POWERS OF COURT WHERE PARTIES ARE LIVING APART BY AGREEMENT (Hansard, 19 May 1978)

HC Deb 19 May 1978 vol 950 cc1047-54 1047

§ '(1) Where the parties to a marriage have been living apart for a continuous period exceeding three months, neither party having deserted the other, and one of the parties has been making periodical payments for the benefit of the other party or of a child of the family, that other party may apply to a magistrates' court for an order under this section, and any application made under this subsection shall specify the aggregate amount of the payments so made during the period of three months immediately preceding the date of the making of the application.

§ (2) Where on an application for an order under this section the court is satisfied that the respondent has made the payments specified in the application, the court may, subject to the provisions of this Part of this Act, make one or both of the following orders, that is to say—

(a) an order that the respondent shall make to the applicant such periodical payments, and for such term, as may be specified in the order;
(b) an order that the respondent shall make to the applicant for the benefit of a child of the family to whom the application relates, or to such a child, such periodical payments, and for such term, as may be so specified.

§ (3) The court in the exercise of its powers under this section—

(a) shall not require the respondent to make payments which exceed in aggregate during any period of three months the aggregate amount paid by him for the benefit of the applicant or a child of the family during the period of three months immediately preceding the date of the making of the application;
(b) shall not require the respondent to make payments to or for the benefit of any person which exceed in amount the payments which the court considers that it would have required the respondent to make to or for the benefit of that person on an application under section 1 of this Act;
(c) shall not require payments to be made to or for the benefit of a child of the family who is not a child of the respondent unless the court considers that it would have made an order in favour of that child on an application under section 1 of this Act.

§ (4) Where on an application under this section the court considers that the orders which it has the power to make under this section would not— 1048

(a) provide reasonable maintenance for the applicant, or
(b) if the application relates to a child of the family, would not provide, or make a proper contribution towards, reasonable maintenance for that child,

the court shall refuse to make an order under this section, but the court may treat the application as if it were an application for an order under section 2 of this Act.

§ (5) The provisions of section 3 of this Act shall apply in relation to an application for an order under this section as they apply in relation to an application for an order under section 2 of this Act subject to to the modification that for the reference in subsection (1) of the said section 3 to the occurrence of the conduct which is alleged as the ground of the application there shall be substituted a reference to the living apart of the parties to the marriage.

§ (6) The provisions of section 4 of this Act shall apply in relation to an order under this section which requires periodical payments to be made to the applicant for his own benefit as they apply in relation to an order under section 2(1)(a) of this Act.

§ (7) The provisions of section 5 of this Act shall apply in relation to an order under this section for the making of periodical payments in respect of a child of the family as they apply in relation to an order under section 2(1)(c) of this Act.'.—[Mrs. Hayman.]

§ Brought up, and read the First time.

§ Mrs. Hayman
I beg to move, That the Clause be read a Second time.

§ Mr. Deputy Speaker (Mr. Oscar Murton)
With this, we may take the following amendments:
(a) in line 34, leave out from 'section' to end of line 35.
No. 2, in Clause 7, page 7, line 23, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 3, in page 7, line 28, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 4, in page 7, line 30, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 5, in Clause 11, page 12, line 33, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 12, in Clause 16, page 17, line 42, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. 1049 No. 18, in page 18, line 36, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 19, in page 19, line 2, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 20, in page 19, line 17, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 21, in page 19, line 34, leave out or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 22, in Clause 17, page 20, line 18, at end insert— '(2A) Where a magistrates' court has made an order under section (Powers of court where parties are living apart by agreement) of this Act for the making of periodical payments, the court shall have power, on an application made under this section, to vary or revoke that order.' No. 23, in page 21, line 38, after '6', insert '(Powers of court where parties are living apart by agreement)'. No. 24, in page 22, line 8, after '6', insert '(Powers of court where parties are living apart by agreement)'. No. 25, in page 22, line 13, after '6', insert '(Powers of court where parties are living apart by agreement)'. No. 26, in page 22, line 15, after '6' insert '(Powers of court where parties are living apart by agreement)'. No. 27, in Clause 18, page 22, line 17, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 28, in page 22, line 33, leave out or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 29, in page 22, line 37, leave out or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 30, in page 23, line 14, leave out 'or 6' and insert 6 or (Powers of court where parties are living apart by agreement)' 1050 No. 32, in Clause 22, page 25, line 7, after 'Act', insert '(otherwise than on an application under section (Powers of court where parties are living apart by agreement) of this Act)' No. 33, in page 25, line 26, after 'A', insert 'otherwise than on an application under section (Powers of court where parties are living apart by agreement) of this Act)'. No. 34, in page 25, line 38, at end insert— '(2A) Any order made under section (Powers of court where parties are living apart by agreement) of this Act, and any interim maintenance order made on an application for an order under this section, shall cease to have effect if the parties to the marriage resume living with each other.'. No. 35, in page 25, line 40, after '(1)', insert 'or (2AA)'. No. 43, in Clause 31, page 30, line 32, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 44, in page 31, line 12, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 45, in page 31, line 19, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 46, in page 31, line 31, leave out 'or 6' and insert '6 or (Powers of court where parties are living apart by agreement)'. No. 50, in Clause 52, page 49, line 25, after '15', insert: '(Powers of court where parties are living apart by agreement)'. No. 52, in Clause 53, page 51, line 15, after '15', insert: '(Powers of court where parties are living apart by agreement)'.

§ Mrs. Hayman
This new clause and the consequential amendments deal with another matter that was discussed at some length in the Committee proceedings on the Bill.
Although the new clause is very long, its aims are limited. In fulfilling those aims, we have worked on what is attainable and not necessarily what is desirable. When we considered in Committee the 1051 causes by which an applicant could go to court we felt that there was a severe limitation in the Bill in terms of the retention of some vestiges of the matrimonial offence.
Until the day that there is an absolute "no faults" provision, whereby the status of separation in itself would justify a woman's going to court to ask for an award of maintenance, there will still be circumstances in which people need help from the court to sort out domestic and financial matters and that help is not forthcoming. The only way it could be forthcoming is on the basis of a quarrel which does not exist, a desertion that did not occur or a non-existent argument as to whose fault it was that one party left the matrimonial home.
In Committee we dealt with the case of a husband and wife who had separated by consent. In these circumstances, and where the husband was actually maintaining his separated wife, although there was no formal or written agreement between the parties, that woman had no right to go to the court to get a maintenance order. She might well be under a great deal of strain and uncertainty. The amount that she is being paid for maintenance might fluctuate from month to month, but still might not constitute inadequate maintenance, and therefore grounds for her to go to court. She might want to organise her affairs and get a court order for maintenance in order to have security and certainty about her financial position. As the Bill was drafted there was no way that that woman could get a maintenance order.
This new clause provides that where a husband and wife have been separated for three months and, the husband is maintaining the wife, that woman can, nevertheless, go to the court to get the agreement registered and formalised in order to ensure that she and her children get adequate maintenance and there is a court order to fall back on. This will ensure that she does not have to wait for the month when the cheque does not arrive. This is a limited provision and I hope that the House will accept it.

§ Mr. Sims
I congratulate the hon. Lady on the skill with which she has produced a new clause which I think adequately meets the problem that we discussed in 1052 Committee. Indeed, when one reads it and the string of consequential amendments, the more suspicious mind might wonder whether a degree of collusion had taken place. The point is very well met. She obviously had the best possible advice.
My only reservation is indicated in my Amendment (a), which is of a piece with a similar amendment No. 1, to Clause 6. It is simply that, on the face of it, it seems to me that if an arrangement had been reached along the lines that the hon. Lady indicated, whereby, say, the husband was paying the wife £10 a week and they came to court in order to register that arrangement in the terms of the new clause, the court, having examined it, might decide, under subsection (4), that it was not an appropriate order, and that in accordance with subsection (4) it should refuse to make the order, feeling that the husband could and should pay, say, £20 or £30 a week.
Subsection (4) goes on to say: the court may treat the application as if it were an application for an order under section 2 of this Act". That would mean that the husband, or his representative, having gone to court—indeed, he may not even have gone to court—on the understanding that an order for, say, £10 a week was to be registered, would suddenly find himself faced with proceedings under Clause 2 with virtually no notice and no opportunity to prepare his case.
I cannot think that that would be in the interests of justice. There would be nothing to prevent the wife, should the court refuse to make an order, from immediately instituting proceedings under Clause 2, giving the husband reasonable opportunity to present his case. I am doubtful whether this proviso should be included in the new clause, much as I support the rest of it. I hope that the hon. Lady will be agreeable to accepting my amendment. If she did, I would be happy to support the whole of the new clause as thus amended.

§ Mr. John
My hon. Friend the Member for Welwyn and Hatfield (Mrs. Hayman) has tabled a new clause with consequential amendments, and if anyone takes law reform lightly this string of consequential amendments will show 1053 what a tangled web we have to weave even to achieve a moderate result. I think that she has rightly drawn a distinction between what is practical and what is desirable. What is practical we would all agree with; on what is desirable there might be room for disputes on both sides. Nevertheless, on behalf of the Government, I accept the new clause and I believe that it will be a good provision.
There is only one consequential amendment to which I need draw special attention. It is Amendment No. 22, providing for the addition of a new subsection (2A) to Clause 17, which will ensure that an order made under the new clause may be revoked or varied and thus allow either party to apply for it if it becomes appropriate.
In the time available we have consulted the relevant authorities, and none has raised objection in principle. We have, as my hon. Friend rightly said, provided for the situation where consent is not express but may be implied through conduct. I will use the term "a recipient of maintenance" in this connection, rather than "a woman" because, of course, a recipient of maintenance may be a man. The new clause will remove the uncertainty that a recipient of maintenance may face prior to an order of this kind being made. I cannot be as charitable about amendment (a) to the new clause, nor as charitable as I am going to be about the next amendment. Amendment (a) which I advise the House not to accept, is distinguishable in a number of particulars from the next one, which deals with express consent. Under Clause 6 as drafted, there is an express agreement, so the parties proceed in the confident expectation of an order being made. It would, therefore, come as a considerable shock, and I believe in practical terms would never mean that the case would go on that day, if the basis were changed.
Because of the wording of the new clause, neither party can expect that an order will be made, because there is an express provision that the justices have to satisfy themselves that it is right to make such an order.

§ It being Four o'clock, the debate stood adjourned.

1054

§ Ordered, That, at this day's sitting, the Domestic Proceedings and Magistrates' Courts Bill [Lords] may be proceeded with though opposed, until any hour.—[Mr. Bates.]

§ Question again proposed, That the clause be read a Second time.

§ Mr. John
Where there is an express agreement about maintenance, it is more likely that the parties will have considered whether the amount is right and perhaps taken advice about it, but where it is done by implied conduct, the recipients of maintenance might think that it is not worth making a fuss and that they should be content with what they have.
Under Clause 6 there is a possibility that husbands or wives will be discouraged from expressing agreement. They should not be so discouraged. The Bill will come under scrutiny in the Lords and I hope that the hon. Member for Chislehurst (Mr. Sims) will not press the amendment. We shall accept the new clause and the consequential amendments as they stand. This is a significant step, and I do not seek to minimise the improvements that the new clause will make.

§ Question put and agreed to.

§ Clause read a Second time, and added to the Bill.