Clause 11 (Hansard, 27 May 1970)

§ The Solicitor-General
I beg to move Amendment No. 22, in page 11, line 42, leave out subsection (1) and insert: (1) Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of—

(a) a change in the circumstances of the person entitled to, or liable to make, payments under the order since the order was made, or

(b) the changed circumstances resulting from the death of the person so liable,
the amount received by the person entitled to payments under the order in respect of a period after those circumstances changed or after the death of the person liable to make payments under the order, as the case may be, exceeds the amount which the person so liable or his or her personal representatives should have been required to pay, the court may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as the court thinks just. This section applies to an order made by virtue of section 1, 2(1)(a) or (b). 3(2)(a) or (b). 6(5) or 6(6)(a), (b), (d) or (e) of this Act.

The Temporary Chairman
With this Amendment, it will be convenient to discuss Amendment Nos. 23 and 56 and new Clauses 1 and 3.

§ The Solicitor-General
These linked Amendments have a dual effect. In the first place, they confine Clause 11 to the recovery of excess payments made under an order which ought previously to have been reduced by reason of a change of circumstances. In the second place, they enable an application for this purpose to be made notwithstanding that the order in question has already ceased to have effect.
As drafted, the Clause deals with two situations. First, it permits a recovery of excess payments where a change of circumstances which would have justified the reduction of the order has taken place in the past. Secondly, it enables a payer to recover payments made after the order has ceased to have effect because of the remarriage of the payee. 1954 It is thought that the Clause, so far as it operates on the variation of an order in the light of changed circumstances and enables the payer to recover excess payments, does not meet the situation where the change of circumstances has come to light only after the order has ceased to have effect. This is the origin of the Amendment.
The Clause as originally drafted was open to the criticism that it keeps alive the old common law remedy which would enable the payer to recover post-remarriage payments on the grounds that they had been made under a mistake of fact, while at the same time giving to the court a discretionary remedy to order the repayment of only part of those payments. This matter had been given further thought and it is now agreed that the proper course, if the court is to be given any discretionary power such as is conferred by Clause 11(2), is to make this supersede the common law remedy altogether.
It was also drawn to our attention that, in its original language, Clause 11 applied only to orders made by the divorce court. Yet, in many cases, a magistrates court's order made while the parties are still married is allowed to continue in force after their divorce and may therefore be the order which is relevant when the wife remarries. If the right to recover subsequent payments made in ignorance of that remarriage is to be subject to the discretionary powers of the court, those discretionary powers ought to cover every type of order and not merely orders of the divorce court.
It would be anomalous for the husband to have an absolute right at common law to recover excess payments made under a magistrates court's order which had survived until the wife remarried but, if the order happened to have been made by the divorce court, for his only redress to be to ask for the court to exercise its discretion to order the repayment of the whole or part of the money.
These are the grounds which have led to the Amendments which I now recommend to the Committee and which, in my view, improve the Bill.

§ Sir D. Renton
This is legislation by an unaccustomed mass-production process. Taking these Amendments together, we are adding at one go something like six pages to the Statute Book. We are doing so with the minimum of explanation, necessarily with the minimum of consideration, and we have no option but to hope that we are making laws which will not be bad.
As it stood, the Clause was not satisfactory, for the reasons which the right hon. and learned Gentleman has given. But let us bear in mind that what he has proposed is very far reaching. I want to summarise the position as I understand it, and I greatly appreciate the right hon. and learned Gentleman's courtesy in giving me some advance notice of the complicated position which arises on these Amendments and new Clauses and on which he touched only briefly when moving them.
If I understand the matter correctly, the net effect is that we shall be confining Clause 11 to the repayment, on an application made to vary an order, of excessive payments which are excessive because of a previous change of circumstances. Secondly, we shall be enabling an application for repayment to be made notwithstanding that an order has ceased to have effect. Thirdly, we are dealing with the very important matter of divorce court orders which cease to have effect because of the remarriage of the payee.
I hope that I shall not be in breach of my earlier undertaking if I point out that we had put down for the Committee stage a number of Amendments dealing with this very difficult question of what is to happen on the remarriage of a spouse in whose favour the court has made an order, whether it is an innocent or a guilty spouse. If I understand the position correctly, it would seem to be that, when remarriage takes place, the net results of the Amendments and new Clauses will be that the court will have a discretion to make a fresh order. I hope that it will be an unfettered discretion.
I confess that in view of this immense mass of Amendments and new Clauses on the Notice Paper it is not easy to sort them all out. However, I hope that it will be an unfettered discretion to do whatever appears to be right. In any 1956 event, we know that the common law right to recover any money which has been paid before the remarriage will have been superseded by the provisions which the right hon. and learned Gentleman proposes should be added to the Bill.
Lastly, I understand that these Amendments and new Clauses will make the same kind of provision for magistrates' courts orders which survive a divorce and which would cease to have effect on remarriage of the payee.
It seems that those, in the broadest terms, are the effect of what the right hon. and learned Gentleman is proposing. But, as I say, this is a matter which we are skimping in the necessary circumstances of tonight.
I have little doubt that the courts will pick holes in it. Therefore, to use a phrase so familiar to lawyers, I support the right hon. and learned Gentleman, but entirely without prejudice; that is, without prejudice to the fact that we are rushing the legislation and that what we are doing may have its imperfections. In any event, I should be grateful if the right hon. and learned Gentleman would say whether I am right or wrong in my understanding of the discretion which the divorce court will have on the remarriage of the payee.

§ The Solicitor-General
In response to that inquiry by the right hon. and learned Gentleman, it is broadly true that the matters to which the Amendments and new Clauses refer are left to the discretion of the court. There is an extension of the discretion which the court can exercise. I do not want to commit myself to an expression like " unfettered discretion ", because discretion will have to be exercised bearing in mind the kind of factors to which the Bill refers and draws attention to as being of relative importance. Subject to that precautionary observation, I do not disagree with the opinion that the right hon. and learned Gentleman has formed about the effect of the proposals.

§ Sir D. Renton
I should like to add that when I speak of an unfettered discretion, I do not mean a discretion which is exercised other than judicially. I mean necessarily a judicially exercised discretion. However, I take the point that there may be provisions to which the court must have regard when exercising 1957 the discretion that it is given in the event of remarriage