HC Deb 20 October 1975 vol 898 cc169-80

10.1 p.m.

Mr. Robert Banks (Harrogate)

I beg to move Amendment No. 1, in page 1, line 11, after 'child' insert 'or an adopted child'.

I believe that an adopted child has a right to his or her parents just as the parents have a right to the child. In legislation like this it is surely right and proper that an adopted child should have precisely the same status as "child". I hope that this amendment need only be accepted as clarification, particularly for those, like myself, who are laymen and understand these matters in simple black and white terms.

The Solicitor-General (Mr. Peter Archer)

The hon. Member for Harrogate (Mr. Banks) need make no apology to me because he is a layman. I have said frequently that it would be a healthy thing for the law if some of our lay colleagues intervened more in questions of what are normally regarded as "lawyers' law". We welcome his intervention, if I may say so without seeming to be patronising.

I assure the hon. Gentleman that on this amendment there is nothing between us. I oppose it only because it is unnecessary. There is provision in Schedule 1(3) of the Children Bill that the adopted child should be treated for all purposes as the child of the adopters, just like any other child.

I might be met with the reply that the Children Bill is not yet on the statute book, and no one has better reason than I in recent months to know that one cannot and should not take this House for granted. But perhaps we should apply that proviso with a little common sense. The Children Bill has passed through another place and is approaching its Report stage in this House. So far as I am aware, no one has objected to this provision in the Children Bill, and I am sure that the hon. Gentleman will not, because it covers the point of his amendment. So perhaps we can safely take it for granted that if the Children Bill reaches the statute book the point of the amendment will be covered.

It might be asked, "Why not include it anyway, just in case there is a slip at some stage?" The answer is that no future legislation, I hope, will contain a reference to adopted children, because it will not need to. Therefore, it is better that nothing should be said in legislation at this stage to suggest that there might be a distinction betwen an adopted child and any other child.

It will not have escaped the hon. Gentleman's notice that when this Bill was originally introduced in another place it contained the provision for which he now asks. However, that provision was removed on Report in another place for precisely the reason I am now putting. It was not thought then that there could be any doubt about the matter, and in the circumstances I hope that the hon. Gentleman will feel that his point is met.

Amendment negatived.

Mr. Ivor Stanbrook (Orpington)

I beg to move Amendment No. 2, in page 2, line 1, leave out paragraph (e).

Mr. Deputy Speaker (Mr. George Thomas)

With this we may take the following amendments:

No. 9, in page 2, line 26, leave out subsection (3).

No. 17, in Clause 3, page 5, line 40, leave out subsection (4).

Mr. Stanbrook

I move the amendment because I believe that this is a sweeping change in our family law and I doubt whether the Law Commission, with which, I think, the idea for an extension of family law in this direction originated, is the proper body to propose such a change. As I understand it, the Law Commission was originally established in order to reform the letter of the law so as to correspond with the intentions of Parliament and the community, or at least to put up proposals to that effect to the House. What has happened in this instance is that the commission has proposed a fundamental change in our family law in that it provides for an extension of legislative interference in the rights of a testator and in family rights far beyond what has existed before. It has done so in a way which has not provided for adequate public discussion and consideration hitherto.

Clause 1(e) provides that any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased, was being maintained, either wholly or partly, by the deceased shall be entitled to make a claim on the estate whether or not a will has been made.

This is an extension of the right claimed by Parliament to interfere in the disposition of an estate. It is an extension in a most fundamental and unacceptable manner. For example, in the way in which it is intended to operate there is no question of having to prove a legal or even a moral obligation to maintain the person who is claiming. All that is required—I acknowledge it is a simple test—is that the person making the claim against the estate should prove that the deceased was making a substantial contribution to his reasonable needs.

That means, with a whole variety of reasons, that payments or contributions made to other people outside the family might be included within the clause. For example, it might be an act of kindness, an act of pure charity on the part of someone who had no legal or moral obligation. Such an act, even where there was no legal or moral bond between the two persons concerned, could result in a claim. In other words, it could result in the victimisation of the widow and the children. It could result in a system under which people wishing to batten on to the estate of a person after his death could succeed, because of fabricated evidence, in proving a claim which was completely unmeritorious, and made at the expense of the surviving widow and children.

The clause has been called the mistresses' charter. I would not dissent from that description. However, the clause applies not only to mistresses; it is a blow to family life and to the institution of marriage. I wish that the Archbishop of Canterbury could consider it in the context of his recent appeal for the restoration of fundamental standards in the community, including family life.

This is one respect in which current law is to be changed in a sense adverse to family life. There is no test required if residence in the family or even near the family from any claimant under the clause. There is no need for the deceased in his lifetime to have made open acknowledgement of the person who is enabled to benefit from his estate on his death. There is no question but that the relationship between the claimant and the deceased could be, as my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) said on Second Reading, distant and secret and wholly unknown to the widow or the children. For all we know, it could be unknown to the deceased, save that proof has to be acceptable to the judge.

Such a claim could be in complete disregard of the wishes of the deceased. More important, and more serious, it could be in complete ignorance of the deceased's motives when he provided support, whether by money or money's worth, for the claimant. Evidence could be available for use in respect of a claim which went so far as to put that claim on its feet and which would secure the judge's approval when further evidence to disprove it was not available. That further evidence could be concealed.

It is perhaps significant that the Solicitor-General in the Second Reading debate referred to a "common law wife". That is an expression wrongly applied to the situation of mistresses. I do not know whether the hon. and learned Gentleman intended so to apply it in the course of the debate. When I was at law school I was taught that a common law wife was a partner in a union in which the partners were lawfully entitled to be regarded as man and wife in all respects but, because of the absence of a formal ceremony of marriage by civil law, the last formal detail in the marriage was not available and could be excused. In those days the case quoted was that of a couple who found themselves on a ship up the Yangtse River during the Chinese civil war, a couple who were perfectly honest and respectable and entitled to marry, and against whom there was no legal barrier or disability whatever, but for whom there was no recognised marriage ceremony available. That was a common law marriage and the woman was a common law wife. Unfortunately, nowadays—and the Solicitor-General appears to have given greater currency to this misnomer—the phrase is meant to apply to mistresses, and that is a different matter.

I regard this provision as pernicious because of the operation of Clause 4 involving the six-month rule. Since claims have to be made within six months, and since claims may be made by charlatans and tricksters and other people who want to batten on to an estate on the basis of some connection, perhaps by fabricating evidence against the deceased, the result will be that those who are responsible for the distribution of an estate will not feel safe in proceeding until after the expiration of the six-month period. Since the whole essence of the claim will be secrecy and there will be an absence of knowledge as to relations, connections and dependencies, it follows that solicitors will feel it wise to wait for the six months to expire before distributing funds. That could lead to a tremendous hardship—an effect surely not intended by the sponsors of the Bill.

The justification for the Bill is in the provision that the court should take account of all the various matters that are stipulated in the Bill. Everything depends on the time of hearing claims so that the matter cannot be rectified when it is discovered that a distribution has been wrongly made. It all depends on a decision by a judge as to what is fair and reasonable having regard to scores of matters that must be taken account of in the Bill.

This brings me to a more fundamental objection to paragraph (e). It is not right that we should thrust so much social responsibility on judges. They are neither trained nor equipped to make decisions of this kind. They are not the right persons to balance social considerations and to make dispositions which may lead to widows and children suffering. For those reasons, I believe paragraph (e), and references to it, should be excluded from the Bill.

10.15 p.m.

The Solicitor-General

I advised the House not to support the last amendment on the ground that it was unnecessary. My attitude to this amendment is different. This is not an academic debate. There is a fundamental conflict between us on a matter of principle.

As the hon. Gentleman said, this Bill seeks to give effect to the Second Report of the Law Commission on Family Property. The Law Commission would be the first to accept that Parliament should not automatically accept its recommendations. However, the fact that a Commission consisting of distinguished and experienced lawyers after substantial consultations came to the conclusion that this was the right course is not entirely devoid of relevance. No doubt the House will give due weight to that. This provision was not included by oversight. It was carefully considered and the recommendation was made after wide consultations.

The Bill proceeded in another place and through the House of Commons to this point without any hon. Member making the proposal which the hon. Gentleman now makes. I accept that the matter has not been debated on the Floor of the House, and that the hon. Gentleman has not had an opportunity to do so. However, the debate on matters of principle up to this point has not included the suggestion now made.

Mr. Stanbrook

I wonder whether the Solicitor-General forgets the contribution which was made by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) on Second Reading.

The Solicitor-General

I do not forget what the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) said. However, I do not think he proposed that this paragraph should be deleted. That is a matter which can be checked in the Official Report, although it does not affect the argument between us.

Previously the power of the courts to assist claimants extended only to those related by blood or marriage, including those who were adopted. But even before the Law Commission considered the matter, it was felt that there might be circumstances in which it was right that provision should be made for persons who were related neither by blood nor marriage.

The hon. Gentleman referred to the case of the mistress. Let us use that word. Earlier I used the expression "common law wife" advisedly. The paragraph would include the position of a common law wife who, by any showing, in terms of a stable union—service to the deceased, care, dependency—lacked only the piece of paper which represented the marriage certificate. But certainly it extends more widely than that. It extends to a mistress.

Many hon. Members have come across examples of women who have devoted years of their life to a man. The woman has cared for him, helped him to save his money, helped him to acquire property and sometimes helped him to build up a business. On that man's death she finds that, in addition to her bereavement, she is deprived of her source of income. The deceased may have intended to deprive her, he may have been exercising a conscious choice, or he may simply have forgotten about it. He may not have got around to making a will and he may not have appreciated the consequences. Many of us have known of cases where it would be heartless to say that something should not be done to help a woman in that situation.

The Bill has been described as a mistresses' charter. But it does not seek in paragraph (e) to create a new category of people who must receive a share of the estate. It says only that the court shall consider the position of those people, weigh up all the factors and decide. I stress that it is a matter for the court to consider all the factors and to make up its mind. All the paragraph does is to confer on the court the power to look at the circumstances and decide what is best to be done.

Clause 3(4), which is the subject of another amendment by the hon. Gentleman, adds to the factors which the court is required to consider—and the court can consider any factor it thinks relevant—specific factors relating to the position of someone who comes within Clause 1(1)(e): the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility. It would be difficult to suggest that a worthless mistress might be given priority over a blameless wife. Clause 3(4) provides only that the court shall have power to look and decide. The court might be confronted by charlatans, as the hon. Gentleman suggests, but that would not be a novel situation in our legal history and we can have confidence in the courts sorting that out.

It is true, as the hon. Gentleman says, that one has to draw the line between a limitation of testamentary freedom on one hand and upholding family responsibilities on the other, using "family" in a wide sense. It is right that over much of our legal history there has been complete testamentary freedom, certainly from about the seventeenth century until 1938. Since then, admittedly, there have been legislative inroads into that principle. They have been modest ones, and we should weigh them carefully. One does not wish to eliminate the whole of testamentary freedom. On the other hand, most of us accept that family obligations are important. The question is how widely we define "family", but experience is a guide to foreseeing the sort of tragedies to which I have referred.

I hope that the House will not consider that this is an open-ended inroad into testamentary freedom. It gives power to the judges to weigh up all the factors. If the hon. Gentleman is a little apprehensive of the effect, I can only say that judges have been weighing factors like that for a long time, and I doubt whether he and I would quarrel violently over their capacity to do so. I hope that the House will consider that this is about the right balance. The Law Commission has weighed the matter carefully, and I hope that the hon. Gentleman will reconsider his proposal.

Mr. Daniel Awdry (Chippenham)

I listened carefully to my hon. Friend the Member for Orpington (Mr. Stanbrook) who argued persuasively against extending the class of possible applicants. In Committee I and others tried to extend the classes of possible applicants to include people who were not strictly financially dependent on the deceased but who had been looking after and caring for the deceased for several years before his or her death. I will give a perfectly true example. A middle-aged niece gave up her house and went to look after an elderly aunt. She spent 10 or 15 years looking after the old lady who subsequently died. The old lady had, many years before, made a will which she had totally forgotten. In that will she gave all her property to her many relatives, who then asked the executors to sell the house.

I thought it right to put forward the suggestion in Committee that in such a case the niece who had given up so much of her time—although she was not able to claim that she was a dependant of the deceased—should be considered as a possible beneficiary. The Solicitor-General rightly told us that to accept such an amendment would be to extend the whole concept of the Bill beyond the granting of provision for dependants. I do not wish to press that point tonight because I believe the Solicitor-General to be right.

My hon. Friend the Member for Orpington however wishes to restrict the scope of the Bill. He has raised a difficult and controversial issue. To be fair, the Law Commission held detailed consultations upon this point. If my hon. Friend will read paragraph 88 of the Second Report on Family Property by the Law Commission he will see the following: This issue attracted a great deal of interest and comment. A few were opposed to any extension of the class of applicants. The majority were in favour of adding to the categories of dependants entitled to apply. They were, however, divided as to the scope of the extension which should be made. Some favoured the inclusion of a wide circle of relatives (for example, parents, grandchildren); others thought that dependent members of the household should be covered, whether or not related to the deceased (for example, a de facto spouse). The majority of those who commented favoured the inclusion of the more general category suggested in the working paper, viz. persons who were actually dependent upon the deceased at the time of his death. That is the solution upon which this Bill is based.

The Solicitor-General has made the important point that before the court orders maintenance it must have regard to all the safeguards contained in Clause 3. Subsection (1)(g) says that regard must be had to any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant. We feel that there are adequate safeguards in the Bill which would prevent any abuse. Of course, if we accept this provision it means that any person who had been living with and had been maintained by the deceased but was not married to the deceased would be able to claim. I believe that that is completely morally right. The inclusion of this new class of applicant will prevent cases of hardship which I have had to deal with in my work as a solicitor. I accept that this is a difficult subject but I am bound to tell my hon. Friend that I would not wish to support his amendment.

Amendment negatived.

Mr. Banks

I beg to move Amendment No. 8, in page 2, line 18, leave out ' whether or not' and insert ' only if'.

This clause deals with the definition of " reasonable financial provision" in the case of an application made by a husband or wife of the deceased for part of the estate of the deceased if the deceased died intestate or if that person has been left out of the will of the deceased. Such a person may alternatively feel that he or she has been insufficiently provided for.

No mention is made in the terms of reference under Clause 3 to recourse to such a will or testament as a first consideration. Existing legislation applies to intestacy. If there were a will, no doubt the reason for the applicant being left out was that the deceased did not intend to make such provision. That could have been because of gifts or settlements in the past, the survivor's inheritance under some other will or the survivor's own capital. It could be that the estate of the deceased was chiefly in one property or private business which the deceased willed should go in its entirely to a son or daughter. It could be because the marriage was a disaster. We can only conjecture.

Under this clause it is the court that decides, regardless of what the deceased intended such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance". Here is a glimpse of some of the arrogance of this Bill. If the applicant succeeds and the court makes an order, the deceased's will is broken and some intended beneficiary or beneficiaries will be deprived of part or perhaps all of their inheritance. Where is the right of a person to make a will for the disposal of his life's possessions as he chooses without causing hardship to his marriage partner or to his children under the 1938 Act? I ask for this clause to be amended so that financial provision for the deceased's husband or wife would be applicable only if provision for maintenance were required.

10.30 p.m.

The Solicitor-General

This is another example of a proposal put forward by the Law Commission made after careful consultation and consideration. I think I am right in saying that this proposal arose after the Law Commission had used the novel method of a social survey to see how the public reacted to the suggestion.

We are again concerned with an inroad into testamentary freedom. I accept that we should not treat the matter lightly, but here we are dealing with a proposal which has a counterpart in other Acts, because it relates only to an application by a spouse. The purpose is to bring the law of succession on death into line with the law of divorce.

Recently there has been a substantial expansion in the powers of the courts to make property orders on divorce. Following the Matrimonial Causes Act 1973, the court has substantial powers to make provision for a divorced wife from the husband's estate, and it is not limited to what she would require if one applied only the concept of maintenance. In another place the noble Lord, Lord Simon of Glaisdale pointed out that it would be very strange if the wife of a marriage which was subsisting at the death of the deceased should be in a substantially worse position than a wife who was divorced from the deceased before his death.

I do not want to labour the point ad nauseam, but I should say that it is not proposed that the court must order the maximum provision. All that is being proposed is that the court should have power to look at all the circumstances and decide what it is right to do, including the power to make provision which exceeds the provision which might be made on a narrow maintenance basis. A possible alternative which has been mooted from time to time is to follow suggestions which were made in connection with the law of divorce, and give the spouse of a deceased person a fixed right to a specific proportion of the estate. The Law Commission did not think it right to make that proposal. I am sure that the hon. Gentleman would shy away from that. However, without a flexible provision of this kind, there might well be substantial arguments for a fixed right of that kind.

Therefore, on the basis that all that is proposed is to equate the rights of the wife of a subsisting marriage with those of a divorced wife, I hope that the hon. Gentleman will feel that we are not going too far.

Amendment negatived.

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