New Clause 1.—(EFFECT OF SEPARATION ON SUCCESSION TO AN INTESTATE'S ESTATE.) (Hansard, 11 November 1966)

§ Mr. John Fraser (Norwood)
I beg to move, That the Clause be read a Second time.
The reason for this Clause is to place the wife who obtains a separation order in a magistrates' court in a similar position to a wife who obtains a decree of judicial separation in the High Court. I do not want to keep the Committee for very long at this late hour, but the reason for this is that people of one social class tend to go to the High Court to get a decree of judicial separation because of ante-nuptial or post-nuptial settlement, or perhaps because a greater amount of 1795 maintenance can be obtained there, and people from a lower social background, or a less wealthy social background, tend to go to a magistrates' court for a separation order. It is not logical, in respect of the law of intestacy, to draw a distinction between a wife who goes to one court and a wife who goes to another.
The second purpose of the Amendment is to be fair to the husband and to achieve equality between the sexes. It would put the husband who is subject to a decree of judicial separation in the High Court in precisely the same position as the wife who obtains a decree in that court. It is not an attack upon the rights of poor hard-done-by wives, because Section 20 of the 1965 Matrimonial Causes Act, as it stands, affects the law of intestacy irrespective of guilt, or of who was to blame for the order being made in the High Court. Therefore, even if a decision is made against a guilty wife in the High Court she obtains the benefit of Section 20, which benefit is denied to the husband.
The third purpose is to move nearer the situation where the law takes proper account of a marriage which has broken up and where the parties have separated. It recognises that where the parties are separated they are bound to order their affairs so as to take account of that fact, and they may have taken on other obligations and sought to make better provision for their children.
There is one other point to which I should draw attention. As well as separation orders I have made special provision for maintenance orders made in a magistrates' court on grounds of desertion, because clearly a wife seeking an order there is not seeking a separation order, which she might wish to seek in the High Court later on the ground of desertion. I want to widen the law further to take account of this situation.

§ Mr. Leo Abse (Pontypool)
I am attracted to the Amendment upon grounds other than those put forward by my hon. Friend. I am well aware of the grim consequences that can, as the law stands, follow when a maintenance order is made in favour of a woman who has been married to her husband for only 12 months, and when the husband then lives with another woman for, perhaps, 20 years. Although the husband has lived 1796 with her for all those years, cohabiting, never being able to obtain a divorce because his wife, who has obtained a maintenance order, will not take proceedings, upon his death the children of the permanent cohabiting union, together with the common law wife of that union, can be turned out of their home, with no redress.
The Amendment would prevent such a situation arising. I am aware, however, that it by no means covers every situation. Other provisions are required, and I would not wish to press the Amendment if I felt that there was any assurance coming from the Solicitor-General that these issues, which were touched upon and formed part of the recommendations of the Russell Committee, were to be dealt with by the Government. If so, such a patchwork Amendment as this would not be the answer.
Since expectations have been raised about the Russell Committee in another place, however, I express the hope that during the course of these short proceedings we shall have a clear and unequivocal indication from the Solicitor-General about the position of the Government in this matter, so that we shall no longer have any doubt of the real status of illegitimate children in the situation to which our attention has been called.

§ Sir Peter Rawlinson (Epsom)
I was interested to hear what the hon. Member for Pontypool (Mr. Abse) said. I share with him the view that much of what the Russell Committee decided could fruitfully be translated into legislation in the near future. Many of us would be interested to hear whether the Government have in mind bringing on to the Statute Book parts, if not all, of the Report of that Committee. It is very important that we should do that in a proper substantive manner. One of the legitimate criticisms against Parliament is sometimes of the manner in which we legislate. After all, it is this kind of Bill and this kind of new Clause which affects many individual citizens.
Therefore, I hope that we may hear from the Solicitor-General whether there are any plans in the Government about that. I would not wish to see imported into this Bill by a side-wind these other matters which could be dealt with better by other legislation. I am not 1797 happy with this proposal in this new Clause, although I realise why the hon. Member for Norwood (Mr. John Fraser) has raised the matter.
The hon. Member indicated the reasoning behind the new Clause, but I would like to hear from the Solicitor-General how far it goes. What does it affect? Does it carry out the purpose of the hon. Member? As it is at present drafted, does it fulfil his purpose? The Clause begins: In a case of judicial separation or a separation order … or a maintenance order and goes on to refer to any property which is acquired by or devolves upon either party. Yet some people get separation orders and then come together again and do not bother to have those orders discharged. On the death of one of them who does not bother to make a will, there may be outstanding, technically, a separation order.
Would the new Clause provide, in that case, that it would nevertheless follow that property, as the Amendment says in the last two lines: if either party to the marriage dies intestate devolve as if the surviving party to the marriage had then been dead."? This would seem to destroy one of the main purposes of the new Clause. Perhaps the right hon. and learned Gentleman can explain its effect to us. Although it may have a very desirable purpose, as proposed by the hon. Gentleman, is it wholly appropriate to introduce it into this Bill at this stage?

§ The Solicitor-General (Sir Dingle Foot)
I am sympathetic towards the new Clause. I entirely agree with my hon. Friends the Members for Norwood (Mr. John Fraser) and Pontypool (Mr. Abse) that the present law needs amending. The present law is contained in Section 20(3) of the 1965 Act, which re-enacts earlier statutory provisions. I believe that it is open to serious criticism. In the first place, as my hon. Friend the Member for Norwood pointed out, it makes a distinction, which most of us would not now consider justifiable, between husbands and wives, and, second, many of us would find difficulty nowadays in accepting the distinction between innocent and guilty wives.
1798 However, although there is force in the criticisms of the existing law, I cannot advise the Committee to accept the Amendment. I say that largely for the reason advanced by the right hon. and learned Gentleman the Member for Epsom (Sir P. Rawlinson). The new Clause takes within its scope maintenance orders. As the right hon. and learned Gentleman said, a maintenance order may be made on grounds of desertion, although the desertion lasted only a very short time. It might be only a temporary thing but the wife might be in urgent need of maintenance.
The effect of the Clause would be that, if either the husband or the wife died intestate during a period of desertion, which might, but for the death, very soon have come to an end, the surviving spouse, whether or not the guilty party, would have no share in the estate. That could work very great hardship particularly in the case of a surviving wife because she might not have any substantial assets. There are other difficulties which would be created by this proposed Clause, particularly with regard to the administration of the estate. It is mainly on that ground that I suggest that this Clause as it stands should not be accepted. As is well known, the Law Commissioners are now engaged on an examination of family law and that examination will certainly cover these points.
My hon. Friend the Member for Pontypool took the occasion to refer to the recommendations of the Russell Committee. All I can say at this stage is that the Government entirely approve, at any rate, most of the recommendations of that Committee, and that, although I cannot give a precise undertaking, I hope that it will not be long before we are able to give them legislative effect.

§ Mr. John Fraser
I am grateful to my hon. and learned Friend and, for the reasons that he has given, I beg to ask leave to withdraw the Motion.