Clause 32 (Hansard, 27 May 1970)

§ Mr. Ian Percival (Southport)
I beg to move Amendment No. 45, in page 25, line 7, at end add:
(3) After the proviso to subsection (1) of section 7 of the Matrimonial Proceedings (Magistrates' Courts) Act, 1960, there shall be added the following further proviso:— ` Provided further that where the cause of the complaint is that specified in either paragraph (h) or paragraph (i) of subsection (1) of section I of this Act (which relate to wilful neglect to provide reasonable maintenance) if the Court in making the order so directs this subsection shall not apply to so much of any order as requires the payment of a weekly sum under paragraphs (b), (c) or (h) of subsection (1) of section 2 of this Act '. I may perhaps be forgiven for wishing that one of the last speeches I shall make in this Parliament might have been upon a more exciting and less complicated subject than that encompassed by the Amendment. My difficulties are not lessened by the fact that the Solicitor General has indicated, albeit courteously, that the Amendment does not find favour with him.
Despite those difficulties, I wish to have a shot at persuading him of the merits of the Amendment, and I hope that I may perhaps succeed in diverting the attention of the Minister of State, Department of Health and Social Security, from that excellent publication he is reading entitled, " A Better Tomorrow ".
It is necessary to divide what I have to say into two parts: first, to explain briefly what the Amendment is intended to do, and secondly, why it is suggested that that should be done.
1971 The Amendment would add a new proviso to Section 7 of the Matrimonial Proceedings (Magistrates' Courts) Act, 1960, subsection (1) of which provides that a matrimonial or interim order shall not have effect so long as the parties continue to cohabit together, save in the particular circumstances specified in the subsection. The Amendment would give to the court a discretion which it does not possess at present. The Amendment would apply only in the case of an order made where the cause of complaint is that specified in paragraphs (h) to (i) of Section 1(1) of the 1960 Act.
Those provisions relate to the ground of complaint that a husband has wilfully neglected to provide reasonable maintenance for the wife or for any child. or where a wife has wilfully neglected to provide for or make a proper contribution towards reasonable maintenance of the husband or any child of the family. The further proviso would apply only where the cause of complaint was one of those two.
In those cases, if the court in making the order so directs, the Amendment would mean that the provisions of Section 7(1) of the 1960 Act would not apply to so much of any order as requires the payment of a weekly sum under paragraphs (b), (c) or (h) of Section 2(1) of the Act. I will not trouble the Committee by referring to those provisions. The words chosen are words of limitation.
The effect is that the court could make a money order, say, for the husband to pay a weekly sum to the wife on the grounds that the husband had wilfully neglected to provide reasonable maintenance for his wife, and could provide that that order should take effect notwithstanding the fact the husband and wife were still living and cohabiting together. At present, the court has no discretion to make such an order, however desirable it may feel it to be.
Why should this additional power be given to the court? The reason is simple and short.
By Clause 33, we shall abolish the agency of necessity. It will mean that a wife can no longer go to a tradesman and pledge her husband's credit because she has no money with which to buy what she requires. A wife who is receiving no money from her husband, and 1972 who is unable to obtain any necessities because she is no longer allowed to pledge his credit, is unable to obtain an effective order for payment.
Although she could go to the court and establish that her husband was wilfully neglecting to provide her with maintenance, that order would not be effective so long as she continued to cohabit with him. It would not be effective during that period because the provisions of Section 7(1) prevent it from being effective. It would follow that the order could become effective only if she ceased to cohabit with her husband.

§ The Solicitor-General
The effect of the Amendment would be that, if the court so directed, a magistrates' court's maintenance order made on the ground of wilful neglect to maintain a spouse or child would no longer be unenforceable if the parties continued to cohabit and would not cease to have effect if 1973 they cohabited for a period of three months.
The position is that Section 7(1) of the Matrimonial Proceedings (Magistrates' Courts) Act, 1960, provides that, as a general rule, no order made by a magistrates' court is to be enforceable while the parties continue to cohabit. It goes on to provide that, if they continue to cohabit for a period of three months after the making of the order, the order ceases to have effect at the end of that period. To this general rule three exceptions are included in the proviso to Section 7(1) of the 1960 Act. The Amendment would, in effect, add a further exception.
The matter, as the hon. and learned Gentleman will be aware, has had consideration in the courts, from the Morton Commission and in other connections. The case of Evans v. Evans, which was reported in 1948 1 King's Bench Division, page 175, is a relevant authority which has been borne in mind in determining our approach to this proposal. But I must recommend that the Amendment be rejected mainly on the following grounds.
First, one result of accepting the Amendment, or any Amendment on similar lines, would be that a wife could get an order from a magistrates' court on the ground of her husband's wilful neglect to maintain and then, while still cohabiting with him, enforce it by, in the last resort, imprisonment. This does not seem a very desirable way of determining what is, in essence, the proper level of housekeeping money which the husband should give to the wife while they are preserving a common household. There is no reason to suppose that the decision taken in 1960 to resist Amendments on these lines was mistaken, and the Government have not received representations from individuals or from organised groups suggesting that the decision should now be reversed.
There is a further reason for not accepting the Amendment. The Bill deals almost exclusively with the power of the divorce court to give financial relief in divorce and related proceedings. The Bill admittedly deals in certain cases with orders made by magistrates' courts, but it does so only in so far as those orders 1974 are affected by the circumstances of divorce or are being enforced by the high court or a county court. The Bill does not give any new powers to magistrates' courts. As the Report of the Law Commission observed on this point, the Bill does not deal with powers in matrimonial proceedings outside the high court or the county courts. The Amendment, therefore, although it may be technically within the scope of the Bill, is concerned with a subject that is some distance from its central theme.
I am grateful to the hon. and learned Gentleman for the consideration that he has given to the Amendment. I hope that he will accept that I appreciate that there is some force in it and that it has been helpful to listen to his observations upon it. But, bearing in mind the factors to which I have just referred, my recommendation to the Committee is that the Amendment should not be accepted because it is open to certain objections in substance and it is in the wrong place.

§ Mr. Percival
Unless, during the next few minutes, I manage to persuade the Solicitor-General to change his mind, I propose to take a certain course. Before doing so, I want to add that, courteous as was the right hon. and learned Gentleman in his reply, I should not like him to think that the course I may take, if he does not change his mind, means that I am satisfied with his answer.
I thought in the first part of the right hon. and learned Gentleman's reply, in which he described what the Amendment would do, he made the case for it more succinctly and better than I have been able to do. The right hon. and learned Gentleman then proceeded to give reasons why he could not accept it. It is just possible that a ludicrous situation might arise—namely, that if the Amendment were accepted, we could get a case where a wife who had an order and was still cohabiting with her husband might, in the last resort, try to get him sent to prison by enforcement of the order.
It is just possible, but the courts have sufficient discretion to deal with extreme cases like that, and what the Solicitor-General has done here is to pray in aid a wholly unrealistic example for the purpose of meeting the contrary argument, and I do not think that there is much force in that. When one considers with 1975 that the fact that the only reason given by the Solicitor-General for rejecting the Amendment is that though this comes technically within the terms of the Bill it is not really as one with the other provisions, I should have thought that that was an irrelevant consideration.
I had hoped that the test would be the simple one: would this provide a useful further power, or would it not? For the reasons that I have given I suggest that the answer is in the affirmative, and that the Solicitor-General's opening paragraph supports that. I have received no indication from the Solicitor-General that I have managed to persuade him to change his mind, but, having made it clear that I am not wholly satisfied with his reasons, I beg to ask leave to withdraw the Amendment.

§ The Solicitor-General
I beg to move, That Clause 32 be transferred to the end of line 2 on page 23.
This is, in effect, a drafting Amendment which, we think, improves the layout of the Bill, and I recommend it to the Committee.