HC Deb 27 May 1970 vol 801 cc1957-60



10.30 p.m.

The Solicitor-General

I beg to move Amendment No. 26, in page 15, line 26, leave out ' subsection (2) ' and insert ' subsections (2) and (2A) '.

The Temporary Chairman (Mr. George Rogers)

I think that it will be for the convenience of the Committee if, with this Amendment, we take Government Amendments Nos. 27, 28, 29, 30 and 31 together.

The Solicitor-General

Mr. Rogers, it would, indeed, be convenient if these Amendments were considered together. What they do, in effect, is to give to the county courts jurisdiction to vary a maintenance agreement after the death of one of the parties where the estate of the deceased does not exceed £5,000 in value.

The object of the Amendments is to bring the Clause into line with the corresponding provisions in the Inheritance (Family Provision) Act, 1938, and Section 26 of the Matrimonial Causes Act, 1965, which permit an application for maintenance out of the estate of a deceased person to be made by his widow and children, or his former wife, as the case may be.

In its original form, the Inheritance (Family Provision) Act 1938 conferred jurisdiction exclusively on the High Court. This was done on purpose, because it was thought at the time that experience should be gained of this novel form of jurisdiction, which for the first time enabled a court to override the effect of a testator's will, before the jurisdiction was entrusted to the county courts.

Accordingly, when it was also decided to give to the courts power to order maintenance out of the estate of a deceased former spouse, jurisdiction was in the first place conferred only on the High Court—which, at that time, had exclusive jurisdiction in divorce. The Family Provision Act. 1966, altered this position. It was decided that it would be appropriate for a county court to have jurisdiction under the County Court Act in the case of a small estate, and the dividing line was set at £5,000.

Jurisdiction to vary a maintenance agreement after the death of one of the parties has hitherto been vested solely in the High Court. Such jurisdiction was not transferred to the county courts when they were given the jurisdiction to deal with undefended divorces, but there is a strong argument for saying that the balance of convenience lies in giving them jurisdiction to the same extent as they have jurisdiction under the 1938 Act and Section 26 of the 1965 Act.

The point here is that, first, it is anomalous that the right to apply for the variation of a maintenance agreement should not be subject to the same jurisdiction as the right to apply for the variation of a maintenance order, which is exercisable by the county court in the case of an undefended divorce, and one effect of the Bill would be to make this anomaly more apparent.

For the first time, the Bill confers upon the personal representatives of the deceased party the right to apply after his death for a variation of the agreement, and in the nature of things it is far more likely that the effect of death will be to justify a variation downwards than a variation upwards, so that one may expect many more applications to be made.

The first three Amendments are paving Amendments, giving jurisdiction under the Clause to the High Court or a county court.

Sir D. Renton

I warmly endorse the proposals put forward by the Solicitor-General in this group of Amendments. These are much more plain sailing than the last group of Amendments and new Clauses, and what is proposed is quite obviously right.

I have only one query. The Family Provision Act, 1966, set a limit of £5,000 to the size of the estate which would invoke the county court jurisdiction. Four years have passed since then, and I rather wondered why we should be bound by the same limit. Under this Government the value of money—I am not making too much of a party point, but it is right to draw attention to the fact—has changed at a most alarming rate during the past year or two. The limit of £5,000 in 1966 should be more like £7,000 today, and if the provision is to stand the test of time I should have thought that it could even have been made higher than £5,000, because that is not a very large estate in these days. It is well within the competence of our able county court judges.

If the Government feel that £5,000 is exactly the right dividing line between the High Court and the county court perhaps we can be given one reason why they feel so. Apart from that, I warmly endorse what the right hon. and learned Gentleman proposes.

Amendment agreed to

Further Amendments made: No. 27, in page 15, line 26, after ' Court ', insert ' or a county court '.

No. 28, in line 29, after first the ', insert ' High Court or a county '.

No. 29, in line 31, at end insert:

(2A) A county court shall not entertain an application under this section, or an application for permission to make an application under this section, unless it would have jurisdiction by virtue of section 7 of the Family Provision Act 1966 (which confers jurisdiction on county courts in proceedings under the Inheritance (Family Provision) Act 1938 or section 26 of the Matrimonial Causes Act 1965 if the value of the deceased's net estate does not exceed £5,000 or such larger sum as may be fixed by order of the Lord Chancellor) to hear and determine proceedings for an order under the said section 26 (application for maintenance out of deceased's estate by former spouse) in relation to the deceased's estate.

No. 30, in line 32, leave out the ' and insert a '.

No. 31, in line 41, leave out second the ' and insert a '.

No. 32, in page 16, line 3, leave out from ' 9 ' to end of line 9.

No. 33, in line 9, at end insert:

() Subsection (3) of section 7 of the Family Provision Act 1966 (transfer to county court of proceedings commenced in the High Court) and paragraphs (a) and (b) of subsection (5) thereof (provisions relating to proceedings commenced in county court before coming into force of order of the Lord Chancellor under that section) shall apply in relation to proceedings consisting of any such application as is referred to in subsection (2A) above as they apply in relation to any such proceedings as are referred to in subsection (1) of the said section 7.—[The Solicitor-General.]

Clause 15, as amended, ordered to stand part of the Bill

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