HC Deb 14 February 1977 vol 926 cc112-21

'Where a decree absolute of nullity is granted under section 16 of the Matrimonial Causes Act 1973, to a beneficiary of a widow's pension as described in section 26 of the Social Security Act 1975, prior to the date of her remarriage now annulled as above, notwithstanding subsection (3) of section 26 of the principal Act, she shall recommence her entitlement to that widow's pension on the day on which the decree is made absolute provided that this shall be after 31st July 1971'.—[Mrs. Chalker.]

Brought up, and read the First time.

Mrs. Lynda Chalker (Wallasey)

I beg to move, That the clause be read a Second time.

The subject of this new clause differs from some of the other matters that we have been discussing, but since it concerns the widow's benefit covered by Acts of Parliament to which the Bill refers, this is an appropriate time to bring it before the House for consideration. There are some sad and unfortunate circumstances behind our tabling of the new clause, the title of which is about right. It is by no means obvious what lies behind it, as I discovered, so perhaps I may go into some detail.

When a widow has received a widow's benefit for some years and decides to remarry, she obviously does so in good faith, hoping that her second, or third, marriage will last. She certainly does not go into it, one imagines, with any intention of quickly getting out of it in order to renegotiate benefits from the State. Therefore, what we are dealing with is a question of good faith. If something goes wrong in that marriage it may be subject to the normal procedure of the divorce courts, or to annulment procedures which are covered in the Matrimonial Causes Act 1973. It is to the annulment of marriage in that Act that the new clause refers.

There are two circumstances under which a marriage may be annulled. The question that links the annulment of marriage to this Bill is whether the right of a widow to continue her widow's benefit under the deceased husband's contribution is relinquished or not following the annulment of that marriage. We have here two quite separate and different circumstances, one of which has a happy end already and to the other of which I seek to give a happy end, on behalf of the Opposition, in the new clause.

The first circumstance of annulment is that in which a marriage is void ipsi jure. That can happen only if the marriage takes place in bigamous circumstances, within a prohibited degree of relationship—that is, between closely related persons—or if either party is under 16. We are not really concerned with this circumstance—obviously, in the case of a widow it would be only one of the first two cases, not that relating to either party being under 16, which would make it void ipsi jure—but if it were so voided, there would be no relinquishment of rights to continuing the widow's benefit after that annulment has been made final.

The second circumstance, however, is that in which a marriage has been annulled where it was voidable and the entitlement to benefit does not continue after the decree has been made absolute. A marriage may be made voidable if either party did not validly consent. There may be some question what valid consent to a marriage is, but I think that the House will accept that if the matter concerns a widow who has been receiving widow's benefit for some time, she knows what she is talking about if she goes through with a second or subsequent marriage ceremony. Therefore, that situation is not one that I seek to correct.

The second consideration is where the marriage was not consummated, owing to the incapacity of either party. This is a difficult area, in which medical advice is often sought, and it is one of extreme pain and often sadness to the parties involved. The Matrimonial Causes Act 1973 took over the responsibilities of the Nullity of Marriage Act 1971 and provided that A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute". The problem that we face is that once the right of the widow's benefit has been extinguished, as the law stands there is no re-entitlement to benefit even after that time when the decree has been made absolute.

Entitlement decisions in this sort of circumstance are made in the first place by an insurance officer. I do not wish, in anything I say, to be taken as criticising the insurance officers, members of the tribunal or the national insurance commissioners. They are merely acting within the law as it stands.

The first procedure after a marriage has been declare void and the decree of nullity has been made absolute is for the widow, now separated legally, once more to appeal to an insurance officer for the re-establishment of her benefit. Most of the decisions have been made on the basis of Decision R(G)1/73. In all the cases I have so far been able to discover the decision has been made not to give the widow re-entitlement to her widow's benefit. The reason that this has happened is that the Matrimonial Causes Act 1973 defines the different sorts of nullity but the National Insurance Act 1965 does not currently take account of what is contained in the 1973 Act.

Once there has been an appeal to the insurance officer, as in other cases an appeal can be made to the tribunal and after that to the Commissioners. The present position is that a non-consummated marriage is guided by case law. In a decision dated 10th October 1975 Commissioner Neligan stated: The Commissioners held that the decree of nullity on avoidable ground was no longer retrospective and that a remarriage which had an existence for a period before that in respect of which the benefit is claimed is relevant to such claim since the proviso to Section 28(4) of the National Insurance Act 1965 prohibits payment 'for any period after the widow's remarriage' and not merely for any period during which she is remarried. Thus, the whole period from the date of remarriage was the peiod after the claimant's remarriage within the meaning of Section 28 with the result that a widow's pension was not and would not in future be payable to her. We understand that the law that was made in the beginning was made perfectly fairly, namely, that there is no widow's benefit entitlement during the time when she is remarried even if she is parted from the man she has remarried and the marriage has not been consummated, as is the case that I am putting forward.

However, the difficulty is that Section 28(4) of the National Insurance Act 1965 continues the disentitlement beyond the date that the decree of nullity is made absolute. As we now have an up-to-date Act on our statute book, namely, the Matrimonial Causes Act 1973, it seems high time that we brought up to date the re-entitlement of a woman in this position. I am not the only person who says that that should be so. That position is not confined to my right hon. and hon. Friends. Indeed, in the same judgment Commissioner Neligan stated: I regret having so to decide but it is the law as laid down by Parliament. If that be the case, it is for the law laid down by Parliament to be changed, and that is what we are seeking to do with the clause.

In no way does the clause ask for a retrospective claim; it merely calls for re-entitlement from the day that the decree of nullity is made absolute. I believe that to be fair. In fact, my right hon. Friend the Leader of the Opposition has a constituent in exactly the position that I have described. Although I have been able to find only a few cases, I believe that it is right to make the law fair, and that is what we are doing.

Very often the opinion among lawyers when a marriage breaks down is "One knows before a marriage whether it is likely to be consummated". I have heard that comment made in divorce proceedings, especially in local courts. It has come up on a number of occasions. But that is not true, especially when we are dealing with older women who may have different standards in their relationship with someone they intend to marry than younger people. There is no question that they would necessarily have prior knowledge of the possibility or the impossibility of consummating the marriage.

7.45 p.m.

We fully realise that if remarriage is for companionship only it is hardly likely that such a ground would be brought forward as a reason for finishing the marriage. The parties could abide by other Acts of Parliament put on the statute book in the 1970s. Such a ground as the consummation of marriage would not enter into a parting. It is clear that a decree of nullity is used only where it is right to do so because unavoidable breakdown grounds can cover almost any of the other situations.

We are dealing with a minute number of women, and such women would probably need other State support, so we are not likely to become involved in our perennial argument about money. In terms of public expenditure, we are talking about chicken feed. If that were not so, I am sure that my right hon. and hon. Friends would not be supporting the clause.

We are seeking to right a feeling of basic injustice. We realise that there may be a few vexatious causes, but they would be likely to come up under Section 16 of the Matrimonial Causes Act.

It may be that the Minister will turn to me, as he frequently does, to say that the Clause is not drafted quite as the parliamentary draftsmen feel it should be. There is an easy solution to that problem if that is his answer tonight, namely, to take the new clause away, draft it properly and do what I hope I have clearly outlined should be done, and either reintroduce it in another place or bring it back here when the Bill returns from another place.

I sincerely hope that the clause, which seeks to give a widow re-entitlement to widow's benefit under her deceased husband's contributions where a decree of nullity is granted and where a marriage was voidable, will be acceptable to the House. We believe that it is important that this sort of fairness should be introduced into our legislation.

Mr. Boscawen

I rise briefly to support my hon. Friend the Member for Wallasey (Mrs. Chalker) in seeking to close a minor gap in the provision of re-entitlement to benefits. This is not a vastly important measure but it is one that occurs in an area of very human relationships. My hon. Friend has made it clear that this is a rare event. Happily decrees of nullity are not often given today. However, I feel that there is a small gap, which means a great deal to a small number of people, which should be filled. That will not be very costly and it is basic justice. I hope that the Government will be able to accept the clause, or at least to introduce another clause in another place that does the same thing.

Mr. Deakins

First, like the hon. Member for Wells (Mr. Boscawen), I congratulate the hon. Member for Wallasey (Mrs. Chalker) on the way in which she moved the clause. I congratulate her on the research that must have gone into it. The hon. Lady has certainly done a lot of devilling among law books.

I cannot accept the clause on behalf of the Government. I shall explain why that is so in a moment. I am conscious that we are dealing with a very delicate area of human relationships and I appreciate that there are not many people involved. There are one or two principles involved to which I shall turn in due course and they will explain why the clause as it stands is not acceptable.

As the hon. Lady rightly pointed out, under Section 26(3) of the Social Security Act 1975 a widow's pension is not payable for any period after her remarriage. A widow who remarries and whose second marriage ends in divorce cannot again become entitled to widow's pension on the insurance of her first husband.

In the case of annulled marriages, which is basically what we are concerned about here, the position in England and Wales depends on whether the decree was obtained before or after 1st August 1971. Before that date a decree of nullity did not distinguish between a void and a voidable marriage. The decree merely stated that the marriage was by law void and that the petitioner "was and is" free from all bond of marriage with the respondent. The national insurance commissioners held that the retrospective effect of the decree entitled the widow to claim benefit on her deceased husband's record, although payment of benefit would be disallowed for the period from the date of marriage until the decree absolute.

In a report on nullity of marriage in 1970 the Law Commission came to the conclusion that the distinctions which existed between valid, void and voidable marriages corresponded to factual differences in the situations of the parties which call for different relief from the Courts". Those recommendations were given effect in the Nullity of Marriage Act 1971, which did not apply to Scotland.

Since that Act came into force there have been two types of nullity decree which distinguish between the void marriage, which is treated as if it had never existed, and the voidable marriage, which is annulled only from the date of the decree absolute. Section 5 of the Act, which is now Section 16 of the Matrimonial Causes Act 1973, provided that a decree of nullity granted after the commencement of the Act on the ground that the marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time. From 1st August 1971 a decree of nullity of a voidable marriage contains words saying that a decree was on a certain date made final and absolute and that the petitioner was from that date and is free from all bond of marriage with the respondent. The retrospection provided by a decree before 1st August 1971 was thus removed.

Since 1st August 1971 the position of a widow whose second marriage is annulled depends on whether her second marriage was regarded as void or void able. If it is declared to be void because it was bigamous, she is treated for national insurance purposes as if it had never existed, and widow's benefit can be reinstated. If, however, the marriage is annulled on the grounds that it was voidable, the widow's benefit cannot be reinstated.

A number of widows who had obtained decrees of nullity after 1st August 1971 were disallowed widow's benefit in a series of what were presumably test cases. A tribunal of commissioners heard three appeals in succession, two of their decisions being reported. The hon. Lady quoted one. The commissioners said that Section 28(4) of the National Insurance Act 1965, now Section 26(3) of the Social Security Act 1975, prohibited payment for any period after the widow's remarriage and not merely for any period during which she was remarried, and that the whole period from the date of the remarriage was a period after the remarriage.

A widow who remarries and whose second marriage ends in divorce, or, being voidable, in annulment, may be able to use her second husband's national insurance record to help her qualify for certain benefits, including retirement pension. But whether her marriage ended in divorce or this kind of annulment, that is, being voidable, she cannot again become entitled to widow's benefit as the legal widow of her first husband. There would be no justification for differentiating between divorcees and women whose voidable marriages had been annulled in order to allow the second group to be treated as widows despite the fact that they had entered upon a second valid marriage.

Where is the injustice then? The question is whether we are to draw the dividing line between void and voidable marriages on the one hand and divorces on the other, as the hon. Lady would like, or, as the Government believe, between a void marriage and divorce.

We cannot estimate in how many cases since 1st August 1971 a widow's remarriage has ended in a decree of annulment on the ground that it was voidable. The Department receives each year a few representations from hon. Members on the subject. We have had 19 in the past two years, one concerning a constituent of the hon. Lady. Overall, it seems unlikely that more than a very small number of cases is involved. Therefore, cost is not a factor.

Nevertheless, acceptance of the clause would open up the whole question whether a widow's pension should be restored if her second marriage ends in divorce. Successive Governments have always held that divorcees who were formerly widows should be treated the same in all respects as divorced women generally. The law in England and Wales since 1971 has unquestionably been that annulments of this kind are to be treated like divorce in all respects.

In view of these implications, the Government cannot accept that the change in the law in 1971 can be disregarded for national insurance purposes. I have a great deal of sympathy for the case that the hon. Lady has put, but I hope that in view of my explanation she will feel able to withdraw the new clause.

Mrs. Chalker

I am very disappointed that the Government cannot accept the clause. However, I understand the distinctions between a void marriage and a voidable marriage as described by the Minister. As he said, the question is whether to draw the line of re-entitlement for widow's benefit between the void marriage, on the one hand, and the annulled marriage and divorce, on the other, or whether we put the void marriage and annulled marriage together, leaving the divorce outside the restoration of widow's benefit.

We would not seek to argue that other than in these very special circumstances, which are not really those of the divorcee, the divorcee should have her entitlement to widow's benefit restored. That would make nonsense of many of the other rules of our whole national insurance system. But it still seems to me that there are a number of greater similarities between the void marriage and the annulled marriage than between the annulled marriage and the divorce.

I realise that the Minister will not be persuaded to accept the clause tonight. But he has given us an interesting new fact, that there have been 19 applications to the Department in the past two years. That is information that so far I had not been able to obtain for myself.

The House should not let this matter rest. I believe very firmly that there is an injustice here. Any marriage that ends because it has not been consummated is a most unfortunate and hurtful experience for a man or a woman, but particularly for a woman. It will probably be said that there are ways of avoiding this, but in a small number of circumstances the procedure of annulment of marriage on those grounds is followed.

We are entering the province not of the Department of Health and Social Security but of the law, where neither the Minister nor I feel competent to argue. I think that the best thing that the House can do is to allow me to withdraw the clause, but I shall try to take the matter up with our legal spokesmen. I hope that the distinctions drawn by the Law Commission back in 1970 will be reviewed, so that the plight of a very small number of women whose marriages have been annulled since 31st July 1971 can be re-examined. I hope that one day we shall have in our law justice for those women, who have had a most difficult time.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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