannot leave the matrimonial home and has to stay there.
In some cases there may be two or three rooms and it may be possible to make arrangements for her to occupy a separate room or separate bedroom, but, unfortunately, there are many other cases in those circumstances of people living in such overcrowded conditions that they have not even the number of rooms which would enable am injured wife en- 1416 titled to matrimonial relief to occupy a separate room in the matrimonial home. Sometimes, a curtain is put up to make some artificial division in the limited amount of accommodation available.
What we are hoping to achieve by these Amendments is that in those cases—and, unfortunately, there is a substantial number of them—the wife should not be deprived of her ordinary rights under the law merely because she cannot go away and find some other accommodation but, through force of circumstances, has to live in the same house with her husband, even though he has committed adultery or has been cruel or has committed some other offence which entitles her to relief. That is the case with which we are trying to deal and on that basis I do not think that the case needs arguing.
As I understand—and I shall be corrected if I am wrong—as the law stands at present the rule about the suspension OT cessation of an order operates if the parties have ceased to reside together. I admit at once that there is some improvement in the Bill as it stands in that a change has already been made because the operative word is now "cohabit" rather than "reside together"
The question which then arises is what is meant by "cohabit" and what is meant by "cohabitation". I do not think I can do better than quote the Solicitor-General, although I am not sure whether he still adheres to the view which he expressed during the Second Reading debate when he advised the House that the words "ceased to cohabit" meant to live together on terms of husband and wife. I assume that if the hon. and learned Gentleman adheres to that he would have no objection to this Amendment because it seeks to replace the expression "cohabit" with words which the hon. and learned Gentleman appears to think are identical in meaning. But the merit of the change, in my submission, is that it would make the operation of the Clause far more intelligent and helpful to the courts Which have to administer the law, to the poor people for whose benefit the Bill is being passed and, incidentally, for the practitioners who have to advise them.
1417 During the Committee stage we had some discussion about what "cohabit" meant. I think that I ought to draw attention to the report of the Royal Commission. The Arthian Davies Committee considered it first and then this question was considered by the Royal Commission. The Commission's recommendation was carried by 18 members to one. It recommended:If a wife obtains an order on the ground of her husband's wilful neglect to provide reasonable maintenance for her … her husband should be liable to make payments under the order, and it should be enforceable, notwithstanding that husband and wife are living together in circumstances amounting to full cohabitation …I quoted that because the words "full cohabitation" are used. It may be that there is some subtle distinction between "cohabitation" and "full cohabitation". The substantive point is this: I think it true to say that in ordinary, common parlance, in the English language used among the community affected by this Bill, "cohabitation" is thought of as meaning, in the case of husband and wife, living together on terms of husband and wife. There was a question whether that necessarily, as the Solicitor-General said, involves sexual relations. In some cases it may, in others it may not. It may well depend on the age of the parties.
I think that "cohabitation" is phraseology which it is unfortunate to use in this Bill in this context if we can avoid so doing. Therefore, we are suggesting that that word should be left out and that we should substitute the words:residing together as man and wife".If those words were accepted, the result would be generally understood to be that a wife can continue to be eligible for matrimonial relief to which she is entitled, even though she resides in the same promises as she has hitherto resided, and even though she resides in the same room, if there is only one room provided, however, that the couple do not reside there as man and wife.
Experience shows, from reports in the Law Reports and in the Sunday Press, that cases often arise in which the wife is entitled to relief but continues to live in the same dwelling-house because there is nowhere else for her to go, although she has ceased to live there with her husband as man and wife. I think it 1418 very desirable that this Clause should make clear that if that be the fact, she should still remain eligible for the matrimonial relief which this Bill is designed to give.
§ Mr. Graham Page
On a point of order, Mr. Deputy-Speaker. The hon. Member for Islington, East (Mr. Fletcher) has deployed almost exactly the same argument as I should wish to deploy in moving the Amendment in my name, in line 28, at the end to insert:or(iv) such as is mentioned in paragraph (b). (c) or (h) of subsection (1) of section two of this Act, if the order be an interim order".I suggest that it might be convenient if that Amendment were discussed at the same time.
§ The Solicitor-General
I speak for myself, but I do not think that that course would be at all convenient. The hon. Member for Islington, East (Mr. Fletcher) has obviously involved some overlapping of argument that is inherent in the situation, but it seems to me that there are two quite separate points and that it would be inconvenient to discuss both at the same time.
§ Mr. Fletcher
The Amendment to Clause 8, page 13, line 4, deals with an entirely different point. I was hoping that it would be called separately and that with it I might have mentioned the Amendment to Clause 2, in page 5, line 30.
§ Mr. Fletcher
With respect, Mr. Deputy-Speaker, I had hoped you would have called the Amendment to Clause 8 separately. It is a separate point and it would not have been convenient to deploy the argument in support of that Amendment at the same time as I was arguing in favour of the Amendments to Clause 7. If I may, I should like to deal with that when I come to it.
§ Mr. Fletcher
I will bow to your Ruling, Mr. Deputy-Speaker. I think, however, that I should say that it would 1419 be inconvenient, and it might be more inconvenient to the House, were I to resume my speech to deal with that. I would much rather deal with it when I came to it.
§ The Solicitor-General
It seems to me that the proposed Amendment to Clause 8, in page 13, line 4, raises the same point as does the Amendment to Clause 2, page 5, line 30. Those two fit together and they do not refer to the same point as the four Amendments to which the hon. Member for Islington, East (Mr. Fletcher) has been speaking.
§ The Solicitor-General
The hon. Member for Islington, East said that he did not think there had been any argument as to the social background, the social problem, against which he set his argument and with respect I agree with that. The problem with which we are faced regarding the terms "cohabiting" or "residing together" or "living together"—whatever expression we may use in this Clause—is the problem that in certain circumstances it may not be possible for a wife to take up residence under a separate roof away from her husband. I need not go over that argument, because the hon. Gentleman opposite has deployed it with clarity and force. Section 1 (4) of the 1925 Act says:No order made under the principal Act shall be enforceable and no liability shall accrue under any such order whilst the married woman … resides with her husband, and any such order shall cease to have effect if for a period of three months after it is made the married woman continues to reside with her husband.In other words, the test there is residence.
That provision was considered by the High Court in the case of Evans v. Evans, when it had to consider that Section and apply it to precisely the circumstances which the hon. Gentleman drew to our attention. That was a case where the wife felt that she had a cause of matrimonial complaint against her husband, but it was not possible for her to live under a separate roof. What the parties did was to maintain two separate domestic establishments under the same roof within the same premises where they 1420 had been living before. In those circumstances the court held that they were still residing together, and, therefore, the wife could not enforce her order.
It was to that decision and those circumstances that the Davies Committee directed its attention when it recommended that the wording should be changed into the form in which it stands in the Bill and which reads:Where a matrimonial or interim order is made while the parties to the marriage … are cohabiting …".The reason which the Davies Committee gave for that change is to be found on page 36 of its Report. It states:This is a change from the existing provision "—in the Section which I have just read—which refers to the spouses residing together and not to their cohabiting; the new provision is designed to avoid the cases of hardship which arise when a wife wishes to leave but cannot do so because she cannot find other accommodation and therefore sets up a separate household in the matrimonial home—a situation which was held in Evans v. Evans … to amount to residing together.Then the Report deals with the difference of opinion by one member of the Committee. It continues:The rest of the members therefore thought it advisable that the same expression should be used in Clause 7 (1) as in Clause 7 (2), and, since 'cohabitation' is clearly right in the context of Clause 7 (2), preferred the wording of the Clause as drafted.So that if one accepts, as I do, the argument of the hon. Gentleman opposite, the wording in the Clause has met the problem and has been expressly designed to meet it.
The word "cohabit" is one which the law understands perfectly well. I tried to analyse the situation in Committee, and perhaps I could repeat it. There is, first of all, what the law knows as the concept of people residing together. That merely means that they are living under the same roof—it may be that they are living in two quite separate house holds, but they are still residing together. The second concept is that of cohabitation where they are living together as best they may under their domestic circumstances, on terms of husband and wife but not necessarily involving sexual intercourse one with the other. As the hon. Gentleman pointed out, that factor may be affected by such considerations as the age of the 1421 parties. Their state of health and various other matters can affect that.
The third stage is when they are living together, cohabiting, on terms of sexual intercourse. As I say, the word "cohabit" is well-known to the law. It has been judicially interpreted and therefore we feel that it is the right word in these circumstances.
I feel difficulty about putting in the phrase suggested in the Amendmentresiding together as man and wife.Either that means the same as cohabiting, in which case it is unnecessary, or it means something different. It is not very clear what it does mean and it may involve shutting out certain circumstances which one would wish to see included. If the phraseresiding together as man and wifewere substituted for the word "cohabiting" it might be alleged that what Parliament was there demanding was cohabitation on terms of sexual intercourse. I know that that is not the intention of the hon. Gentleman, but that is the danger of using a phrase other than that which has been judicially interpreted.
There is also the fact that cohabitation, as I said, means living together as husband and wife, though not necessarily on terms of sexual intercourse, as the parties may best do under the circumstances in which they find themselves. One case was decided in the last century—which has been acted on since—where the spouses were domestic servants in different establishments. They could not live together even under the same roof. They met as best they could, and that was held to be a state of cohabitation. Therefore, it is a phrase, as I have said, which has been judicially determined.
I am prepared to advise the Committee that it is the appropriate phrase in these circumstances. It has the stamp of approval of the Davies Committee, and I hope that with that explanation the hon. Gentleman will feel that the Clause as drawn meets the point that he has in mind and that it is right for him to withdraw his Amendment.
§ Sir F. Soskice
I wish to add very little to this controversy, and, indeed, 1422 what I have to say can be rounded off in one point. Surely the expression which my hon. Friend the Member for Islington, East (Mr. Fletcher) seeks to substitute for the word "cohabiting" has at least the advantage that the ordinary man and woman in the street understands it. Words like "cohabit", whether they have been judiciously interpreted or not, carry with them a certain terror. They have a technical sound about them and as applied to normal human relationships are apt to appear to the ordinary man and woman in the street as things with a big question mark in front of them.
The ordinary man and woman do not know what cohabitation means. They can guess at it and hint at the sort of meaning that they think the word bears. I put it to the hon. and learned Solicitor-General that if we use words likeresiding together as man and wifethey constitute a phrase which carries a perfectly clear concept to the mass of ordinary men and women in the street.
The Bill with which we are concerned is one which concerns ordinary men and women and, broadly speaking, I should have thought that it should be the objective of legislators, in particular of this House, to try, where possible, to make legislation intelligible. When one is dealing with the Finance Acts that is sometimes impossible. Those Acts are only meant to be intelligible to accountants and people of that sort. When we are dealing with a Bill of this sort, which affects the lives of ordinary families we should use a simple phrase instead of a complex and technical one, if it can be easily compassed. So far as I can see, that is the case here.
I do not know whether my hon. Friend will think it necessary to press the matter to a Division if the Solicitor-General still feels unable to accept that point of view, but I do ask him to give it thought and see whether he can change his mind, even at this late stage.
§ Question put, That "cohabiting" stand part of the Bill:—
§ The House divided: Ayes 209, Noes 133.1413
|Division No. 123.]||AYES||[4.37 p.m.|
|Ainsley, William||Castle, Mrs. Barbara||George, Lady Megan Lloyd|
|Allaun, Frank (Salford, E.)||Chapman, Donald||Ginsburg, David|
|Allen, Scholefield (Crewe)||Chetwynd, George||Gordon Walker, Rt. Hon. P. C.|
|Awbery, Stan||Craddock, George (Bradford, S.)||Gourlay, Harry|
|Bacon, Miss Alice||Davies, G. Elfed (Rhondda, E.)||Greenwood, Anthony|
|Beaney, Alan||Davies, Harold (Leek)||Grey, Charles|
|Benson, Sir George||Davies, Ifor (Cower)||Griffiths, W. (Exchange)|
|Blackburn, F.||Davies, S. O. (Merthyr)||Hall, Rt. Hon. Glenvil(Colne Valley)|
|Blyton, William||Deer, George||Hannan, William|
|Bowden, Herbert W. (Leics. S.W.)||Delargy, Hugh||Hart, Mrs. Judith|
|Boyden, James||Driberg, Tom||Hayman, F. H.|
|Braddock, Mrs. E. M.||Dugdale, Rt. Hon. John||Healey, Dennis|
|Broughton, Dr. A. D. D.||Ede, Rt. Hon. Chuter||Henderson, Rt. Hn. Arthur (Rwly Regis)|
|Brown, Alan (Tottenham)||Edwards, Rt. Hon. Ness (Caerphilly)||Herbison, Miss Margaret|
|Brown, Rt. Hon. George (Belper)||Edwards, Robert (Bilston)||Hill, J. (Midlothian)|
|Brown, Thomas (Ince)||Fitch, Alan||Holman, Percy|
|Butler, Herbert (Hackney, C.)||Fletcher, Eric||Houghton, Douglas|
|Butler, Mrs. Joyce (Wood Green)||Fraser, Thomas (Hamilton)||Howell, Charles A.|
|Callaghan, James||Gaitskell, Rt. Hon. Hugh||Hughes, Cledwyn (Anglesey)|
|Hughes, Emrys (S. Ayrshire)||Oliver, C. H.||Stewart, Michael (Fulham)|
|Hughes, Hector (Aberdeen, N.)||Oram, A. E.||Strachey, Rt. Hon. John|
|Hunter, A. E.||Oswald, Thomas||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|Jeger, George||Owen, Will||Summerskill, Dr. Rt. Hon. Edith|
|Johnson, Carol (Lewisham, S.)||Page, Graham||Swingler, Stephen|
|Jones, Rt. Hn. A. Creech(Wakefield)||Paget, R. T.||Symonds, J B.|
|Jones, Dan (Burnley)||Pannell, Charles (Leeds, W.)||Taylor, Bernard (Mansfield)|
|Jones, J. Idwal (Wrexham)||Parker, John (Dagenham)||Taylor, John (West Lothian)|
|Kelley, Richard||Peart, Frederick||Thomas, George (Cardiff, W.)|
|Key, Rt. Hon. C. W.||Pentland, Norman||Thornton, Ernest|
|King, Dr. Horace||Plummer, Sir Leslie||Wainwright, Edwin|
|Lee, Frederick (Newton)||Probert, Arthur||Warbey, William|
|Lipton, Marcus||Proctor, W. T.||Wells, Percy (Faversham)|
|Loughlin, Charles||Rankin, John||Wheeldon, W. E.|
|Mabon, Dr. J. Dickson||Redhead, E. C.||White, Mrs. Eirene|
|McCann, John||Robinson, Kenneth (St. Pancras, N.)||Whitlock, William|
|MacColl, James||Ross, William||Wilkins, W. A.|
|McInnes, James||Royle, Charles (Salford, West)||Williams, W. R. (Openshaw)|
|McKay, John (Wallsend)||Shinwell, Rt. Hon. E.||Willis, E. G. (Edinburgh, E.)|
|Mackie, John||Short, Edward||Wilson, Rt. Hon. Harold (Huyton)|
|Mahon, Simon||Silverman, Julius (Aston)||Woof, Robert|
|Manuel, A. C.||Skeffington, Arthur||Yates, Victor (Ladywood)|
|Mendelson, J. J.||Slater Mrs. Harriet (Stoke, N.)||Zilliacus, K.|
|Millan, Bruce||Slater, Joseph (Sedgefield)|
|Mitchison, G. R.||Soskice, Rt. Hon. Sir Frank||TELLERS FOR THE AYES:|
|Moody, A. S.||Spriggs, Leslie||Mr. Lawson and Mr. Rogers|
|Mort, D. L.||Steele, Thomas|
|Abse, Leo||Fraser, Ian (Plymouth, Sutton)||Manningham-Buller, Rt. Hn. Sir R.|
|Agnew, Sir Peter||Freeth, Denzil||Markham, Major Sir Frank|
|Aitken, W. T.||Gammans, Lady||Marlowe, Anthony|
|Allason, James||Gibson-Watt, David||Marten, Neil|
|Alport, Rt. Hon. C. J. M.||Goodhew, Victor||Mathew, Robert (Honiton)|
|Arbuthnot, John||Gower, Raymond||Matthews, Gordon (Meriden)|
|Barter, John||Green, Alan||Mawby, Ray|
|Batsford, Brian||Gresham Cooke, R.||Maydon, Lt.-Cmdr. S. L. C.|
|Baxter, Sir Beverley (Southgate)||Grimond, J.||Mills, Stratton|
|Beamish, Col. Tufton||Grimston, Sir Robert||Montgomery, Fergus|
|Bell, Ronald (S. Bucks.)||Hall, John (Wycombe)||Moore, Sir Thomas|
|Bennett, F. M. (Torquay)||Hamilton, Michael (Wellingborough)||Morgan, William|
|Berkeley, Humphry||Harrison, Col. J. H. (Eye)||Nicholson, Sir Geoffrey|
|Biggs-Davison, John||Harvie Anderson, Miss||Noble, Michael|
|Bingham, R. M.||Hendry, Forbes||Nugent, Sir Richard|
|Black, Sir Cyril||Hill, Mrs. Eveline (Wythenshawe)||Orr-Ewing, C. Ian|
|Bossom, Clive||Hinchingbrooke, Viscount||Page, John (Harrow, West)|
|Bourne-Arton, A.||Hirst, Geoffrey||Pannell, Norman (Kirkdale)|
|Box, Donald||Hooking, Philip N.||Peel, John|
|Boyle, Sir Edward||Holland, Philip||Percival, Ian|
|Brewis, John||Holt, Arthur||Peyton, John|
|Brooman-White, R.||Hopkins, Alan||Pickthorn, Sir Kenneth|
|Browne, Percy (Torrington)||Hornby, R. P.||Pike, Miss Mervyn|
|Butcher, Sir Herbert||Hornsby-Smith, Rt. Hon. Patricia||Pilkington, Capt. Richard|
|Butler, Rt. Hn. R. A.(Saffron Walden)||Howard, Hon. G. R. (St. Ives)||Pitman, I. J.|
|Campbell, Gordon (Moray & Nairn)||Hughes-Young, Michael||Pitt, Miss Edith|
|Carr, Compton (Barons Court)||Hutchison, Michael Clark||Pott, Percivall|
|Carr, Robert (Mitcham)||Iremonger, T. L.||Powell, J. Enoch|
|Cary, Sir Robert||James, David||Price, David (Eastleigh)|
|Channon, H. P. G.||Jenkins, Robert (Dulwich)||Prior, J. M. L.|
|Clark, William (Nottingham, S.)||Jennings, J. C.||Proudfoot, Wilfred|
|Cooke, Robert||Johnson, Dr. Donald (Carlisle)||Ramsden, James|
|Cooper, A. E.||Johnson, Eric (Blackley)||Redmayne, Rt. Hon. Martin|
|Cooper-Key, Sir Neill||Johnson Smith, Geoffrey||Rees, Hugh|
|Cordeaux, Lt.-Col. J. K.||Kaberry, Sir Donald||Renton, David|
|Corfield, F. V.||Kerans, Cdr. J. S.||Robertson, Sir David|
|Costain, A. P.||Kerby, Capt. Henry||Robinson, Sir Roland (Blackpool, S.)|
|Coulson, J. M.||Kershaw, Anthony||Robson Brown, Sir William|
|Craddock, Sir Beresford||Lagden, Godfrey||Roots, William|
|Critchley, Julian||Leavey, J, A.||Ropner, Col. Sir Leonard|
|Crosthwaite-Eyre, Col. O. E.||Legge-Bourke, Sir Harry||Russell, Ronald|
|Cunningham, Knox||Lewis, Kenneth (Rutland)||Scott-Hopkins, James|
|Dalkeith, Earl of||Lilley, F. J. P.||Sharples, Richard|
|Dance, James||Litchfield, Capt. John||Shaw, M.|
|d'Avigdor-Goldsmid, Sir Henry||Longden, Gilbert||Simon, Sir Jocelyn|
|Drayson, G. B.||Loveys, Walter H.||Smith, Dudley (Br'ntf'rd & Chiswick)|
|Duncan, Sir James||Lucas, Sir Jocelyn (Portsmouth, S.)||Smithers, Peter|
|Eden, John||MacArthur, Ian||Spearman, Sir Alexander|
|Elliott, R. W.||McLaren, Martin||Steward, Harold (Stockport, S.)|
|Emmet, Hon. Mrs. Evelyn||McLaughlin, Mrs. Patricia||Stodart, J. A.|
|Erroll, Rt. Hon. F. J.||McLean, Neil (Inverness)||Storey, Sir Samuel|
|Finlay, Graeme||McMaster, Stanley R.||Studholme, Sir Henry|
|Fisher, Nigel||Macpherson, Niall (Dumfries)||Summers, Sir Spencer (Aylesbury)|
|Fletcher-Cooke, Charles||Maddan, Martin||Sumner, Donald (Orpington)|
|Fraser, Hn. Hugh (Stafford & Stone)||Maitland, Cdr. Sir John||Tapsell, Peter|
|Teeling, William||van Straubenzee, W. R.||Williams, Paul (Sunderland, S.)|
|Temple, John M.||Vane, W. M. F.||Wilson, Geoffrey (Truro)|
|Thomas, Leslie (Canterbury)||Vaughan-Morgan, Sir John||Wolrige-Gordon, Patrick|
|Thomas, Peter (Conway)||Vickers, Miss Joan||Wood, Rt. Hon. Richard|
|Thorneycroft, Rt. Hon. Peter||Vosper, Rt. Hon. Dennis||Woodnutt, Mark|
|Thornton-Kemsley, Sir Colin.||Wade, Donald||Woollam, John|
|Tiley, Arthur (Bradford, W.)||Wakefield, Edward (Derbyshire, W.)||Worsley, Marcus|
|Tilney, John (Wavertree)||Wakefield, Sir Wavell (St. M'lebone)||Yates, William (The Wrekin)|
|Turner, Colin||Watts, James|
|Turton, Rt. Hon. R. H.||Webster, David||TELLERS FOR THE NOES:|
|Tweedsmuir, Lady||Whitelaw, William||Mr. Bryan and|
|Division No. 124.]||AYES||[5.21 p.m.|
|Agnew, Sir Peter||Harrison, Col. J. H. (Eye)||Pitman, I. J.|
|Aitken, W. T.||Harvie Anderson, Miss||Pitt, Miss Edith|
|Allason, James||Hendry, Forbes||Pott, Percivall|
|Alport, Rt. Hon. C. J. M.||Hill, Mrs. Eveline (Wythenshawe)||Powell, J. Enoch|
|Arbuthnot, John||Hinchingbrooke, Viscount||Price, David (Eastleigh)|
|Atkins, Humphrey||Hirst, Geoffrey||Prior, J. M. L.|
|Barter, John||Hocking, Philip N.||Proudfoot, Wilfred|
|Batsford, Brian||Holland, Philip||Ramsden, James|
|Baxter, Sir Beverley (Southgate)||Hopkins, Alan||Redmayne, Rt. Hon. Martin|
|Beamish, Col. Tufton||Hornby, R. P.||Rees, Hugh|
|Bell, Ronald (S. Bucks.)||Hornsby-Smith, Rt. Hon. Patricia||Renton, David|
|Bennett, F. M. (Torquay)||Howard, Hon. C. R. (St. Ives)||Ridley, Hon. Nicholas|
|Berkeley, Humphry||Hughes-Young, Michael||Roberts, Sir Peter (Heeley)|
|Biggs-Davison, John||Hutchison, Michael Clark||Robertson, Sir David|
|Bingham, R. M.||Iremonger, T. L.||Robinson, Sir Roland (Blackpool, S.)|
|Birch, Rt. Hon. Nigel||James, David||Roots, William|
|Black, Sir Cyril||Jenkins, Robert (Dulwich)||Ropner, Col. Sir Leonard|
|Bossom, Clive||Jennings, J. C.||Russell, Ronald|
|Bourne-Arton, A.||Johnson, Dr. Donald (Carlisle)||Scott-Hopkins, James|
|Box, Donald||Johnson, Eric (Buckley)||Sharples, Richard|
|Boyle, Sir Edward||Johnson Smith, Geoffrey||Shaw, M.|
|Brewis, John||Kaberry, Sir Donald||Simon, Sir Jocelyn|
|Brooke, Rt. Hon. Henry||Kerans, Cdr. J. S.||Skeet, T. H. H.|
|Browne, Percy (Torrington)||Kerby, Capt. Henry||Smith, Dudley (Br'ntf'rd & Chiswick)|
|Bryan, Paul||Kershaw, Anthony||Smithers, Peter|
|Butcher, Sir Herbert||Lagden, Godfrey||Spearman, Sir Alexander|
|Campbell, Gordon (Moray & Nairn)||Leavey, J. A.||Speir, Rupert|
|Carr, Compton (Barons Court)||Legge-Bourke, Major Sir Harry||Steward, Harold (Stockport, S.)|
|Carr, Robert (Mitcham)||Lewis, Kenneth (Rutland)||Storey, Sir Samuel|
|Cary, Sir Robert||Lilley, F. J. P.||Studholme, Sir Henry|
|Channon, H. P. G.||Linstead, Sir Hugh||Summers, Sir Spencer (Aylesbury)|
|Chichester-Clark, R.||Litchfield, Capt. John||Sumner, Donald (Orpington)|
|Clark, William (Nottingham, S.)||Longbottom, Charles||Tapsell, Peter|
|Cooke, Robert||Longden, Gilbert||Taylor, Sir Charles (Eastbourne)|
|Cooper, A. E.||Loveys, Waiter H.||Teeling, William|
|Cooper-Key, Sir Neill||Lucas, Sir Jocelyn (Portsmouth, S.)||Temple, John M.|
|Cordeaux, Lt.-Col. J. K.||MacArthur, Ian||Thomas, Leslie (Canterbury)|
|Corfield, F. V.||McLaren, Martin||Thomas, Peter (Conway)|
|Costain, A. P.||McLaughlin, Mrs. Patricia||Thorneycroft, Rt. Hon. Peter|
|Coulson, J. M.||McLean, Neil (Inverness)||Thornton-Kemsley, Sir Colin|
|Craddock, Sir George Beresford||McMaster, Stanley R.||Tiley, Arthur (Bradford, W.)|
|Critchley, Julian||Macpherson, Niall (Dumfries)||Tilney, John (Wavertree)|
|Crosthwaite-Eyre, Col. O. E.||Maddan, Martin||Turner, Colin|
|Cunningham, Knox||Maginnis, John E.||Turton, Rt. Hon. R. H.|
|Currie, G. B. H.||Maitland, Cdr. Sir John||Tweedsmuir, Lady|
|Dalkeith, Earl of||Manningham-Buller, Rt. Hn. Sir R.||van Straubenzee, W. R.|
|d'Avigdor-Goldsmid, Sir Henry||Markham, Major Sir Frank||Vane, W. M. F.|
|Drayson, G. B.||Marten, Neil||Vaugnan-Morgan, Sir John|
|Duncan, Sir James||Mathew, Robert (Honiton)||Vickers, Miss Joan|
|Duthie, Sir William||Matthews, Gordon (Meriden)||Vosper, Rt. Hon. Dennis|
|Eden, John||Mawby, Ray||Wade, Donald|
|Elliott, R. W.||Maydon, Lt.-Cmdr. S. L. C.||Wakefield, Edward (Derbyshire, W.)|
|Emery, Peter||Mills, Stratton||Wakefield, Sir Waved (St. M'lebone)|
|Emmet, Hon. Mrs. Evelyn||Montgomery, Fergus||Ward, Dame Irene (Tynemouth)|
|Erroll, Rt. Hon. F. J.||Moore, Sir Thomas||Watts, James|
|Finlay, Graeme||Morgan, William||Webster, David|
|Fisher, Nigel||Nicholson, Sir Godfrey||Wells, John (Maidstone)|
|Fletcher-Cooke, Charles||Noble, Michael||Whitelaw, William|
|Fraser, Hn. Hugh (Stafford & Stone)||Nugent, Sir Richard||Williams, Paul (Sunderland, S.)|
|Fraser, Ian (Plymouth, Sutton)||Orr-Ewing, C. Ian||Wilson, Geoffrey (Truro)|
|Freeth, Denzil||Page, John (Harrow. West)||Wise, A. R.|
|Goodhart, Philip||Page, Graham||Wolrige-Gordon, Patrick|
|Goodhew, Victor||Pannell, Norman (Kirkdale)||Wood, Rt. Hon. Richard|
|Gower, Raymond||Partridge, E.||Woodnutt, Mark|
|Green, Alan||Pearson, Frank (Clitheroe)||Woollam, John|
|Gresham Cooke, R.||Peel, John||Worsley, Marcus|
|Grimond, J.||Percival, Ian||Yates, William (The Wrekin)|
|Grimston, Sir Robert||Peyton, John|
|Hall, John (Wycombe)||Pickthorn, Sir Kenneth||TELLERS FOR THE AYES:|
|Hamilton, Michael (Wellingborough)||Pike, Miss Mervyn||Mr. Brooman-White and|
|Harris, Reader (Heston)||Pilkington, Capt. Richard||Mr. Gibson-Watt.|
|Abse, Leo||Benson, Sir George||Brown, Rt. Hon. George (Belper)|
|Ainsley, William||Blackburn, F.||Brown, Thomas (Ince)|
|Allaun, Frank (Salford, E.)||Blyton, William||Butler, Herbert (Hackney, C.)|
|Allen, Scholefield (Crewe)||Bowden, Herbert W. (Leics, S.W.)||Callaghan, James|
|Awbery, Stan||Boyden, James||Castle, Mrs. Barbara|
|Bacon, Miss Alice||Braddock, Mrs. E. M,||Chetwynd, George|
|Baxter, William (Stirlingshire, W.)||Broughton, Dr. A. D. D.||Craddock, George (Bradford, S.)|
|Beaney, Alan||Brown, Alan (Tottenham)||Cronin, John|
|Crosland, Anthony||Jones, J. Idwal (Wrexham)||Rogers, G. H. R. (Kensington, N.)|
|Davies, G. Elfed (Rhondda, E.)||Kelley, Richard||Ross, William|
|Davies, Harold (Leek)||Key, Rt. Hon. C. W.||Royle, Charles (Salford, West)|
|Davies, S. O. (Merthyr)||King, Dr. Horace||Shinwell, Rt. Hon. E.|
|Deer, Geoorge||Lee, Frederick (Newton)||Short, Edward|
|Delargly, Hugh||Lipton, Marcus||Silverman, Julius (Aston)|
|Driberg, Tom||Loughlin, Charles||Skeffington, Arthur|
|Ede, Rt. Hon. Chuter||Mabon, Dr. J. Dickson||Slater, Mrs. Harriet (Stoke, N.)|
|Edwards, Rt. Hon. Ness (Caerphilly)||McCann, John||Slater, Joseph (Sedgefield)|
|Edwards, Robert (Bilston)||MacColl, James||Soskice, Rt. Hon. Sir Frank|
|Fitch, Alan||McInnes, James||Spriggs, Leslie|
|Fletcher, Eric||McKay, John (Wallsend)||Steele, Thomas|
|Fraser, Thomas (Hamilton)||Mahon, Simon||Stewart, Michael (Fulham)|
|Gaitskell, Rt. Hon. Hugh||Manuel, A. C.||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|George, Lady Megan Lloyd||Marquand, Rt. Hon. H. A.||Summerskill, Dr. Rt. Hon. Edith|
|Ginsburg, David||Marsh, Richard||Swingler, Stephen|
|Gordon Walker, Rt. Hon. P. C||Mason, Roy||Sylvester, George|
|Gourlay, Harry||Mellish, R. J.||Symonds, J. B.|
|Greenwood, Anthony||Mendelson, J. J.||Taylor, Bernard (Mansfield)|
|Grey, Charles||Millan, Bruce||Taylor, John (West Lothian)|
|Griffiths, Rt. Hon. James (Llanelly)||Mitchison, G. R.||Thomas, George (Cardiff, W.)|
|Griffiths, W (Exchange)||Moody, A. S.||Thornton, Ernest|
|Hannan, William||Mort, D. L.||Wainwright, Edwin|
|Hart, Mrs. Judith||Oliver, G. H.||Warbey, William|
|Hayman, F. H.||Oram, A. E.||Wells, Percy (Faversham)|
|Healey, Denis||Owen, Will||Wheeldon, W. E.|
|Henderson, Rt. Hn. Arthur (Rwly Regis)||Pannell, Charles (Leeds, W.)||White, Mrs. Eirene|
|Herbison, Miss Margaret||Parker, John (Dagenham)||Whitlock, William|
|Hill, J. (Midlothian)||Pavitt, Laurence||Wilkins, W. A.|
|Holman, Percy||Peart, Frederick||Williams, W. R. (Openshaw)|
|Hughes, Cledwyn (Anglesey)||Pentland, Norman||Willis, E. G. (Edinburgh, E.)|
|Hughes, Emrys (S. Ayrshire)||Plummer, Sir Leslie||Wilson, Rt. Hon. Harold (Huyton)|
|Hughes, Hector (Aberdeen, N.)||Probert, Arthur||Woof, Robert|
|Hunter, A. E.||Proctor, W. T.||Yates, Victor (Ladywood)|
|Hynd, H. (Accrington)||Rankin, John||Zilliacus, K.|
|Jeger, George||Redhead, E. C,|
|Jones Rt. Hn. A. Creech(Wakefield)||Robinson, Kenneth (St. Pancras, N.)||TELLERS FOR THE NOES:|
|Mr. Lawson and Mr. Howell.|
§ 5.30 p.m.
§ Dr. Edith Summerskill (Warrington)
I beg to move, in page 11, line 17, after "apply", to insert:when the order is made for a cause or complaint mentioned in paragraphs (h) or (i) of subsection (1) of section one of this Act. orI recall the learned Solicitor-General saying in Committee that his mind would remain open. So far as I can see, it has remained open since the Committee stage but has now been obstinately closed. I can only hope that it is still ajar and that perhaps the Solicitor-General is waiting until I move this Amendment to show how sympathetic he is on certain parts of this Bill.
In moving this Amendment, I might adduce the arguments which I adduced in Committee on a similar Amendment, but I hope that the Solicitor-General has observed, as I am sure he has, that this Amendment has been considerably modified. It gives the court the right to direct otherwise if it thinks fit; in other words, instead of this automatically taking place, as I asked for in Committee, the court can make the decision. I hope this will remove the fears which the right hon. Gentleman and the Solicitor-General expressed in Committee.
1426 This Bill is a very important one. It is concerned with the matrimonial problems of those unfortunate couples who have failed to make a success of their marriage. It will be recalled that in the Second Reading debate hon. Members on both sides of the House emphasised the importance of trying to save the marriage and effecting a reconciliation between husband and wife. Indeed, it was said time after time that that should surely be our primary objective. In my opinion, this Bill offers the opportunity of a certain reconciliation in families where the bitterness which may perhaps stem from adultery has not yet developed. Quite frankly, I was hoping to see a Government Amendment along the lines which I indicated in Committee.
The most interesting debates which we have had have been devoted to details of maintenance, the enforcement of maintenance and to the tidy disposal of the unhappy children of the marriage. Let us not forget that, in dealing with this matter of the question of unhappy marriages, the end product of an unhappy marriage may indeed be tragic. As we know, the psychiatrists say so many unstable adults are the products of unhappy marriages. When I plead for reconciliation, I am pleading not 1427 only for reconciliation between husband and wife but also for a chance for the unhappy children, whose future is quite unpredictable after their parents have separated.
Despite the pious speeches made on Second Reading, nothing has been done in this Bill to make provision for reconciliation. The Royal Commission quite rightly said that no formal pattern of reconciliation agencies should be defined, and I believe that that is right. I believe that there is more chance of saving a marriage in the first place if the husband and wife are given the opportunity of working out a way of life which is agreeable to both, without the intervention of outsiders, whoever they may be.
I should not like it to be thought that I underestimate the importance of the work of the Marriage Guidance Council, the probation officers and all those fine men and women who devote their lives to trying to help in this difficult problem, but, nevertheless, I think that everybody in the House will agree that marriage is such a personal and intimate problem that it is more likely that there will be harmony in the home if husband and wife can come together without interference and decide these issues themselves.
The Marriage Guidance Council has told us that the cause of the breakdown of so many marriages can be traced to quarrels over money. People may have their minor quarrels, in the first place, causing irritation, and finally these small quarrels flare up into what is often described as "a flaming row". It is a fact that, although I am not suggesting that all wives are thrifty, so often a man fails to give his wife sufficient money to maintain the home, and so finally she is compelled to obtain a maintenance order. As a woman's happiness is closely bound up with her home and her children, we may assume that no woman goes for a maintenance order lightly. In my opinion, most wives will tolerate quite a lot, and will try to manage with very small amounts of money rather than endanger the home and jeopardise the future of their children.
Finally, married perhaps to a man who may have been charming but feckless, who spends too much money on drink or horses or dogs—I was trying to think 1428 what the other vices were, but in this place one has no time to acquire the vices—the woman, who has been held for many years by his charm, finds that her position is impossible and has to secure a maintenance order. This Bill, as the learned Solicitor-General has so carefully explained to us now, differs from previous Bills. Under previous Acts, a woman had to leave the home. Now, because of the case of Evans v. Evans, it has been decided that a woman and her husband can live in the same house, despite the fact that a maintenance order has been secured.
I ask the House to picture the conditions. In this great capital of ours—and I believe that there are 10 million people in London and Greater London—there are thousands who are living either in one room, two rooms or three rooms. Under this Bill, husband and wife, despite the fact that they have such limited accommodation, are nevertheless to be allowed to establish two homes. I listened to the learned Solicitor-General very carefully, especially when he said that it would be possible for this to take place even in the case of a family living in one room. It is quite possible for enormous irritation to be engendered in a one-room home. It is also possible to put a partition across the room. Under this Bill, it will be possible to have two separate homes, with husband and wife living on either side of a partition in cases in which the wife has obtained a maintenance order. That is the picture I should like the House to envisage.
The difference between conditions today and previously is that the husband and wife will have ample opportunity of meeting each other. They will be under the same roof. Indeed, they may be living in adjacent rooms, and they are to be placed in this astonishing position in which, where the wife has obtained a maintenance order and they are separated by the law, they are meeting probably every morning. Quite possibly, there may even be a door between the adjoining rooms, with the couple living on each side of the partition. Although that seems a most curious arrangement, nevertheless it will be the law.
There is, at least, one advantage; there may be a much greater opportunity for reconciliation. Instead of these two 1429 people living under different roofs, they will possibly see each other every day. I am dealing only with cases in which the man has failed to support the wife, in which he may be charming but feckless. He may make overtures to his wife and she, anxious to build the family again and bring her children together, may relent, and full cohabitation may take place; or, to use the Solicitor-General's words, cohabitation with sexual relations may take place.
Full cohabitation having been established, in three months' time the order ceases to have effect. Having established a home, brought the children back and tried to do her best to maintain harmony, the wife finds that the order ceases to have effect. But within a few weeks, trouble may recommence because of the man's inability to handle the finances of the home. The Royal Commission considered these problems over a period of years, whereas we have taken only a period of hours. The Royal Commission supported my point of view. My hon. Friend quoted from its Report, in which it said that in these cases, where there is full cohabitation, the order should still be preserved.
The Solicitor-General understands these problems so well and has had so much experience of them that I find it difficult to understand why he does not appreciate that here is an opportunity to stabilise the marriage. Our primary objective in the Bill should be to stabilise these marriages. If the two have come together and, over a period, as a result of the working of the order, it has been possible for them to live happily together, surely we should be utterly stupid to recreate the conditions which separated them. Give them a chance for a time, a year or two, and let the court decide; my Amendment permits the court to take this decision.
In Committee the Solicitor-General said that if he did as I suggested it would mean asking the court to fix a housekeeping allowance. I submit that that is not the case. In most cases, the husband will have the lion's share of the wages. In the ordinary working man's home a housekeeping allowance means that the wife is allowed so much money and from it she often pays the rent, and she will certainly pay for the meals for her husband and children and often for the gas and electricity. She 1430 often pays all the running expenses of the household. Sometimes there may be different arrangements; the husband may pay the rent and the gas and electricity bills. But often a housekeeping allowance means an allowance used for the overall expenses of the home. When the Solicitor-General said in Committee that this would mean asking the court to fix a housekeeping allowance, he was wrong. What I am asking is that the order should remain in force so that at least the wife knows that she has some money for her own maintenance and that of the children.
I agree that financially it may be rather a curious arrangement, but we are not trying to make tidy arrangements as to how the finances will be used. We are trying to ensure that the stabilised marriage lasts as long as possible. Under the conditions which I propose, the wife will at least he sure of a certain amount of money for herself—an assurance which she did not have before the order. I ask the Joint Under-Secretary of State and the Solicitor-General to reconsider this matter, because there is the safeguard that the court can decide otherwise. The court can listen to the case, take all these various considerations into account and decide whether it is advisable for these conditions to continue.
I plead sincerely for this Amendment. What we decide in the next quarter-of-an-hour will affect hundreds of thousands of poor, helpless people and their children. This is the only chance to effect a reconciliation in so many homes. If it fails and the husband and wife part, we have no responsibility for that, but we are responsible at the moment for giving the husband and wife who have parted a chance to come together again, to bring their children into the home again and to see whether they can maintain this harmony for a little longer until new financial arrangements are made between them.
§ 5.45 p.m.
§ The Joint Under-Secretary for the Home Department (Mr. Dennis Vosper)
As the right hon. Lady the Member for Warrington (Dr. Summerskill) knows, the principle of this Amendment was discussed at all stages in another place and thoroughly in Standing Committee. I do not resent a further opportunity to discuss it, because it is a matter of some substance. In concluding the debate in 1431 Committee, I said that we would look at the matter again, but the right hon. Lady will recall that I gave her little hope to think that we should reach a different conclusion. I assure her that my words were not a formality and that we have not merely waited for her to put down the same or a slightly modified Amendment, and for it to be rejected. We have looked at the matter again. I regret to tell her that we are still of the opinion that the Amendment is unacceptable.
Two separate reasons have been advanced for the Amendment at various stages of the Bill. Unless I misunderstand her, the right hon. Lady says that the wife should not depend on the whim of her husband for her housekeeping allowance and that the court should divide the income between husband and wife and fix a housekeeping allowance.
§ Dr. Summerskill
The right hon. Gentleman did not hear what I said. The Amendment has nothing to do with the court dividing the man's wages to provide a housekeeping allowance. It is quite clear. It would provide that, the order having been made and the man and wife having come together again, the order as it stands should be allowed to remain in operation so that the marriage may be stabilised. This would continue until some time in the future, when the woman said, "I can trust him and this order can cease." I cannot understand the right hon. Gentleman suggesting that I am asking the court to divide the income. I have not suggested that the husband and wife should go to court to ask for his wages to be divided and for one-half to be used as housekeeping allowance.
§ Mr. Vosper
I did not say that, but in effect that is what would happen. This is the difficulty which faced the Royal Commission and the Davies Committee when they considered it. Perhaps I exaggerated what the right hon. Lady said, but what I have said was the intention of some of her hon. Friends and of my hon. Friend the Member for Crosby (Mr. Page) in Committee. My hon. Friend said that he thought that there were cases of hardship in which the parties would not be able to leave the house and in which reconciliation might be contemplated but could not 1432 take place because of this bar. I accept that the right hon. Lady possibly does not want to go further than that.
I thought in Committee that insufficient attention had been paid to the alleviation under the Bill of the Evans v. Evans decision, which was that persons could not live under the same roof and receive maintenance. Both the right hon. Lady in the Amendment and the hon. Member for Islington, East (Mr. Fletcher) on another Amendment have noted that a considerable advance is made in this connection over the existing law.
I do not want to cover again the ground covered by my hon. and learned Friend on an earlier Amendment as to what is now possible under the terms of the Bill, but possibilities are now available which were not available prior to the production of the Bill. My noble Friend the Lord Chancellor in another place spoke of the possibility of dividing a room so that the order may remain in force. Great opportunity exists for the parties to satisfy the courts that cohabitation is not taking place, even though they are residing together under the same roof.
The right hon. Lady has said that this will not meet all the cases she has in mind. She suggests that there will still be cases of hardship because of accommodation difficulties and cases where reconcilation is desired and that therefore, the Government must go further and accept an Amendment on these lines, under which the question is placed before the court under this proposal.
That is the point which we have examined, both in another place and between the Committee stage and this stage of the Bill. It was again a point which worried the Royal Commission, certainly the Davies Committee. The right hon. Lady did not say that the Davies Committee did not feel able to accept this proposal of the Royal Commission, although it accepted the earlier one about people residing under the same roof. Sir Frederick Burrows in the minority report of the Royal Commission made the point, which presumably convinced the Davies Committee that this proposal could not be effected, that to accept the proposal would in effect be the equivalent of making a housekeeping allowance.
1433 I realise that the right hon. Lady says that she does not believe that to be true, but it is a fact. If the court is to fix a maintenance allowance and allow the parties to cohabit together, it becomes the equivalent, or the near equivalent, of a housekeeping allowance. That is what worries us and makes the Amendment unacceptable. Once that is done, even if the principle was accepted, it would be accompanied by all the machinery of enforcement, including the possibility of a wife sending her husband to prison under the enforcement provisions of the Bill. It would also involve all the provisions relating to maintenance and attachment of earnings under the Maintenance Orders Act, 1958, and would therefore bring the employer into what is in fact a domestic matter between husband and wife.
Therefore, the difficulty of accepting the right hon. Lady's point, well though it was put and acceptable though it may be to many people, is that the court would be empowered to fix a housekeeping allowance, or the equivalent of a housekeeping allowance, between husband and wife.
In Committee the hon. Member for Birmingham, Perry Barr (Mr. Howell) suggested, as the right hon. Lady has done, that this is not a housekeeping allowance because of the position of the husband. However, I think that that is a position which would make the task of the courts even more difficult. I do not think that one can escape the fact that the courts would be put in an invidious position if they had to do this. They would be interfering in a domestic arrangement between husband and wife.
The right hon. Lady at one stage rather understood that the High Court had a different power in this connection, but my hon. and learned Friend the Solicitor-General made it clear that the High Court do not enforce orders where the parties cohabit. Since the Committee stage I have inquired to see whether there are any exceptions to that, and I can trace no case whatsoever where an order has been enforced as a result of a High Court action when the parties are cohabiting. Therefore, the law under the Bill is in step with the practice of the High Court.
1434 I realise that this is a matter of considerable social policy, which has been discussed in the House on a previous occasion and rejected, but I do not think that this Measure is a vehicle whereby one could make this very considerable change. The right hon. Lady said that it affected hundreds of thousands of families. I beg to differ on that point, but, if it does, it makes it all the more a matter which should not be discussed on what is a matrimonial Bill. It should be discussed on another issue of social policy.
§ Mr. Abse
I am happy that on this occasion I can support my Front Bench. I do so very readily. I cannot understand the attitude of the Government. What they are suggesting is that they are prepared to encourage the parties to remain apart.
The whole object of the Amendment is to ensure that there will be no deterrent to reconciliation. The parties have gone to court and the woman has obtained an order against her husband for neglect to maintain. There is no difficulty about the amount being fixed. It is fixed every day in courts up and down the land, and it is done when a husband has neglected to maintain his wife and family. A wife does not go to court, in my experience, unless she has had a prolonged period of deprivation and has suffered greatly because there has been a long pattern of conduct on the part of the husband, which shows that through fecklessness or gambling he is not supporting his wife. The order has been obtained and there has been, very often for the first time, a ventilation of the grievances in court.
I regard the ventilation of the grievances as being of great importance. My experience is that it is sometimes wrong to endeavour to effect a reconciliation before the catharsis has taken place inside the court. This is the experience of very shrewd magistrates and magistrates' clerks, who very often find in practice that, after the pent-up aggression and grievances of parties who have lived together for years is released, solicitors on either side, or the parties themselves, are, oddly enough, able to come together.
My right hon. Friend the Member for Warrington (Dr. Summerskill) has not gone so far as to include matters concerning adultery, and so on. She has very properly limited it to neglect to 1435 maintain. Therefore, we are dealing with a position where the parties could leave the courts and go back together, having for the first time released their aggression one towards the other. In my experience, this is the best time for the parties to come together. If the wife has been advised by her solicitor, "Whatever you do, do not cohabit with him", a complete obstacle is being placed in the way of reconciliation. A solicitor is bound to advise her and tell her what the law is.
If a woman has already gone through many difficulties over many years before she goes to court, even if her emotions tell her to effect a reconciliation can she be expected when she has children to do so when she knows that to cohabit is to end the order?
This may not be the ideal way to get over this difficulty, but a very legalistic approach has been given from the Government Front Bench. This is just another instance of what I said on Second Reading, that this is a Bill the machinery of which is so concerned and preoccupied with perfecting severance of marriage that it does not give any attention to the possibilities of reconciliation.
§ Sir F. Soskice
My right hon. Friend the Member for Warrington (Dr. Summerskill) and my hon. Friend the Member for Pontypool (Mr. Abse) have made perfectly obvious what their purpose is. They want to promote reconciliations instead of allowing a barrier to remain which will prevent reconciliations taking effect. My right hon. Friend has tabled her Amendment to the proviso to Clause 7 (1).
The Joint Under-Secretary answered by saying in effect that my right hon. Friend in tabling her Amendment to this part of the. Bill did not achieve her objective. Does he accept the purpose which she has in mind as being a desirable purpose? The purpose is simply this. Where parties have come apart, whether they are residing in the same house at the time when the order is made or whether they are no longer residing in the same house, they should not lose the order if they become reconciled and, in consequence of becoming reconciled, resume the full relationships of husband and wife. That is what my right hon. 1436 Friend wants to achieve, and I should have thought that the Minister could not deny that that is a desirable objective. If we can achieve that objective, surely we ought to achieve it, for the reasons given by my right hon. Friend and by my hon. Friend the Member for Pontypool.
I am sure that the Minister will agree with me—and perhaps he will take the advice of the hon. and learned SolicitorGeneral—that my right hon. Friend's objective could easily be accomplished if her Amendment were to be transferred to the end of subsection (2) of Clause 7. That would mean that the consequence of a resumption of cohabitation would not be to put an end to such an order as is contemplated in paragraphs (h) and (i) of Clause 1 (1). In other words, if a maintenance order is made and the two parties are apart, whether still living at the same address or at different addresses, that maintenance order should not come to an end once cohabitation is resumed.
If my right hon. Friend's Amendment were transferred to Clause 7 (2) it would do what she wants, and if you, Mr. Deputy-Speaker, thought it appropriate to accept it, I would certainly offer to hand in a manuscript Amendment which would do what I think my right hon. Friend wants to have done, and what she so clearly explained as her purpose. I do not know whether the Minister would be prepared to consider that—if the Chair would accept a manuscript Amendment. Subject to the advice that the Solicitor-General gives to the Minister, I believe that that would do what my right hon. Friend wants. I should like to have an answer on that. I could quickly write down what I hope would be the appropriate manuscript Amendment, subject always, Mr. Deputy-Speaker, to your guidance and your Ruling on the matter.
§ Mr. Vosper
I want to make it quite clear that I do not resist the Amendment on a technical defect. There may be a technical defect—I do not know. I resist it, as I have always done, and as my noble Friend did in another place, because of the principle involved. It is a matter of social policy. The Davies Committee did not recommend, nor did the Government accept, that the order should remain in force when the parties 1437 are cohabiting. That is the objection to the acceptance of this or any similar Amendment.
The Amendment is quite a reasonable one, bearing in mind what the right hon. Lady has in mind, but it does differ from a principle that has been thoroughly debated. I appreciate what the hon. Member for Pontypool (Mr. Abse) said. and I also listened with great interest to his Second Reading speech, but my hon. and learned Friend the Solicitor-General then made it clear that the Bill is not a measure for reconciliation. It has a limited purpose and, because it has a limited purpose I do not feel able to accept the great change in social policy that this or any other equivalent Amendment would make.
§ Mr. Fletcher
I press the Government to consider the solution propounded by my right hon. and learned Friend the Member for Newport (Sir F. Soskice). The right hon. Gentleman has just said that the Bill does not purport to be a reconciliation Measure. We know that that is so. It purports to be a Matrimonial Proceedings (Magistrates' Courts) Bill. Surely, however, the right hon. Gentleman and the Home Office are interested in reconciliation, and are concerned that this Bill should not make reconciliation more difficult.
Our criticism of the Government's attitude both now and in Committee is that it is making the reconciliation of a married couple more difficult. That is a very serious charge, and it is not enough for the right hon. Gentleman to say in reply that this does not purport to be a reconciliation Measure. Whatever it purports to be, it purports to deal with married couples who have matrimonial difficulties, who are not seeking to put an end to the marriage but who are entitled to some matrimonial relief short of a divorce.
On that hypothesis, the Government must surely be interested in reconciliation and in doing all it can to ensure that those marriages that have not completely broken down but in which some difficulty—perhaps temporary—has arisen, should be restored to family unity. I think that this present Amendment is the most serious one that we have discussed today, and what astounds us on this side is that the Government, by their attitude of abject negation, are 1438 making reconciliation more difficult, and are, in fact, driving parties apart who, ex hypothesi, do not wish to separate.
Let me restate the case. There is a difference between husband and wife. A wife has a legitimate grievance, because her husband has failed to pay her proper maintenance within the language of Clause 1 (1, h). Her ground for matrimonial relief is not adultery, it is not cruelty in that the husband is suffering from venereal disease, or is an habitual drunkard, or a drug addict, or has compelled his wife to submit herself to prostitution. We are not dealing with all that class of very serious matrimonial offences, in which totally different considerations arise.
We are deliberately confining this Amendment to the very limited class of case in which it might well be said that although the husband is at fault he has not committed some mortal sin, he has not outraged society—done something that puts permanently asunder the bonds of matrimony. What he has done is to give the wife a legitimate right to go to court on the ground that her husband has neglected to provide reasonable maintenance, not only for her but for the children.
Something has been said about procedure in the High Court and the law in the High Court, and it is important that we should appreciate this. We will come to the practice in a moment, but the law in the High Court—and I am sure that the learned Solicitor-General will not hesitate to interrupt me if I am wrong—is that, in similar circumstances, if a wife proves that her husband has wilfully neglected to provide her with reasonable maintenance she is entitled to get an order from the High Court for maintenance and, as a matter of law, to enforce it, although she continues to live with her husband, to reside with him and to cohabitate with him. That is the law.
The Joint Under-Secretary says that there may be a different practice; that there are cases in which the High Court may not enforce the law as it is. In this Amendment we are dealing with the law, not with the practice, and we are deliberately providing that the magistrates can have a discretion. We therefore say that in order to remove not only what is a social justice itself but a degree of social discrimination between 1439 the poorer sections of the community who go to the magistrates' courts and the richer sections of the community who go to the High Court, the law should be put on the same basis here as the law in the High Court, and that the magistrates' courts should have the same rights in the matter.
When it comes to the practice, the magistrates' court may well decide that it will follow the practice of the High Court, and will apply the law only in circumstances similar to those in which the High Court applies it. We are not making it obligatory. We suggest that this should be a matter of discretion.
I should like the learned Solicitor-General to look at the precise nature, not only of the Amendment but also of the alternative form suggested by my right hon. and learned Friend, and in order that it may be appreciated perhaps I had better read it out. The alternative form would read: Page 11, line 33, [Clause 7], at end add:except in the case of an order made under paragraphs (h) or (i) of subsection (I) of section one of this Act.That would make it abundantly clear what we are aiming at. I would again invite the Solicitor-General to look at the framework—
§ The Solicitor-General
I am sorry; I did not intend to interrupt the hon. Gentleman in mid-sentence. I wanted to make it clear, as I understand it, that if it comes in subsection (2) of Clause 7 it removes the discretion from the court.
§ Mr. Fletcher
I do not want to remove the discretion. I am anxious to retain the words:unless the court in making the order directs otherwise,in which case it would read at the end of line 33:except, unless the court in making the order directs otherwise, in the case of an order made under paragraphs (h) or (i) of subsection (1) of section one of this Act.It will be seen that the framework of Clause 7 is that, first of all, there is the general position for the suspension or cessation of maintenance orders where cohabitation is resumed. Then there is a very important proviso to that general provision. It is already recognised in the Bill itself that, although the main 1440 operation of a matrimonial order should be suspended in the event of cohabitation, certain parts of the order should remain operative notwithstanding cohabitation or resumption of cohabitation—for example, that part of the order dealing with the committing of a child to the legal custody of a local authority.
That will remain operative, and quite properly, though I suppose there could be an argument about that. It could be said, "If cohabitation has been resumed, why should a child or the children of the marriage still be in the legal custody of the local authority? Why should they not return home?" That could well be argued. But we do not argue it because we think that, on balance, the interests of the child are probably best looked after if that part of the order remains operative. As a corollary to that, that part of the order which provides for the payment of maintenance in respect of the child remains operative, notwithstanding cohabitation. That again might be argued.
But I come back to the main point as put so forcibly by my right hon. Friend. In the circumstances which we are envisaging, where a wife has obtained an order on the ground of neglect, and where she is still living, as in a great many cases she will be, in the matrimonial home, either cohabiting fully or partly, then if this Bill stands as it is now, there will be a premium on the wife being driven to go away and find some other accommodation, difficult though that may be, whereas if the Amendment which we seek to make is accepted there will be every inducement on the parties to come together.
I am prepared to ignore the argument that this is in effect giving the court power to fix a housekeeping allowance. I thought that was rather an academic argument. The court will have a discretion in these cases. If the court comes to the conclusion that that is what it is, it will not make an order. The court will be entitled to make an order only if there has been wilful neglect to provide reasonable maintenance, and that is a totally different set of circumstances from some argument as to what is the proper housekeeping allowance.
I believe that if this Clause is amended as we suggest, there will not be any 1441 difficulty whatever on the part of the courts in administering it and in giving effect to it. I think it will bring the law in the magistrates' courts into line with the law as it now exists in the High Court. The High Court has had no difficulty in adopting the practice and deciding whether it is reasonable or not. I believe that if the Amendment is not accepted it will make reconciliation between the parties much more difficult and will produce a very serious degree of social injustice.
§ Mr. Charles Royle (Salford, West)
May I in a few words add my plea to that of my right hon. and hon. Friends on this Amendment? I do not think that I can agree with my right hon. Friend the Member for Warrington (Dr. Summerskill) when she speaks in terms of hundreds of thousands of cases which come under this heading. I do not think that there are quite so many. But it is a fact that day by day in the courts cases of this kind arise, and we find that after an order for maintenance has been made the parties concerned live under one roof. My right hon. Friend has envisaged the circumstances that may then apply.
I know—indeed, all of us with experience of the lower courts are aware—that this kind of thing goes on. My concern is that an opportunity shall be presented for reconciliation. Our experience certainly teaches us that whilst the parties might be living under one roof for a period after the order has been made, if in the meantime no cohabitation takes place there is a possibility of a complete cleavage sooner or later. One or other of the parties leaves that home and so the end of the marriage is accomplished. As long as they are living under that one roof there is a real opportunity for the marriage to be saved. It is on those grounds that I support the Amendment. In the course of the Second Reading debate on this Bill I expressed the hope that the Bill might ultimately contain something about reconciliation courts, but it has not been found possible to do that. Let us take one step forward by accepting this Amendment.
From both Front Benches we have heard references to the maintenance allowance becoming a housekeeping allowance. Well, who cares? If the maintenance allowance actually becomes the amount of money that the husband 1442 gives to his wife for the basic upkeep of the home, what does it matter? It is a guarantee that she is getting something from him whilst they are living under the same roof.
I know that this subsection does not apply to any provision of the order committing the children into other custody, but I suggest that if this Amendment is accepted there will be no question of the children going elsewhere, and the hope of keeping the whole family together is greatly enhanced. I hope even at this late stage that the Solicitor-General and the Joint Under-Secretary of State for the Home Department will have not second thoughts but fourth, fifth, sixth and seventh thoughts. I hope that they will have those thoughts at this very moment and will make possible a form of reconciliation which would not otherwise exist.
§ Dr. Summerskill
I think that my hon. Friend suggested that I was exaggerating. Before he concludes, I should like to tell him that I was guilty not of exaggerating but of under-statement. In 1958, 24,000 applications were made in separation and maintenance cases.
§ Sir F. Soskice
On a point of order, Mr. Speaker. In his reply, the Minister indicated, in effect, that the Amendment was so worded as not to achieve what my right hon. Friend desired. In my contribution to the debate I suggested that that difficulty might perhaps be overcome if the Chair were prepared to accept a manuscript Amendment. We have not had an answer from the Government about that, but we have prepared a manuscript Amendment. I wonder whether I might hand it to you now, Sir, and whether, in due course, you would be so good as to rule whether you think it ought to be accepted or not.
§ Mr. Vosper
Perhaps I did not make myself clear. I ought to make it abundantly plain that it is the principle underlying the Amendment, not the wording of it, to which I take exception 1443 The Amendment moved by the right hon. Lady the Member for Warrington (Dr. Summerskill) may well be satisfactorily worded if the purpose is accepted, but that is what we do not accept, and, therefore, no variation would be acceptable either.
§ that the House had best arrive at a decision on this Amendment. Accordingly, I would not, in the circumstances, think it right to accept a manuscript Amendment.
§ Question put, That those words be there inserted in the Bill:—
§ The House divided: Ayes 127, Noes 203.1445
|Division No. 125.]||AYES||[6.22 p.m.|
|Abse, Leo||Hannan, William||Price, J. T. (Westhoughton)|
|Ainsley, William||Hart, Mrs. Judith||Proctor, W. T.|
|Allen, Scholefield (Crewe)||Hayman, F. H.||Rankin, John|
|Awbery, Stan||Healey, Denis||Redhead, E. C.|
|Bacon, Miss Alice||Henderson, Rt. Hn. Arthur (Rwly Regis)||Robinson, Kenneth (St. Pancras, N.)|
|Beaney, Alan||Herbison, Miss Margaret||Rogers, C. H. R. (Kensington, N.)|
|Blackburn, F.||Hill, J. (Midlothian)||Ross, William|
|Blyton, William||Holman, Percy||Royle, Charles (Salford, West)|
|Bowden, Herbert W. (Leics, S.W.)||Howell, Charles A.||Shinwell, Rt. Hon. E.|
|Boyden, James||Hughes, Cledwyn (Anglesey)||Short, Edward|
|Braddock, Mrs. E. M.||Hughes, Emrys (S. Ayrshire)||Silverman, Julius (Aston)|
|Brown, Alan (Tottenham)||Hughes, Hector (Aberdeen, N.)||Silverman, Sydney (Nelson)|
|Brown, Rt. Hon. George (Belper)||Hunter, A. E.||Skeffington, Arthur|
|Brown, Thomas (Ince)||Hynd, H. (Accrington)||Slater, Mrs. Harriet (Stoke, N.)|
|Butler, Herbert (Hackney, C.)||Jay, Rt. Hon. Douglas||Slater, Joseph (Sedgefield)|
|Callaghan, James||Jones, Rt. Hn. A. Creech (Wakefield)||Soskice, Rt. Hon. Sir Frank|
|Castle, Mrs. Barbara||Jones, Dan (Burnley)||Spriggs, Leslie|
|Chapman, Donald||Kelley, Richard||Steele, Thomas|
|Chetwynd, George||Key, Rt. Hon. C. W.||Stewart, Michael (Fulham)|
|Craddock, George (Bradford, S.)||Lawson, George||Stross, Dr. Barnett (Stoke-on-Trent, C.)|
|Crosland, Anthony||Lee, Frederick (Newton)||Summerskill, Dr. Rt. Hon. Edith|
|Crossman, R. H. S.||Lipton, Marcus||Swingler, Stephen|
|Davies, G. Elfed (Rhondda, E.)||Loughlin, Charles||Sylvester, George|
|Davies, S. O. (Merthyr)||McCann, John||Symonds, J. B.|
|Deer, George||MacColl, James||Taylor, Bernard (Mansfield)|
|Driberg, Tom||McInnes, James||Taylor, John (West Lothian)|
|Ede, Rt. Hon. Chuter||McKay, John (Wallsend)||Thomas, George (Cardiff, W.)|
|Edwards, Rt. Hon. Ness (Caerphilly)||Manuel, A. C.||Thornton, Ernest|
|Edwards, Robert (Bilston)||Marsh, Richard||Wade, Donald|
|Fernyhough, E.||Mason, Roy||Wainwright, Edwin|
|Fitch, Alan||Mellish, R. J.||Warbey, William|
|Fletcher, Eric||Mendelson, J. J.||Wheeldon, W. E.|
|Fraser, Thomas (Hamilton)||Millan, Bruce||White, Mrs. Eirene|
|Gaitskell, Rt. Hon. Hugh||Mitchison, G. R.||Whitlock, William|
|George, Lady Megan Lloyd||Moody, A, S.||Wilkins, W. A.|
|Gordon Walker, Rt. Hon. P. C.||Mort, D. L.||Williams, W. R. (Openshaw)|
|Gourlay, Harry||Oliver, G. H.||Willis, E. G. (Edinburgh, E.)|
|Greenwood, Anthony||Oram, A. E.||Wilson, Rt. Hon. Harold (Huyton)|
|Grey, Charles||Pannell, Charles (Leeds, W.)||Woof, Robert|
|Griffiths, Rt. Hon. James (Llanelly)||Parker, John (Dagenham)||Yates, Victor (Ladywood)|
|Griffiths, W. (Exchange)||Pavitt, Laurence||Zilliacus, K.|
|Grimond, J.||Pentland, Norman|
|Hale, Leslie (Oldham, W.)||Plummer, Sir Leslie||TELLERS FOR THE AYES:|
|Dr. Broughton and Mr. Probert.|
|Agnew, Sir Peter||Brooman-White, R.||Currie, G. B. H.|
|Aitken, W. T.||Browne, Percy (Torrington)||Dalkeith, Earl of|
|Allason, James||Bryan, Paul||d'Avigdor-Goldsmid, Sir Henry|
|Alport, Rt. Hon. C. J. M.||Butcher, Sir Herbert||Drayson, G. B.|
|Arbuthnot, John||Campbell, Gordon (Moray & Nairn)||Duncan, Sir James|
|Atkins, Humphrey||Carr, Compton (Barons Court)||Duthie, Sir William|
|Barter, John||Carr, Robert (Mitcham)||Eden, John|
|Batsford, Brian||Cary, Sir Robert||Elliott, R. W.|
|Baxter, Sir Beverley (Southgate)||Channon, H. P. G.||Emery, Peter|
|Beamish, Col. Tufton||Chichester-Clark, R.||Emmet, Hon. Mrs. Evelyn|
|Bell, Ronald (S. Bucks.)||Clark, William (Nottingham, S.)||Erroll, Rt. Hon. F. J.|
|Bennett, F. M. (Torquay)||Cooke, Robert||Finlay, Graeme|
|Berkeley, Humphry||Cooper-Key, Sir Neill||Fisher, Nigel|
|Biggs-Davison, John||Cordeaux, Lt.-Col. J. K.||Fraser, Ian (Plymouth, Sutton)|
|Bingham, R. M.||Cordie, John||Freeth, Denzil|
|Birch, Rt. Hon. Nigel||Corfield, F. V.||Gammans, Lady|
|Black, Sir Cyril||Costain, A. P.||Gibson-Watt, David|
|Bossom, Clive||Coulson, J. M.||Goodhart, Philip|
|Bourne-Arton, A.||Craddock, Sir Beresford||Goodhew, Victor|
|Box, Donald||Critchley, Julian||Gower, Raymond|
|Boyle, Sir Edward||Crosthwaite-Eyre, Col. O. E.||Green, Alan|
|Brewis, John||Cunningham, Knox||Gresham Cooke, R.|
|Grimston, Sir Robert||Maitland, Cdr. Sir John||Shaw, M.|
|Hall, John (Wycombe)||Manningham-Buller, Rt. Hn. Sir R.||Shepherd, William|
|Hamilton, Michael (Wellingborough)||Markham, Major Sir Frank||Simon, Sir Jocelyn|
|Harris, Reader (Heston)||Marshall, Douglas||Skeet, T. H. H.|
|Harrison, Col. J. H. (Eye)||Marten, Neil||Smith, Dudley (Br'ntf'rd & Chiswich)|
|Harvey, John (Walthamstow, E.)||Mathew, Robert (Honiton)||Smithers, Peter|
|Harvie Anderson, Miss||Matthews, Gordon (Meridon)||Spearman, Sir Alexander|
|Hendry, Forbes||Mawby, Ray||Speir, Rupert|
|Hill, Mrs. Eveline (Wythenshawe)||Mills, Stratton||Steward, Harold (Stockport, S.)|
|Hinchingbrooke, Viscount||Montgomery, Fergus||Storey, Sir Samuel|
|Hirst, Geoffrey||Moore, Sir Thomas||Studholme, Sir Henry|
|Hocking, Philip N.||Mott-Radclyffe, Sir Charles||Summers, Sir Spencer (Aylesbury)|
|Holland, Philip||Nicholson, Sir Godfrey||Sumner, Donald (Orpington)|
|Hopkins, Alan||Nugent, Sir Richard||Talbot, John E.|
|Hornby, R. P.||Osborn, John (Hallam)||Tapsell, Peter|
|Hornsby-Smith, Rt. Hon. Patricia||Page, John (Harrow, West)||Teeling, William|
|Howard, Hon. G. R. (St. Ives)||Page, Graham||Temple, John M.|
|Hughes Hallett, Vice-Admiral John||Pannell, Norman (Kirkdale)||Thomas, Leslie (Canterbury)|
|Hughes-Young, Michael||Partridge, E.||Thomas, Peter (Conway)|
|Hutchison, Michael Clark||Pearson, Frank (Clitheroe)||Thorneycroft, Rt. Hon. Peter|
|Iremonger, T. L.||Peel, John||Thornton-Kemsley, Sir Colin|
|James, David||Percival, Ian||Tiley, Arthur (Bradford, W.)|
|Jenkins, Robert (Dulwich)||Pickthorn, Sir Kenneth||Tilney, John (Wavertree)|
|Jennings, J. C.||Pike, Miss Mervyn||Turner, Colin|
|Johnson, Dr. Donald (Carlisle)||Pilkington, Capt. Richard||Turton, Rt. Hon. R. H.|
|Johnson, Eric (Blackley)||Pitman, I. J.||Tweedsmuir, Lady|
|Johnson Smith, Geoffrey||Pitt, Miss Edith||van Straubenzee, W. R.|
|Kerans, Cdr. J. S.||Pott, Percivall||Vane, W. M. F.|
|Kerby, Capt. Henry||Powell, J. Enoch||Vickers, Miss Joan|
|Kerr, Sir Hamilton||Price, David (Eastleigh)||Vosper, Rt. Hon. Dennis|
|Kershaw, Anthony||Prior, J. M. L.||Wakefield, Edward (Derbyshire, W.)|
|Lagden, Godfrey||Proudfoot, Wilfred||Wakefield, Sir Wavell (St. M'lebone)|
|Leavey, J. A.||Ramsden, James||Walker-Smith, Rt. Hon. Derek|
|Legge-Bourke, Maj. Sir Harry||Rawlinson, Peter||Ward, Dame Irene (Tynemouth)|
|Lewis, Kenneth (Rutland)||Redmayne, Rt. Hon. Martin||watts, James|
|Lilley, F. J. P.||Rees, Hugh||Webster, David|
|Linstead, Sir Hugh||Rees-Davies, W. R.||Wells, John (Maidstone)|
|Litchfield, Capt. John||Ronton, David||Wilson, Geoffrey (Truro)|
|Longbottom, Charles||Ridley, Hon. Nicholas||Wise, A. R.|
|Loveys, Walter H.||Roberts, Sir Peter (Heeley)||Wolrige-Gordon, Patrick|
|MacArthur, Ian||Robertson, Sir David||Woodnutt, Mark|
|McLaren, Martin||Robinson, Sir Roland (Blackpool, S.)||Woollam, John|
|McLaughlin, Mrs. Patricia||Roots, William||Worsley, Marcus|
|McLean, Neil (Inverness)||Ropner, Col. Sir Leonard|
|McMaster, Stanley R.||Russell, Ronald||TELLERS FOR THE NOES:|
|Macpherson, Niall (Dumfries)||Scott-Hopkins, James||Mr. Whitelaw and Mr. Noble.|
|Maddan, Martin||Sharples, Richard|
§ 6.30 p.m.
§ Mr. Graham Page
I beg to move, in page 11, line 28, at the end, to insert:or(iv) such as is mentioned in paragraph (b), (c) or (h) of subsection (1) of section two of this Act, if the order be an interim order".As the House knows from the discussions which have already taken place, Clause 7 provides that a matrimonial or interim order shall not start to take effect while the parties are cohabiting together. However, the Clause also has a proviso to the effect that that provision shall not take effect unless the court otherwise directs in three cases. My Amendment proposes to add a fourth case, namely, that the fact that the parties continue to cohabit shall not prevent the order coming into force if it is for wife maintenance, husband maintenance or child maintenance and if it is only an interim order.
What I wish to deal with is the simple case where a wife and husband reside together, where the husband has 1446 neglected to maintain the wife and where the wife obtains a maintenance order for herself alone or for herself and her children and has then to seek other accommodation. The very nature of the order, namely, neglect to maintain, shows that she has not funds with which to find other accommodation until payment under the order commences. I appreciate that some of the difficulties have been overcome by the use of the word "cohabit" in the Clause.
My hon. and learned Friend the Solicitor-General has already indicated that it would be possible for a wife in such circumstances to set up home separately from the husband within the same building, even by dividing a room. That may be possible in some cases, but it may be physically impossible in others. If the court is informed that it is impossible for the wife to set up a separate home within the same building and thereby cease to cohabit and that she has not the funds with which to obtain other accommodation until the 1447 maintenance order takes effect, then I should have thought that it would be right for the court to direct that for a period the order should carry liability for payment of maintenance even though the parties are still residing in the same house and in law may appear to be cohabiting within the same building.
I have restricted the Amendment to the case in which an interim order is made. The House will see that an interim order would be made under Clause 6 if the court, before making a final order on the complaint, adjourns the hearing for a period exceeding one week. It is then able to make an interim order which under Clause 6 (3) would remain in force for a period directed by the court or, at the most, for three months.
The Amendment seeks to give the court a discretion if it finds circumstances, such as those which I have described, in which the wife has not funds to find accommodation until she is paid maintenance. When the court so finds, it should be given discretion to say that for a period maintenance shall be paid for the wife and, if it is an order in respect of the children, for the children as well, even though she is residing in the same house. Under the Amendment the court could not make an order for longer than three months and in many cases it might feel that it ought to make an order for a shorter period. That would leave a discretion with the court.
I say again to my hon. and learned Friend the Solicitor-General that although he has improved the position of the wife who finds herself in this difficulty by using the word "cohabit" in the Clause there may be physical circumstances in which that phraseology will not help us and in which it is quite impossible for her to show that she is setting up a separate home and thereby ceasing to cohabit in the same building. The court should be given power to deal with that situation temporarily—and the Amendment seeks to deal with it only temporarily—so as to give the wife a financial opportunity to find other accommodation. The nature of the order which she has obtained indicates that she has not finances to find another home for herself and her children. All I ask is that the court should give her time to do that and that she should be paid maintenance during that time.
§ Mr. Vosper
My hon. Friend the Member for Crosby (Mr. Graham Page) is rather more modest in one respect than the right hon. Lady the Member for Warrington (Dr. Summerskill) in that he wishes to limit his proposal to interim orders. He is less modest in another respect in that he wants to extend it to categories of complaint other than wife neglect. I see the point which he is trying to cover by the Amendment, but I think he will understand that, although his Amendment may be limited in one sense, it raises other difficulties. My real objection to it, however, is the argument that I put forward on the last Amendment. It is open to the criticism that here we have an innovation for the first time that the courts will intervene, with all the enforcement machinery, to fix the division of income between husband and wife where the parties are living together.
That is an argument which must be balanced against the argument which my hon. Friend put forward, that his Amendment would help towards reconciliation. It may be that the House eventually will come to the conclusion that the courts should so intervene, with all the enforcement machinery, but I submit that this is not the right occasion on which it should be done. I must, there-, fore advise the House to reject the Amendment.
§ Amendment negatived.