§ Order for Second Reading read.
§ 3.47 p.m.
§ The Solicitor-General (Sir Arthur Irvine)
I beg to move, That the Bill be now read a Second time.
The Bill is concerned with the implementation of two valuable Reports by the Law Commission on family law, namely, the Report on Financial Provision in Matrimonial Proceedings (Law Commission No. 25) and the Abolition of Proceedings for Restitution of Conjugal Rights (Law Commission No. 23).
The Bill does not, however, implement all the recommendations in the Law Commission's Report on Financial Provision in Matrimonial Proceedings. The recommendation that we should abolish the right to claim damages for adultery, actions for enticement, seduction, and harbouring are not implemented by this Bill. They are the subject of another Bill introduced by the hon. Member for Bury and Radcliffe (Mr. Ensor), namely, the Law Reform (Miscellaneous Provisions) Bill to which this House has already given a Second Reading.
The report is not the Law Commission's last word on the difficult question of matrimonial property. It is at this moment giving consideration to the outstanding problems in this respect. These are difficult problems and its report on them is not expected for some time. As my right hon. and learned Friend the Attorney-General said recently in answer to a Question from my hon. Friend the Member for Newark (Mr. Bishop), the Commission hope in the present year to complete the informal consultations necessary before its first working paper can be issued. The first working paper is, of course, only a preliminary step in the processes of the Commission, though an important step.
The present Bill is designed to rationalise and simplify what we regard as an 1559 unnecessarily complex branch of our law. It eliminates the anomalous distinctions between the different types of relief available in different proceedings, it will so far as is practicable get rid of the current discrimination between husbands and wives and will give the courts clear statutory guide lines, based largely on existing practice, to be followed in the exercise of their wide discretionary powers.
It also makes a number of changes in the substantive law relating to matrimonial property. The most important of these are firstly that the Divorce Court is to be empowered to go much further than it can at present in dealing with the spouses' property on the breakdown of a marriage. The court will in effect have power to reallocate the family assets between them where it considers it appropriate to do so.
Secondly, the Bill recognises that the contribution made by the wife in looking after the home justifies her being treated as having in certain circumstances become entitled to receive money value for it. This is another concession to the principle for which my hon. Friend the Member for Newark contended, and I acknowledge that circumstance to him.
Thirdly, the Bill provides for the cessation on remarriage of an order for periodical payments. Under the present law remarriage merely affords grounds upon which such an order may be varied or discharged. Finally, the Bill abolishes the obsolete remedy of restitution of conjugal rights.
The principal beneficiaries under the Bill will be petitioners, particularly wives, and children. However, the Bill does in one respect add to the safeguards afforded by the Divorce Reform Act to the "innocent wife", as I shall describe her for present purposes. Section 6 of that Act does not empower the court to order a petitioner to make provision for his wife, although the court can of course refuse to grant him a decree until he has done so. The Bill enables the court not only to order the husband to make the necessary provision, but also confers a wider power to make orders than at present exists.
It is perhaps right that I should say something at this stage about the relationship between the Bill and the Divorce 1560 Reform Act. Hon. Members may recall that, when my hon. Friend the Member for Rhondda, West (Mr. Alec Jones) introduced the Divorce Reform Bill, my hon. Friend the Member for Newark introduced a Matrimonial Property Bill. The object of this Bill was to give the court power, whether or not there were divorce proceedings, to divide equally between husband and wife all property acquired by either during the marriage.
However, as a result of discussions which took place, the Matrimonial Property Bill was withdrawn, and my noble Friend the Lord Chancellor undertook not to bring the Divorce Reform Bill into force until legislation based upon the Law Commission's proposals had been introduced. In the event, the Divorce Reform Bill was amended on Report in another place so that, instead of coming into force on the appointed day, it will come into force on 1st January, 1971.
The Government would have introduced this Bill whether or not Parliament had enacted the Divorce Reform Act. That Act could operate as it stands whether or not Parliament approves this Bill. To say that is not, in my opinion, to derogate from the value of the work which has been done by my hon. Friend the Member for Newark and his associates. The fairer treatment of women in respect of property is a prominent feature of the present Bill, and my hon. Friend and his associates did notable service in emphasising, though on a broader scale than in this Bill, the need for a new deal in women's property rights.
Turning to the detailed provisions of the Bill, Clause 1 gives the court power on a petition for divorce, nullity or judicial separation to order either party to the marriage to make periodical payments to the other for maintenance until the determination of the suit—what we nowadays call alimony pending suit. Hon. Members will notice that the order may be made against husband or wife without distinction.
Clauses 2, 3 and 4 lay down and clarify the power of the court to order financial provision to be made by one spouse for the other or by either of the spouses for the children. As a result, not only will the existing powers of the court be exerciseable without the various 1561 technical distinctions which bedevil this branch of the law, but the court will have the additional power conferred by Clause 4.
This is the change of substance to which I referred earlier when I said that on divorce the court will in effect be able to reallocate the family assets between the spouses in a proper case. In exercising this important power, the court must have regard to the various matters see out in Clause 5. In particular, I would like to draw the attention of hon. Members to paragraphs (e) and (f) of that Clause. Paragraph (e) expressly requires the court to take into account the contribution made by a spouse to the welfare of the family by looking after the home and caring for the children.
This is a direct recognition of the important work done by the wife who remains at home. It goes a long way in a limited area towards meeting the aims of my hon. Friend and his associates. However, I must stress that it does not, of course, introduce any form of community of property on marriage.
Paragraph (f) makes express mention of the prospective loss of a pension as a factor to be taken into account by the Court.
Clause 6 makes a change of substance in the existing law where there has been what is called "wilful neglect to maintain". The change made from the current law is first that either spouse—and net merely the wife—can apply where it is the children who have been neglected and, secondly, for the first time, a husband will be able to apply on his own behalf, though only where his own earning capacity has been impaired.
Clause 7 effects another of the changes of substance to which I referred earlier. It prescribes the maximum period for which periodical payments in favour of a spouse can be made. The Law Commission recommended that an order for periodical payments should terminate on the remarriage of the payee, and this Clause gives effect to this recommendation.
Clause 8 deals with the duration of orders made in favour of children and provides that, unless the child is undergoing full-time education or there are special circumstances, no order can be made if the child is over 18.
1562 Clauses 9 to 12 give the court extensive powers to vary orders which have already been made. They reproduce the existing law, with minor modifications. I should perhaps draw attention, in particular, to Clause 11, which gives the court power to order the repayment of amounts paid in excess of what ought to have been paid.
Clauses 13 to 15 restate, with minor modifications, the existing law governing the variation of maintenance agreements.
Clause 16 restates in a modified form the existing law giving a court power to set aside transactions made by those who get rid of their property in the hope of defeating anticipated claims for maintenance.
Clauses 17 to 19 deal with the very important question of the protection and custody of children. For the most part, they restate the provisions of the present law in a more convenient form; they also resolve some important questions on which the law is not altogether clear.
Clause 20 abolishes what is regarded as the obsolete remedy of restitution of conjugal rights. I think that hon. Members will agree that, once a marriage has broken down, no deserting spouse is likely to return merely because he has been told to do so by a Judge where no penalty is imposed for his failure to do so. Moreover, it seems to me and, I think, to the House, that this proposal abolishing the remedy of restitution is an acknowledgement of the accepted concept that the breakdown of a marriage is a ground for divorce.
Clauses 21 to 27 deal with a number of technical matters and, in substance, reproduce existing law. I need only say that Clause 21 applies the new rule that periodic payments shall cease on re-marriage to existing orders where the re-marriage occurs after the commencement of the Act, if this Bill becomes law.
Clause 28 resolves the difficult question of the extent to which a spouse's contribution to the improvement of property entitles him or her to a share in it or to the proceeds of its sale. This Clause provides that, if the contribution is of a substantial nature, the spouse making it is entitled to a share and that, if it has not been agreed between them, the court may award such share as is just in the circumstances. Hitherto, the 1563 law on this has been doubtful, and this doubt has led to an appreciable volume of litigation. Clause 28 will remove the doubt.
With the permission of the House I pass over certain technical points in some of the Clauses which follow. Clause 30 makes the convenient summary proceeding under section 17 of the Married Women's Property Act available after divorce for a period of three years. It is not so available at present.
Clause 31 provides that, where there is a judicial separation, neither spouse has any right to succeed on the intestacy of the other. The current rule is anomolous and indefensible, and the opportunity has been taken to get rid of it.
Clause 33 gives effect to the Law Commission's recommendations that the wife's so called agency of necessity should be abolished. This will mean that a wife will no longer be entitled to pledge her husband's credit in order to obtain what the law regards as necessaries, even though she has no authority, express or implied, to do so. This rule has become obsolete in a society where a woman has the same right to own property as a man and to apply for legal aid to instruct solicitors to act for her in divorce proceedings if she cannot afford to pay for them.
I should perhaps make it clear that, in abolishing this anachronism, we are not in any way effecting the true agency, express or implied, of a wife to enter every day transactions on her husband's behalf.
Of the remaining provisions, I think that the only one to which I need draw attention is Clause 35(2). This is the provision that the courts may have regard to the Law Commission's reports in construing the Measure. It is hoped that this will assist in the interpretation of the law when, as we hope will be the case, the Bill is accepted.
§ Sir Eric Errington (Aldershot)
Is this the first occasion on which this sort of Clause has been inserted in a Bill?
§ The Solicitor-General
One must be cautious about details in a matter of this kind. My understanding is that there is an element of novelty in this proposal, and perhaps the hon. Gentleman will take that as being my answer to his question, 1564 I recognise that there are differing opinions on the point. I suggest that there are strong arguments in favour of the proposal. I ought to point out that the Bill does not make it incumbent upon anyone to read the reports. There is nothing mandatory about it. In past years, I have often stressed the importance of the House maintaining the best relations possible with the Law Commission. It is very important that, in our developing affairs, there should be a good and friendly relationship between Parliament and the Commission.
I am anxious that nothing should occur to obstruct that purpose. The value of resort to the report for the purpose of interpretation will diminish the more the Bill, as finally enacted, diverges as a result of Amendments in this House from the form of legislation recommended in the report. But these are the type of considerations that can and would be taken into account easily if this proposal were acceptable. These difficulties would readily be overcome as consideration of Bills in relation to and in the context of reports of the Commission develop.
I therefore recommend this proposal to the House. I shall, of course, listen with care to what is said about it, because I recognise that there are differences of view. But I trust that further consideration by right hon. and learned and hon. and learned Members will lead them to think that overall there are advantages in what is proposed.
The Bill sets out in legislative terms that learned judges have a right to do what it must be recognised many of them will often do and wish to do, namely, to consider the source and origin of legislative proposals as expressed by members of the Law Commission. I put this forward as a proposal which further reflection indicates to be more desirable than in certain instances first impressions suggest.
§ Mr. Mark Carlisle (Runcorn)
Before the right hon. and learned Gentleman leaves this point, will he address himself to this matter? Forgetting the merits of the suggestion that there should be the right to look at either the Law Commission's Report or, indeed, reports of parliamentary debates on the Bill, would it not be better to wait until a Bill is brought forward, if one is to be brought forward, dealing with the interpretation 1565 of statutes, as the Law Commission has suggested, rather than appear to bring it in by the back door as it is done in this Bill?
§ The Solicitor-General
That might be an arguable point of view. My recollection is that the noble Lord Wilberforce had in mind a provision similar to this in regard to the Theft Act.
§ The Solicitor-General
I am obliged to the right hon. and learned Gentleman. He had thought of introducing into a Bill a provision of this kind. My recollection is that in that instance it was regarded as rather a persuasive matter that the whole subject was to be available for consideration in a later report of the Commission on the interpretation of statutes.
The hon. Member for Runcorn (Mr. Carlisle) will appreciate that that, at any rate, has some bearing upon the point that he has just put to me. The hon. Gentleman used the expression "by the back door". I think that that is an over-contentious observation. I do not think that the hon. Gentleman meant anything offensive by it, but nothing could be more open than what is proposed here. It is a matter which, clearly, is capable of determination on its merits by the House and I suggest that the point be debated.
I, and the Government, recommend the Bill to the House. I do not think that the wider issues of interpretation of statutes, which have still to be dealt with, are a good ground for deferring a decision on this point.
§ Sir Lionel Heald (Chertsey)
May I suggest that for "by the back door" we substitute "the cart before the horse"? Report No. 21 of the Law Commission, which I have had the pleasure of reading, deals with the subject in very general terms. Surely it is unsual, before Parliament has had an opportunity of discussing the general, to anticipate it by passing to the particular.
§ The Solicitor-General
The expression "the cart before the horse" has none of the indelicate undertones or overtones that the "back door" has.
1566 These are the general observations that I have to offer to the House upon this point for giving the Bill a Second Reading.
In conclusion, I pay tribute to the valuable work of the Law Commission in producing the report on which the Bill is based. Without it I am sure that we should not have had such a good Bill and we should certainly not have had it so soon.
§ 4.17 p.m.
§ Sir David Renton (Huntingdonshire)
I am sure that the whole House would wish me, first, to congratulate the right hon. and learned Gentleman the Solicitor-General upon his well-deserved elevation to the Privy Council. As one of his oldest friends, it gives me great pleasure to do this.
We would also like to congratulate the right hon. and learned Gentleman upon his excellent recovery from his illness and to thank him for his lucid explanation of the Bill which, although not controversial, is somewhat complicated. The right hon. and learned Gentleman certainly helped us a great deal to understand it.
Apart from Clause 35(2), upon which some of my right hon. and learned and hon. Friends have already made interventions, with which I agreed, we welcome the Bill. I shall, of course, have a lot to say about Clause 35 later. We welcome the Bill not only because of its many detailed improvements and several points of real substance, but also because it does a useful piece of tidying-up in a branch of the law which affects the family. Alas, it affects the family too often in these days of broken marriages.
I had serious doubts about the setting up of the Law Commission, but I think that it did a very good job of work on this Bill. However, I strongly deprecate the implication in some of the comments made by the right hon. and learned Gentleman in answer to my hon. Friend's intervention, that Parliament has to keep a friendly relationship with the Law Commission by not diminishing the value of its reports through our Amendments. If that is to be the attitude of Parliament towards the Law Commission, we might just as well pack up and go home.
1567 We really cannot have the Commission, however admirably it does its work, attempting to usurp the sovereignty of Parliament over detailed legislation which affects the citizen, especially on occasions when it does so in the citizen's every day life.
§ The Solicitor-General
I am grateful for what the right hon. and learned Gentleman said about me personally. I do not think that he has put accurately any implication of mine in the passage to which he referred.
§ Sir D. Renton
If I have misunderstood the right hon. and learned Gentleman, I am delighted. We shall have to examine HANSARD carefully to see what he said and its implications.
I should like to mention something which the Solicitor-General did not mention, namely, the Long Title of the Bill—one of the longest Long Titles to a Bill which I have seen. Not only is it too long; it is too detailed and, paradoxically, in spite of its length, too restrictive. I assume that it is designed to ensure that we do not try to improve on the work of the Law Commission. I find that the Commission's draft clause had a similar Long Title.
That is not right. It has been customary to make the Long Title long enough to cover the subject, but not so as to deprive us of opportunities of tabling Amendments which are broadly within the scope of the subject. We should draw attention to this precedent in the hope that it will not become a constant legislative practice.
It is particularly unfortunate on this occasion, because this is a branch of the law in which hon. and right hon. Members on both sides have made important contributions. For example, my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) introduced the Matrominial Causes Act, 1968, with the support of all parties, which extended to the county courts the power to make maintenance orders without restriction, just as the High Court had power to make maintenance orders without restriction. It was an important social advance.
My hon. Friend the Member for Runcorn (Mr. Carlisle) and others were members of a Committee of which Mr. Anthony Cripps, Q.C., was the dis- 1568 tinguished Chairman and on which served Mr. Geoffrey Howe, Q.C., a former respected Member of the House. The pamphlet "Fair Shares for the Fair Sex" came out six months before the Law Commission's Report was published.
I like to think that the Commission had the benefit of this pamphlet. I am glad to say that some of its proposals are embodied in the Bill—for instance, in Clauses 5 and 28. But there are various other points in the pamphlet to which in Committee we should like to have given attention and table Amendments on them, but we are in the embarrassing position that they would be outside the very long Long Title, although well within the scope of the general subject of matrimonial proceedings and property which the Bill covers.
It is, therefore, with a slight sense of frustration that we approach the remaining stages of the Bill. This is regrettable because this is not a party matter but something in respect of which both sides of the House have done their best to make advances and improvements in the law.
I turn to the Bill. The Solicitor-General was right in emphasising that the principal method used in the Bill to make improvements is to give the courts wider discretion to make orders in favour of spouses and children when a marriage has broken down, and—this is very important—it gives the courts a wider range of circumstances to consider in exercising their wider discretion. We are glad that the Bill does not fetter the court's discretion when deciding these important matters. Among the improvements made are changes about which nearly everyone is likely to agree.
It is one thing to give the courts a wide discretion to make orders which should, in justice, be made, but it is much more difficult on many occasions to enforce them. We attempted to deal with this matter some years ago through the Maintenance Orders (Attachment of Earnings) Act, 1958, which I had to pilot through the Committee and Report stages. It was strangely controversial in those days, only 12 years ago. I do not think that it would have been so controversial if it had been part of this Bill.
The procedure which we introduced, largely as a result of the initiative of 1569 my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers), has helped in many cases, but even so there are many evasions of payment which, even when attachment of earnings orders have been made, result from men moving to other jobs some distance from the places where the order is to be enforced and it is difficult to catch up with them and to discover to what jobs they have gone.
This problem was dealt with on pages 23 and 24 of "Fair Shares for the Fair Sex" and it was recommended that the existence of an attachment earnings order should be recorded on a man's P.45 tax form. It may be that the Bill is not the right place in which to do this. It may be that the Bill is not the right place in which to deal fully with the enforcement of court orders anyway. There is a Bill, to which it would not be in order for me to refer in detail, the Administration of Justice Bill which has just come to us from the House of Lords, in which various steps are taken regarding the enforcement of civil debt. I hope that the proposals in that Bill make a more living reality of the new powers which we are giving the courts in this Bill.
I think that I should be in order in referring to enforcement to this extent. On page 52 of the Law Commission's Report No. 25, under the heading "Enforcement of Orders", the Commission discusses the various problems relating to the enforcement of orders in the foundation working paper on which this report is based. It says:One of these remitting of arrears, has already been referred to, but there are a number of other outstanding questions. However, as we envisaged, these need to be carefully reviewed in the light of the recommendations of the Committee on the Enforcement of Judgment Debts"—that is, the Payne Committee—whose most detailed Report has recently been published. In any event, they could not appropriately be dealt with in the same legislation as that implementing the foregoing recommendations of this Report.We have not got them in the Bill. We understand that, but I think that we should have a word from the right hon. and learned Gentleman if, with the leave of the House, he makes a short reply to this debate, as to whether the Government are dealing with enforcement of maintenance orders at the same time as they are dealing with enforcement of 1570 civil debts generally. I think we need an assurance upon that.
I am not going through a sort of Committee stage exercise of commenting on most of the Clauses. I am sure that the House would get very weary if I did so, but I want to endorse what the right hon. and learned Gentleman said about Clause 20, the abolition of the right to petition for restitution of conjugal rights, because that is quite an important change in the law. It is a very ancient remedy and it is one which one sometimes hears when women constituents come to my "surgeries" and say, "Can I get restitution?" They may not put it in precisely that term of art, but that is what they are getting at. They want their men to come back to them and they think that, if a court could help, the man would come back. But, as the right hon. and learned Gentleman quite rightly said, experience shows that in fact a court order does not help to bring a man back in those circumstances. Therefore I think it was right to abolish the petition for restitution of conjugal rights.
That is dealt with in Law Commission Paper No. 23 and, incredible though it seems, power has been given to the courts to refer to Law Commission Paper No. 23 which is five pages long in order to interpret Clause 20 of the Bill which is 2½ lines long and can only mean one thing—that the right of petition is abolished. Some brilliant and eminent men in our profession have been behind this proposal and I do not intend to wound, but this is arrant nonsense.
The Bill does not abolish actions for breach of promise of marriage. One of my hon. Friends came to me in the Lobby the other day and said that he thought it was a pity that the opportunity was being missed for abolishing them. I do not agree with him and I am glad that the Bill does not abolish them.
§ Mr. Gordon Oakes (Bolton, West)
Is the right hon. and learned Member aware that there is a Private Member's Bill, introduced by my hon. Friend the Member for Bury and Radcliffe (Mr. Ensor), which has had its Second Reading and which does that?
§ Sir D. Renton
I must confess to a failure! I am grateful to the hon. Member for putting me right. This enables me to save the time of the House, because 1571 now I will not say what I was about to say.
In Part II of the Bill, under the uninviting heading of "Miscellaneous Provisions", there are six important Clauses. These Clauses introduce, each of them, what I would call important changes of principle, but somewhat detailed principle. They will require most careful consideration in Committee. Meanwhile, I must confess that in spite of the reasons given by the Law Commission in its 25th Report I have some doubt about the words in brackets in Clause 29.
They do not appear to be clearly explained in the notes to what is in Clause 28 of the draft clauses of the report. I hope they can be fully explained in Committee. I do not ask for an answer today. As a matter of drafting elegance I cannot see why there should be brackets there at all. I do not think brackets very often look right in a Bill anyway; they seem particularly inappropriate at that point.
Having given the Bill a general welcome, I wish to make a most vigorous protest about Clause 35(2). I will read it for the sake of the record. It says:In ascertaining the meaning of any provision of this Act regard may be had"—those are the operative words—to the Proposal of the Law Commission for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights (Law Corn. No. 23)".I have already commented on that—and to the Report of the Law Commission on Financial Provision in Matrimonial Proceedings (Law Com. No. 25).My hon. Friends behind me have already pressed the right hon. and learned Gentleman upon this.
In spite of the quite lengthy criticism I am about to make of this subsection, I do not expect a reply from the Solicitor-General today. I hope that when he has heard all the arguments he will want to consider them, and to consider them very carefully. He ought to consult the Lord Chancellor and the Attorney-General, and perhaps the Chairman of the Law Commission, about them. In those circumstances, I do not think it would be right for us to press him for a firm answer today. I hope he will give us an undertaking that he will consider 1572 what we say and will consult them as I suggest.
We shall return to this matter in Committee. We shall explore it further then and we hope that by then the right hon. and learned Gentleman will be in a position to give us a favourable answer. This subsection is without precedent. It is the first time that a provision of this kind has come before this House. It introduces not only a new practice into the administration of justice, but a thoroughly undesirable one which reduces the authority of parliament, inflates the authority of those excellent people the Law Commission, and places it, as I shall try to show, in a sense above the judges.
Another objection is that this provision is certain also to lengthen the time taken in arguing and deciding a substantial proportion of cases which come before the courts and it will therefore increase the costs of litigation. Both the Law Society and the Bar Council have strongly objected to it. They have done so either because, or in spite of the fact that, it would put more money into the pockets of the legal profession and would do so at the expense of the public whether the cases are legally aided or not. Either the taxpayer will pay more through the Legal Aid Fund or the private litigant would pay more if he had costs awarded against him.
The whole question of interpretation of statutes was the subject of the Law Commission's 21st report, published last June. It had an appendix containing draft clauses, but no Bill has yet been presented to Parliament—speaking for myself I hope it never will be—based on those draft clauses. If a Bill is to be presented of a general kind or if we are to have provisions like those of subsection (2) of Clause 35 inserted in Bills, the important principle involved should first be debated in this House. We have had no chance of debating this matter until today on this specialised Bill dealing with family law.
At present, if this provision were not inserted, the judges would have to follow the ordinary rules and practice with regard to interpretation. The first matter they are required to consider is the meaning of the words used by Parliament in the statute which we have passed. In passing, I point out that that places a 1573 heavy burden upon us and the parliamentary draftsmen who help us in trying to make these words clear. That is the first point: the words of the statute itself have to be considered.
If there is any doubt about the meaning of those words—but only if that is so—the judges may try to resolve it by referring to other statutes. Sometimes, it is even helpful, and it is in order, to refer to statutes which have been repealed, because one of the duties of the judges is to try to cure the mischief which Parliament is trying to cure. Sometimes, referring to a repealed statute will help in this and help to establish a contrast between the law as it was and the law as Parliament wants it to be.
It is permissible also to consider decided cases to find out the meaning of particular words, because over the years the courts have had to interpret almost every word in statutes at some time or other. Therefore, decided cases are helpful.
At present, when arguing about the meaning of a statute before the judge makes a decision—and it is always a decision of a point of law—counsel are not allowed to refer to the report of our debates nor, I think, to our purely formal Minutes of Proceedings. Also counsel are not allowed to refer to Reports of Royal Commissions, newspaper reports or any other material extraneous to the Statute Book and law reports.
Despise counsel being restricted in that way, we know that considerable time is taken up in the courts in interpreting statutes, and a good many appeals take place.
§ Mr. Emlyn Hooson (Montgomery)
Is not one of the difficulties which the Legislature has to face that we do not always make our meaning clear by the words we use? The gaming Acts were a good example of that. It is argued in many quarters that there should be some kind of explanatory memorandum, because we do not make our meaning clear.
§ Sir D. Renton
I have conceded that there are occasions when we do not make our meaning clear enough. That is why there has to be resort to other statutes and to decided cases so that the courts can find out what our meaning was. But we shall not make the question of interpretation easier by widely extending the 1574 material to which counsel and judges may refer for guidance.
As Lord Halsbury said in the preface to the first edition of Halsbury's Laws of England:The more words there are, the more words there are about which doubts may be entertained.To take the point about explanatory memoranda to which the hon. and learned Member for Montgomery (Mr. Hooson) has just referred, if we are to have to ask the judges to interpret not only the 50 pages or so of the Bill but also the 154 pages of the Law Commission Report No. 25, he and others in our profession will be at the edge of a gold mine. There is no reason, as far as I can see, why discussion should ever end.
The present case is a good example. In another place, a great many Amendments were made to the Bill during its passage, even some at Third Reading—the other place had power to make Amendments then, and it did so. Most of the Amendments made—I think that there were about 30—were, incidentally, moved by the Lord Chancellor himself. In the first place, time would have to be taken in court in finding out to what extent the notes on Clauses prepared by the Law Commission had, so to speak, fallen by the wayside during the passage of the Bill through Parliament. This Bill is not exactly as it was drawn up for our benefit by the Law Commission. It is a different Bill; it corresponds in some respects but not in all.
I am afraid that what may well happen if this provision stays in the Bill is that counsel on one side will deploy an argument interpreting one Clause based on, for example, two or three pages of the Law Commission's Report and try to argue what those pages mean. Counsel on the other side may argue that they mean something slightly different and that the Bill should be interpreted in another way. So the courts will be interpreting not only the Bill but the Law Commission Report. What will the judge do? He is not bound to take note of any of those arguments at all. The words of Clause 35(2) are merely submissive, "regard may be had", and he may say that he will not take any notice of the arguments. But it seems to me that, under the Bill as it is drawn, the judge could not stop counsel from trying to persuade him to have such regard, and, 1575 therefore, a considerable amount of time would be taken up needlessly.
This really is a misguided departure. Although some truly brilliant men have supported the idea, I hope that they will have second thoughts about it because, in all sincerity, I believe that they are gravely mistaken.
I have spoken for much longer than I had intended, and I hope that the House will forgive me. But this is an important matter, coming to us for the first time. I must confess that I have not covered the question of interpretation anything like as fully as one might. It may be that in Committee we shall have to go into it even more fully than today. But I implore the Government, through the right hon. and learned Gentleman the Solicitor-General, to bear in mind that both branches of the legal profession, the Law Society and the Bar Council, with all their experience are dead against it. I hope that there will be second thoughts about it.
§ 4.49 p.m.
§ Mr. Gordon Oakes (Bolton, West)
Today is an important day for women. I regret that not one hon. Lady Member from either side is present at this debate. The occasion is important not only because of the Bill, but for another event. This afternoon, my right hon. Friend the First Secretary of State and Secretary of State for Employment and Productivity introduced into the House a Bill dealing with equal pay for women at work. Now, the House is considering some form of equality and justice for the wife at home. Both categories ought to be considered by the House, yet for decades we have talked about equality for women and done little about it. I am proud that this Government have a good record in the matter.
Shortly after I entered the House, in 1965, we dealt with a Bill entitled the Administration of Justice Bill, under which, at that early stage, we decided that a woman should have the right to a capital sum awarded to her in damages and she should control it. That was only a small change, but it was indicative of the way in which the Legislature and the law had regarded women almost as children—indeed, literally as children—since hitherto all a woman has had has 1576 been maintenance, just as a child has had maintenance.
Another important step forward was the Bill introduced by my noble Friend Baroness Summerskill, the Matrimonial Homes Bill, which at least gives the deserted wife a right to remain either by herself or with her family in the matrimonial home. Before that Bill, it was possible for a husband not only to leave his wife but to sell the house over her head so that she and the children had nowhere to go. Now, she has a licence, though only a licence, to remain in the matrimonial home.
The present Bill goes a lot further. It recognises at last that, if there is a breakdown of the marriage, a wife is entitled to some capital reward for all the effort which she has put into the partnership of marriage, whether that has been a direct financial contribution by going out to work or a contribution by her household duties, her love and affection, her care of the children and her care of the home which has enabled the husband to go out to work, so that the assets are the assets of the family.
As I understand Clause 4, the court will not have power, in its discretion, to make any award of transfer of property, either real property or personal property. Thus, the wife may apply, and the court may grant her application, not only for a divorce but for the matrimonial home to be transferred to her—not just a licence but ownership of the matrimonial home and the furniture as well. There may be many instances in which it will be done.
§ Mr. Edward Lyons (Bradford, East)
That is only where husband and wife have been divorced, is it not? When the husband and wife are living apart, but there is no divorce, the wife has no right to have the property, the matrimonial home, for example, transferred to her.
§ Mr. Oakes
That is so; I took it that the House understood that I was speaking of the circumstances of divorce. I shall come in a moment to the Private Member's Bill with which both my hon. Friend and I had something to do when it came before us last year.
In considering Clauses 4 and 5, we must bear in mind that in the vast majority of households, when the 1577 marriage unfortunately comes to an end, the whole capital assets of the family consist merely of the house and furniture and, perhaps, a motor car. All the other provisions about marriage settlements, and so on—the top of the cream, so to speak—are, though of some importance, not of general application, and they will not affect more than 0.1 per cent. of divorces coming before the courts. We are dealing here essentially with the matrimonial home.
It is right that the House should give power to the divorce judge to make an award of transfer of capital so that some recompense may be given to the wife for all the effort which she has put into the family. Let us remember that in many cases, even where a wife does not go out to work, it is her prudent housekeeping and her ability in the home which enables the husband to buy the house. If she were a wasteful woman, he would not, perhaps, be able to afford that type of house or, indeed, any house at all. Usually, these decisions are taken by the husband and wife together deciding whether they will buy a house, which house it will be, what furniture, and so on. When the marriage comes to an end, the divorce judge will now have power under Clause 4 to give some financial consideration to the wife.
Guidelines are provided by Clause 5. As my right hon. and learned Friend the Solicitor-General pointed out, the key provisions are paragraphs (e) and (f) of subsection (1). Paragraph (e) lays down thatthe contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the familyshall be taken into account, and paragraph (f) deals with the question of pensions, among other things. This is an entirely new concept in our family statute law, and I warmly welcome it.
Last year, my hon. Friend the Member for Newark (Mr. Bishop) introduced a Private Member's Bill which would have given far greater powers over family assets than the present Bill does. For example, it dealt not only with what happens to the assets of the family on the breakdown of the marriage but also with subsisting marriages. It dealt also with such questions as what happens on the death of 1578 the husband. It went a long way towards the concept of community of property.
I understand that the Law Commission is now considering that aspect of community of property, but it is not covered by the present Bill. I do not object to that, and I am sure that my hon. Friend, who introduced his Private Member's Bill in brilliant fashion, would not object. We have half a loaf, it is a good half-loaf, and so long as we know that the other half is in the oven with the Law Commissioners I for one do not complain and neither, I imagine, will my hon. Friend.
The other aspect of the Bill is that it sweeps away a lot of anachronisms in the law. Both the right hon. and learned Gentleman the Member for Huntingdonshire (Sir D. Renton) and the Solicitor-General referred to Clause 20 and the farcical procedure of restitution of conjugal rights. How can any judge order to live together two people who would hate the sight of one another? What possible use is it? If they are apart, they are the best judges of that, and they will not listen to any High Court judge sitting bewigged and telling them to live together.
Perhaps my right hon. and learned Friend can tell us how many cases there have been in the past 10 years in which a petition for restitution of conjugal rights has been brought before the court. The whole idea of such restitution is falling into abeyance in the public mind, and the Bill is right to abolish it as a petition which can be brought before the divorce court. As my right hon. and learned Friend said, the breakdown of the marriage is a condition for divorce, and no High Court judge can force together again, without any legal powers, two people who do not want to live together.
Although I welcome many of the Bill's provisions, I should like clarification of certain matters. Clause 10 lays down a limit of time for the recovery of arrears of maintenance payments. Proceedings for recovery may not be broughtwithout the leave of that court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun".The right hon. and learned Member for Huntingdonshire was right to point out that one of the most important matters to be considered here, though we cannot consider it now because of the Long Title, is the enforcement of maintenance 1579 claims. All hon. Members who have "surgeries" know that the problem brought before us so frequently is not the obtaining of an order but the obtaining of the money from the erring husband once an order has been made.
Under this provision it is difficult for a wife to bring proceedings, to bring a warrant, to bring the matter before the court and to collect arrears if she does not know where the husband is. She is the person who has the onus and the responsibility of finding him. It is very difficult for a wife, especially if she has a family, to search the length and breadth of the country to find where her husband has gone. Unless she can find out where he is, it is unlikely that she can issue proceedings in the High Court, the county court, or the magistrates' court for any process to be served on the husband.
§ Mr. Charles Doughty (Surrey, East)
The Clause says that she shall not be entitled to enforce the payment of arrears unless she obtains the leave of the court. There is no reason why in a proper case the leave of the court should not be granted.
§ Mr. Oakes
She can apply to the court for leave, but she may be deterred from doing so if she does not know where the husband is, and if the 12 months' time limit has run out she may not ask for the leave of the court. A husband may use this provision and disappear for a sufficient time and thereby clear some of his arrears.
So far as I know, this will apply to proceedings in the High Court and the county court, but not to proceedings in the magistrates' court. That will create difficulty, because many orders of the High Court and county court are transferred to the magistrates' court for enforcement. This is a matter which I should like my right hon. and learned Friend to consider, particularly with this question of enforcement in mind. Because of the stringent Long Title—and I agree with the right hon. and learned Member for Huntingdonshire about that—we cannot introduce Amendments on this issue, but it is a matter to be considered.
Clause 32, which says that on remarriage the order shall come to an end, is a wise provision. Once a wife—or the husband in the rare case of maintenance to the husband—remarries, she 1580 is clearly no longer to be a charge on the former husband. It could wreck the second marriage if she were. However, there ought to be some obligation on the person who has an order, who is in receipt of benefit, to notify the court within a given time of the remarriage. It may be very difficult for collecting officers, magistrates' clerks and others, who must carry on mounting arrears and who will be totally unaware that one party has remarried.
It would be a simple matter to make an Amendment to require someone who had a matrimonial order to tell the court on remarriage, so that the other party and the court would know about it. The onus would not be on the person paying the order to find out and to apply for revocation of the order.
I have only one quarrel with Clause 28. It uses the word "improvement" and says that a person shall be entitled to money for the money's worth of improvements which she has made to a house. Will my right hon. and learned Friend tell me how closely the word "improvement" will be interpreted? If one is making a claim against income tax, for instance, an improvement may be putting in a new bathroom, but it would not be reroofing, painting and decorating. Both improvements and the maintenance of a house should be considered by the court when making a decision under Clause 28.
I entirely agree with what the right hon. and learned Gentleman said about the effects of Clause 35(2), which empowers the court to look at the arguments which were before the Law Commission when making its report. I do so as a Member of the House. This is a constitutional matter of the utmost importance.
The right hon. and learned Gentleman may well be right in his argument about how much this provision will lengthen proceedings in the courts. What I fear is that there may be some inhibition on either another place or this House in amending a draft Statute which comes before us. That we must never allow to happen in any circumstances. We are the body which makes laws in this country. We can be advised and we can find the advice of the Law Commission or anyone else outside the House very useful; but we must never be in the 1581 position of having in a Bill a Clause which may inhibit us from amending what has been suggested to us.
If the other place amended the Law Commission's Bill, and, therefore, some of its arguments, and if we amended some of the arguments, if the judge and counsel had recourse to discussing in court the arguments of the Law Commission, the logical extension of that must be that they would look into our proceedings, both here and in Committee, to decide what was in our minds when we varied from the Law Commission, and this could go on endlessly. The rule of law, that only Statute and decided cases can be the determinant in court for the interpretation of any word or Section, is good and right. Once we extend that into proceedings in this Chamber or in Committee, we shall set a dangerous precedent.
But I am more concerned with the possible inhibition that it could have on either the other place or this House in that it might make us fearful of making an Amendment because our interpretation would not be before the judge, whereas that of the Law Commission would.
§ Sir E. Errington
If there is an Amendment to a part of the Bill with which the Law Commission has dealt, would it not be a nonsense to expect a provision which had nothing to do with the Law Commission to be interpreted by the Commission?
§ Mr. Hooson
I have an open mind on this subject, but I should like the hon. Member to deal with one question. Surely judges would follow the normal rules of interpretation. When Parliament had not made its mind clear and in those circumstances the judge had any doubt, would he not be entitled to look at what was said in the Law Commission's report? Could he not be allowed in those circumstances, although perhaps in no others?
§ Mr. Oakes
The right hon. and learned Gentleman discussed this. What a judge may do in camera when deciding a case, 1582 I do not know. He may look at the Law Commission's report and, for all I know, he may look at the reports of proceedings in the House—it is unlikely, but he may. What Clause 35 enables counsel to do is in open court to refer to the Law Commission's proposals when presenting his arguments to the court. My argument is that if we allow counsel to do that, to present arguments about what the Law Commission intended, to follow the logic of that procedure he would be able to present our arguments in Committee and in the Chamber. That would be wrong.
However, I do not want Clause 35(2) to take up too much time of the House, because this is a useful Bill. It is an important Bill for tens of thousands of families, and particularly for married women, who, at long last, are to have some capital reward, if their marriage unfortunately breaks down, for all the efforts that they have made throughout the years of the marriage to keep the home together, to look after the children, to feed the husband and clean the home and to provide comfort and often encouragement to the husband and, by their prudence, often to achieve the very ownership of the home.
This is a welcome Measure, especially as it comes at a time when other legislation is before the House about equal pay. The Government's record in this regard is one on which they are to be congratulated.
§ 5.10 p.m.
§ Mr. Charles Doughty (Surrey, East)
The last words of the hon. Member for Bolton, West (Mr. Oakes) implied that the Bill is of undoubted benefit to all wives who are parties to divorce. That may happen in many cases, but it will not be invariably so. Indeed, the situation created by the Bill may affect adversely the women concerned.
The Bill is the result of the Divorce Reform Act. I opposed that Act because there were various matters in it with which I disagreed. However, the Government gave time to what was a Private Member's Bill and it went through. The Government promised that certain provisions of the Act would not come into effect until a Bill relating to financial provisions for women was enacted. They have now introduced this Bill in accordance with their undertaking.
1583 To a large extent, the provisions of the Bill take us to cloud-cuckoo-land. The hon. Gentleman referred to Clause 4, which deals with property and the resettlement of property, ante-nuptial and post-nuptial settlements. The number of people to whom that could refer must be about 0.5 per cent. of the couples whose marriages break up, and where that does happen they have experienced solicitors and counsel and the settlements are drafted and redrafted, as they have been for years.
What we and the judges and registrars have to consider are the other 99.5 per cent. of the cases. These are nearly always people living upon a weekly wage. They are nearly always tenants and not the owners of the houses they occupy, whether private or council owned. When dealing with that class of person, who may perhaps have had difficulty in maintaining a wife and family upon his earnings, although he has got by, the courts, under this Bill, will have to try to make those same earnings do for two families although they were barely enough for one.
I refer to two families advisedly, because when a marriage breaks up, one party certainly, and very often it is the man, has gone off with someone else. If it is the man, he perhaps has children to maintain by that other woman. It is a sad story, but all too frequent and that is the type of case which will affect the courts when they come to decide the matters contained in the Bill.
Clause 5(1) of the Bill refers to the duty of the court in exercising its powers under the maintenance provisions. It relates to… the value to either of the parties to the marriage of any benefit …and states that the order shall put the parties in the same position in which they would have been had there been no proceedings. This refers to the standard of living enjoyed by the family before the breakdown of the marriage, and for 99.5 per cent. of the cases such a restoration is a physical impossibility.
Other provisions say that no decree shall be pronounced until proper provision has been made for the divorced spouse and children to the satisfaction of the court. If that is equally applied at the same time, we shall be in the position of there being practically no 1584 divorces at all. The result of what we are being asked to do will be to leave it to the common sense and discretion of the judges and registrars to work out what should be the proper order in any particular case.
Clause 5(1) states:… and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down …An undefended divorce case goes though quickly but when it comes to making an order for someone to pay money for a large number of years, then the fight comes. If we are to consider the conduct of the parties in this context, we shall create the same sort of position as in a defended divorce action. The party seeking the order will say, "I behaved well". The other party will say unpleasant things about the former spouse's conduct in order to try to get the order reduced.
That sort of thing takes a great deal of time. The Bill will put a tremendous burden upon the judges and registrars who have to decide these questions as between the parties, always remembering that the person against whom an order is likely to be made is an unwilling payer and will naturally contest the whole thing as far as he can.
It puts upon husbands a greater burden than has existed up to the present. As a happily married man, I make no personal complaint, but there again, there is the question of remarriage. If a wife who obtains a divorce also obtains an order, it ceases upon her remarriage. That is common sense. But suppose she goes off to live with someone else and to all intents and purposes is married again, perhaps with children. In that case, the order must continue. Perhaps I am dealing with a Committee rather than a Second Reading point, but some provision should be made whereby, in such circumstances, if the wife has, in effect, remarried, there is provision for bringing the order to an end.
I turn now to Clause 35(2). I have read the Law Commission's Report No. 21. I have no wish to quarrel with the Commission. It is composed of people of the highest regard and respect. At the same time, I reserve the right to disagree with the Commission or any hon. Member of whichever party in this House who 1585 expresses views here at the right and proper time. As far as I know, this report has not been discussed in the House at any time. I say that because, for reasons connected with surgery, I was absent from the House from the end of October until a few days ago.
§ Mr. Doughty
I am obliged to my right hon. and learned Friend.
On page 51 of the report, the Law Commission has adopted different words from the Bill in one of its recommendations. The Law Commission says that the judges or anyone else interpreting the Statute should be entitled to refer to the Report. I may be wrong, but I am certain that this House will never consider that for one moment. It is a direct attack upon the right of Parliament to pass legislation. If the Law Commission or any other body can say, "We have issued a report and when someone interprets a Statute he can look up what we have said on the ground that the words in the Statute are a little ambiguous and, therefore, he will admit what the Law Commission or any other body has said."
The judges and registrars concerned cannot even look at our HANSARD reports of proceedings in this House or in Committee on this or any other Bill to see what was in the minds of the Government or of any hon. Member who spoke. But, under this proposal, they will be able to look at the Law Commission's report to interpret, although that report may have recommended things quite different from those contained in the Bill by the time it goes to Parliament.
I shall not labour what has been said and what will be said in the future. I ask the Solicitor-General to have a word with the noble Lord, the Lord Chancellor, to point out that this is a novel procedure and a matter of the greatest constitutional importance because it is a direct attack upon the sole power of Parliament to pass legislation. No one else can pass legislation. Although perhaps regulations made under an Act are different, nevertheless, even these can come before the House again on a Prayer for annulment, and Parliament has complete control of them.
The Law Commission's Report No. 21 has never been debated yet in this House 1586 and I hope that the Solicitor-General will point out to the Lord Chancellor that this proposition leads to great difficulties and that this is a highly controversial Clause in what is otherwise largely a non-controversial Bill.
§ 5.22 p.m.
§ Mr. William Wilson (Coventry, South)
The point has quite properly been made that the Bill is the logical or illogical sequence of the Divorce Reform Act, and as one of those who, during the last two Sessions, has played a substantial part in getting that Measure on to the Statute Book, I feel a fair amount of vicarious responsibility for what is in this Bill.
I am sorry, in opening what I have to say, to come back to the Clause to which every other hon. Member who has spoken has referred—Clause 35, with the opening words of subsection (2):In ascertaining the meaning of any provision of this Act …We all know that statutes are notoriously difficult to interpret. We can all think of words and phrases which have been a substantial source of income to the legal profession. But, in my experience, this is the first time that any Bill has ever openly admitted in its text that its meaning may not be clear. This is the point from which the Bill starts. Our answer really must be that, when a Bill leaves this House, when it becomes a Statute, then it ought to be clear, and if it is not clear it should not be passed.
This is the point I want to make to my right hon. and learned Friend the Solicitor-General, because I think that to acknowledge that the meaning of a Statute may not be clear is a sad departure to have to make. Apart from that, I spend a fair amount of my time in this House on the Joint Consolidation Committee whose task is to consolidate statutes, and we congratulate ourselves that we are saving the lawyers of the land the necessity of ploughing through a number of statutes and making it necessary for them to look only at one.
It is a bit ironic if, on a Wednesday of one week we were to spend the time clearing up a Statute and on another day we passed Measures which called upon the legal profession to look at more paper work so as to discover the meaning of a Measure. It is dangerous precedent and I hope that my right hon. and learned 1587 Friend will look again at this Clause and consider whether it is absolutely necessary. I hope that he will ask himself this simple question: would it not be simpler, instead of referring to the Law Commission's report, simply to make the Statute clear? If that was done there would be no need for Clause 35(2).
Clause 31 provides that where a judicial separation has taken place and intestacy has arisen, the order of judicial separation shall operate as at the death of what would have been the surviving party. I consider this Clause to be absolutely right. All of us in practice know quite well that a spouse who has been separated and has disappeared for many years—perhaps never paid any maintenance—upon the death, intestate, of the other partner, turns up with great regularity and speed. It almost seems the only time in their life that they have ever bothered about the spouse—when they have died intestate.
It is wrong, when there has been an order of judicial separation, that on intestacy the spouse who has caused the order of judicial separation to take place should be treated as a husband or wife who has not had such an order made.
It is also right that where a separation order has been made in a magistrates' court it should have the same operation as an order of judicial separation. What concerns me is whether the Clause goes far enough. In the magistrates' court there are many maintenance orders made which are not separation orders. The parties never come together, they may be separated for many years, but they are not separation orders, they are simply maintenance orders. I would hope that when the Bill goes into Committee consideration will be given to the question whether this Clause should be widened even further so that maintenance orders likewise should have the effect of separation orders.
There is no doubt that the Bill will bring to wives, where marriages have broken down, a substantial measure of justice which has been due to them for a very long time. We would be deceiving ourselves if we did not acknowledge that we have not yet solved the problem where there is not enough money to go around. We are dealing here with cases 1588 where there are assets. We all know that in the vast majority of cases there are no assets to argue about. Let us keep our feet on the ground. We are bringing justice where there are assets, but where there are no assets, the vast majority of cases, we are not making a great deal of difference.
Having said that, I welcome the Bill. I hope that it will eventually be placed upon the Statute Book. I repeat that we have not begun to solve the real problem in matrimonial breakdowns.
§ 5.30 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I entirely agree with the hon. Member for Coventry, South (Mr. William Wilson) when he virtually said that when there is insufficient money to go around the problem is insoluble. This House would be deceiving itself if it thought that it was legislating for people in those circum stances. It is as well to recall all the powers which already reside in the courts to order financial provisions for spouses. Where people are very well advised, and there is a considerable amount of money in the family, there is often very little difficulty about the matter.
The great difficulty comes when it is sought to enforce these smaller orders. Here, I must disagree with what I thought to be the implied criticism of the hon. and learned Member for Surrey, East (Mr. Doughty) when he referred to the power of the courts to hold up a divorce. This is a very important power given under the Bill. If a party is anxious to obtain a divorce—and we in the House have made divorce very much easier—but the other party to the marriage is concerned more about security, the fact that the divorce can be held up is like a sword of Damocles over the head of the man or woman who seeks an early divorce. He has to make adequate provision for the other spouse, to the satisfaction of the court. This is an important matter; an important safeguard.
No one so far seems to have adverted to the fact that not only does the Bill give important rights to wives against husbands, but also gives important rights to husbands against wives. It is an important step forward in the acknowledgement of the equality of the sexes. We have all taken it for granted in the debate so far that it is the wife who has the rights 1589 against the husband. On my reading of the Bill it seems that the husband equally has the same rights against the wife.
There are one or two queries which are perhaps rather Committee points, but which I would like to put to the Solicitor-General. I agree that in the majority of cases it is right that the right of maintenance should come to an end on the remarriage of a spouse, but I am not convinced that it is right in all cases. Let us take, for example, the case of a wife who has been married to a fairly rich husband for, say, 20 years. She has children, away at school, probably expensive schools—the way of life of the family is consistent with the wealth of the husband. Then the husband peremptorily puts the wife away, as it were and engages in another affair and the marriage effectively ceases.
The discarded wife agrees to have divorce proceedings and is awarded maintenance. Then she finds life rather lonely and decides that she will not live alone for the rest of her life. She marries a man, in much humbler circumstances. She still has custody of the children and they are still maintained by the first husband in a certain way. Is it right that that wife, even on remarriage, should be deprived of the rights of maintenance against her first husband? This is not a case that arises very often, but one that sometimes arises. I am not convinced that it is right to deprive the court of the power to order maintenance for a wife in such circumstances even on her remarriage. It may be just in some circumstances, which I agree would be few, that she should have those rights of maintenance even on remarriage.
I entirely concur with the remarks of the right hon and learned Member for Huntingdonshire (Sir D. Renton) and I would like to join in his congratulations to the Solicitor-General, and in his welcome 40 the right hon. and learned Gentleman upon his recovery.
Now for a further query to the Solicitor-General. It is sometimes found that among the assets in a marriage are pension rights and a gratuity payable upon retirement of a husband. Let me put a theoretical case. There is a husband earning a fair amount, but he spends it all; he virtually has no assets, 1590 but is entitled to a very considerable pension. His wife is entitled to a widow's pension if he dies and he is also, on retirement, which may be at 60, entitled to a considerable gratuity under an insurance policy paid by the firm in respect of him.
His assets will be completely different when he retires at the age of 60. Let us suppose that he has been married for 25 years but that at the age of 50 he goes away with another woman and his wife is left. She takes an action for maintenance, and gets it but the husband dies. Should there not be a means of enabling that wife to get the widow's pension, or, upon the retirement of her husband, to get a share of the gratuity? In the theoretical case I put forward, it is the main asset of the husband. I do not think that this kind of situation has been fully explored.
When I read the Bill I did not think that there was provision for the kind of circumstances that I have mentioned. The Solicitor-General and the Government will surely have regard to the fact that nowadays firms very often provide for people in this way—a substantial gratuity and a pension at 60 or 65.
What has aroused the greatest interest in this debate is Clause 35(2). I have an open mind on this question. It seems that the Government have perhaps introduced this Clause to test the reaction of the House. It is an experimental Clause, and from the way in which the Solicitor-General introduced it, with very great care, he did not give the impression that he was his usual happy self in suggesting that the House should accept it. My immediate reaction on reading the Clause was the enormous presumption that Parliament would not change the Bill very much and that the recommendations of the Law Commission were therefore to be accepted in toto. The very insertion of this Clause raises important matters which it is time that the House considered. The first is the relationship of this House and the Law Commission. I am entirely in favour of the Commission; it was one of the best innovations of this Government. But we have not yet explored what should be the relationship between it and this House. When we do this in depth we might change our procedures. There is 1591 a good deal to be said for having a general debate in the first instance, without a Bill, on the broad aims of the legislation we seek to enact. Having had, possibly with the aid of a report of the Law Commission, a proper debate along those lines we could pass a resolution which approved a certain line of thinking and ask the Law Commission to provide the Bill which satisfied our requirements.
It may be that in time we shall come to this kind of procedure. What do we do in the meantime? The hon. Member for Coventry, South was right. Parliament should always pass Acts which are clear and which can be easily understood by everyone. Alas, every day of the week Parliament is passing Measures which become law and which are not clear. Let me take as an example the Gaming and Wagering Act, 1963. It is interesting to read what right hon. and learned Gentlemen and right hon. Gentlemen said at that Dispatch Box about the meaning of certain provisions and then to see how the courts have interpreted them. What Parliament thought it was doing was quite different from what the courts said Parliament had done.
§ Mr. William Wilson
My point is that in the Act to which the hon. and learned Gentleman has referred Parliament thought that it was clear. In this Bill we seem to be acknowledging that the Bill is not clear.
§ Mr. Hooson
Parliament is surely learning by experience. Parliament thought that it was clear and it certainly was not. That is why I am not prepared to dismiss out of hand a provision of the kind provided in Clause 35(2).
§ Sir E. Errington
Would it not be extremely difficult if, say, the Finance Act was interpreted by the Law Commission?
§ Mr. Hooson
No one suggests that the Law Commission should interpret the Bill, but reference should be made to Law Commissions' reports in interpreting the Clauses in a Bill.
§ Sir D. Renton
It seems to follow from what the hon. and learned Gentleman has said that it will not be enough to obtain a copy of the Bill from the Queen's Printer. If we wish to under- 1592 stand this important Measure affecting family law, we shall also have to obtain a copy of the 154-page Report of the Law Commission—and that is not all, because we shall need to have the Minutes of Proceedings of the House to see to what extent the Commission's draft clauses had been varied during the Measure's passage through both Houses.
§ Mr. Hooson
The right hon. and learned Gentleman is not doing me justice. If I had to vote now on this provision in the Bill, I would vote against it. But I am not prepared to dismiss it out of hand.
This matter must be considered with great care by the House. This is an experimental Clause and we should consider its merits as well as its demerits. The courts are always coming across the difficult situation in which Parliament intended to do one thing and the courts find it has done another. This is an argument for much greater clarity in Bills. But we are passing so much legislation that the House pays little or no attention paid to Clauses which may be very important later when the courts interpret them.
§ Dame Irene Ward (Tynemouth)
Is it not a fact that in Parliament, when Questions are asked or debates take place, Ministers often say that it depends on the court's interpretation of the matter being discussed. This has happened time and again. The hon. and learned Gentleman is, therefore, quite right in anticipating this difficulty.
§ Mr. Hooson
I am very grateful for the hon. Lady's support. May I say how glad the House is to see her present, as the first hon. Lady to attend this important and historic debate. What she says is quite right.
Clearly, as the Solicitor-General explained, the more the Bill is amended in the House the less valid is the Law Commission's report. Suppose that a judge said, "I do not know what Parliament intended. I am in doubt about Parliament's intention from the wording of the legislation" and Parliament has in that section followed the Law Commission's recommendation. In those circumstances, there would be considerable validity in allowing the judge to refer to the Law Commission's report openly as 1593 opposed to surreptitiously to discover what was in the minds of those who initiated the legislation.
I should vote against the Clause at present—I am not sure that the Solicitor-General, untramelled by responsibilities, would not do so, too—because I do not think that we have had sufficient discussion about the value of interpretive memoranda attached to a Bill, which is what, in effect, reference to a Law Commission's report would be. But I am sure that in time, as legislation becomes more and more complicated, we shall have to refer, not only to the legislation, but to some kind of background document such as a Law Commission's report.
To do that properly we would have to change our rules of procedure. There would be a good deal to be said for the Law Commission amending its own memorandum after the Third Reading and for the House to consider it. But there great value in introducing this Clause at this stage so that when the Committee discusses the Bill it can consider this provision in far greater depth than we have been able to do before.
By Third Reading, we might not be encumbered with this Clause drafted in this way. I have an open mind about it. If were called upon to vote on it now, I would, on balance, vote against it. However, I am generally in favour of the trend which the Clause indicates.
§ 5.45 p.m.
§ Mr. E. S. Bishop (Newark)
It is about time that we rescued the debate from some of the more legalistic arguments which seem to predominate. Having a partial interest, I have a respect for lawyers which many people do not share. I should like to bring back to the House some of the air of expectancy, glamour and lightheartedness which perhaps prevailed a year and three days ago when I moved the Second Reading of my Matrimonial Property Bill. I hope that the House will give me some indulgence because, having promoted the Bill and having had the substantial support of hon. Members of all parties and later having withdrawn it, I have a duty to explain what was expected and how this Bill ranks with our expectations.
The Bill then was the Matrimonial Property Bill, later called the "Bishop" Bill or the "His and Hers" Bill. On 1594 Second Reading, I tried to give hon. Members a kind of parliamentary carnation to put in their buttonholes and to bring to the Chamber some of the magic sound of the church bells which ring out when many people get married. We can assess the Bill's merits in aiming to deal with some of the tragedies of a marriage which has not worked out if we have some idea of the standards, hopes and aspirations of a happy young couple when they get married.
On that occasion, I reminded the House that since 1662 millions of bridegrooms have gone to the altar and willingly, before relatives and friends, promised to endow their wives with all their worldly goods, or, since the 1928 and 1966 legislation, to share their worldly goods. We must consider legislation of this sort against those high hopes and expectations. When we consider that millions of bridegrooms promise quite freely on marriage to endow their wives with their worldly goods or to share them, there can be no doubt that under the present law they immediately bestow a second-rate legal status on married women because society is inadvertently, but nevertheless outrageously, guilty of a flagrant violation of the Trade Disputes Act. The Bill makes a change in that respect.
On 24th January, 1969, we had a 54-vote majority. The House should bear in mind two points about that occasion. First, the House was anxious to provide further safeguards to the Divorce Bill, which was then before Parliament, although the House was right in demanding these measures regardless of that Bill. Secondly, the House expressed an opinion in support of the Bill's principle that there should be equal matrimonial rights and that this was just.
The debate a year ago followed the spontaneous national upsurge of interest and support, not only for a review of matrimonial legislation as a whole, but for the need to take a new and urgent look at the status of women in society. The debate has gone on ever since. In the interim, I have received over 2,000 letters from women and men in all parts of the country. The second-rate legal status of women towards the end of the 20th century has astounded me. Therefore, quite massive reforms are called for in the near future.
1595 In case anyone thinks that I have a bias in favour of women in this matter, let me say that I am also a magistrate and there have been occasions when women have come before me for separation and have said, "After 20 years, my husband has left me." I have looked at the woman and could not imagine how the husband had stayed so long. Therefore, the Bill, which is one of equity for both sides of the marriage, is not weighted particularly in favour of women. We have an enormous way to go to give women anything like parity, justice and equity in marriage.
§ Dame Irene Ward
As a co-magistrate, I would not judge a man simply by looking at him. Surely, the hon. Member does not decide whether a woman is a good or bad, a tiresome or a happy wife, merely by looking at her. He is an odd man if he can sum up as quickly as that when sitting on the bench.
§ Mr. Bishop
I am grateful for that intervention. I was referring not only to the physical look, but the legal and the matrimonial look. I have some experience of this because my wife is also a magistrate, although we have a legal bar from sitting together, a very rare restriction. I am sure, to be imposed on a husband and wife.
I mention these points because the House must be influenced by the great weight of feeling which has been building up over the years in favour of change. One welcomes the changes which are taking place and I suggest that many of the delays in getting equal pay implemented, for instance, in the past have been due to our attitude to women in society. One hopes that this will change.
I have mentioned that the Measure which I introduced on the same lines last year had all-party support. The sponsors came from all parties in the House of Commons. Therefore, the credit for what was done must be shared between all those concerned. A number of organisations nationally were involved in the work of producing the Bill and in the efforts afterwards.
There is no doubt that the country is anxious that from today we shall give women a greater measure of justice. I welcome the Bill not only because it provides a tidying-up process of this 1596 branch of the law, but because it takes into account for the first time, by putting it on the Statute Book, an acknowledgment of the wife's contribution to the marriage, as Clause 28 states,in money or in money's worth".Having said that, however, I do not think that the Bill goes far enough by any means in meeting the demands of the millions of people, including the many thousands of women and children, who will be affected by it. We are grateful for this half a loaf, as my hon. Friend the Member for Bolton, West (Mr. Oakes) called it, but there is still a long way to go. We are by no means satisfied that we have gone as far as we could at present.
One hopes that the further report of the Law Commission on the root and branch reform of family property envisaged in the Law Commission's Report No. 25 will be before the House very soon. I and, I am sure, many other hon. Members would like to see legislation in the present Parliament enforcing some of the recommendations when they come before the House.
The Bill, however, introduces some important aspects and I welcome it for that reason. I should refer briefly to a meeting I had with the Lord Chancellor, the Law Officers, Professor Gower and Sir Leslie Scarman which resulted in the withdrawing of my Bill. As various hon. Members have from time to time asked what was agreed, I think that I have a duty to quote the letter from the Lord Chancellor so that it may go on record and we can see briefly what was the position before this Bill came forward.
On 21st February last year, the Lord Chancellor wrote, to me under the heading "Matrimonial Property Bill", to say:I am writing to confirm what was agreed at the meeting yesterday which you, Mr. Gordon Oakes, Mr. Eric Lubbock and Mr. Awdry had with the Attorney General, the Solicitor General, Sir Leslie Scarman, Professor Gower and other members of the Law Commission staff and me.He went on to say:Sir Leslie Scarman agreed that the Law Commission would be able to report before the end of July on their proposals for matrimonial financial relief. The Divorce Reform Bill contains a provision that it will not come into effect until an order is made by the Lord Chancellor.1597 Finally, he wrote:Without of course committing the Government on its programme of legislation, which I know you would not expect me to do at this stage, I agreed that if you withdrew the Matrimonial Property Bill I would undertake not to make such an order until legislation, based on the Law Commission's proposals, had been introduced in the next Session.The House knows that when I met the Lord Chancellor and the other Law Officers to do a deal, if one wants to put it that way, I was accompanied by members of the three parties in the House. I insisted on this because I said that, unless all three were willing for me to withdraw the Bill, I would not do so because the House had, by all-party support, given the Bill a 54-vote majority. I want the House to know exactly where we stood.
My sponsors and I asked that legislation should be available in this Parliament to deal with the division of matrimonial property at the time of divorce, the need for the courts to have extended powers to award lump sum settlements and maintenance beyond the normal age limits, for a generalisation of powers to order settlement of property, to make orders for a husband and wife to settle property for the benefit of the wife and children and to vary settlements, and most important of all, for the contribution of the wife as well as the husband to be taken into account. We also asked that such legislation should come before the House before the Divorce Reform Bill became law so as to safeguard the interests of those who would be affected by divorce proceedings.
The Lord Chancellor, after consulting the Prime Minister and the Government, agreed to put in writing the letter which I have read and which, in due course, I received. There is no secret about this letter because reference has been made to it elsewhere, but I appreciate that the House has enabled me to put it into our records.
The Bill includes much of what we asked for when we met the Lord Chancellor, but we can be fully satisfied only when we get legislation for the real root and branch reform of family property laws. But the Law Commission and the Bill seem to have been more concerned with tidying up, important though that is, and less able to deal at present with the 1598 main question of the right of spouses to property acquired during the marriage.
The Bill deals in Part I with the financial provisions and the custody of children, and I welcome the aim that there shall be no discrimination between husband and wife in this important matter. I also believe that Clause 4 is important in so far as it gives power to the courts to order the transfer of property in the interests of either party or in the interests of the children and also enables the courts to make variations of settlements.
Clause 5 lays down some of the factors which must be taken into account when the court is considering the settlement of property, the ordering of maintenance and the making of lump sum settlements. It rightly asks the court to take into account earning capacity, the property and financial resources which either party has or is likely to have, the financial needs, obligations and responsibilities of the parties, and the standard of living enjoyed before the breakdown of the marriage.
Reference has been made to that aspect by the hon. and learned Member for Surrey, East (Mr. Doughty), who queried the ability of any courts to ensure that the standard of living shall continue as before the breakdown of marriage. This is important, because we must have regard to this in any settlement, in order to see that those who went into marriage very hopefully are able to maintain their standards as far as possible and that the interests of the children shall continue as they were.
One aspect to which the hon. and learned Member for Montgomery (Mr. Hooson) referred was the question of pension rights, and although Clause 5 suggests that the courts will have powers to make sure that pension rights are preserved in various ways one wonders how one can order a husband without substantial means to make sure that the State pension rights, which may cease when he remarries, is guaranteed to his former wife. This is one of the problems being tackled, not in this Bill, but in other legislation, to make sure that women are required by law to be insured in their own right, and their pension rights assured, whether or not they marry and whether or not their marriages break up.
1599 I would certainly have liked to see some requirement that the courts should start the division of the assets from the basic principles of equity and only make variation according to circumstances. I would very much like to see an Amendment to Clause 5 in this respect, because while one appreciates the other aspects which the courts are asked to take into account I think that starting from the basis of equity and then making variations very often is a very good principle to have in this legislation.
I am also very concerned when the courts are to be directed to take into account the aspects of Clause 5(1)(a), including the financial resources likely to be available to either party after divorce, for while magistrates and others concerned with this problem must have regard, as we do, to the ability of a husband to pay for maintenance it ought to be underlined that on divorce or separation the main duty of a husband is, or should be, to his first wife and family. I think we should do nothing to encourage the impression, that the husband who is either divorced or separated can run around the country getting involved with other commitments, either in marriage or outside of marriage, living with his new wife or another woman, and supporting his new family, and can come back to the court and say to the judge or the magistrates that he cannot therefore continue his obligations to his first wife and family and that the State must assume responsibility for them.
Those of us who have to take into account the liabilities and the obligations of someone in that situation ought to have regard to the man's first priority, and that is his first dependants, his wife and children. These are important aspects which must be considered in the Bill.
Clause 6 refers to wilful neglect and to the situation of the wife or husband wilfully neglecting to pay reasonable maintenance. Legislation going back a long time refers to "wilful" in this connection. I would ask that that term "wilful" be reconsidered on this occasion, because it seems to me that it is putting an undue onus or responsibility—on the wife, very often, although it could refer to the husband. A wife is often in a situation of great hardship in having 1600 to ensure that wilful neglect has taken place.
It may be recalled that in the National Assistance Act, 1948, which in substance re-enacted the Vagrancy Act, 1824, Sections 42 and 43 do not refer to "wilful" neglect but merely to "neglect", and although it is not a matter for debate at this stage, of course, but later in Committee, possibly, I would refer to an article in the Modern Law Review for January, 1960, vol. 23, page 1, which went into the case history here. I think it referred to the Tulip v. Tulip case. I would ask my right hon. and learned Friend to look at this aspect to see if the word "wilful" could come out of this Bill in the same way as it disappeared from the National Assistance Act, 1948. This would make the position very much easier for those involved in such proceedings.
Clause 28, I think, is most important, because it seems to me that for the first time, as I said earlier, we are putting into our legislation some obligation on the courts to have regard to the contributions of both parties "in money or money's worth", and this was one of the features of the Bill which I introduced last year. The Clause could result in either the husband or the wife having more than a half share of the assets, for it states that either party can acquire an interest where they have made a substantial contribution to the improvement of real or personal property. There may be some doubt about the legal meaning of "substantial" and I will not get involved in argument on that today, but a party can acquire a share or enlarged share as a result of it.
I should like the Government to consider the point raised by my hon. Friend the Member for Bolton, West about the need to have the word "maintenance" in the Clause so that the courts will not only take into account the improvement of the property by either partner but also improvement and maintenance of the property, because one can well imagine a situation where a wife has been very diligent at home, helping with the redecoration of the house and the improvement of the house in that way, and yet at the end of the day will have very little recompense for all the work, time and money she expended in improving the 1601 house by way of maintenance. I appreciate that there may be a problem in relation to the Finance Acts where the situation may be rather limited by the present financial legislation.
When we refer to the contribution in money or in money's worth we come up against the problem which arises from the fact that most wives have no idea whatsoever of what contributions their husbands make to their marriage. As we know, very few women indeed know exactly what their husbands earn, and that is very often a closely guarded secret. I am still awaiting observations from the Chancellor of the Exchequer as to whether he will consider requiring wives to countersign their husbands' income tax forms and so get to know what the husbands are putting into the kitty.
I can see a real problem at the time of a divorce if, in the court, a husband who for many years has been telling his wife, "I earn only £20 a week", says, because the court must have regard to the contributions of the parties and awards him rather less of a share of the property than he expects, "I have been earning £30 or £40 a week for the same period of years and I demand that I have a much greater share of the assets of the marriage." This will surprise the wife very much indeed and, indeed, of course, confuse the court. I believe that facts and figures about her husband's income are vital statistics which every married woman ought to have.
Clause 35 refers to the Law Commission's Report No. 25. A great deal has been said this afternoon about this Clause and I do not want to go into it any further myself except to say that I share the grave concern which many hon. Members on both sides of the House have on this aspect. The Clause also refers to the powers of the court to award maintenance beyond the age of 21. This seems to be in contradiction of Clause 8 which says that the limit for awarding maintenance shall be 18. I see no reason at all why there should be any limit whatsoever, because one can imagine a situation during a marriage in which there are children who have ability to become doctors, for instance, and to have university education, and training in hospital. If during the marriage a child is qualified for that education at the age, 1602 say, of 25, I see no reason whatsoever why the courts should not order the parents, after divorce, if they have the means, to maintain the child so that the expectancy of education and training, and the career prospects, of the youngster can continue.
I agree with the hon. and learned Member for Montgomery that we should also enable the courts to order maintenance to continue after remarriage of the wife when the circumstances are such that the husband has the means of continuing the level or standard of living to which she had been accustomed before the divorce took place.
Much more could be said about the advantages and disadvantages of the Bill, but I have said enough to indicate that I welcome the Bill. We have gone a long way towards getting what we want. There is still a long way to go before we can ensure that, while men are landing on the moon, women have their rightful place in the sun.
This is the age of protest, the age when people demonstrate against injustice and discrimination. We are thankful for the enormous contribution made by women to our societiy in the home, in the office, in the factory and in the worlds of art, music and of learning. Let us be aware of the duty that we owe them. The Law Commission, which has carried out splendid work, should be reminded once again of the urgency of bringing forward to the House proposals which will have the opportunity to be translated in legislative terms at the earliest opportunity.
Finally, if the time arrives when the House tires of its reforming zeal, it should be stimulated by a letter which I received from one of my correspondents, in which she says:I am very interested in your Matrimonial Property Bill, and with my husband's approval I recently took in a woman lodger in order that we may more easily pay off the mortgage on our house. But already I can see that gleam in his eye.She ends by saying:The best of luck to your effortsOn that happy note, I remind the House that we still have a long way to go before women in those circumstances can be satisfied that things are going well for them.
§ 6.12 p.m.
§ Mr. Mark Carlisle (Runcorn)
I entirely agree with the hon. Member for Newark (Mr. Bishop) that perhaps we have spent rather too much time in discussing Clause 35(2) of the Bill rather than the Bill's merits. I also had the honour to speak in the debate on the hon. Gentleman's own Matrimonial Property Bill when I spoke from the Opposition Front Bench. In looking at the Division list I see that both the hon. and learned Member for Montgomery (Mr. Hooson) and I abstained in the Division. The hon. and learned Gentleman said that no self-respecting lawyer could possibly support the Bill as then drafted.
I feel bound to add that a further look at the Division list shows that all the other self-respecting lawyers voted against the Bill at that stage. The hon. and learned Member for Montgomery and myself were about the only two lawyers who abstained.
Before coming to the merits of the Bill, I wish to say something on Clause 35(2). I have sympathy with the idea behind the Clause. I know from past legislation, such as the Betting and Gaming Act and numerous other Acts, that we do not necessarily legislate in the way we intend to do. I suggest there should be an Explanatory Memorandum to which the courts could refer. In advance of discussing the controversial issues in the Law Commission paper on the interpretation of statutes, I am convinced that it is wrong for the House to attempt to legislate in this way by referring to the Law Commission Report, which may have no relation to the Bill as it eventually leaves the House.
I hope that this matter having been aired today, the Solicitor-General will agree, in view of the unanimous criticism of the proposal, to withdraw the Clause as it stands from the Bill, even if the whole question of interpretation of statutes has to be looked at at some other stage.
I now turn to the merits of the Clause. The reason I abstained on the Bill put forward by the hon. Member for Newark last year was that as a lawyer I felt that I could not support it. But the whole of my sympathy was with the underlying principle of that Bill. That appeared to be an attempt to obtain a fairer and more 1604 even distribution of property between the partners to a marriage on a breakdown. I feel that this Bill as proposed by the Law Commission more effectively succeeds in achieving this aim than did the somewhat wider and in many ways unworkable scheme under previous proposed legislation.
§ Mr. Bishop
I was accused, or at least my draftsman was accused, of bad drafting in my Bill. I wonder whether some of the accusations made then were a little less in their intensity than those which have been made on the present Bill this afternoon. However, I appreciate the support of the hon. Member for the principle behind the Measure.
§ Mr. Carlisle
The hon. Gentleman may well be right, but since he referred to that matter I thought I should say why, on that occasion, I abstained and yet, on this occasion, support this Bill.
I particularly welcome the provisions of Clause 4, which appears to achieve its ends by allowing a court, on the breakdown of a marriage, a wide discretion on the transfer of property. We must accept that where real difficulties arise over the wife's situation on a breakdown of marriage, the Married Women's Property Act was concerned purely with property or proprietary rights in the assets of the marriage and failed completely to take into account the non-financial contribution made by the wife to the marriage. That Act gave no adequate powers to the courts to transfer to that person a share in the assets.
In this instance Clause 4, by allowing a transfer of property at the discretion of the court, enables the court to take into account the non-financial contributions made by the wife and, therefore, attempts to achieve the aim of greater equity between the parties on a breakdown of marriage.
I welcome the fact that the Bill rightly leaves this matter to judicial discretion. The circumstances of the breakdown of a marriage are so complex and varied that if any system is on the one hand to be fair to the blameless husband whose wife walks out on him five weeks after their marriage and, on the other, fair to the blameless wife whose husband goes off after they have lived together for 25 years because he has suddenly become 1605 attracted by a younger woman, it must leave wide discretion to the court to do what it thinks fit. The present Bill tackles that problem in the right way both by giving that discretion and then in Clause 5 by laying down guidelines.
I should like to take up one matter which was raised by my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), who referred to the pamphlet produced by the Conservative Party. I sat on the committee which considered that pamphlet, which was called "Fair Shares for the Fair Sex". Certainly, the pamphlet, if not its title, received a universally good press. Much of the material put forward in it has been accepted by the Government, and, indeed, was approved of in the report of the Law Commission. This can be seen in the guidelines which are recommended.
We suggested in the pamphlet that in making an equitable division of property on a breakdown the judicial discretion must be wide, and we laid down various guidelines. One of the matters to be taken into account was the duration of the marriage. I now notice that the Government, perhaps having considered our pamphlet, have added the ground of duration of marriage to the other grounds in the Bill, although it was not a ground which was recommended by the Law Commission. Stress was laid in that pamphlet on the contribution made by the parties to the welfare of the family, including the contribution of the wife in looking after the home and caring for the family.
I believe, as was argued in our pamphlet, that in the matter of family assets the principle of equality might be the correct starting point for any division. I agree with the hon. Member for Bolton, West (Mr. Oakes) that in the vast majority of marriages the assets with which people are most concerned comprise the home, the furniture and the motor car. Speaking purely for myself, since I know that on these benches this is a highly controversial view, I believe that there is strong ground for the principle of equality in the division of these assets.
As for the other assets which may have been acquired during a marriage, guidelines should be laid down to enable a 1606 judge to take into account the work put into the house by a wife. If she is forced to give up the standard of living to which she has been accustomed on the husband's income, and it must be remembered that often a wife has enabled him to build up his assets and to expand his business, she should have some share in those assets if the marriage eventually breaks down.
For these reasons I welcome the Bill. It gives recognition to the proper place of a wife in the 20th century since it attempts to look upon marriage as a partnership. It shows that for the first time we are getting away from the situation that the decision as to whether she has any right to property depends on her willingness to earn. We are looking, instead, to the wife's contribution to the home. This Bill is a far better Bill than the much more grandiose scheme of community of property, with its many practical difficulties, which was proposed by the hon. Member for Newark.
There are one or two other short comments which I wish to make about some of the remaining Clauses. I do not altogether agree with the hon. and learned Member for Montgomery. I think that it is right that an order for the maintenance of a wife or husband should end on remarriage. The fact that it should terminate then will avoid the case which so often arises where a husband continues to pay long after he need because he does not realise that the remarriage of his former wife entitles him to go back to the court and ask for the order to be dismissed. It is equally important that Clause 11 allows for the repayment of money which may have been paid in those circumstances after the entitlement to maintenance has ceased. I also welcome Clause 28, which is concerned with the matrimonial home and improvements to it.
I have one point on Clause 29, which deals specifically with the Matrimonial Homes Act, 1967. I make no point on the highly technical words of the Clause, which I do not pretend to understand. However, I suggest to the right hon. and learned Gentleman that, before the Committee stage, he might consider whether, in practice, the Matrimonial Homes Act gives to a wife adequate rights of protection of her occupation of the matrimonial home.
1607 When we were doing our study into discrimination in the law against women, we found that one drawback was that it was necessary for a wife to register her right as a charge if her occupancy was to continue. There is a lot to be said for considering some means whereby the matrimonial home might become registered as such in the Land Registry. Any would-be purchaser would have notice that the right of transfer or sale belonged equally to the husband and wife and that the husband could not sell behind his wife's back.
I regret that nothing further has been attempted in the Bill to improve the position over the enforcement of the payment of maintenance. When the hon. Member for Newark referred to the fact that wives often do not know their husbands' earnings, if I may say so, it is not so much the complaint that a wife does not know. Surely the discrimination under our present tax system is that the wife is bound to inform her husband about her earnings because he is responsible for completing a return and paying the tax. However, there is no equivalent duty on him to convey the same information to his wife. That is a discrimination which could be done away with easily by accepting the sensible proposals to tax the incomes of husbands and wives separately. However, that is outside the scope of this Bill.
This Measure is a move forward in achieving the principle of a fairer distribution of property. It recognises further and more fully the proper position of women in society today and I believe that it will be welcomed by the women's organisations. However, many points will have to be looked at in Committee.
§ 6.29 p.m.
§ Mr. Edward Lyons (Bradford, East)
I always listen with respect to the hon. Member for Runcorn (Mr. Carlisle), and I have sympathy with the point of view adumbrated by him and the hon. and learned Member for Montgomery (Mr. Hooson) about what should happen to an existing maintenance order on a remarriage. Under Clause 30(6), if a woman remarries, the magistrates' court order of which she had the benefit stops even if the remarriage is a void marriage. For example, if a woman is forced to marry again under duress, by, if she 1608 remarries, fraudulent mistake, or it proves to be a bigamous marriage which comes to an end within weeks as soon as the fact that it is void becomes apparent, none the less, the order payable by her previous husband comes to an end under the Bill. In my view, that should be looked at again. One could almost imagine a husband persuading a friend of his to ask his former wife to remarry, even bigamously, so that her right to maintenance should cease.
There are many features in the Bill which I welcome. It is always annoying to lawyers and unfair to litigants that a wife or husband starting proceedings over the matrimonial property after the decree absolute should have to proceed in Chancery. There is nothing more frightening to a common law lawyer than Chancery. It is uncharted territory. Under the Bill, for the first time, one can bring such proceedings after the decree absolute in the county court. They are simpler, cheaper and more easily understood. That can be done for a period of three years after the decree absolute. My only doubt about it is whether three years is enough, because, so often, the wife and husband do nothing about the matrimonial home for many years. I suggest that my right hon. and learned Friend might consider extending that period to five years, to prevent the inconvenience which will otherwise be caused in certain cases.
However, those are Committee points. I am delighted to see the principle in the Bill that the court may transfer property from one spouse to another in accordance with the justice of the case. What perturbs me is that this may only occur when there has been a divorce. If a wife does not wish to divorce her husband and, because five years have not elapsed, he cannot attempt to divorce her, she cannot obtain a transfer of the matrimonial home to herself. In other words, Clause 4 is an incentive to a wife to divorce her husband if she wants the matrimonial home. If she proceeds on the grounds of wilful neglect to maintain as an alternative to divorce, that gives the court the right to give her a lump sum, but it gives the court no right to redistribute property such as the matrimonial home.
If a husband wants to make his wife divorce him, all that he has to do, in 1609 view of the weakness about enforcement, is not make her the regular periodical payments. If he has manoeuvred her out of the matrimonial home at an earlier stage, she has not the home, he is behind with his payments, and the only way for her to get the matrimonial home is to divorce him.
§ Mr. Carlisle
The hon. Gentleman is ignoring the provisions of Section 1 of the Matrimonial Homes Act. So long as the marriage is in existence, at any stage she can register her occupancy of the matrimonial home as a charge, whereupon the court can make an order that she can go back to it and the husband must leave.
§ Mr. Lyons
I am obliged to the hon. Gentleman, but that is not my point. It may be that she is short of money and needs the value of the house. She cannot get it as a saleable commodity. She may be able to get back into it, but she cannot get the money that it represents. In those circumstances, she is given an incentive by this Measure to divorce her husband as the only means of getting the house, if it is not in her name.
§ Mr. Bruce Campbell (Oldham, West)
She can also obtain her remedy by securing a judicial separation. She does not have to seek a divorce.
§ Mr. Lyons
I am grateful to the hon. and learned Gentleman. That was not within my understanding.
The Bill relates to people who have substantial assets but not to ordinary working people, except those who have managed to acquire a house over a period of years. This is a Bill for the middle and upper classes, with that exception. That is acknowledged by the fact that the Bill does not extend to the magistrates' court. One has to go to the High Court for the power to transfer property to be exercised in one's favour.
One curious feature is that, although the Bill gives the court power to grant to one spouse money representing the increase in value of the house produced by improvements to it, it does nothing where one spouse put a lot of money into the house at the time of its purchase and has not got his or her name on the title deeds. In a case where the wife contributed all the purchase price, but where the house is in the name of her husband, 1610 by the House of Lords decision in Pettit v. Pettit, the wife has virtually no chance of getting any of the money invested in the house.
Since many wives do not work and most improvements will normally be done by the husband or with the aid of money supplied by him, he has the advantage of being able to obtain the value of that increased work on the sale of the house. I am delighted to see that the dream of Lord Denning is reinstated in the Bill. It provides the noble Lord with some comfort in his long battle with his fellow Law Lords, who have preferred to put certainty before justice, as was the case in Pettit v. Pettit.
None the less, one has to face the fact that the Bill does nothing to help the party who contributes substantially to the purchase of the matrimonial home, but whose name does not appear on the title deeds. That is still a very big lacuna in our law, and it should be attended to as a matter of urgency.
If the court is to be given discretion to assign property in any way after a divorce, why should not it have that right before divorce? If the discretion which we are giving to the court is so wide, and if we place such trust in our judges, why cannot we give them the same right before divorce?
The hon. Member for Runcorn pointed out that the assets of a family normally consist of a house, the furniture and a car. In my experience, if the wife is out of the house and it is in her husband's name, she cannot have the value of the house, she cannot easily get the value of the furniture, assuming that the parties have not agreed on the value, since usually it proves to be worthless when it is sold by auction, and the car belongs either to a hire-purchase company or to her husband's employer.
The law very much favours husbands, still. Anyone who appears frequently in matrimonial proceedings rapidly comes to the conclusion that those husbands who are cruel and those who commit adultery seem to be prone to income tax evasion. One hears of a standard of living which is not borne out by the income disclosed to the court, and the wife spends most of her time whispering in the ear of her solicitor about all the other money which the husband has never disclosed. Since it is not often 1611 provable, the registrar or the Master takes no real account of those moneys.
Furthermore, registrars are usually loath to take account of the value to the husband of business expenses. Those who deal with this kind of case know that business expenses cover marvellous things. I have seen on business expenses stables for the horses, artificial ponds and payments for flying lessons. Almost anything is done on business expenses.
A divorced wife cannot have that advantage. She is not living with her husband any more, so she cannot do anything about the advantages that he will continue to enjoy. Indeed, although her holidays are not paid for, the husband's often are because he happens to make a business trip to a place with a pleasant climate. That is another disadvantage which a divorced wife suffers.
There is yet another when we come to the wife's claim to have enough money to retain the car which the husband always allotted to her. Often the car never belonged to the husband, but to his company. That being the case, the husband, now that they are divorced or separated and not being able to trust her in future to keep quiet about the situation, is not prepared to allow her to continue to use the company car.
It is often found, too, much to the surprise of the wife, that she was on the company payroll. However, the husband, because he cannot trust her any more, or because she is not his wife, will take her off the payroll. Having her on the payroll was an addition to his income, although admittedly taxed, and enabled him to enjoy a better standard of living in which the wife shared. But when the separation or divorce comes, that ceases. If the husband remarries he can reach the same arrangement with his new wife. But the first wife loses out, because, when the court considers the husband's income, it does not usually assess the money over which he had control when he was married to his first wife through the income for which she was entered in the company's books.
It is, therefore, almost impossible to see how parity can be achieved between husband and wife. There are some things that this House cannot do to produce that parity, but there are other things that it can do. It can push harder 1612 on the question of enforcement. I hope that it will do that. The Bill goes only part of the way towards assisting the wife. It does not by any means go far enough towards ensuring parity of treatment between husband and wife.
I find Clause 35(2) quite intriguing. Like other hon. Members, I have not yet made up my mind about it. I take the view that the courts will not look at the report of the Law Commission except on ambiguity. Where something is not clear, I wonder what right hon. and hon. Members would think was better: the judge looking at his own views and prejudices perhaps, or looking at the enlightened remarks of the Law Commission?
I submit that this House is usually more liberal in its attitudes than the judiciary when it comes to interpreting statutes. When the judiciary interprets Acts passed by this House it almost always places upon them the most restrictive and constricting interpretations. That being so, one wakes up in horror a few years later to discover what the judges have done with legislation which is liberal in intention.
It is often clear that somehow the judges have gone wrong in interpreting what this House intended. It may be the fault of the draftsmen. It may be that new situations have arisen. There may be many reasons. But if the report of the Law Commission may be consulted, it will be an additional little weight in the scales which is worth having to prevent the judges doing what they wish in relation to any ambiguity. Counsel will no doubt ask a judge to look at what the Law Commission said at the time, which will take the judge back to the atmosphere of those days.
§ Sir D. Renton
Does the hon. Gentleman realise that the Bill, as drafted, will not oblige a judge to look at the report of the Law Commission? So a narrow-minded judge may hear argument for a long time from counsel on each side trying to persuade him what the Law Commission meant and, after examining a number of pages in its report, he may still say that he will not have regard to it.
§ Mr. Lyons
I am obliged to the right hon. and learned Gentleman for drawing my attention to the wording of the 1613 Clause, which says "regard may be had". If regard is not obligatory, I do not know what all the fuss is about. If a judge is not going to look at the Law Commission's report, we need not be too perturbed about the existence of the Clause.
If the court refuses to look at the Law Commission's report, so be it. But it strikes me as a somewhat intolerant attitude for the judiciary to take. If the court looks at the report then, at any rate, it will be given the flavour of the atmosphere in which the Bill went through the House. I have not made up my mind about the Clause, but that could be preferable to relying on judges who, I submit, do some terrible things in regard to the wishes of this House.
I have often heard right hon. and learned Gentlemen opposite inveigh against ambiguities in Bills which come before the House. They often say that they cannot understand Clauses. If they are not understandable or comprehensible, and we still enact them, then we are handing the making of the law by interpretation to the judiciary. I am not certain that the Law Commission cannot do better, but there it is.
In another place my noble and learned Friend the Lord Chancellor went out of his way to praise the Law Commission for the excellent job that it had done on its report in relation to the Bill. I humbly concur with that praise. However, it is a great pity that the Lord Chancellor contents himself only with praise. It is about time that the Law Commissioners had good salaries and proper terms of service. Their tenure in office is uncertain and their remuneration is poor. As the Law Commission is so important nowadays—it has helped us with the drafting of nearly every Bill—it is a tragedy that its members are not put on the level of high court judges.
§ 6.50 p.m.
§ Sir Eric Errington (Aldershot)
I welcome the Bill, which has already been discussed in some detail. I was interested in what was said by the hon. Member for Bradford, East (Mr. Edward Lyons) when he suggested that many people had 1614 houses, furniture and cars of which they had to dispose on divorce, whether they belonged to them or not. My feeling is that the Bill will be helpful to those who have much less property.
Everyone will welcome the abolition of what is colloquially known among our friends at the Bar as the restitution of "convivial rights". The restitution of conjugual rights was often almost a method of legitimate blackmail, and it ought to be removed from the consideration of judges.
A number of hon. Members have referred to the absence of money to pay maintenance. I am a little disturbed about this factor and it will have to be considered, although the Bill may not be the appropriate place for that. Another Bill now before the House may provide an opportunity to discuss liability for payment of maintenance and other debts. There may be an ordinary creditor-debtor relationship, and we shall have to decide whether these matters are to be dealt with by enforcement procedure. It may be that magistrates will still have power to impose fines for certain offences and those fines can be followed by imprisonment, if not paid.
I understand that there are these various forms of indebtedness, but it is somewhat difficult to discover whether maintenance will be earlier in the queue for enforcement. Discussion of the other Bill will possibly clarify the enforcement situation, but I doubt whether there will ever be an entirely satisfactory situation in that respect.
I want shortly to refer to Clause 35(2). One hon. Member said that it would be useful to have an explanatory note. The last paragraph of the Explanatory Memorandum makes this the understatement of the year, namely:Part III contains the usual supplementary provisions.I have never known such an inadequate statement in an Explanatory Memorandum, because these are not the usual provisions.
There has been much discussion about Clause 35(2), because it raises a constitutional issue between the legislature and the judiciary. It is not possible and it is undesirable to have the two in any way mixed when that results in our not knowing exactly where we stand. I do not 1615 like references to other documents. We already have enough documents to read and I am finding it extremely difficult to keep up with them. If to them are to be added a whole series of Law Commission reports, and these reports are made parts of Bills, regulations and rules will be as nothing, and it is hard enough to keep up with them.
When I was attending the Council of Europe, we discussed whether it was in order to discuss the findings of previous committees. What was surprising was that, with the exception of the Scandinavian countries, we were the only country whose judicial system was related solely to precedent, statutory or case precedent. My colleagues from this House and I thought it important that we should not have too many words which might or might not have value, and we thought that we should rely only on the final reports submitted to the Council of Europe. I am pleased to say that after some argument we were able to persuade others that that was the way in which to deal with the matter.
Similarly, this is the wrong way to introduce a constitutional change of this kind, and I hope that the Solicitor-General will inform the Government that the unanimous feeling of the House is against this provision.
I am not certain whether it can be done under the Bill, but I hope that magistrates' courts will be made available for those who do not want to continue in the High Court. I have known a number of cases when a High Court divorce has gone through and it has then been decided to seek variations in settlement, for instance, which could easily and cheaply be done in a magistrates' court. So far as I know, however, there is no power to allow that. I do not know whether the Long Title will permit an Amendment for such a change.
In general, the Bill is a great improvement and I hope that it will go through minus Clause 35(2).
§ 7.0 p.m.
§ Mr. Bruce Campbell (Oldham, West)
Like hon. and right hon. Members who have spoken before me, I generally welcome this Bill, which seeks to bring about some very necessary improvements in our matrimonial law. My complaint is that it does not go nearly far enough 1616 and that it falls far short of what we were led to expect at the time when the Divorce Reform Bill was passing through this House. A great many people will be very disappointed by the Bill, because it falls so far short of what they were led to expect.
We must remember that at the time when the Divorce Reform Bill was passing through the House many were concerned especially about the plight of a woman if she were divorced against her consent and as a result lost not only the status of marriage but also rights to such things as a widow's pension.
We were assured by the sponsors of that Bill that there was no need to worry about that, because legislation dealing with matrimonial property would be introduced and would come into force at the same time as that Bill. This is that legislation; this is considered to be the implementation of that promise. In my submission the promise has not been implemented. I think many who supported the Divorce Reform Bill were misled. They supported it believing that legislation of a much more far-reaching kind would be introduced than this Bill.
Judges of the divorce court now have very wide powers. They can do almost anything that this Bill will enable them to do. The Bill gives the judges almost negligible powers in excess of what they already have. The one thing the Bill does is to enable the courts to award property as between one spouse and another. Now, for the first time, it will be possible for a judge after a divorce to say of the matrimonial home, if it happens to belong to the husband, "You must transfer it to your wife, or she must have a half share in it".
That is something which the courts hitherto have not had the power to do, but the courts have had the power to award a lump sum. So, although the judge could not give half the house to the wife, he could order the husband to pay her £2,000 which probably would be half the value of the house. Even that additional power is not a very important one, because indirectly the courts already had it. For practical purposes the Bill gives the courts no power which they did not already have to help these women. Most of the husbands who are brought to the divorce court do not own a house anyway and they have no other property to speak 1617 of. Even if they happen to own a house probably it is heavily mortgaged, so the equity in it is of very small value. For the bulk of the population the Bill does nothing.
There is one respect in which legislation could have helped the women who are divorced against their will. They are the people with whom we shall be concerned. This is why so many of us were opposed to the Divorce Reform Bill. We did not mind its main provisions; it was only this one provision which enabled a husband to leave his perfectly innocent wife after 20 or 25 years of marriage and five years later to divorce her against her will, depriving her not only of the status of marriage but of the financial advantages that it brings, to which we were opposed.
The greatest financial advantage at that time to the wife of the ordinary man in the street is the right to a widow's pension. For the man who has no assets and has only his weekly income, the situation is simple. The wife will be awarded a part of that income by way of maintenance, but while she was his wife she was also in the position that if he died she would become his widow. Having been divorced not because of any fault on her part but because her husband preferred another woman, she loses also the possibility of becoming a widow and having a widow's pension.
If the Bill were to achieve anything and to implement the promise that was made, it would have to deal with pensions. It would have to contain a provision that the court should have the power to apportion widows' pensions so that when there had been a divorce and years later the husband died having remarried, the court could say that the widow's pension should be apportioned, two-thirds may be to the woman who was his wife for a quarter of a century and one-third to the woman who was his wife for only his last few years. That would be the real asset which could benefit the woman concerned, but this Bill does nothing about that.
§ Mr. Edward Lyons
Is the hon. and learned Member aware that 50 per cent. of all divorces relate to women under the age of 35 and that many women predecease their husbands, that pension payments made by the husband during the 1618 existence of the marriage are credited to the wife, and very often, despite all these considerations relating to pensions, wives themselves take divorce proceedings? In fact most divorce proceedings are taken by wives. I agree that there is a problem, but is it not fair to make these points also?
§ Mr. Campbell
I am grateful to the hon. Member for making those points, but none of them is really relevant to the point I am making. I am not very much concerned with those young people who obtain divorces. I am concerned with old people, particularly elderly ladies who will be divorced against their will as from 1st January next year. Most of them are not young. It is with these people that we are primarily concerned. It is only in respect of these women divorced against their will that this particular legislation was promised.
§ Mr. Edward Lyons
Will the hon. and learned Member not agree that under the Divorce Act the court has power to refuse a decree to any man applying under the five-year rule if the court is not satisfied about the arrangements made for his spouse? Therefore, the court is entitled to take into account the question of the pension.
§ Mr. Campbell
I am aware of that provision, but the hon. Gentleman will recall that it ends by referring to the best arrangements that can be devised in the circumstances. So if an ordinary working man wants to have a divorce and remarry, his earnings have to be divided between the two families. When he dies the widow's pension by law will be paid to his widow, who will be his new wife, and maybe she has been his wife for only a year or two. Those are the best arrangements that can be devised in the circumstances and the man will be given his divorce.
It is absolutely vital that the Government should do something about pensions. Of course I am not speaking only about the State pension, but also of other widows' pensions arranged by employers. I do not care if it is restricted to women who are divorced against their will but they, at least, must be put in a position where they will not suffer the loss of a pension to which they are entitled by virtue of their marriage.
1619 I also suggest that provision ought to be made in the Bill to ensure that the claims of the women I have in mind take priority. At present, if a husband, having been divorced by one wife, marries another and the first wife claims maintenance from him, the husband comes along to the court and explains how much his earnings are but explains too that he now has a new wife to support and provision is ordinarily made for that. I suggest that in dealing with these matters the court should be enjoined to treat that man as if he had not married again. I know that I am not the first to make that suggestion but the first wife must have the first claim. After all, the second wife knew what she was taking on. She knew her husband had been married before and had an obligation to provide for his first wife. If there is plenty of money no problem arises, because there is enough money to support both households. But when there is not enough money—and in most cases there is not—if someone has to apply for social security, I urge that it ought to be not the first wife but the second.
§ Sir Myer Galpern (Glasgow, Shettleston)
Would the hon. and learned Gentleman give us some information and guidance about what would happen to life policies with sums payable at the death of the husband? Nowadays most people are insured to a large or small extent. Could the hon. and learned Gentleman tell us what he thinks would happen to the payment at death in the case which he has been illustrating, when the husband has taken a unilateral divorce? Would it go to the first wife or entirely to the new legal wife?
§ Mr. Campbell
Unless an order of the court was made it would go into his estate and then pass according to his will. If he had left his entire estate to his second wife—which he probably would do—she would receive it.
It is right to point out that the court has a power to order what is called secured maintenance and if the court knew about the policy it could order that the husband continue the premiums and that on his death the sum due, or part of it, be paid to the first wife.
The difficulty is that one is looking ahead to the death of the husband which 1620 may be a long way off. But I should like to see the courts given much greater powers to deal with what is to happen on the death of the husband. It is also fair to mention that the courts have power on the death of a husband to order that part of his estate should go to the first wife. If she has not been provided for in the will she can apply to the court to have provision made for her.
I join with other hon. Members in submitting that Clause 35(2) is objectionable. It is one thing a year or two after legislation has left this House for a judge to say what we meant when we passed it. But it is a very different matter for the Law Commission to be saying two years before we pass the legislation what we shall mean when we pass it.
Having made those points I welcome the Bill. So far as the smaller points are concerned I agree that the sexes should be put on a basis of equality and that the wife should, in proper cases, be ordered to maintain her husband. I draw attention to Clause 6, which deals with wilful neglect to maintain. That Clause says that if the husband wants to be maintained by his wife he must show that he is suffering from some infirmity. The words of Clause 6(1)(b)(i) are:… by reason for the impairment of the applicant's earning capacity through age, illness or disability of mind or body, and having regard …to other matters as well, it is right that the husband should be maintained.
I do not know why that provision should not be put in. I do not call that equality of the sexes. Wives do not have to show that they have become infirm before they are entitled to maintenance and I do not see why the husbands should either. If a husband has a rich wife who has decided to leave him and he has no money I can see no reason why he should have to prove that he is ill or infirm before he is entitled to maintenance.
I agree that the remedy of the restitution of conjugal rights should be abolished, although I do not agree that it never had any purpose. It did until 1958, when the remedy of maintenance for wilful neglect to maintenance was introduced. Before that, a wife who had simply been deserted by her husband had no way of obtaining maintenance except in a magistrates' court. She could not go 1621 to the High Court because, until she had been deserted for three years, she could not ask for a divorce or judicial separation on that ground, and otherwise, unless her case was based on cruelty or adultery, she could not go, either.
At that time the only course the wife could take was to present a petition for the restitution of conjugal rights. She did not expect her husband to come back. All she wanted was the questions of maintenance, custody and ancillary matters covered by such a decree and that was the only way in which she could do it. Since 1958 a wife has been able to follow a different procedure by alleging wilful neglect to maintain and I agree that the remedy of restitution of conjugal rights is no longer necessary.
But the Bill fails to do what we were promised. It fails to safeguard the rights of those innocent spouses—particularly women—who from next January may be divorced against their will. So far as the Bill goes it is splendid but it does not go far enough and it does not go as far as was promised.
§ 7.19 p.m.
§ Sir John Foster (Northwich)
I echo the words of my hon. and learned Friend the member for Oldham, West (Mr. Bruce Campbell) that the Bill does not go far enough, and I follow also the point raised by the hon. Member for Bradford, East (Mr. Edward Lyons), when he said that the registrars and judges do not really take enough account of the facts of life. I take up also what he said about cars and business expenses, and I add the question of the juggling between capital and income in the case of the better-off people. The hon. Member has probably come across many instances when a husband can avoid his obligation by saying that he has no income. It is very difficult for the registrar, with the tools at present at his disposal, to investigate what the actual standard of living of the husband is.
My hon. and learned Friend the Member for Oldham, West made an important point about pensions. Taking up the point raised by the hon. Member for Glasgow, Shettleston (Sir M. Galpern), I suggest further that provision should be made in the Bill regarding life policies payable on the death of the husband. What my hon. and learned Friend said envisages that the order may come a long 1622 time after the divorce. The husband may marry not once more, but may marry several wives one after another. One would have to sort it out according to what was there. If the judges are not only given the power but are enjoined, as my hon. and learned Friend said, to look after the first wife, that should deal with the position.
The right hon. and learned Gentleman the Solicitor-General will probably agree that we all want to do the best we can for wives who are deserted and then divorced against their will. I add the consideration of other wives whose standard of life falls disastrously after they are abandoned by their husbands. The arguments which have been advanced will help in Committee, at which stage, I imagine, we shall all wish to deal with these questions.
I come now to Clause 35(2). Here, I probably find myself in a minority of one. I am in favour of the principle of subsection (2), but not of the form in which it now is. In other jurisdictions, it has been found helpful to look at what are called the travaux preparatoires. My hon. and learned Friend the Member for Oldham, West made a good point when he said that, if one is to look at what the Law Commission says two years back, it will be rather difficult to interpret what Parliament means. That is one reason why I do not like the subsection quite in this form.
In my view, however, the principle is good and it should be applied to all legislation. There is no reason to single out matrimonial law for the application of a good principle. One ought to apply it generally. Again and again in income tax law, Treasury Ministers have given assurances that the law means such and such, and then the Treasury has at a later stage calmly broken the assurances. This is an intolerable situation. The remedy is not that the Treasury should be sternly talked to by a Minister and told that it has broken an assurance given. It should be open to the court to look at the assurance which the Treasury Minister gave. One of the most famous instances, very much in the minds of all tax lawyers, no doubt, is Section 412 of the Income Tax Act, 1952. The Minister said that it would never be used for a certain purpose and that it did not mean that. It now means exactly the opposite of what he said. The wording 1623 is so large that the Treasury has been found entitled to apply it in that large way.
Moreover, supporters of the Bill as it stands may defend their position on the general principle of looking at preparatory work by praying in aid comparative law. Many English lawyers are a bit too insular. Things work well in other countries on principles introduced according to the law of those countries. I suggest that this is one such. At times, as has been said, judges interpret words restrictively, but no one doubts that that was not intended.
I remember appearing in a case at the Old Bailey in which the accused was charged with humping a bag of heroin off an aeroplane in Singapore. The authorities charged him in England, because the law said that anyone who committed a crime on a British aircraft outside the United Kingdom can be charged in England. I got him off. I pointed out to the judge that the words covered anyone who committed a crime on an aeroplane outside the United Kingdom, and humping a bag of heroin off an aeroplane was not a crime according to the law of England. Therefore, I argued, the accused had not committed a crime in Singapore, and accordingly he could not be tried at home.
That is a hair-splitting argument. It is anti-social. The draftsman should have phrased it to the effect that anyone who committed an act on an aeroplane outside the United Kingdom, which, if committed at home, would be a crime, can be tried at home. He had not done that, and it got my man off. But it is nonsense. Everyone knew what the draftsman had meant to say, but he did not say it. He had not thought in that subtle way—and why should he? But the judge interpreted it in that way. Perhaps I should say that I have now retired from the Bar, and it is no good anyone coming to me to take up these points or give advice.
I suggest that those hon. Members who have spoken against Clause 35(2) should consider how it works in other countries. Sometimes there is an explanatory note in the Statute itself. Sometimes there are cross-references which begin to look a bit like algebraic equations. But if it is clear that a Minister said, and both sides 1624 of the House agreed, that a Bill is meant to implement such-and-such a Commission's report—as has happened in regard to libel—one should be able to interpret the law in accordance with the report of the Commission. But it is no good looking to the Report of the Law Commission unless it is specifically said, for example, that Clause 6 is intended to implement recommendation 8 of the Law Commission.
For those reasons, though in a minority, I am in favour of the principle of Clause 35(2), although I should like to see it amended in Committee.
§ 7.26 p.m.
§ The Solicitor-General
I revert, first, to the exchange which occurred right at the outset with the right hon. and learned Gentleman the Member for Huntingdonshire (Sir D. Renton). It is a matter of importance, and I wish to make the position absolutely clear. I spoke of the importance which I have always attached to the existence of good relations between Parliament and the Law Commission. I have repeatedly spoken of the importance of that, and I do not believe that anything which I have said on this theme could conceivably convey any implication that Parliament should merely rubber-stamp proposals of the Commission or feel in any way inhibited from making its own conclusions by anything which the Commission had recommended. I wish to make that as clear as I can.
Next, the right hon. and learned Gentleman asked whether the Government were dealing with the matter of enforcement of maintenance orders. I am compelled by the circumstances to answer that closely relevant question in general terms, and I hope that he will accept an answer of that kind. We are giving the matter consideration. In various parts of the Government, it is being looked at. There is an enormous lot of work involved when, at the same time, the question of the enforcement of civil debt is receiving attention. I can only say in general terms that we are giving the matter of enforcement careful attention.
The right hon. and learned Gentleman suggested that I should not attempt to answer the arguments about Clause 35 in this debate. It was very civil of him. He felt, I think, that the arguments on that question would be so overwhelming that it would be only appropriate for me 1625 to convey to my noble Friend the Lord Chancellor the feeling of the House and say that there was no difference of opinion.
I have two comments to make about that. First, the matter has already been given very careful thought by all of us, and it is not to be regarded as having been concluded without a great deal of deliberation. Second, as the debate proceeded, the attitude of the House towards Clause 35 has not taken, I suggest, the one-sided form which the right hon. and learned Gentleman expected. I was rather struck by that.
I greatly appreciated the approach of the hon. and learned Member for Montgomery (Mr. Hooson), who thought that he would vote against the Clause in its present form, but that in principle the matter should be carefully considered. He saw its advantages. Since he has just returned, perhaps I might repeat how welcome his contribution was and that, although he was at the moment inclined to oppose Clause 35, he could see that it was an important issue, for which there were arguments on either side—
§ Mr. Hooson
The Solicitor-General is right; it is not a hidebound rule. There are obvious merits in this experimental Clause which have obviously escaped the right hon. and learned Member for Huntingdonshire, who looks at it with blinkered eyes.
§ The Solicitor-General
The hon. and learned Gentleman's approach is welcome. We think that the Clause deserves serious and sympathetic consideration.
The hon. and learned Member for Northwich (Sir J. Foster) is mistaken in regarding himself as the only hon. Member with that particular view. Others have shown it. The House attaches the greatest importance to his views on a matter like this. He does not like the proposed form, but in principle welcomes this treatment of the Commission's report. It is a mistake to regard this as a point on which there has been unanimity. The hon. and learned Member for Runcorn (Mr. Carlisle) must be added to this list of defaulters from the right hon. and learned Gentleman's prognostication, since he was sympathetic to the proposal but, understandably, complained that the thing should await the interpretation of 1626 statutes. One can see the force of that, but it is not a total rejection of this proposal.
§ Sir D. Renton
To be fair, would the right hon. and learned Gentleman not remember that, apart from himself, I believe that only one hon. Member was completely in favour of Clause 35(2)?
§ The Solicitor-General
I take note of that and there was great force in what the hon. Member for Aldershot (Sir E. Errington) had to say, that the Explanatory Memorandum is possibly open to unfavourable comment, because it says that Part III contains the usual supplementary provision. That is rather a good point: I share his view of that.
So there has been nothing like the universal hostility to this proposal which the right hon. and learned Gentleman adumbrated. There are conflicting views, however, and they should be carefully considered in Committee.
§ Mr. Carlisle
Since the hon. and learned Gentleman mentioned me, may I make it clear that I said that there was force in the principle of some form of Explanatory Memorandum, but I must admit that I would find wholly unacceptable the suggestion of the Law Commission report, as written into the Bill?
§ The Solicitor-General
I am glad that the hon. and learned Gentleman has cleared that up. I hope that I did not misinterpret him.
My hon. Friend the Member for Bolton, West (Mr. Oakes) mentioned the provision in Clause 10 under which arrears in payment of maintenance can be raised only after a year. The only point not requiring leave, as the Bill would enforce arrears, is that a woman who has done nothing for a year should at least explain to a court why she is now trying to enforce. In a magistrates' court, the order must be obtained on a complaint before enforcement process can issue, but, in the High Court or a county court, a warrant issues without an order.
My hon. Friend mentioned, on Clause 32, the question whether the onus on the payer under an order to find out whether there has been a marriage operated fairly. That is a question which can be usefully considered, and we take note of it. The same applies to what he said about Clause 28. We should consider whether there 1627 should be the distinction which the Bill appears to draw between improvement and maintenance of property or a house.
The hon. and learned Member for Surrey, East (Mr. Doughty), who has explained to me that he cannot be here now, suggested that a passage in line 13 of Clause 5 puts an unconscionable burden on judges and registrars. Although it is difficult for those concerned to judge these matters to have regard to conduct in determining appropriate treatment of an order affecting the family finances, we do not expect that, in practice, this will be an excessive burden. We think that the effect of the Clause is a practicable one, and although points may be raised on it in Committee our present inclination is to think that it meets the case.
My hon. Friend the Member for Coventry, South (Mr. William Wilson), whose great part in work on such legislation I acknowledge, said that he did not like Clause 35(2), but he gave a friendly response to Clause 31 on judicial separations, which I was glad to hear.
The hon. and learned Member for Montgomery, in addition to his welcome treatment of the issue raised by Clause 35, mentioned two points in particular. The first was the question whether it was right that maintenance should always come to an end with remarriage. The second related to his anxieties about the wife's pension rights in occupational schemes and occupational scheme gratuities. These two matters must and will receive consideration. There has been a slight tendency in the debate to underestimate the extent to which, under the Bill, the court is invited to have regard to the pension position as a matter affecting the kind of order it is appropriate to give under the separate heads which I explained earlier. I acknowledge that the broader issue raised by the effect of the Divorce Reform Act and this Bill upon pensions is a matter that still needs determination, and it is receiving inquiry.
My hon. Friend the Member for Newark (Mr. Bishop) emphasised to the House, it seemed to me, the desirability of expediting the full report upon communal property in the ex-marriage. There has never been any concealment by the Government of the fact that the treatment of the whole comprehensive issue of spouses' property on marriage is some- 1628 thing which cannot be dealt with except after some substantial period has elapsed. I mentioned earlier that the Law Commission was hoping in the present year to complete the informal consultations necessary before this working paper can be issued. I added that of course the first working paper was only the preliminary step in the process. I must remind my hon. Friend of the circumstances, because the last thing that I wish to do is to raise hopes of a more expeditious treatment of this matter than is really practicable. I hope that he will take note of that.
§ Sir J. Foster
Perhaps the right hon. and learned Gentleman will tell us whether a certain sort of case I have in mind is covered by the Bill. I do not think that it is. It is a case where the husband gives his mistress a lot of money while still married to his wife. Has the court, in a settlement, any power to bring a little pressure on the new ménage—assuming that he has married his mistress, who has had all the money, with the result that he tells the court, "I have not got any"? I hope that the right hon. and learned Gentleman will take that into account.
§ The Solicitor-General
That is a matter one would wish to take into account, but one can see considerable difficulties.
The hon. Member for Runcorn raised the question of Clause 29 and whether we could consider improving the protections offered by the Matrimonial Homes Act by altering the existing provisions relating to registration. I will look into that and perhaps the point can be considered at a later stage.
My hon. Friend the Member for Bradford, East (Mr. Edward Lyons) was concerned with the question of the onus of finding out about remarriage, a point raised by other hon. Members. This, too, can be considered in Committee. In addition, he wanted the powers under the relevant Act, which the Bill says can be extended for three years after the divorce, to be extended to a five-year period. That is also a point for consideration in Committee.
The right hon. and learned Member for Huntingdonshire drew attention to the passage in the Explanatory Memorandum to which I have already referred. The hon. and learned Member for Oldham, 1629 West (Mr. Bruce Campbell) made a point to which I had careful regard. I am bound to repudiate emphatically his suggestion that there has been any misleading over what the Bill will do. No doubt there can be different views upon this matter but I reject what he said. It was always made clear that the treatment of matrimonial property, apart from the goods of the marriage that has broken down, was something which would have to come later than the treatment of the financial provisions which are the subject of the Bill. I do not think that there was ever any justifiable misunderstanding on that point. Nor was there, I am satisfied, at any stage any promise that the Bill would give the court any power to apportion the widow's pension in the fashion which he indicated he thought was desirable.
Broadly, the Bill has received a welcome from the House and I express the Government's satisfaction and gratification that that should have been the case.
§ Mr. Edward Lyons
Before my right hon. and learned Friend sits down, I want to mention the point raised by the hon. and learned Member for Northwich (Sir J. Foster), who asked what would happen if a man gave to his mistress his assets while still married to his wife. The hon. and learned Gentleman asked whether it is in the Bill. It is in Clause 16. There is power now—
§ Mr. Deputy Speaker (Mr. Harry Gourlay)
Order. The hon. and learned Member for Bradford, East (Mr. Edward Lyons) has exhausted his right to speak. He may ask a question of the Solicitor-General. Apparently, the Solicitor-General seeks not to reply.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).