HL Deb 02 July 1925 vol 61 cc964-71

Amendments reported (according to Order).

Clause 1:

Amendments of principal Act as to grounds on which orders may be made.

(2) Amongst the grounds on which a married woman may apply for an order or orders under the principal Act there shall be included the following grounds—

  1. (a) that her husband has been guilty of persistent cruelty to her children;
  2. (b) that her husband has compelled her to submit herself to prostitution.
Where the husband has, in the opinion of the court, been guilty of such conduct as was likely to result and has resulted in her submitting herself to prostitution, he shall, for the purposes of this subsection, be deemed to have compelled her so to submit herself.

LORD DANESFORT moved, after paragraph (a) of subsection (2), to insert the following new paragraph:— (b) That her husband while suffering from a venereal disease, and knowing that he was so suffering, insisted on having sexual intercourse with her. The noble Lord said: My Lords, this Amendment in substantially similar form was moved in Committee in the House of Commons, and the Home Office then gave a pledge that if the case to which it referred was not already covered an Amendment would be accepted in your Lordships' House. Inquiry has been made of the Home Office whether the case is covered, and I think we are all agreed that it is not as yet covered, and I understand that the Government are prepared to accept the Amendment. I beg to move.

Amendment moved— Page 1, line 22, at end insert the said new paragraph.—(Lord Danesfort.)

THE LORD CHANCELLOR (VISCOUNT CAVE)

I think the noble Lord is right. A pledge was given in the House of Commons that if this point were not covered by the existing law the Government would accept an Amendment. I have looked into the matter, and the Government will accept this Amendment.

On Question, Amendment agreed to.

Clause 2:

Amendment of s. 5 of principal Act.

2. To the provisions which may be made by an Order or Orders under Section five of the principal Act shall be added: (f) A provision that the property of the husband or wife in the furniture (being furniture in the home in which the husband and wife have cohabited) or such part thereof an may be ordered shall be transferred to anal vested in the other spouse and that all the rights of the husband and wife thereafter to such furniture or part thereof shall cease or determine.

EARL RUSSELL had on the Paper an Amendment to move, at the end of the clause, to insert: "Provided that in making any such order the magistrate shall have regard to the equities between the parties, and that no such order shall be made where there is any charge upon the furniture in favour of a third person." The noble Earl said: My Lords, I am very glad to say that the noble and learned Viscount on the Woolsack has been good enough to put down an Amendment himself which meets the point that we raised in Committee and which, in my view, is quite adequate. I may say that both I and those for whom I was then speaking are very grateful to him for the Amendment that he has put on the Paper. In the circumstances I shall accept that Amendment with pleasure and shall not move that which stands in my name.

THE LORD CHANCELLOR moved to leave out Clause 2, and insert the following new clause:—

Power to apportion furniture.

". Amongst the provisions which may be contained in an order under the principal Act, there may be included a provision for the apportionment as between the husband and wife of any furniture belonging to the husband or the wife (being furniture in the home in which the husband and wife have cohabited), and for the delivering up of any furniture so apportioned, and in making such apportionment the court shall have regard to the respective interests of the husband and wife in the furniture, and generally to the equities of the case; and a husband or wife to whom any furniture not belonging to him or her is so apportioned shall be entitled to the possession thereof so long as the order remains in force:

Provided that the order shall not apply to any furniture subject to a charge in favour of a third party or in which a third party is otherwise interested without the consent of such third party"

The noble and learned Viscount said: My Lords, in Committee on the Bill the House inserted the present Clause 2, which enacts that in making a separation order the Court may transfer furniture belonging to one of the spouses to the other. I doubted at the time the wisdom of that proposal, but the House accepted it, though it is true, by a majority of one in a somewhat thin House. Still, I have always held that a decision of the House, whether carried by a small majority or not, ought to be received with respect, and that one ought not to seek to reverse that decision at a later stage except for very good reasons. Having regard to the arguments which were used in Committee and the form of the clause as it now stands, I have endeavoured to meet objections and to improve the form of Clause 2. My noble friend Lord Russell has accepted the Amendment that I have placed on the Paper, but I must say, in moving it, that I preserve my freedom of action in regard to anything that may happen in another place. I beg to move.

Amendment moved— Page 2, leave out Clause 2 and insert the said new Clause.—(The Lord Chancellor.)

LORD ASKWITH

My Lords, as the mover of the Amendment which was accepted by a majority of one and inserted in the Bill, I must thank the noble and learned Viscount, the Lord Chan- cellor, for having adopted the course of putting that Amendment into a more legal shape than it originally had and placing it on the Paper. Now that the noble Earl, Lord Russell, has joined with me in thanking him, I do not think I should ask the Lord Chancellor to alter the Amendment, although some of those who asked me to press my Amendment formerly are rather exercised as to whether it might not he too much governed by putting the respective interests of the husband and wife in the ownership of furniture before the equities to be attained and as to whether it would not be better and give elasticity to the clause to put the equities of the case before the furniture. I leave that, however, to the consideration of the noble and learned Viscount and am much obliged to him for the trouble he has taken in the matter.

VISCOUNT HALDANE

My Lords, the Government have yielded to the majority of one in this House, and I dare say it is a popular thing to do. But this clause gave me misgivings when it was discussed in Committee, and still gives me misgivings. I pity the unfortunate magistrates, who have no principle upon which to proceed but one, and that is that Parliament has instructed them to override considerations of individual property and to apportion the furniture according to the equities, whatever that may mean. We live in times when Socialism is asserting itself. Sometimes it goes a little too fast for me, and I am not sure that in this clause it has not gone too fast. But a Conservative Government has assented to this and it is not for me to stand in the way.

EARL RUSSELL

My Lords, I may say that I have had further communications from Stipendiary Magistrates since this clause was before your Lordships' House, and I am still in a position to say that those I have consulted do not think there will be any difficulty in administering the clause because, as I said before, it is administered now. I really rose to make an appeal to the noble and learned Viscount that, although this is not his child, it is his adopted child, and I hope he will do what he can to protect it in another place.

On Question, Amendment agreed to.

Clause 3:

Amendment of s. 7 of principal Act.

3. Section seven of the principal Act (which provides, amongst other things, that if a married woman, upon whose application an order has been made under that Act, shall commit an act of adultery, such order shall upon proof thereof be discharged) shall have effect as though at the end thereof the following provisoes were inserted:—

"Provided that the court may, if the court think fit— (a) refuse to discharge the order if, in the opinion of the court, such act of adultery as aforesaid was conduced to by the failure of the husband to make such payments as in the opinion of the court he was able to make under the order; and (b) in the event of the order being discharged, make a new order that the legal custody of the children of the marriage shall continue to be committed to the wife, and that the husband shall pay to the wife or to any officer of the court or third person on her behalf, a weekly sum not exceeding ten shillings for the maintenance of each such child. In making such an order the court shall have regard primarily to the interests of the children.

Provided further that if any married woman upon whose application an order shall have been made under this Act or the principal Act, or either of them, shall voluntarily resume cohabitation with her husband, such order shall be deemed to be discharged from the date of such cohabitation and the last sentence of Section seven of the principal Act so far as it relates to proof of resumption of cohabitation is hereby repealed. A discharge of such an order shall not operate so as to confer any right in the husband to recover any moneys paid or purporting to be paid under such order either before or after such discharge.

THE LORD CHANCELLOR moved to leave out "provisoes" and to insert "proviso." The noble and learned Viscount said: This is a purely drafting Amendment.

Amendment moved— Page 2, line 29, leave out ("provisos") and insert ("proviso").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in proviso (b), after "child," to insert "until the child attains the age of sixteen years." The noble and learned Viscount said: My Lords, this Amendment has the object of making the meaning of the clause clear.

Amendment moved— Page 3, line 3, after ("child") insert ("until the child attains the age of sixteen years").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to omit the last proviso and to insert as a new subsection— (2) where a married woman with respect to whom an order has been made under the principal Act resumes cohabitation with her husband after living apart from him, or where she has before the date of the commencement of this Act so resumed cohabitation, and is at, that date cohabiting with him, the order shall cease to have effect on the resumption of such cohabitation or at the commencement of this Act, as the case may be. The noble and learned Viscount said: My Lords, the object of the proviso as it stands in the Bill is to fill a gap in the subsection, but I think that the subsection I have proposed will be an improvement.

Amendment moved— Page 3, line 5, leave out from ("children") to the end of the clause, and insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 4:

Amendment of definition of "habitual drunkard."

4. The expression "habitual drunkard" in Section five of the Licensing Act, 1902, shall be interpreted as though in the definition of that term in Section three of the Habitual Drunkards Act, 1879, the reference to the habitual intemperate drinking of intoxicating liquor included a reference to the habitual taking or using, except upon medical advice, of opium or other dangerous drug within the meaning of the Dangerous Drugs Act, 1920.

THE LORD CHANCELLOR moved, at the end of the clause, to leave out, "Act 1920" and insert "Acts 1920 and 1923." The noble and learned Viscount said: My Lords, this is entirely a matter of drafting.

Amendment moved— Page 3, lines 25 and 26, leave out ("Act, 1920") and insert ("Acts, 1920 and 1923").—(The Lord Chancellor.)

On Question, Amendment agreed to.

LORD STRACHIE had given Notice to move, after Clause 6, to insert the following new clause:

Power to order interim payments where application for maintenance of married woman is adjourned.

".—(1) Where, on the hearing of an application for an order of maintenance, the application is adjourned for any period exceeding one week, the court may order that the husband do pay to an officer of the court or to a third person a weekly sum for the maintenance of the wife and any child or children in her custody until the final determination of the case; provided that the order directing such payment shall not remain in operation for more than three months from the date on which it was made.

"(2) Any such order shall be enforced in like manner as if it were a final order of the court."

The noble Lord said: Your Lordships will recollect that when the Bill was in Committee I moved a similar Amendment to that which now stands on the Paper. But though the substance of that Amendment was generally approved, it was pointed out by the Lord Chancellor and by other noble Lords that it went outside the scope of the Bill. I therefore withdrew it and have drawn up another clause to the same effect—namely, to empower the Court to order the husband to pay to some third person a weekly sum for the maintenance of the wife and any children during an adjournment until the case is finally determined. I desire now to move an Amendment to the clause as it stands on the Paper, because it has been pointed out to me that it would give the magistrates power to order a much larger amount than they are able to do when they come to a final decision; in other words, that the interim order might be for a very large amount. I desire, therefore, to insert in line 5 of the Amendment, after the word "sum," the words "not exceeding such an amount as might be ordered to be paid under the final order." The object of that is to provide really that in rural districts, where long adjournments are fairly frequently the case, a wife and her children should not be without maintenance. It will be within the knowledge of noble Lords that the object of an adjournment is often to make it possible for the parties to come to terms and resume cohabitation. I beg to move the Amendment, as amended.

Amendment moved— After Clause 6 to insert the following new clause:—

Power to order interim payments where application for maintenance of married woman is adjourned.

".—(1) Where, on the hearing of an application for an order of maintenance, the application is adjourned for any period exceeding one week, the court may order that the husband do pay to an officer of the court or to a third person a weekly sum not exceeding such an amount as might be ordered to be paid under the final order for the maintenance of the wife and any child or children in her custody until the final determination of the case; provided that the order directing such payment shall not remain in operation for more than three months from the date on which it was made.

"(2) Any such order shall be enforced in like manner as if it were a final order of the court."—(Lord Strachie.)

THE LORD CHANCELLOR

My Lords, I have considered the form in which the clause now stands. I am much indebted to the noble Lord, Lord Strachie, for reconsidering the form of his clause and I think as now drawn it will be a very useful addition to the measure.

On Question, Amendment agreed to.