HC Deb 19 February 1964 vol 689 cc1303-6
Mr. Ross

I beg to move, in page 18, line 25, to leave out paragraph (b).

Mr. Deputy-Speaker

Perhaps it would be convenient to discuss with this Amendment the Amendment in line 31, to leave out "or paragraph (b)".

Mr. Ross

Clause 26 deals with orders for financial provision on divorce. It wipes out the equation of divorce with death in Scottish law and replaces it by the provision that the pursuer may…apply to the Court…for the payment by the defender…of a capital sum or an annual or periodical allowance… I do not take exception to that, but I take exception to paragraph (b) which says: either party to the marriage may apply to the Court for an order varying the terms of any settlement made in contemplation of or during the marriage, so far as taking effect on or after the termination of the marriage. This presupposes a legal settlement being freely entered into before marriage in contemplation of that marriage ending in divorce.

It is a little beyond me to understand why we are giving a new right to vary a settlement entered into in this way. It is as disturbing as the idea of the settlement having been made in the first place is offensive. In an interjection an hon. Member opposite talked about equating blood relationship with money, but it is evident that the bonds of matrimony have a literal meaning for some people. I could not allow the Clause to pass without making reference to this point. No doubt I shall receive the reply that this is simply realistic and prudent, but if it is all that realistic and prudent I do not see why the settlement should not remain. We should not give an additional right to vary it.

If there is to be no sanctity in relation to the vows of marriage I hope that hon. Members opposite will see to it that the long proclaimed principle of the sanctity of contract is upheld. It seems that marriages are made in much more mundane circumstances and with much more mercenary motives than are usually attributed to them in song and story. My hon. Friends may think that I am too much of a Presbyterian puritan, but I feel rather strongly about this. When, before going into a church to take vows of marriage—"till death us do part"—people openly and realistically enter into a settlement concerning what will happen when the marriage ends in divorce, in my opinion that settlement should not be open to variation.

Lady Tweedsmuir

I am afraid that I must ask the House to reject the Amendment. I quite understand the feelings of the hon. Member for Kilmarnock (Mr. Ross): they are not merely Protestant or Presbyterian feelings. But although marriage settlements are not made very often, when they are made it is not with the express intention of their ending in divorce. The purpose of this kind of marriage settlement is to make provision for what should happen when the marriage terminates, and that means when it terminates at death. The hon. Member concluded that settlements were made because people thought that their marriages might possibly end in divorce, but the real purpose of such settlements is to decide upon some arrangement as to what should happen to property on the termination of a marriage. Unfortunately, even the happiest of marriages are terminated by death.

That is why this paragraph is necessary. Its purpose is to empower the court, upon granting a divorce, to order a variation in the terms of the marriage settlement. By the changes in the law which we are making in this part of the Bill we are giving courts a discretion to make an award to the pursuer, from the defender's estate, in terms which it thinks fit, laving regard to all the circumstances of the case. The court will be responsible for making a financial settlement which is satisfactory to both parties.

The provisions in the marriage settlement dealing with what is to happen on the termination of the marriage must affect the issue, and a court might find itself unable to make satisfactory provisions because the property of the parties was tied up in the terms of the settlement. That is why, if the court is to do what it is asked to do here, it must have power to vary a settlement, and that is why I suggest we should retain this provision.

Amendment negatived.