HC Deb 13 June 1984 vol 61 cc1007-40 10.45 pm
Ms. Jo Richardson (Barking)

I beg to move amendment No. 4, in page 3, leave out lines 20 to 26 and insert— 'It shall be the duty of the Court in deciding whether to exercise its powers under section 23, 24 or 24A above, and if so in what manner, to make an order or orders, which, first consideration being given to the welfare of the children, fairly distributes the assets of the marriage including any pension and insurance rights on the basis that marriage is a common endeavour'. We have spent more than five hours discussing part I, which I accept is an important part of the legislation. I am, however, worried that part II, which is about picking up the pieces after the divorce, will not merit as much attention as has been given to part I. Part II is extremely important. In Committee the debate on part II occupied more time than the debate on part I, and I hope that we shall have the attention of the House when discussing it.

The amendment is concerned with a fairer distribution of the assets of the marriage. It seeks to set an objective which the Bill as drafted completely lacks. The measure is a chance to make a statement of social policy and have a shared understanding of the approach that the courts should take. It is not an attempt at quantification but a general statement of policy. A law without an objective is bad. No directions leave the courts open to create their own law. I believe that without the amendment the Bill would have no direction, and that would be an abdication of parliamentary responsibility.

Many people will say that the Bill's objective is to put children first, but I remind the House that consideration of children is relevant in only 60 per cent. of divorce cases. Even in that number, spouses and spousal property should still be considered.

The Bill is not only about maintenance—though, as I have said many times, maintenance is an important part of the Bill—but about the chattels of the marriage and how they are divided. The Bill is about things in the kitchen, the house, the furniture, and so on. It is concerned with what is done about the insurance policy and eventually about the house.

Since 1882 married women have been able to own their own property, but we must remember in 1984 that many married women still are not in a position to accumulate assets in the same way as their husbands can. That is because of the general position in which married women find themselves, because of their home responsibilities. That is especially true of women who have decided to put their children first and to remain at home rather than pursue any type of work or career, and who therefore have not earned much money.

England and Wales, unlike European countries, do not provide for community of property in marriage. Unless the partners pool their earnings and buy everything jointly, which some do, the law operates the basic rule that one owns what one has bought. The fact of marriage makes no difference to property ownership.

The amendment's objective is to remind us all and the courts that, although we do not have the community of property system that operates in Europe, we recognise that marriage is a common endeavour to which both parties have contributed in several and differing ways. The amendment tries to underline the fact that marriage should be seen in that light.

Much of the debate on part II has centred on dependency, because of the way in which the Bill is drawn up, and too little on the collective enterprise of marriage. We should not miss this chance—I shall repeat this point—of stating clearly for the guidance of the courts what we regard as the objective in the division of property on divorce.

Women all over the country who are married and who stay married would like recognition of their contribution to the marriage, even though they may never be involved in divorce. It gives them a status which not all of there have at present. If they become divorced, it is important that the fact that there was a common endeavour should be clearly recognised. Many who have been divorced feel that the concentration in the Bill on the alleged abuse cf maintenance undermines the endeavour that they have made. It is not too late to show that we take the matter seriously and to recognise that the Bill is not and should not be simply about maintenance, but should be about all financial orders on divorce. Hon. Members should not be irresponsible and let the Bill go forward without a statement of that policy.

Let me point to some of the words which we have used in amendment No. 4, which we hope will produce a sympathetic response from the Solicitor-General. I am not saying that we did not receive any sympathy in Committee, but we did not get the response that we wanted. We talk about "assets of the marriage". It is important to recognise that assets are acquired through, and not for, marriage. The courts have already had to deal with the problem. The amendment does not include any definition of assets, but it recognises their existence. It would be impossible for us to list assets.

We talk about fairly distributing the assets of the marriage. Again it is impossible to be more specific and in a general policy objective that should not be necessary anyway. "Fairly distributes" is a term used by the Scottish Law Commission in its draft Bill. Fairness in individual cases would depend on the court's application of the guidelines. It does not fetter discretion, but it does give a policy guide.

The use of the term "distributes" recognises that it is not a question of awarding one party against another, but of sharing out what has been acquired through joint effort. That is what we have to keep in the forefront of our minds. "Common endeavour" is a phrase which has been chosen with the greatest of care. Surely modern marriages should be viewed as a common endeavour. Any family policy should take that as a starting point. The law should be no exception and can take the lead.

We have also included a reference to pension and insurance rights in the amendment. In Committee we debated occupational pensions and insurance rights, and the Opposition were defeated. I remind the House that in the debate in the other place the Lord Chancellor was not without some sympathy for the point that was made about the contribution that was made by the first wife to the pension contributions of her husband. I say again what I said in Committee and what others have said — first wives never become widows and there are penalties attached to that because many are older wives rather than younger wives who have made a real contribution to the marriage. We all believe that any benefit which comes from common endeavour in financial terms should be fairly shared out between the two. That is what we seek to do. It would be grossly unfair and improper not to do so.

Mr. Martin Stevens (Fulham)

We are all trying to achieve greater fairness. Indeed, that is the purpose of the Bill. Would not the Bill enable the court, if it thought it right, to assess and divide insurance and pension rights? I genuinely do not know whether the Bill precludes that.

Ms. Richardson

As I understand it, the Bill in its present form precludes such a division. It may well be that a court would take that into account. There are many regrettably vague words in the Bill which do not give sufficiently clear guidelines to the courts.

When we argued in Committee about pension and insurance rights, the position as I understood it—the Solicitor-General may correct me—was that pension and insurance rights were not secure in terms of being properly shared out. That is why we should like to see something more in the Bill.

I believe that the House would seriously abrogate its responsibilities if it allowed the Bill to go forward without the policy objective that we are trying to set down. It makes a statement about marriage. We have heard much this evening about marriage and the sanctity of marriage. We should like to carry forward what has been said by stating that we see marriage as a common endeavour. If it breaks down irretrievably, that common endeavour should be recognised.

We are supporting a modern vision of a partnership. It is seen today as two people working together. To leave the Bill as it stands would bring more discord and dissatisfaction. Goodness knows, the Bill has caused enough discord, dissatisfaction and misunderstanding. To inject a positive statement like this would mean that the House had made an important contribution to the development of family law. I hope, therefore, that the House will support our amendment.

Mr. Blair

At this late hour it may be too much to expect as good an attendance for this amendment as for the earlier part of the debate, but it is no less a shame for that. The amendment is every bit as important as, and perhaps much more important to the institution of marriage and how we regard it than, the discussion about time bars.

The Bill omits to provide any definition and guiding principle for marriage. The statute that the Bill will largely replace provided such guidelines. The lack of guidance is a great misfortune, for the following reason. The 1973 Act has as its guiding principle in considering financial relief after divorce that one should attempt to put the parties in the position where they would have been had the marriage not broken down. That is regarded as unsatisfactory, for very good reasons. I do not dissent from removing that principle, but it is unfortunate that it is not being replaced, as it is important that the court has an overall guiding principle in mind when it assesses the matters set out in new clause 25.

What better guiding principle could the court have than common endeavour? We have heard much this evening about the institution of marriage. This is not a party political point, but Conservative Members always say that they regard the institution of marriage as important to our way of life, but I ask them to bear in mind the fact that, as the Bill stands, if guiding principles are enshrined in the Bill, they are in the exhortation to the court to permit a clean break in circumstances that it would not allow at present.

I ask them to consider whether it is not odd that a Bill proclaimed as one to strengthen the institution of marriage has at its heart the possibility of an easier clean break, namely the loosening of the ties of marriage. Conservative Members should think on that when they consider the Bill as a whole.

The principle that is put across most strongly in the Bill is that a clean break should be made easier. That principle shuffles off the lifelong responsibilities of marriage, and brings a change in the nature of the marriage contract by permitting an easier clean break, even where the parties may not consent. I shall not go into that at length, as it is not the principle that we are discussing, but it is strange for Conservative Members to say that while they support the institution of marriage they are allowing greater access to a clean break, which has at its heart the dividing of the ties between men and women after marriage.

11 pm

The guiding principle should be that marriage is a common endeavour. It is a positive principle, and exactly enshrines the values in marriage that we would like. It is necessary to have that as a principle because many people, particularly women, feel that the woman is at a disadvantage in the marriage institution and that many of the abilities and advantages that a woman brings to that institution are not easily translated into definable financial terms. Therefore, it is better, if we can, to try to set out for the courts the principle that marriage should be viewed as a common endeavour, in a broader sense, as opposed simply to the pounds, shillings and pence, the pay packet or the tangible assets of marriage.

It could be said in one sense that clause 3 already pays attention to some of those matters. New section 25 states that one of the matters to be taken into account is the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family". Therefore, to that extent the notion that I am suggesting is already in the Bill, but I should like the emphasis to be changed. The notion of contributions other than purely financial ones should be translated into a much more prominent position so that it is not merely one of many matters that is taken into account, but a guiding or ruling principle in the Bill.

I hope that I have made the point clearly and concisely enough. I hope that even at this late stage the Government will see that it is important that we replace the guiding principle that we are removing in the 1973 Act with a different guiding principle, and what better guiding principle to have than that marriage is a common endeavour between the man and woman? If the court were looking to that when it assessed the implications of financial relief after divorce, it would be able to come to a much fairer and more balanced view of marriage and its responsibilities.

Mr. Martin Stevens (Fulham)

I am glad to have the opportunity, for the first time in the House, of commenting on the Bill. Although I am married, I was its parent a year ago, and I was pleased when, in the Gracious Speech, we learnt that the Government would take over what had been a private Member's Bill, give it time to be considered, and, we hope, pass it into law.

The hon. Member for Sedgefield (Mr. Blair) told us that the overriding principle of the Bill is to strengthen the institution of marriage. He emphasised the nature of marriage as a common endeavour. He may be right. I do not know. However, the purpose of the Bill is far more modest than he suggests. It is to eliminate four or five of the ferocious injustices that 10 years' experience of the 1973 Act had shown to be enshrined within it. The Law Commission and the Law Society debated with judges and other lawyers whether it might be best to offer no guidelines and to eliminate section 25 altogether. However, the general view of the bench was that that would mean taking flexibility to its ultimate limits and make the law impossible to administer with the evident fairness and justice that we all agree is required. Thus, guidelines there should be and guidelines there are.

The aim of the Bill in its five clarifying parts is to bring the judgment of the court closer to the facts—closer to fairness and natural justice. Therefore, it seems odd to advance to the House the proposition that marriage should be regarded as a common endeavour. No doubt that is what it should be and in many cases it is, but I see no reason for asking a court to accept that a particular marriage has been a common endeavour. The court's task is to interpret the facts of the marriage which has been brought under scrutiny and to reach financial decisions which are fair.

Ms. Richardson

To whom?

Mr. Stevens

To all the parties, including the children.

To start off by saying, as a principal guideline, that every marriage should be treated by the court in a way that is patently untrue of a great number of marriages is to pile nonsense on the injustice that we are trying to correct. It would fatigue the House if I were to list a range of examples.

Ms. Richardson

Give one.

Mr. Stevens

I will. I had one in my advice bureau on Tuesday night. I have given this type of example before, because it is one of many. A young man, in his early thirties, is conducting his business from his house, which he is buying on mortgage. He is a self-employed painter and decorator.

Mr. Alex Carlile

Are there any children?

Mr. Stevens

The bedtime story will unfold, if the hon. and learned Gentleman will be attentive.

He marries a girl aged 24, who is a physiotherapist. They have one child. At 26, she runs away with another man, who is better off than the imaginary husband. Under the present law, she would be entitled to bring an ouster action against the husband, to move into the marital home with her gentleman friend and child, to decline to undertake, until the child is old enough for it to be practicable, any of her former professional activities and to require the husband, with a greatly diminished income, to provide maintenance for her and the child and to keep up the mortgage payments until the child's education is complete.

Mr. Carlile

Perhaps the hon. Gentleman will advise his imaginary constituent that the wife has no prospect of recovering a penny piece from him because she has gone to live with a man who earns a higher income, is living in more comfortable circumstances and has an earning capacity, full-time or part-time, as a physiotherapist. The example which the hon. Gentleman has given adds nothing to the discussion of the Bill.

Mr. Stevens

It is an example that I tried not to give because I knew that hon. and learned Members would leap in to tell me that it was not true. Unfortunately, it is true. I have a dozen such cases in my constituency. The hon. and learned Gentleman is welcome to join me at my advice bureau to try to solve them.

Mr. Carlile

I shall stick to my own.

Mr. Stevens

I am sure the hon. and learned Gentleman will. Let us have some truth and less cant.

Mr. Carlile

What cant?

Mr. Stevens

What the hon. and learned Gentleman said was cant. The husband has to provide maintenance for the wife and child and has to make the mortgage payments until the child has completed its education. His income is much reduced. He may not require the wife at any stage to return to her professional activities, and he may not require the gentleman friend, assuming that the wife does not marry him, to make any contribution. To describe such a marriage as having a common endeavour is fraudulent cant. That is what we are trying to avoid. [Interruption.] Of course, I am making hon. Members scream and boil, because I am telling the truth.

Mrs. Dunwoody

The hon. Gentleman is wrong.

Mr. Stevens

I am not wrong.

The Bill seeks to enable the courts to study the facts of marriage objectively and to treat it accordingly. I should be greatly opposed to saddling the courts with a guideline that assumes a manifest untruth. That would be going too far towards introducing into court procedure the kind of political beliefs of some hon. Members. I for one hope that we shall have none of it.

The Solicitor-General

An amendment along these lines has been discussed in Committee, and it has been brought back with variations. I should have liked to be able to spend longer, perhaps, in a philosophical discussion on the nature of marriage, its objectives and the way in which it should generally be approached, but I have the more prosaic duty of advising the House whether it would he practical or appropriate to incorporate the amendment in the Bill at this stage.

I listened carefully to my hon. Friend the Member for Fulham (Mr. Stevens), who has a great deal of experience in this matter—not just in the practical and advisory sense of which he has been telling us, but in the legislative sense. He has reminded us of the Bill's forerunner for which he was responsible.

The amendment would remove the general direction to the court to have regard to all the circumstances of the case. It would substitute a number of broad criteria and statements that I am sure all Opposition Members would concede represent a novel approach to such legislation. They are not necessarily the worse for it, but they must be considered in the light of the effect that they would have on litigation and certainty.

The Law Commission's report stated: The response to the Discussion Paper indicated a substantial consensus that what was required was a change of attitude or emphasis in the law rather than a radical restructuring involving a wholly novel statutory framework. I understand—it has almost become a trite expression — that what the Law Commission recommended was evolutionary rather than revolutionary. Although there is much that is attractive in the thought behind the amendment, regrettably it amounts to a revolutionary restructuring of the legislation.

The legislation will not provide certainty. I understand the deep-seated anxiety of hon. Members that by removing the impossible objective and not replacing it by anything explicit, the court will be left without guidance on how to exercise its function on financial provision. My answer was that the court has an overriding duty to do what is just. It will not be helped by the assertion in the amendment that it should work on the basis that marriage is a common endeavour. That might be different if our tradition of statutory interpretation were different. If we had a tradition of much broader and more generalised statutory legislation, as is found in some continental countries, the amendment would have been more acceptable.

11.15 pm

A number of expressions will result in great uncertainty. I know that the amendment derives in part from Scottish law, but considerable differences exist between the law on financial provision on divorce as it is applied in Scotland and as it is applied in England and Wales. In Scotland, the courts do not have the statutory framework that governs the exercise of wide adjustive powers on divorce that the Courts in England and Wales have operated for many years.

Unlike our courts, the Scottish courts have not built up an important and influential body of case law. Therefore, the Scottish Law Commission had an opportunity to examine the powers of the court to make financial provision in Scotland almost completely afresh. That opportunity was denied to the English Law Commission in its review of the financial consequences of divorce. Its recommendations are designed to bring about a modest change of emphasis in the law rather than a fundamentally different approach. That is faithfully repreduced and implemented in the Bill.

The amendment seeks a new guiding principle. However, the guidance provided by using such expressions as "fairly distributes" and "the assets of the marriage" will arouse doubt and uncertainty. Which children are to be covered? Is the earning capacity of either party an asset that should be "fairly" distributed?

It is difficult to see what advantage the amendment has over new section 25 of the 1973 legislation, as introduced in clause 3 of this Bill. The new provision is based on the existing body of case law, reinforced by a wealth of experience in the judiciary, and will continue to allow the courts to exercise considerable flexibility. The amendment would substitute for the general duty on the court to consider all the circumstances of the case, a generalised direction to make a fair distribution of the assets of the marriage.

I do not like dealing with something that is the product of much thought on a basis of uncertainty and, almost, of drafting, but I must do so because we are responsible for ensuring that any change that we make will not arouse uncertainty. It is bad enough being divorced and having to go through the mincing machine of the courts on the questions of divorce and financial provision without having to make new case law out of one's own case. That would happen.

The amendment, which brings in a specific reference to, including any pension and insurance rights is unnecessary. Subsection (2)(h) of clause 3 directs the attention of the court to the value to each of the parties of the marriage of any benefit—for example, a pension—which, because of the dissolution of the marriage, a party will lose the chance of acquiring. That is already incorporated in the legislation.

The hour is late, and I hope that I will not be thought to be unappreciative of the thought behind the amendment if I say to the House that the courts will continue to be required to exercise their discretion, based on a consideration of all the circumstances, so as to do justice. The guidelines are revised in the Bill so as to give greater emphasis to the importance of each party doing everything possible to become self-sufficient. Those are the reasons that lead me to advise the House not to accept the amendment.

Ms. Richardson

I am not surprised by the Solicitor-General's response, because, apart from one minor matter to which we shall come later, he rejected every opportunity that we took to make the Bill a measure which we could support.

I should say something about the strange contribution of the hon. Member for Fulham (Mr. Stevens), who seems to be living in cloud-cuckoo-land. He seems to have dreamt up an imaginary constituent in an imaginary surgery, and he is living in an imaginary world, because, as the hon. and learned Member for Montgomery (Mr. Carlile) said, such a thing could not happen in the courts.

Mr. Alex Carlile

It should not happen.

Ms. Richardson

It should not happen, and it would be a strange court that gave such a judgment.

Mr. Martin Stevens

The hon. Member for Barking (Ms. Richardson) and the hon. and learned Member for Montgomery (Mr. Carlile) are woefully misinformed. I offered to show them examples of the case that I described, of which I have several. They are at liberty to say that I am talking nonsense for as long as they wish and to call my remarks bizarre. Obviously, anyone who brings the truth into the debates must seem to be rather strange.

Ms. Richardson

If the wife in this case had gone to live with someone who was better off than her partner in law, it is strange that the court decided to award her maintenance from her first husband. The hon. Gentleman says that he has proof, but the case is strange and I hope that such things do not happen, because they are not what this amendment is about.

I am disappointed that the Solicitor-General cannot accept what we believe would have made good sense—the inclusion of the phrase "common endeavour", to which I and my hon. Friend the Member for Sedgefield (Mr. Blair) referred. The Solicitor-General said that to include it would mean a revolutionary restructuring, but the words "common endeavour" would have reminded courts from the start that marriage is a two-person contract, and that each partner makes a contribution to the marriage in his or her way. Perhaps the wife, because of her circumstances, cannot contribute financially.

I remind the House that, although the amendment includes the provision that first consideration should be given to the children, in 40 per cent. of divorces no children are involved. Therefore, 40 per cent. of divorces are not covered by what the Government say is the objective of the Bill—the first consideration of children. Those first wives and that property are not covered by the Bill.

The Solicitor-General said, and I accept it, that we had amended our amendment by including a reference to pension rights and that I had wrongly told the hon. Member for Fulham that pensions were not mentioned in the Bill. I had forgotten that they were, but there is just a throw-away line saying, "For example, a pension", which does not take into account the great difficulties of older wives whose divorced husbands have superannuated pensions but who may not benefit from them. There is nothing in the broad terms of paragraph (h) to ensure that they get consideration for their contribution, which is not financial, but a different kind of contribution, towards a graduated pension.

We shall press this to a Division because it is an important amendment, which we wish to see made to the Bill. I hope that hon. Members will join me in the Division Lobby.

Question put, That the amendment be made: —

The House divided: Ayes 32, Noes 154.

Division No. 367] [11.25 pm
Abse, Leo McDonald, Dr Oonagh
Banks, Tony (Newham NW) McWilliam, John
Blair, Anthony Madden, Max
Callaghan, Jim (Heyw'd & M) Meadowcroft, Michael
Campbell-Savours, Dale Mikardo, Ian
Carlile, Alexander (Montg'y) Morris, Rt Hon J. (Aberavon)
Cocks, Rt Hon M. (Bristol S.) Nellist, David
Corbyn, Jeremy Pike, Peter
Cowans, Harry Richardson, Ms Jo
Deakins, Eric Skinner, Dennis
Dixon, Donald Smith,C.(lsl'ton S & F'bury)
Dunwoody, Hon Mrs G. Spearing, Nigel
Harman, Ms Harriet Wardell, Gareth (Gower)
Harrison, Rt Hon Walter Weetch, Ken
Haynes, Frank
Hogg, N. (C'nauld & Kilsyth) Tellers for the Ayes:
Hughes, Simon (Southwark) Mr. John Home Robertson and Mr. Gerald Bermingham.
Kirkwood, Archy
Alexander, Richard Carlisle, Kenneth (Lincoln)
Amess, David Cash, William
Ashby, David Channon, Rt Hon Paul
Atkinson, David (B'm'th E) Chapman, Sydney
Baker, Nicholas (N Dorset) Chope, Christopher
Baldry, Anthony Clark, Hon A. (Plym'th S'n)
Batiste, Spencer Clark, Dr Michael (Rochford)
Bellingham, Henry Conway, Derek
Benyon, William Coombs, Simon
Berry, Sir Anthony Cope, John
Best, Keith Couchman, James
Bevan, David Gilroy Currie, Mrs Edwina
Biggs-Davison, Sir John Dorrell, Stephen
Boscawen, Hon Robert Dover, Den
Bowden, Gerald (Dulwich) Dunn, Robert
Braine, Sir Bernard Durant, Tony
Brandon-Bravo, Martin Dykes, Hugh
Bright, Graham Eyre, Sir Reginald
Brinton, Tim Fallon, Michael
Brooke, Hon Peter Favell, Anthony
Brown, M. (Brigg & Cl'thpes) Fenner, Mrs Peggy
Bruinvels, Peter Finsberg, Sir Geoffrey
Burt, Alistair Forsyth, Michael (Stirling)
Carlisle, John (N Luton) Fox, Marcus
Franks, Cecil Oppenheim, Philip
Freeman, Roger Ottaway, Richard
Fry, Peter Page, Richard (Herts SW)
Gale, Roger Powley, John
Galley, Roy Raffan, Keith
Gardiner, George (Reigate) Raison, Rt Hon Timothy
Garel-Jones, Tristan Rhodes James, Robert
Goodlad, Alastair Ridley, Rt Hon Nicholas
Gow, Ian Ridsdale, Sir Julian
Greenway, Harry Robinson, Mark (N'port W)
Ground, Patrick Rowe, Andrew
Hamilton, Hon A. (Epsom) Sackville, Hon Thomas
Hamilton, Neil (Tatton) Sayeed, Jonathan
Hargreaves, Kenneth Shaw, Sir Michael (Scarb')
Harris, David Shelton, William (Streatham)
Havers, Rt Hon Sir Michael Silvester, Fred
Hawksley, Warren Sims, Roger
Hayward, Robert Skeet, T. H. H.
Heathcoat-Amory, David Soames, Hon Nicholas
Hind, Kenneth Spencer, Derek
Holt, Richard Spicer, Jim (W Dorset)
Hooson, Tom Spicer, Michael (S Worcs)
Howard, Michael Stanbrook, Ivor
Howarth, Alan (Stratf'd-on-A) Stern, Michael
Hubbard-Miles, Peter Stevens, Lewis (Nuneaton)
Hunter, Andrew Stevens, Martin (Fulham)
Hurd, Rt Hon Douglas Stewart, Allan (Eastwood)
Jessel, Toby Stewart, Andrew (Sherwood)
Johnson-Smith, Sir Geoffrey Sumberg, David
Jones, Gwilym (Cardiff N) Temple-Morris, Peter
Jones, Robert (W Herts) Thompson, Donald (Calder V)
Key, Robert Thompson, Patrick (N'ich N)
King, Roger (B'ham N'field) Thome, Neil (Ilford S)
Knight, Gregory (Derby N) Thurnham, Peter
Knight, Mrs Jill (Edgbaston) Tracey, Richard
Knowles, Michael Twinn, Dr Ian
Lang, Ian van Straubenzee, Sir W.
Lawler, Geoffrey Waddington, David
Leigh, Edward (Gainsbor'gh) Wakeham, Rt Hon John
Lilley, Peter Walden, George
Lloyd, Peter, (Fareham) Waller, Gary
Lyell, Nicholas Wardle, C. (Bexhill)
MacKay, Andrew (Berkshire) Watson, John
Maclean, David John Watts, John
Major, John Whitfield, John
Malins, Humfrey Whitney, Raymond
Mather, Carol Wolfson, Mark
Mayhew, Sir Patrick Wood, Timothy
Meyer, Sir Anthony Yeo, Tim
Morrison, Hon C. (Devizes) Young, Sir George (Acton)
Moynihan, Hon C.
Murphy, Christopher Tellers for the Noes:
Nelson, Anthony Mr. Douglas Hogg and Mr. Tim Sainsbury.
Neubert, Michael
Norris, Steven

Question accordingly negatived

Ms. Richardson

I beg to move amendment No. 5, in page 3, line 26, at end insert 'and to a person over that age but under 21 years who is reasonably and appropriately undergoing instruction at an educational estalbishment or trainig for employment or for a trade, profession or vocation and to a person over that age who suffers from a mental or physical handicap or illness'. The amendment seeks to extend the "first consideration" to the welfare of a child beyond the age of 18 years, which is the limit that is set in the Bill. It seeks to extend the age limit to 21 for educational requirements and to establish that there should be no age limit when there is a mental or physical handicap. We had an interesting debate in Committee and I thought that I detected some sympathy for the proposition that the age limit should be extended to 21 years.

There are many instances where the custodial parent still has to cope with the expense of an adult child, as it were, who is a student and undergoing full-time education, full-time training or an apprenticeship. We believe that it would be right for the courts to take that factor into account up to the age of 21. Young people are still assessed as their parents' responsibility, and to introduce a cut-off point at 18 years would be wrong and unfair.

Some Conservative Members who are present are likely to have children aged between 18 and 21. I am sure that they will agree that those children are still their responsibility while they are in full-time education, as many of them will still be. I hope that they will reflect, when they are thinking about their own children, upon the difficulties that would face a first wife who may have had maintenance awarded by the court for the child up to the age of 18 and who faces the cut-off point. She will have to cope with continuing education needs beyond that age.

Mr. Tony Baldry (Banbury)

What does the amendment seek to achieve that cannot be achieved already under section 29(3) of the 1973 Act?

Ms. Richardson

There are those who have been fond of reminding us that the substitute section 25(1) seeks to provide that children should be considered in education terms beyond the age of 18. That is the long and the short of it. I accept that, on the next page of the Bill, the court also has the duty to consider the financial needs of the children and their educational requirements, as well as the responsibilities of the parents. But that is not necessarily the first consideration. Of course the courts may, under the Bill, go further than the age of 18 in exceptional circumstances. But as a matter of policy we say that 18 is too young an age, and that it restricts the court in its thinking about how to treat children who are older than 18. In other words, a restrictive limitation has been placed in clause 25(1).

The hon. Member for Fulham (Mr. Stevens) mentioned a constituency case. Three or four weeks ago, a case was brought to my surgery relating to this point. A woman who had been divorced for some years had a young son aged 17, who had just started an apprenticeship. Incidentally, I am sorry to say that there are only a few apprenticeships left. She received maintenance but was worried what would happen when her son reached the age of 18. She was worried that she would not get that support. I tried to comfort her, and told her that the court had some discretion, and she would have to explain the position to it. However, the truth is that under the Bill, the first consideration must be those children aged 18 or under.

I believe that we should extend the age to 21. Indeed, in Committee it was asked why we should say 21, and not 22 or 19. I agree that it is difficult to find a cut-off point, but I think that 21 is probably the best that we can achieve.

In the case of a parent who has the care of an adult child with a mental or physical handicap, we have decided that there should be no age bar. In Committee, I recall referring to a constituent whose daughter—who has unfortunately now died—was aged 40. The Solicitor-General pointed out that that case would not be covered by the amendment then under discussion, which sought to ensure that mentally or physically handicapped children were a consideration of the court up to the age of 21.

It would be a good move if the Bill said that mentally or physically handicapped children should be a first consideration of the court, regardless of their age. Years ago, mentally or physically handicapped children did not have such a long expectation of life as they now fortunately have. We all know of one-parent or two-parent families where handicapped children live happily in loving homes. However, those children may be well over the age of 18, 21 or even 30. At adult training centres, one sees people making a contribution for a small amount of money. A parent is very happy that his or her child should have the opportunity of doing so.

Often, it is women aged 50 or 60 who look after those 35-year-old or 40-year-old children. We should seriously consider that care, and the amount of maintenance that the court should award in that regard. I hope that Conservative Members will look at this point with the utmost sympathy. I think that they will probably have reflected on the education point, and I hope that they will support it, and that they will recognise that in the case of those with mental and physical handicaps, there is a real problem, and to cut off any suggestion of maintenance, except at the wider discretion of the court, at the age of 18 would be unfair. How often have we heard parents with children who suffer in this way saying, " I always wonder what will happen to my child when I go"? We cannot cope with that, but we can do something to help up to that point if the amendment is accepted. I hope that the House will look on it with sympathy and vote for it.

11.45 pm
The Solicitor-General

I am grateful to the hon. Member for Barking (Ms. Richardson) for the way in which she moved this amendment. All of us know of children—they seem to be increasing in number—with some handicap who live for a long time into adult life. However, we are talking about the extent to which the requirement for first consideration should be given to the welfare of children. We are not talking about the extent to which it shall be possible for financial provision to be made for children, or whether there should be an upper age limit for that. As the hon. Lady acknowledged, section 29 of the Matrimonial Causes Act 1973 provides for financial provision for children, notwithstanding that they have reached the age of 18, in special circumstances.

I have to develop something of a refrain in reciting the Law Commission's approach, because the Bill is intended to reflect its recommendations. This amendment, contrary to what the Law Commission recommended, deals with a limited class of adult children who are placed in a preferential category to others. It is common ground, as the hon. Lady said, that some upper limit is required. Those who support this amendment think that it should be 21. The age of majority is now 18, which accords with what is in the Bill. There is nothing magic about 21 now. It is an arbitrary figure. Many young people are still undergoing further education or working as apprentices by the time they reach 21.

The amendment would require the courts to give preference to one young adult over another, when they are separated by perhaps a year. It would not be right to give preferential treatment, for example, to a 20-year-old apprentice over his 21-year-old sister who is taking a course at a technical college. There is no logic to justify it. Given that there must be a cut-off point, it is better to make it the time when the child becomes an adult and ceases to be in the custody of either parent.

It is not as though the interests of children over the age of 18 are overlooked. Section 29 of the 1973 Act makes provision for them. The difference is that, as the Bill stands, only a child who is still in the custody of the parent would be given first consideration. The Government do not accept that adult children who are no longer in the custody of the parent should be given the preferential treatment of first consideration. Putting it in a blunt and homely way, the wider the area of first consideration, the thinner one spreads whatever butter there is. There must be a fairly close categorisation, and I have stated what the Government believe to be the most sensible way to fix the upper age.

It is, in any event, very much the exception for financial provision to be made in respect of adult children. By and large, financial orders made in favour of children are confined to children of school age. If first consideration extended to the welfare of adult children, the protection given to the welfare of minor children would be diluted. The comparatively few adult children who may reasonably expect to be provided for within the terms of section 29(2) and (3) will not be overlooked by the court in any event. They cannot, however, be regarded as so vulnerable and so much in need of protection as minor children and we believe that it would not be equitable to treat them on the same basis. There is no evidence that the welfare of adult children is overlooked. The concensus of opinion expressed to the Law Commission, which led to the recommendation in its report, was that the provision of adequate financial support for children should be an overriding priority in relation to children in the care of a custodial parent — that is, a parent looking after children.

I appreciate that there are hard cases and that in many instances it is difficult to justify the fact that one person comes just within the terms of the provision while another with no less attractive a claim falls just outside it no matter what threshold is set. Nevertheless, a threshold must be set. I hope that in this brief contribution I have been able to explain to the House why the Government support the recommendations of the Law Commission, which is implemented in the Bill.

Ms. Richardson

I am becoming repetitive, too, in expressing my disappointment. Of course, any cut-off point will exclude certain cases. Neverthless, in this day and age all hon. Members, one hopes, are trying to encourage children to stay on at school and to take some training. Indeed, some actually attribute certain problems of "law and order" to the lack of educational background and training. That being so, it is unfair that a custodial parent with responsibility for the child left in her care—the parent is usually a woman — except under a provision not central to this Bill, cannot claim maintenance payments for the period of continuing education. Such a parent, knowing that payments will be cut off when the child reaches the age of 18, might actively discourage the child from continuing with education or training if that would place a burden on the parent, as it probably would. That is a bad thing, and we should not encourage it.

The Solicitor-General did not say much about the second part of the amendment, save to acknowledge that an increasing number of children with mental or physical disabilities now live longer lives, and we are all pleased about that. He did not say that such children are a financial responsibility of the divorced parents.

In both cases, the Solicitor-General spoke of spreading the butter more thinly, but parents have a responsibility for children with continuing education needs or with a disability which prevents them from being independent persons. We are dealing here with adult children who are not yet independent, who are away from home and who depend on the parent or parents, divorced or not, for support while they complete their education or, in the case of mentally or physically handicapped adult children, perhaps for the rest of their natural lives, because they cannot earn a living for themselves.

I propose to press the amendment to a Division because this is a very important matter and I know that my hon. Friends who are still here will support me. I hope that the Government will feel some shame at not having at least acknowledged some of the points that we have made,especially this very important one.

Question put, That the amendment be made: —

The House divided: Ayes 29, Noes 145.

Division No. 368] [11.55 pm
Abse, Leo McDonald, Dr Oonagh
Banks, Tony (Newham NW) Madden, Max
Blair, Anthony Meadowcroft, Michael
Callaghan, Jim (Heyw'd & M) Mikardo, Ian
Campbell-Savours, Dale Morris, Rt Hon J. (Aberavon)
Carlile, Alexander (Montg'y) Nellist, David
Cocks, Rt Hon M. (Bristol S.) Pike, Peter
Corbyn, Jeremy Richardson, Ms Jo
Cowans, Harry Skinner, Dennis
Dixon, Donald Smith, C.(Isl'ton S & F'bury)
Dunwoody, Hon Mrs G. Wardell, Gareth (Gower)
Harman, Ms Harriet Weetch, Ken
Harrison, Rt Hon Walter
Haynes, Frank Tellers for the Ayes:
Hogg, N. (C'nauld & Kilsyth) Mr. Gerald Bermingham and Mr. John McWilliam.
Hughes, Simon (Southwark)
Kirkwood, Archy
Alexander, Richard Durant, Tony
Amess, David Fallon, Michael
Ashby, David Favell, Anthony
Atkinson, David (B'm'th E) Fenner, Mrs Peggy
Baker, Nicholas (N Dorset) Forsyth, Michael (Stirling)
Baldry, Anthony Fox, Marcus
Batiste, Spencer Franks, Cecil
Bellingham, Henry Freeman, Roger
Benyon, William Fry, Peter
Berry, Sir Anthony Gale, Roger
Best, Keith Galley, Roy
Bevan, David Gilroy Gardiner, George (Reigate)
Biggs-Davison, Sir John Garel-Jones, Tristan
Boscawen, Hon Robert Goodlad, Alastair
Bowden, Gerald (Dulwich) Gow, Ian
Brandon-Bravo, Martin Greenway, Harry
Bright, Graham Ground, Patrick
Brinton, Tim Hamilton, Neil (Tatton)
Brooke, Hon Peter Hargreaves, Kenneth
Brown, M. (Brigg & Cl'thpes) Havers, Rt Hon Sir Michael
Bruinvels, Peter Hawksley, Warren
Burt, Alistair Hayward, Robert
Carlisle, John (N Luton) Heathcoat-Amory, David
Carlisle, Kenneth (Lincoln) Hind, Kenneth
Cash, William Hogg, Hon Douglas (Gr'th'm)
Channon, Rt Hon Paul Holt, Richard
Chope, Christopher Hooson, Tom
Clark, Dr Michael (Rochford) Howard, Michael
Conway, Derek Howarth, Alan (Stratf'd-on-A)
Coombs, Simon Hubbard-Miles, Peter
Cope, John Hunter, Andrew
Couchman, James Hurd, Rt Hon Douglas
Cranborne, Viscount Jessel, Toby
Currie, Mrs Edwina Johnson-Smith, Sir Geoffrey
Dorrell, Stephen Jones, Gwilym (Cardiff N)
Dover, Den Jones, Robert (W Herts)
Dunn, Robert Key, Robert
King, Roger (B'ham N'field) Sims, Roger
Knight, Gregory (Derby N) Skeet, T. H. H.
Knight, Mrs Jill (Edgbaston) Soames, Hon Nicholas
Knowles, Michael Spencer, Derek
Lang, Ian Spicer, Jim (W Dorset)
Lawler, Geoffrey Stanbrook, Ivor
Leigh, Edward (Gainsbor'gh) Stern, Michael
Lilley, Peter Stevens, Lewis (Nuneaton)
Lloyd, Peter, (Fareham) Stevens, Martin (Fulham)
Lyell, Nicholas Stewart, Allan (Eastwood)
MacKay, Andrew (Berkshire) Stewart, Andrew (Sherwood)
Maclean, David John Sumberg, David
Major, John Temple-Morris, Peter
Malins, Humfrey Thompson, Donald (Calder V)
Mather, Carol Thompson, Patrick (N'ich N)
Mayhew, Sir Patrick Thorne, Neil (Ilford S)
Meyer, Sir Anthony Thurnham, Peter
Morrison, Hon C. (Devizes) Tracey, Richard
Moynihan, Hon C. Twinn, Dr Ian
Murphy, Christopher van Straubenzee, Sir W.
Nelson, Anthony Waddington, David
Norris, Steven Wakeham, Rt Hon John
Oppenheim, Philip Walden, George
Ottaway, Richard Waller, Gary
Page, Richard (Herts SW) Wardle, C. (Bexhill)
Powley, John Watson, John
Raffan, Keith Watts, John
Raison, Rt Hon Timothy Wells, Bowen (Hertford)
Rhodes James, Robert Whitfield, John
Ridley, Rt Hon Nicholas Whitney, Raymond
Ridsdale, Sir Julian Wolfson, Mark
Robinson, Mark (N'port W) Wood, Timothy
Rowe, Andrew Yeo, Tim
Sackville, Hon Thomas Young, Sir George (Acton)
Sainsbury, Hon Timothy
Sayeed, Jonathan Tellers for the Noes:
Shaw, Sir Michael (Scarb') Mr. Archie Hamilton and Mr. Michael Neubert.
Shelton, William (Streatham)

Question accordingly negatived

Mr. John Morris (Aberavon)

I beg to move amendment No. 6, in page 3, line 30, after 'shall', insert 'not take account of the conduct of each party except where it would be inequitable to leave that conduct out of account, but shall'.

Mr. Deputy Speaker (Mr. Ernest Armstrong)

With this it will be convenient to take the following amendments: No. 8, in clause 3, page 3, line 30, after 'shall', insert 'not have regard to the conduct of the parties unless the conduct complained of is of such an exceptional nature that it would be inequitable to disregard it, but shall'. No. 56, in page 4, line 11, leave out paragraph (g).

No. 15, in page 4, line 11, leave out from 'parties' to end of line 13 and insert 'in so far as that conduct was calculated to dissipate the joint or several assets of the parties'. No. 16, in page 4, line 12, leave out 'in the opinion of the court be inequitable' and insert 'be contrary to natural justice'.

Mr. Morris

In view of the hour, I shall move the amendment as briefly as possible.

The issue is whether the Bill as drafted limits the consideration of conduct to the manner and extent to which it is considered by the courts now.

The Bill puts it one way. I seek to put the presumption the other way. The issue was raised on Second Reading. We have had the opportunity of considering the extensive representations of the Law Society and of many judges.

It is common ground that none of us wants to return to the experience we had in practice in our younger days, to the principle of fault. That is the danger here and which the Law Society feared, in that it would become incumbent upon them to investigate fault as regards conduct in the context of maintenance.

The Bill says that the court in particular shall have regard to a number of factors and conduct is one of them. I am concerned about the words "in particular" when they refer to that matter, let alone the reference to other matters.

We have had the advantage of considering the views of distinguished lawyers such as Lord Denning, Lord Elwyn-Jones, and Lord Scarman and Sir John Arnold, the President of the Family Division. He has rendered particularly valuable service to the Special Standing Committee. In calling a senior judge before the Special Standing Committee, some of my right hon. and hon. Friends were concerned that this was a constitutional issue of great importance. We have been led to believe in our training in the division between the judiciary, the executive and the legislature and we were taught in our law schools that only in the person of the Lord Chancellor was there the fusion of all three. I do not object. Indeed, it is within the powers of the Committee to call whomsover it wishes and it can certainly call a judge if it seeks his assistance.

What is important in calling a judge is that one should not mix his role as a witness and use whatever views he propounds as views on the legislation as a bulwark for further consideration of any interpretation that he gives to the Committee. That is a real danger.

I thought that the Solicitor-General was on dangerous ground in the Committee having regard to the concern expressed by the Law Society. He invited—I paraphrase—the circulation of views. He said: I simply offer the humble suggestion that the Law Society might consider that it would do better to publicise the views of Sir John Arnold amongst its members rather than publicise the doubts that have been expressed. I am sure that that was an off-the-cuff and not a considered remark by the Solicitor-General, who is always so careful in the way that he advises the Committee and the House. If the views of a very eminent judge expressed before the Committee were circulated, that would have severe limitations; it is not a path that we should embark upon without proper consideration.

There is no basis in our law for anticipatory judgments. To circulate such an opinion and invite its circulation, as the Solicitor-General did, is to embark on a wholly new path. It increases, extends and enlarges the role of the judiciary in a way that hitherto we have never experienced, so far as I am aware.

The view of an eminent judge before the Committee of the way that the court would interpret the law—I do not say this in an offensive way—is no more important than if he addressed the annual meeting of the Bar, the Law Society or any gathering. It would be wholly wrong. If it were deemed right that members of the Law Society should look at conduct and those concerned were subsequently sued in negligence for not having carried out the necessary investigations, the wise words of the President of the Family Division would not help one little bit in any subsequent litigation as regards conduct.

I believe that it is right for me to delay the House for a moment to express my concern and say that the House should make it clear that this is not the path that we should take. If one went along that road, and called on one side one judge, and on the other side another judge, that would not be the way to consider legislation. Parliament has a responsibility. However eminent or great the judge, his role in advising the Committee cannot and should not be used as a way of interpreting legislation. He is not the sole judge; he is not the highest judge in the land. No man is immortal. I wish Sir John a long life and office in the Family Division. He may be called to higher things in our courts. However, it is important to understand that this is a personal view. We value it very much. It is important, and helped the Committee considerably, but it cannot be prayed in aid in this way, as the Solicitor-General did, perhaps inadvertently.

There is ambiguity with regard to how the courts would look at conduct. If we say that we do not want to change the way that the courts now look at conduct, having regard to the concern expressed by Lord Denning—I quoted his remarks on Second Reading—Lord Elwyn-Jones and other judges, Parliament cannot abdicate its responsibility. It cannot and should not be said to Parliament that because there is ambiguity in the Bill as at present drafted, the courts have the ability to spot such a matter early on, and the matter would go to appeal. Then Sir John and his friends could resolve the matter, and that would bring the ambiguity to an end.

That poses one problem. In the meantime, before the matter was resolved, there would be uncertainty. There would be difficulties in hundreds of registrars' courts up and down the land until the matter was resolved. But above all, where there is uncertainty which is canvassed by eminent judges, and there is a conflict of view among the judiciary, it is not the role of Parliament to abdicate its responsibility and say, "All will be well on the day. It may not be on day one, but it will be six months or three years later when the matter goes to appeal and the courts ultimately put right what Parliament has failed to do."

It is our job to set out legislation as precisely as possible and, with the material that we have supplied to them, for the courts to interpret it—not the other way round. To pray in aid, in the face of the difficulty that has been pointed out, the views of judges and to answer the apprehensions that have been canvassed by saying, "All will be well on the day because Sir John Arnold has told us how he will eventually interpret the legislation," is not the way to do it. It is for Parliament to face up to the ambiguity and give a clear direction to the courts.

12.15 am
Mr. Alex Carlile

Many hon. Members will agree that the gross and obvious test which arose from Wachtel v. Wachtel is unsatisfactory. It is unsatisfactory in the way in which it arose and in the way that it developed. It is for Parliament to lay down the tests to be applied to conduct, if conduct is to be considered, and such tests should not be laid down in the rhetorical adjectives that were used in Wachtel v. Wachtel.

If the Bill is enacted as drafted, conduct will assume a new and more significant position, and there are two views of the effect of the subsection with which we are concerned: one that it will make no difference, and the other that it will make a substantial difference to the way in which cases are conducted. I do not want to reiterate what the right hon. and learned Member for Aberavon (Mr. Morris) said about the constitutional issue which arose from the evidence given by the President of the Family Division. I echo his words and agree with them wholeheartedly, emphasising, as he did, that whatever was said in the notional appeal to which Sir John referred in his evidence before the Committee, the House of Lords might not agree with him in due course. Nor might his successor as President.

The Law Society, it appears, will advise solicitors o undertake investigations into conduct — indeed, it will advise them that they are under a duty to undertake such investigations—and to place issues of conduct before the court. The letters which my hon. Friends and I have received from the public about this part of the Bill show that they do not share Sir John Arnold's view but, ratheir, the Law Society's view. The great weight of those letters have been from ex-husbands and husbands going through divorce proceedings who feel that the effect of the measure will be to encourage investigations into their wives' or ex-wives' conduct.

It is important for us to bear in mind that there are few women in this House. My party is just as guilty as any other of deficiencies in this regard—

Mr. Baldry

More so.

Mr. Carlile

More guilty; I agree with that suggestion. It is important for us, mostly men, to bear in mind the position of women particularly those with children, who may find themselves deserted through the breakdown of their marriages. If the public are to tell their solicitors that they must look into conduct, and if solicitors accept those instructions, I fear that there will be an unhappy result in the courts. Apart from a lot of dirty linen being washed—in some cases in public, in others at private hearings — perhaps more damaging will be the effect of investigations into conduct on the children, which will be harmful and could be devastating.

When heat is generated at the end of a marriage, as unfortunately happens all too often, it must affect the children. Enough heat is already generated by financial considerations, and if we are to have endless investigations into conduct, we will have the employment, once again, of inquiry agents going around seeing what wives are up to. It happened in virtually every case when I started to practice at the Bar, and it will be a damaging development.

The view of my party is that many matters should be taken into account when deciding upon financial provision on the breakdown of marriage. The Bill contains, correctly, many of those matters. In almost every case when there has been conduct which can be characterised in many difficult ways—the current way is by the use of the phrase "gross and obvious"—there are financial considerations which are bound to effect the matrimonial settlement in any event.

Much was said earlier about maintaining marriage as the basic institution of family life and about attempting to strengthen marriage, which is continually under attack because of social pressure. One way to strengthen marriage and to heighten respect for it is to give prospective partners a sense of financial responsibility before they enter into a marriage contract, knowing that if there is a breakdown of the marriage conduct will be taken into account only in wholly exceptional circumstances. We would go further than any other party in the House and say that conduct should be taken into account only when it has been calculated to dissipate the joint or several assets of the parties.

We urge the Attorney-General to accept that the Bill must spell out clearly that conduct can be taken into account only in what are really exceptional circumstances, that we are not prepared to countenance the type of investigation which the Law Society, a responsible body considering the matter in depth and in detail, believes inevitable if the Bill is enacted as drawn, and to present to the House conduct in a way which means that it is so greatly restricted as virtually never to be considered by the court.

Mr. Baldry

One of the hopes in having a Special Standing Committee was that that procedure would succeed in dispelling some of the misapprehensions about the Bill which had been raised on Second Reading.

When Sir John Arnold appeared before the Committee, I asked him, in terms, whether the present definition of conduct in the Bill was in line with current practice and case law on conduct. He said, in terms, that that is what he believed. That should be acceptable to the House. To seek to continue to stir up misapprehension about the Bill's effect does no service to anyone.

If the right hon. and learned Member for Aberavon (Mr. Morris) feels and suspects that Sir John Arnold's opinion will not prevail in the Family Division, he has not been across the road recently to appear before him in that division. My experience is that if Sir John Arnold has said that, almost certainly that is what will happen when the first case comes before the Family Division.

We do no one any service by seeking to bring back the investigations into conduct that we had many years ago.

Mr. John Morris

The hon. Gentleman must appreciate the point made by the hon. and learned Member for Montgomery (Mr. Carlile), that the Family Division is not the final court of appeal.

Mr. Baldry

I note that point. Although the right hon. and learned Gentleman sought to question the constitutional position of the President of the Family Division, at no time did he advance any arguments to distinguish what the president said, nor did the right hon. and learned Gentleman suggest why he thought that the President's interpretation of the law was wrong. If it is a toss-up between the previous Master of the Rolls and the present President of the Family Division, my money is on the President of the Family Division.

Mr. Abse

I welcome the fact that my right hon. and learned Friend the Member for Aberavon (Mr. Morris) has placed squarely into our discussion the constitutional issues that arise. He was generous to the Solicitor-General in suggesting that what happened in Committee was inadvertent — the Solicitor-General is not so careless. The record of our proceedings shows my disquiet at the course that the Solicitor-General is following, and that I immediately raised the issue. With his customary pertinacity, he has continued to follow his course.

The constitutional issue is important for this clause, because the Solicitor-General insists that our alarms about the wording of the clause are unnecessary. He has relied almost wholly on the evidence given to the Special Standing Committee by the President of the Family Division, Sir John Arnold. The Solicitor-General said that he gave an answer contrary to the views expressed by Lord Denning and the Law Society. He insists that we should not accept them. To use his phrase, we have had an interpretation from the horse's mouth". The appellate court will deal with the provision as the President interprets it. Evidently my right hon. and learned Friend agrees with me that to rely on the President's anticipated ruling introduces a dangerous constitutional doctrine. We have to decide today whether to alter the clause in a ltid to achieve our objectives, or to abandon our traditional role and rely on the declared future judicial interpretation, which was given to us in evidence. If we do that, we shall be taking a fateful step which will take us far beyond the narrow issue of the clause.

I remind the House of Montesquieu' s often quoted words: There is no liberty if judicial power be not separated from the legislative. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control". I am apprehensive about the Solicitor-General's arguments for the clause. In this I am certainly not being idiosyncratic. The arguments have already been widely and adversely commented on, as a letter from Mr. Ole Hansen in The Times of today illustrates. Hitherto, the preoccupation of libertarians has been to insist that nothing must be done to curb the independence of the judiciary.

This House imposes severe restraints on itself. Only in the most narrowly defined circumstances can reference be made to a matter awaiting or under adjudication, and reflections about the character and motives of the judge are determinately inhibited. When the new Select Committees were set up, the Lord Chancellor's Department and the Law Officers Department were rigorously excluded from the scope of the system. The legislators were not to intrude in the judiciary and the judicial process.

A new apprehension is now abroad. It is precipitated to no small degree by the manner in which the debate on this clause has developed. The unease is not that the legislature will misuse the judiciary, but that the judiciary will sometimes clandestinely and sometimes overtly—as in this case—so endanger the legislative process that judges become both statutory law makers and law interpreters. Is the Executive, by the invitation in this case from the Solicitor-General, seducing the judiciary, and is the House of Commons, as the unintended consequence of its Special Standing Committee system, unwittingly colluding in that seduction?

12.30 am

This is not an isolated matter. If it were, I am sure that there would be no unease. There is increasing unease about the new intimacy growing between the Executive and the judiciary. The House will recall that last year, when the Master of the Rolls, in his judicial capacity, was contemplating the sequestration of a union's assets it was discovered that not long previously he had held secret discussions, at the instigation of the Foreign Secretary, with the permanent secretary of the Department of Employment. It has been alleged, and never denied, that during those discussions Sir John Donaldson proffered to the Government advice on changes in the law on industrial relations, including the introduction of legal restrictions on the right to strike and an elaboration of how the judiciary could play a greater role in industrial relations.

It is well known to some of us that some judges privately expressed their resentment at the fact that the Master of the Rolls had so readily allowed himself to be sucked into the maelstrom of political battles that should be resolved by Parliament and the unions. Obviously, for workers to regard judges as allies of the Government is to invite a dangerous contempt of the law.

The eagerness to reduce the distance between the law interpreter and the law maker is not confined to the Master of the Rolls. To the surprise of many, the Lord Chief Justice, at the request of the Chairman of the Special Standing Committee—with perhaps more courtesy than judicial wisdom—readily acceded to sending Mr. Justice Skinner to the Special Standing Committee to submit to its inquisition and so guide Members of Parliament in shaping and determining the Criminal Attempts Act 1981.

Now the President of the Family Division has given evidence to our Special Standing Committee in relation to this clause. He said, some attempt were made to argue that the new provision enlarged the extent to which conduct should be taken into account. He also said: I do not anticipate this would be likely to be the subject of more than one appeal in the judgment of which I would expect it to be firmly rejected. Sir John Arnold, in advance of an anticipated hearing, has, in my judgment and, I suspect, in the judgment of most people reading that evidence, unequivocally given his views.

Some of us who heard his Lordship's cogent contribution recalled John Locke's warning in 1690: It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them. But trampling upon any squeamishness that some of us may have had about the constitutional niceties, the President went further. He swept aside the Law Society's plea to the legislature to alter the clause and save solicitors from an unpleasant task that would be continued for years until an appellate decision, in the normal course of events, rendered it unnecessary. He sought to appease those who had such fears and said: I expect that when this point comes before the Court of Appeal as it is bound to do … it will happen in a matter of months or a year at any rate. The President of the Family Division was giving public notice that his eagle eye would lead him to pluck out and expedite for appellate judgment any hearing that raised the conduct issue. Hitherto, apart from Mr. Justice Skinner, only a judge who disbarred himself from sitting by becoming chairman of the Law Commission — the advisory body to the Lord Chancellor—has appeared before us as legislators. On Second Reading I asked the Solicitor-General to call the chairman of the Law Commission before the Committee, but I asked in the knowledge that the chairman, although a judge, does not sit as one while he is a law commissioner. Now we have this new phenomenon. We have lived to see the day, as Members of Parliament, when, in effect, a judicial judgment by a sitting appellate judge has been given in a Committee of the House of Commons.

Mr. Baldry

Did the hon. Member or any Member of the Special Standing Committee at any time before Sir John Arnold came to give evidence object to his giving evidence? If it were not to give his interpretation of the Bill, what did the hon. Member think Sir John Arnold was going to do when he came before the Special Standing Committee?

Mr. Abse

So far as I am aware, the invitation to Sir John Arnold was at the instigation of the Solicitor-General, who no doubt wished Sir John Arnold to come. It was not within my power to make that determination.It is no use trying to shift the responsibility for Sir John Arnold coming before the Committee, valuable as his evidence was, and then say that I or somebody else should have objected before he came. If the hon. Member will read with care the evidence, he will see that at one point Lord Scarman saw the dangers and sought to distance himself by saying that there were certain things which he could say in his capacity, rather than that it was wise for the President to say, given his special position.

I go further. What is worse, not only did the judge take such a view, but the Solicitor-General, with uncharacteristic insouciance, has since proceeded further down the road opened up by Sir John Arnold, as my right hon. and learned Friend the Member for Aberavon has indicated. He has impatiently expressed his desire that the Law Society, instead of publicising its doubts on the conduct clause, should circulate all its members with Sir John Arnold's statement, and that they should quench whatever scruples they and Lord Denning may have on the interpretation. Such diktats to lawyers may raise no eyebrows in the Soviet Union, but as yet neither our courts nor our lawyers are governed by ukases, but by the well-tried and tested system of legal precedents. The system has served us well and when, by condoning the Executive's attempt to cajole the judiciary into anticipatory judgments, we breach it, we put our liberties at peril.

From the Law Courts at the Strand down Whitehall o the House of Commons there is, as many people know, a good bus service. It is a route, however, which the judiciary should hesitate to use. In the meantime, we have the duty to see that the Government give no free passes to our judges, who otherwise may indeed find themselves arriving at dangerous destinations'?

I wish to be fair to the Solicitor-General, because the comments which he made in Committee, which caused me and many outside the House major concern, did have a qualification. He said: I simply say that one cannot do much better than the President of the Family Division when seeking an informed view of how the courts will interpret a legislative provision, because it is his division that will interpret it and he is the head of that division. I am quoting this to emphasise the qualification which the Solicitor General made: It is abundantly clear—subject, of course, to argument that may be addressed to the judge in an individual case—that the strong probability is that the appellate court will deal with the provisions in the way in which he at present interprets it."—[Official Report, Special Standing Committee, 1 May 1984; c. 582.] A genuflection was made by the Solicitor-General to the belief that it is improper to make anticipatory judgments, by saying that any ruling would be subject to argument and rest with the judge.

As the Solicitor-General has continued to argue that interpretations should be brushed aside — that is his justification for maintaining the status quo — the qualification that he made in Committee is bound to be regarded as nothing more than a charade. It does not weaken the argument that the House must take control of the clause so that we do not create a dangerous constitutional precedent by passing it on to the Family Division.

The clause which I have formulated in my amendment is bound in words which seek to deal with the objections which the Solicitor-General mentioned in respect of the clause which I suggested, following the example of Lord Elwyn-Jones, in which I drew attention to the exceptional nature of circumstances. My amendment deals with the conduct complained of being of an exceptional nature.

I hope that the Solicitor-General will pay attention to the change that is taking place. I hope he will find it more acceptable. I do not believe that solicitors want to be scavengers. They do not want to feel compelled to make prurient inquiries, as a result of a clause which, according to distinguished lawyers and a large number of judges, is subject to the interpretation put upon it by Lord Denning, and which in my view and in that of the Law Society places a duty on a solicitor to perform an unpleasant task. We do not want the maintenance of wives to be decided upon trivial issues of conduct.

I have not fought, as I have throughout my parliamentary life, to eliminate questions of matrimonial offences and misconduct from the law for the whole question to be brought back elliptically, particularly since it is said by the President of the Family Division that that is not being done. I hope that the Solicitor-General will be more receptive.

Mr. Blair

There is no difference between the Government and ourselves about what the law should be. We agree that conduct should not generally be taken into account, unless it is of a serious nature. The only question is whether that aspiration is translated into actuality in the Bill.

Conduct is included with other matters that must be taken into account. It is mandatory that the court shall have regard to such matters. The problem is that all the other matters to which the court shall have regard are those for which we wish the court positively to have regard, unless particular circumstances obtain. The problem is that we do not want the court to take conduct into account generally. There is an uneasy drafting problem. The court must have regard to conduct if it thinks that it is wrong to disregard it, but we believe that the court should not have regard to conduct. That is one major difficulty in connection with what will be new section 25.

In all the judicial decisions about conduct, the judges have been careful to emphasise that only in serious cases will conduct be taken into account. In other words, it should not be taken into account in run-of-the-mill cases. What is omitted from the proposed new section 25 is any emphasis to make it clear to the courts that conduct should be taken into account only in exceptional circumstances.

12.45 am

If there is an ambiguity—one is said to exist by many eminent people and organisations, such as Lord Denning and the Law Society — it is crazy for Parliament not to attempt to remove it. If it can easily remove it — we say that it can by accepting the amendment—it seems nothing short of perverse not to do so.

The hon. Member for Banbury (Mr. Baldry) accused those of us who have tabled amendments of stirring up apprehensions about the issue of conduct coming back into the law. We are not stirring up apprehensions by tabling amendments; we are trying to allay the apprehensions that already exist. The meeting with the National Association of Citizens Advice Bureaux, which the hon. Member for Banbury helpfully set out, made it clear that it thought that many people believed that the Bill would change the law and allow conduct to be dragged back into divorce proceedings. If we are to translate into practice the aspiration that is shared by hon. Members on both sides of the Chamber and ensure that conduct is taken into account only in exceptional circumstances, the Bill is an inadequate mechanism for that translation. The Government should accept the amendment or give us good reasons for refusing it.

The Solicitor-General

However eccentric this might be thought to be, I shall deal with the amendments and then endeavour to assist the House on the great constitutional issue that has been discussed. The amendments have enabled us to discuss once again the anxieties that have been expressed about the relevance of conduct to financial provision. Subsection (2)(g) of the new section 25, which deals with conduct, is included in the Bill because it represents one of the changes which it is intended should be made to the existing section of the 1973 Act.

The proposed removal from the existing section 25 of the requirement that the courts should attempt to restore the parties to the financial position in which they would have been had the marriage continued has necessarily involved a reformulation of the circumstances in which conduct should be taken into account. As the reference to conduct in the existing section 25 appears as a tailpiece to that section, with the removal of the tailpiece there has to be a restructuring of the format. At present, when making an order, section 25(1) of the 1973 Act obliges the court to have regard to the conduct of the parties. There were various decisions, beginning with the Wachtel case in 1974, and the Government agree with the Law Commission that the policy that the present case law achieves should be maintained. The amended section 25(1) is designed to achieve just that effect. The Government are advised and are confident that it will succeed.

The Government are not relying upon advice that has come exclusively from their own advisers. We know that because of our Special Standing Committee procedure. As a Committee we decided to call certain witnesses to advise us. The legal witnesses that we called were at one in this regard. They were the chairman of the Law Commission, Professor Cretney, the law commissioner who was principally responsible for the report, the President of the Family Division, Lord Scarman, and Mr. Joseph Jackson, the chairman of the Family Law Bar Association. They were at one.

Amendment No. 6 is a curtailed improvement of an amendment moved in Committee by the hon. Member for Sedgefield (Mr. Blair). It would have exactly the same effect as is achieved by paragraph (g), but a change of wording would be involved. We would be abandoning a form of words that has received the express approval of the witnesses to whom I have just referred, and substituting different language for it. That seems to be an undesirable thing to do. I do not believe in the wisdom of making a change for the sake of change, when the wording that it is proposed to change has had such influential and confidence-inspiring approval.

I understand the way in which the matter has been put by the hon. Member for Sedgefield. We all agree that conduct should be considered only in an exceptional case, and when it would be inequitable to disregard it. The hon. Gentleman says that if one puts that requirement to the fore because one is requiring a negative, it is drawn to the attention of the court and of others in a more positive way. I understand that, and if I felt that there was a serious risk of misinterpreting the restructuring of the format of section 25—the introduction of "inequitable" into paragraph (g) — I would be more sympathetic to the amendment. However, I do not believe that there is such a risk. We all know the bits of evidence that relate to this point, so I shall not take up the time of the House in reciting them. Suffice to say, those who have advised us have said that "inequitable" reflects the case law exactly. The effect of that case law is that conduct shall be disregarded, save where disregarding it would cause an ordinary person's sense of justice to be offended. That has been put in various ways, such as where disregarding it would cause an ordinary mortal to throw up his hands and say, "Surely you are not going to disregard the way this husband or wife has misbehaved." However, I hope that I have shown that I understand why the right hon. Gentleman moved the amendment as he did.

Amendment No. 15 would represent a novel departure from the present position. The novelty lies in the fact that it would limit the courts consideration of the conduct of the parties to conduct which related only to the way in which the assets of the parties—and I think, though I am not sure, that means the property and the money of the parties — had been treated. Paragraph (g), which this amendment would alter, has been drafted very carefully to embody in the statute the present state of the law as established by the 1973 Act and precedent.

The amendment would confront the courts with a number of problems. It would change their current practice of not having regard to conduct, except where it would be inequitable not to have regard to it, and would therefore interfere with and run contrary to the Law Commission's view that the current policy of the law should not be changed. Because of the terms in which it is drafted, it would give rise to doubt and uncertainty in the minds of practitioners and members of the judiciary and result in a consequential increase in the number of cases coming before the courts before guidance could be given at appellate level.

The uncertainties to which I refer are the new concepts which the amendment would introduce of "dissipate" and "assets" which are not defined in statute or by precedent, and which provide great scope for argument as to what amounts to conduct which "was calculated to dissipate", precisely what "dissipate" comprehends, and what is included in the joint or several assets of the parties". I am afraid that I do not see clear answers to those points.

I am pleased that the amendment of the hon. Member for Torfaen (Mr. Abse) is not an improvement on the provision in new section 25(g). Mr. Jackson pointed out that it is difficult to say what is exceptional. Neither the courts not the profession would be able to say with certainty what sort of conduct should be regarded as exceptional. The Committee members will remember that Mr. Jackson said that as a good trade unionist he would love to have the word "exceptional" in, because that would bring in plenty of work to find out what it means, testing it, and so on, but he could not advise us to put in such a provision. Almost certainly the lawyers would take the view that there had been a change from the present position, which has been established by a long line of appellate decisions, and we would have to start the process again, until the scope of "exceptional" had been hammered out in the Court of Appeal arid its meaning had been made certain.

The same goes for the words "conduct complained of". Is that conduct complained of during the course of the marriage or since the divorce, or does it mean conduct complained of in the petition'? These are difficult questions that would raise questions of res judicata, and might lead to more petitions being fruitlessly defended to avoid a finding on conduct that could sound in the subsequent dispute over finance. Does it simply mean conduct that is raised in the ancillary proceedings? I do not have unequivocal answers to these intensely boring questions. The last thing that the House should wish to do is to inflict the expense and worry of having them litigated upon our unfortunate constituents. I cannot be more helpful about that amendment.

I move to the great constitutional issue that has burst upon us. Why do we have a Special Standing Committee procedure? I suppose the answer is so that we can be better informed of the nature of the Bill that is being considered. We want to know what it means, and we want to take evidence so that we do not have to take it from Ministers. With all of that I wholly agree.

Why do we have the order that our proceedings should be published? I imagine the answer is because we want the public outside to know the information that has been given to us. With that I wholly agree.

How do we set about getting people to come and give evidence, using the three sittings reserved for that purpose? The Committee corporately considers it would like to call, and it takes the decision corporately as to whom it shall call. That is what this Committee did. Sir John Arnold did not come because I beckoned but because the Committee as a whole invited him to do so—sent for him, in the words of the standing order. I did not recall any opposition to that proposition from the hon. Member for Torfaen, or anybody else, in our first, private sitting.

Mr. Abse

The hon. and learned Gentleman should not be talking about what took place at private meetings. He does not deal with this problem nor attempt to meet it by trying to wash his hands of having participated in, if not instigated, the suggestion that: the President should appear before us.

The Solicitor-General

As the hon. Gentleman has already said that Sir John Arnold came because I invited him and, if I understood him correctly, denied that my hon. Friend the Member for Banbury (Mr. Baldry) had any part in the invitation, I am entitled to say that Sir John Arnold was invited by the Committee.

What did Sir John Arnold do? He answered the questions that we put to him, submitted two written memoranda, in which he dealt with the genesis of the changes that the Bill brings about, and considered the arguments put before the Law Commission and its report. He dealt, because he was asked to do so by us, with the wording of the Bill. I agree with the hon. Member for Torfaen that it was helpful that he did. He gave helpful evidence that was published in due course. If that was helpful evidence for us, it is doubtless helpful evidence for the public. In the course of our later discussions, I was told that the Law Society and other solictors believed that the Bill would require conduct to be gone into much more widely, and money and time would be taken to do this.

It thus seemed to me perfectly proper and helpful to suggest to the Law Society that if its members were really suffering from what I believed to be a misapprehension, it might do well to circulate to them that which the House of Commons had already ordered to be published so that solicitors could make up their own minds whether their fears were likely to be well founded. That seemed a not entirely unreasonable suggestion.

1 am

A great haroosh has now been raised about the independence of the judges having been somehow impugned, but, if that is so, it has been impugned by the Committee in asking the judges to come and help us. For the life of me, I cannot see how that can possibly arise. No one is saying that, by reason of what they said to the Committee, the judges are somehow obliged to determine future cases in a particular manner. That is a gross absurdity and rather insulting to the judges.

If it is argued that no judge should ever express an academic or hypothetical opinion about a matter of law, that rules out a great many judicial textbooks written by people like the vice-chancellor, Sir Robert Megarry, Lord Justice Goff and other extremely distinguished contributors to judicial learning.

Therefore, although I admire the ingenuity of the attack, I am utterly unrepentant of what I have said. With regard to the judges giving evidence to the Committee, I find that nothing has occurred that in any way impugns the vital principle that the judges are entirely independent of the Executive. With respect, therefore, that is my reply.

Mr. John Morris

I distinguished very carefully between any objection to a judge coming to the Committee — I should certainly not object to that — and the utterance of the Solicitor-General inviting the Law Society to circulate the view of a judge to allay any apprehensions — treating the judge's opinion, as it were, as an anticipatory judgment whereby the fears of Law Society members might be allayed. I put the point extreme very carefully indeed, but if the Solicitor-General did not take it wholly on board that may nevertheless have been my fault.

The amendment does not seek change for its own sake. The fact that other words have been considered by the Committee surely does not stop this House from improving the Bill if it feels that that is necessary. Therefore, I invite my right hon. and hon. Friends to divide the House on the amendment.

Question put, That the amendment be made:—

The House divided: Ayes 28, Noes 139.

Division No. 369] [1.5 am
Abse, Leo Haynes, Frank
Banks, Tony (Newham NW) Hogg, N. (C'nauld & Kilsyth)
Blair, Anthony Hughes, Simon (Southwark)
Callaghan, Jim (Heyw'd & M) Kirkwood, Archy
Campbell-Savours, Dale Madden, Max
Carlile, Alexander (Montg'y) Meadowcroft, Michael
Cocks, Rt Hon M. (Bristol S.) Mikardo, Ian
Corbyn, Jeremy Morris, Rt Hon J. (Aberavon)
Cowans, Harry Nellist, David
Dixon, Donald Pike, Peter
Dunwoody, Hon Mrs G. Richardson, Ms Jo
Harman, Ms Harriet Skinner, Dennis
Harrison, Rt Hon Walter Smith, C.(Isl'ton S & F'bury)
Wardell, Gareth (Gower) Tellers for the Ayes:
Weetch, Ken Mr. Norman Hogg and Mr. Gerald Bermingham.
Alexander, Richard King, Roger (B'ham N'field)
Amess, David Knight, Gregory (Derby N)
Ashby, David Knight, Mrs Jill (Edgbaston)
Atkinson, David (B'm'th E) Knowles, Michael
Baker, Nicholas (N Dorset) Lang, Ian
Baldry, Anthony Lawler, Geoffrey
Batiste, Spencer Leigh, Edward (Gainsbor'gh)
Bellingham, Henry Lilley, Peter
Benyon, William Lloyd, Peter, (Fareham)
Berry, Sir Anthony Lyell, Nicholas
Best, Keith MacKay, Andrew (Berkshire)
Bevan, David Gilroy Maclean, David John
Biggs-Davison, Sir John Major, John
Boscawen, Hon Robert Malins, Humfrey
Bowden, Gerald (Dulwich) Mather, Carol
Brandon-Bravo, Martin Mayhew, Sir Patrick
Bright, Graham Meyer, Sir Anthony
Brinton, Tim Moynihan, Hon C.
Brooke, Hon Peter Murphy, Christopher
Brown, M. (Brigg & Cl'thpes) Nelson, Anthony
Bruinvels, Peter Neubert, Michael
Burt, Alistair Norris, Steven
Carlisle, John (N Luton) Oppenheim, Philip
Carlisle, Kenneth (Lincoln) Ottaway, Richard
Cash, William Page, Richard (Herts SW)
Channon, Rt Hon Paul Powley, John
Chope, Christopher Raffan, Keith
Clark, Dr Michael (Rochford) Ridley, Rt Hon Nicholas
Conway, Derek Robinson, Mark (N'port W)
Coombs, Simon Rowe, Andrew
Cope, John Sackville, Hon Thomas
Couchman, James Sainsbury, Hon Timothy
Cranborne, Viscount Sayeed, Jonathan
Currie, Mrs Edwina Shaw, Sir Michael (Scarb')
Dorrell, Stephen Shelton, William (Streatham)
Dover, Den Skeet, T. H. H.
Dunn, Robert Soames, Hon Nicholas
Durant, Tony Spencer, Derek
Fallon, Michael Spicer, Jim (W Dorset)
Favell, Anthony Stern, Michael
Fenner, Mrs Peggy Stevens, Lewis (Nuneaton)
Forsyth, Michael (Stirling) Stevens, Martin (Fulham)
Fox, Marcus Stewart, Allan (Eastwood)
Franks, Cecil Stewart, Andrew(Sherwood)
Freeman, Roger Stradling Thomas, J.
Fry, Peter Sumberg, David
Gale, Roger Temple-Morris, Peter
Galley, Roy Thompson, Donald (Calder V)
Gardiner, George (Reigate) Thompson, Patrick (N'ich N)
Goodlad, Alastair Thorne, Neil (Ilford S)
Gow, Ian Thurnham, Peter
Ground, Patrick Tracey, Richard
Hamilton, Hon A. (Epsom) Twinn, Dr Ian
Hamilton, Neil (Tatton) van Straubenzee, Sir W,
Hargreaves, Kenneth Wakeham, Rt Hon John
Havers, Rt Hon Sir Michael Walden, George
Hawksley, Warren Waller, Gary
Hayward, Robert Wardle, C. (Bexhill)
Heathcoat-Amory, David Watson, John
Hind, Kenneth Watts, John
Holt, Richard Wells, Bowen (Hertford)
Hooson, Tom Whitfield, John
Howard, Michael Whitney, Raymond
Howarth, Alan (Stratf'd-on-A) Wolfson, Mark
Howarth, Gerald (Cannock) Wood, Timothy
Hubbard-Miles, Peter Yeo, Tim
Hunter, Andrew Young, Sir George (Acton)
Jessel, Toby
Johnson-Smith, Sir Geoffrey Tellers for the Noes:
Jones, Gwilym (Cardiff N) Mr. Douglas Hogg and Mr. Tristan Garel-Jones.
Jones, Robert (W Herts)
Key, Robert

Question accordingly negatived

Amendment proposed: No. 8, in page 3, line 30, after `shall', insert 'not have regard to the conduct of the parties unless the conduct complained of is of such an exceptional nature that it would be inequitable to disregard it, but shall'.—[Mr. Abse.]

Amendment negatived.

Ms. Richardson

I beg to move amendment No. 12, in page 4, line 7, leave out 'made by each of the parties' and insert 'which each of the parties has made or is likely in the foreseeable future to make'.

Mr. Deputy Speaker (Mr. Paul Dean)

With this it will be convenient to take the following amendments: No. 13, in page 4, line 9, leave out 'made'.

No. 14, in page 4, line 9, after 'made', insert `or likely to be made'. No. 25, in clause 9, page 9, line 25, leave out `made by each of the parties' and insert 'which each of the parties has made or is likely in the foreseeable future to make'. No. 26, in page 9, line 27, leave out 'made'.

Ms. Richardson

The amendments are, in a way, the Solicitor-General's response to a point which I made in Committee, which will clarify the point that we were discussing.

Amendment agreed to.

1.15 am
Mr. Weetch

I beg to move amendment No. 20, in page 4, line 43, after 'party', insert 'had expressly'.

I shall not take long. The Solicitor-General has come through the Bill almost totally unscathed. At this early hour he is in a position of strength, and, as such, he can afford to be generous. Although amendment No. 20 might not seem very important, it raises a very important issue of principle.

The amendment is aimed at ensuring that step-parents are not automatically taken to have assumed financial responsibility for step-children. The unjust position that often occurs is this. A spouse with children by a first marriage is divorced. The children are taken into the second marriage. The children become in effect the step-children of the subsequent spouse, who, in the normal course of events, takes the children into the new family framework.

Little does the step-parent know, however, that should the second marriage break down he or she is likely to be ordered to pay maintenance and thus acquire financial obligations involuntarily and unjustly. One has to add to that the fact that the other natural parent is still alive and may or may not be paying maintenance

Hard cases make bad law, but some of the cases that may arise and have arisen—I have much correspondence to justify my saying that—need to be quoted. I shall quote briefly from a letter in my files. I know of other cases. A divorced man was given the custody of three children, and then he remarried. His second wife brought two children to the marriage. She was already being maintained by her first husband. The marriage lasted a matter of months and broke up. The man was required by law to pay maintenance for his step-children as well as to maintain three children of his own. The obligations left him destitute, as he was also paying regular maintenance to his first wife.

The step-parent was keeping his own children, arid maintaining his step-children, who were also being maintained by the wife's first husband. He was also maintaining his former wife. The DHSS had its hand in his pocket, too, on the doctrine of saving the public purse. In my view, such a situation is intolerable and unjust.

It is a general proposition in law that no one is forced to take on financial obligations for children who are not his or her own. Maintenance matters are an exception to that. Even if a second marriage lasts for a minimal time, financial obligations for step-children are assumed unless an express disclaimer is made, deriving from case law.

I submit that that is inequitable, and I submit to the House that the amendment would rectify the position and make it more fair. By inserting the word "expressly", the onus is shifted. There will be a general assumption that the law is the same everywhere with regard to step-children. If there is an exception in this area of public life, it must be expressly intentioned.

Forty per cent. of second marriages break down. There is a high level of breakdown and the problems of the financial obligations of step-children will increase. Therefore, I invite the Solicitor-General to accept the amendment, to apply justice to a difficult situation.

The Solicitor-General

The fact that I have come through unscathed, as the hon. Member for Ipswich (Mr. Weetch) said, is not a reflection on the cogency and conciseness of the advocacy that he has invariably brought in his amendments. We have not been able to accept many Opposition amendments, although we have just accepted two—and I hope that that will not be overlooked. We could not accept many, as I am afraid that they would have damaged the Bill.

The purpose of the amendment is to narrow the liability of either party to make provision for a child of the family who is not that party's own child. The court, in considering whether to make an order against a party in favour of such a child, is required to have regard, among other things, to whether that party had assumed any responsibility for the child's maintenance. It has to look to that.

The words to be inserted by the amendment—"had expressly"—would, by inference, indicate to the court that it should be reluctant to make an order against a party unless he had explicitly, whether orally or in writing, assumed responsibility for the child's maintenance. The effect of inserting the words, "had expressly", would be to eliminate the conduct of the party towards the child as a test of whether he had assumed any responsibility for that child's maintenance. Instead, the court would have to consider whether anything that the party had said or written was sufficiently explicit to show that responsibility for the child's maintenance had been expressly assumed. If I put it simply like that, one sees how difficult and uncertain it would be, and what sort of investigations would take place, as to whether something had been said, what exactly it meant, what wer the circumstances, and so on.

The provision applies only to a child who has been treated by both spouses as a child of their family, but the court would have to consider, not what course of conduct the prospective payer had pursued over the years with respect to the child, but evidence of what the party had said or written about assuming responsibility. It is much more important that we stick to the present rule that the court has to see whether there has been an assumption of responsibility. It looks to the fact, not to the form.

I should like to accept one of the hon. Gentleman's amendments, but the result of this amendment would, in many cases, be that a child who was dependent upon his step-father and had looked upon him as a father figure might be bereft of support on the breakdown of the relationship between his natural parent and his step-parent. One has only to say that for it to become apparent that that would not be a good thing at all. It is for that reason alone that, I fear, I must say once more that I cannot advise the House to accept the amendment.

Mr. Weetch

Disappointed as I am with that answer, I thank the Solicitor-General for his argument. Although I do not accept it, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Alex Carlile

I beg to move amendment No. 22, in page 5, line 40, at end add— '(4) Save by agreement between the parties the provisions of this section shall not apply in any case where there remain minor children of the family in the care of either party to the marriage'

Mr. Deputy Speaker

With this it will be convenient to discuss the following amendments:

No. 23, in clause 5, page 6, leave out lines 20 to 27.

No. 24, in clause 6, page 6, line 43, at end insert— '(2A) After subsection (6) there shall be inserted the following subsection:— (6A) Where a periodical payments or secured periodical payments order in favour of a party to a marriage on or after the grant of a decree of divorce or nullity of marriage is made for a fixed term an application under subsection (1) of this section may be made at any time during the subsistence of the order and for a period of one year after the date specified in the order for its determination.".'.

Mr. Carlile

New section 25A has caused a good deal of panic, particularly among divorced women and women who are single parents. It has been characterised — probably, I agree, wrongly—as a section that will be a charter for husbands to avoid future responsibilities.

I can put the argument for amendment No. 22 extremely briefly. It needs to be spelt out in new section 25A that there should not be clean break orders in cases where there remain minor children of the family. It needs to be spelt out so that those who have expressed great anxiety and near panic about the new section know that their panic is misplaced.

Ms. Harriet Harman (Peckham)

The clean break principle is directed at stamping out the so-called alimony drone. At the root of these proposals is the idea that somewhere there is a creature who marries a man and, after a brief marriage, gets a divorce and then has a meal ticket for life. The clean break principle is designed to permit the husband to get a clean break from such an alimony drone and not have to continue paying maintenance.

The problem with all this is that the alimony drone is a mythical creature. First, let us consider what the Lord Chancellor knows about the alimony drone and then see what we know about this myth, about the non-existence of such a person. The Lord Chancellor has admitted that he does not know that facts about the financial consequences of divorce. In a letter to me dated 2 December 1983 he wrote: My officials will shortly be considering proposals by the Social Survey Division of the Office of Population Censuses and Surveys for a feasibility study on research into the financial consequences of divorce. He was not, therefore, announcing a full survey; just a feasibility study into a research project.

This Bill will change the divorce laws in respect of maintenance and the financial consequences of the breakdown of marriage on the basis of prejudice rather than on information about what actually happens to the two parties financially when a marriage breaks down. It is wrong that we should be asked to include this clean break clause in the Bill when the Lord Chancellor does not know what the effects of it will be. He cannot know the effects of it because, as I have shown, he does not know what the current situation is. He admitted in his letter that information about the financial circumstances of divorced men and women who are caring for children, and of divorced women whose children are no longer dependent, is lacking. He went on: I hope that it will prove possible to fill these gaps in our knowledge, and others, with the large-scale survey which it is envisaged that the feasibility study by the OPCS may lead to. It is deplorable that the Lord Chancellor should be promoting legislation containing this clause, which could have a great effect on first wives, when he does not know the background against which we are legislating.

As the Lord Chancellor admitted, not much research has been done on this subject, and the Law Commission drew attention to that fact. When, therefore, I received letters from husbands saying that they felt that their first wives were alimony drones, I undertook my own research project. I sent out a questionnaire asking how long the first marriage had lasted, whether the first wife had remarried, how many children there were of the marriage and whether those children were dependent. I wanted to obtain more information about those who had written to me, remembering that they were supporting the Bill.

The questionnaire was circulated to more people than those who had written to me asking me to support the measure. It was circulated by an organisation called Campaign for Justice in Divorce, which supports the aim of the Bill to stamp out the odd alimony drone. Basically, therefore, the questionnaire went to husbands who felt that the Bill would help them and give them a clean break from their first wives.

I did an analysis of the first 100 answers I received from the questionnaire — about 130 were returned — which revealed that even among those who were calling for freedom from the alimony drone and a clean break, I could not find one example of an alimony drone from my research. I found that most of the husbands wanting a clean break had children as a result of long-standing marriages, and I will give some of the findings.

I found that 75 per cent. of the marriages had lasted for more than 15 years, which could hardly be described as brief marriages; that 56 per cent. had lasted for more than 20 years; and that one had lasted for as long as 48 years. Are we being told that after 48 years of marriage—and, in that case, four children—there should be a clean break? I found that 70 per cent. of the marriages had two or more children; that 59 per cent. of husbands had married again and that only 4 per cent. of the first wives had remarried.

The Bill's supporters claim that it is necessary to end the so-called injustice of an ex-husband having to pay maintenance to an ex-wife after a brief and childless marriage. But not one of the 100 supporters of the Bill involved in that research project anywhere near fitted the circumstances for which a clean break is supposedly necessary. My research shows that those who are pressing for the Bill will not be helped by it unless the Bill cuts maintenance for ex-wives who have spent many years at home not working because they are bringing up children and whose earning power has therefore been permanently reduced.

1.30 am

The Bill will not help those who want it, or it will harm those who should not be harmed. I believe that the clean break is unfair even when there are no longer dependent children. A Government survey of only the week before last showed that bringing up children impairs a woman's earning power by 25 per cent. for the whole of her working life, not just for the time that she is bringing up those children.

First, there should be equality in the home with equal responsibility for bringing up children, and equality in the job market with equal opportunity and earnings for men and women, and then the Government should come to us asking for a clean break.

The Attorney-General

We were delighted to hear from the hon. Member for Peckham (Ms. Harman), alhough I do not believe that her remarks were directed to the amendment. Her speech might perhaps have been more appropriate on Third Reading.

The amendments, which have carefully been grouped together, deal, in effect, with guidance on the exercise of the court's discretion in making financial orders under new section 25A and the power conferred by subsection (3), to order that an application for periodical payment should be dismissed wihout the agreement of the applicant.

The first point that must be borne in mind about section 25A is that the court will have decided to make an order for finacial relief, and it will have done so having already given consideration to the welfare of any child of the family. Accordingly, when the court looks at section 25A it must have it in mind to make a order for financial relief in favour of a party to the marriage, and there can be no question of the interests of any child of the family being overlooked.

In considering the amendments to clause 3, the question is whether the fact that a party has the care of a child of the family should exclude the duty of the court even to consider whether it is appropriate that the financial obligations of each party towards the other should be terminated as soon after the grant of the decree as the court considers just and equitable.

If the hon. Members speaking to these amendments wish the court to be prevented from ordering a clean break between the parties when minor children are involved, the amendments should say so clearly. As I have explained, they do not. The real debate is whether the clean break should always be excluded in these circumstances. I am sure that the answer to this must be no. There are cases where it would be appropriate to impose a clean break between the parties, notwithstanding the fact that there are children under the age of 18 involved. The cases of Minton, decided in 1979, and Dunford, decided in 1980, are examples of where the court may quite appropriately order no continuing financial provision between the parties, while making orders for the payment of maintenance to the children of the family.

I can illustrate the type of circumstances when a clean break between the parties would be appropriate by a hypothetical example. May we imagine a woman who is a general practitioner earning £22,000 a year, married to a marketing director of 42 with an income of £28,000 a year? Each has only £2,000 or £3,000 in capital savings, but they jointly own a matrimonial home. They have two children, a girl of 13 and a boy of 15. I could well envisage a court in such a case ordering some transfer of property in the matrimonial home perhaps, but not requiring the parent who is not caring for the children to make any order for periodical payments in respect of the parent who is. There would, of course, be orders in respect of the children, but section 25A, and these amendments, are not concerned with orders in respect of children.

It may well be appropriate in cases where the husband has substantial assets for him to provide for the maintenance of the wife, and perhaps the children too, by way of the payment of large sums. In such cases it is not uncommon for there to be a transfer of the matrimonial home together with a lump sum payment but no order for periodical payments.

The important point to remember about section 25A is that the court is directed to consider termination of financial obligations and fixed-term orders only when it would be appropriate to do so—that is, when such an order can be made without undue hardship to the party. The hon. Member for Ipswich (Mr. Weetch) made that point in Committee. I agree with him that it is vital not to overlook the importance of those words.

I appreciate the purpose of the amendment, which is to cater for an unforeseen contingency. I doubt whether provisions along the lines of that in the amendment would be used in practice, but my main objection to the amendment is one of principle. It would not help the parties to achieve the desirable aim of securing financial independence. Alternatively, it would erode the value to the courts of the power to make orders of limited duration. and therefore prolong the bitterness and antagonism between the parties, which arises from wrangles of continuing financial ties. The Bill seeks to avoid that.

Mr. Alex Carlile

The Attorney-General has carefully and fairly dealt with his objections to amendment No. 22. However, with respect, he is wrong about its meaning and effect. It excludes clean-break settlements, except where there is an agreement that the court should make a clean-break order in cases where there are minor children of the family. He is right in saying that it is intended to deal with possible contingencies even in the sort of case of which he gave an example, but what happens if the general practitioner and mother become disabled? She will then receive, in addition to whatever benefits she may get, only the maintenance that is being paid for the child. The Liberal party wishes to avoid such a consequence. It happens more often than one imagines.

However, the matter was considered carefully, and I do not wish to press the matter to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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