§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [THE EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Amendments of principal Act as to grounds on which orders may be made.
§ 1.—(1) An application by a married woman for an order or orders under the Summary Jurisdiction (Married Women) Act. 1895, as amended by any subsequent enactment (which Act as so amended is hereinafter referred to as the principal Act) on the ground of cruelty or neglect by her husband, may be made notwithstanding that the cruelty or neglect complained of has not caused her to leave and live separately and apart from him, and accordingly the words "and shall by such cruelty or neglect have caused her to leave and live separately and apart from him "in Section four of that Act are hereby repealed.
§ (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—
- (a) that her husband has been guilty of persistent cruelty to her children;
- (b) that her husband has compelled her to submit herself to prostitution.
§ (3) Amongst the grounds on which a married man may apply for an order or orders under the principal Act there shall be included the ground that his wife has been guilty of persistent cruelty to his children.
§ (4) No order made under the principal Act shill ho enforceable and no liability shall accrue under any such order whilst the 666 married woman with respect to whom the order was made resides with her husband.
§ EARL RUSSELL moved, after paragraph (b) in subsection (2), to insert the following new paragraph:— "(c) That her husband has committed adultery." The noble Earl said: I have an Amendment on page 1, line 24, to insert a new paragraph and a consequential Amendment in the similar paragraph applying to women. I do not know, but I think some of your Lordships will learn with some surprise, as I certainly did, that although these judicial separations can be granted for all sorts of minor reasons. they cannot be granted for adultery. I do not know what is supposed to be the reason of that, unless it is thought that that particular offence can only be triable by the High Court, Yet it clearly cannot be because it is regarded as a less grave offence than habitual drunkenness or cruelty; but there must be, I take it, some historical reason of that kind.
§ I see that the noble lord who is President of the Divorce Court is in his place and I hope that he will not say that an issue of this sort cannot be tried by the magistrates. This issue is, in fact, tried, and has to be tried, by the magistrates when it is raised as a defence in connection with other portions of this Bill. Magistrates are already called upon to try this particular issue. It is true, of course, that this Bill is not primarily a Matrimonial Bill. It is primarily a Bill intended for the protection of the spouses and the children, although incidentally it deals with a new matrimonial offence, which it creates. On what logical ground you should give a judicial separation to the parties for a great many less serious offences and should deny it for the offence of adultery, I confess I am quite unable to understand. It may be that the husband of a working woman has a mistress living, we will say, a few doors off, and it may be that he spends a. large part of his earnings upon her and yet is riot an habitual drunkard and, as he does not bring her into his house, he is not guilty legally of cruelty to his wife. None the less he is putting the wife in an impossible position and the only remedy she has at present is to go to the High Court for either a judicial separation or, if she likes, a complete divorce.667
§ I should have thought that those of your Lordships who were opposed to divorce would really prefer this provision, which gives her a minor, and I think an unsatisfactory, remedy of separation in cases of this sort. But I really cannot see, and I shall be glad to learn from the noble and learned Viscount in charge of the Bill or from any other noble Lord, what ground there is for excluding this matter from the cognisance of the magistrate. I have already suggested that it is not beyond his competence and that he tries the issue now. If you allow these judicial separations to be granted as, unfortunately, they are granted with great freedom to the number of many thousands every year by the magistrates, you must include this cause among the others. It seems most unreasonable to exclude that and to require the expensive and cumbersome procedure of the High Court—a procedure so expensive and cumbersome that, in effect, it is not open to the poor—to be followed under this Bill. I beg to move.
Page 1, line 21, after "prostitution" insert the following new paragraph:—("(c) That her husband has committed adultery").—(Earl Russell.)
§ THE LORD CHANCELLOR
The noble Earl has raised a point which I am sure he feels to be one which might give rise to considerable controversy. As he very frankly said, this is not a Bill intended to deal with divorce or with matrimonial offences in the ordinary sense, or with the Marriage Laws, or to make any fundamental change in the jurisdiction of the various Courts. It is the fact that until now the power to grant either divorce or judicial separation on the ground of adultery has been exercisable only by the High Court. Until recently those orders could only be made in the Probate, Divorce and Admiralty Division of the High Court sitting in London. Recently power has been given to the Judges of Assize in certain towns to deal with claims for divorce or judicial separation, and facilities have been given for permitting certain formal steps to be taken out of London. It still remains true that the power to grant a judicial separation on the ground of adultery is the function of the High Court.
The proposal here is to give the justices of petty sessions the right to investigate 668 the serious charge of adultery, an investigation which often requires very detailed and experienced inquiry, to enable justices to make that inquiry and to grant a separation on that ground. That is a new thing and a course which, I think, should not be adopted without a great deal of thought. It is true that in connection with some of the provisions of this Bill and the existing Act justices must enquire whether adultery has been committed—in this sense, that they may have to consider whether adultery is a ground for the discharge of an order which they have made. But as the law now stands they have no right to entertain a claim for separation on that serious ground, and I do not think your Lordships' House or Parliament would be disposed to give them that right. There is no doubt whatever that if this Amendment were introduced into the Bill as passed in another place it would give rise to serious controversy and might interfere with the fortunes of the Bill. I am sure that is not what the noble Earl desires, and upon the whole I venture to recommend the House not to introduce such a serious change into the Bill.
§ VISCOUNT HALDANE
I have been in two minds about this point, but on the whole I am disposed to agree with the noble and learned Viscount opposite. It is true that Parliament has decided to make the adultery of the husband a ground for the dissolution of the marriage. That is divorce, and that is one thing. But that is not the thing with which we are dealing. When a divorce takes place it takes place on the footing that what has been done is a repudiation of the whole marriage, and the whole marriage is brought to an end. In this Bill we are dealing with a very different class of case. We are dealing with cases in which the wife finds that the behaviour of the husband is so intolerable that what she desires is to get a separation order or some provision which will make her life a reasonable one.
I should entirely agree with my noble friend behind me (Earl Russell) that if a man keeps another woman a few doors off, or in some very prominent place, that would be a very grave matter which would deserve serious consideration, but he does not limit his Amendment to that; he does not give the magistrates any dis- 669 cretion. The wife is entitled to proceed even if there is the smallest aberration from the Seventh Commandment on the part of the husband. It may be the most casual thing, and what I am afraid of is that if you insert this provision into a Bill which is put together for the purpose of giving some protection for the home, you are opening the door for a great many cases set up by the wife who is dissatisfied or ill-tempered and who may take advantage of some small casual aberration, which has not practically made much difference to the home, for the purpose of going to the magistrates and saying: "I am entitled as a right to have a judicial separation from my husband."
She is entitled to something if he has repudiated the marriage by adultery. She is entitled to divorce, no doubt. Divorce is a more costly thing to get than a separation of this kind, but divorce is the remedy that is adapted to the case, and I am by no means satisfied that a separation order of this kind would be adapted to the case. Therefore, I am inclined to doubt very much whether it is wise to put into a Bill, the purpose of which is only to afford a partial remedy, a case which is really one for the larger remedy and not one for the minor provision.
§ LORD MERRIVALE
I agree absolutely with what has just been said by the noble and learned Viscount opposite. The function of that branch of the law which is dealt with by this Bill is to protect women in their homes, to protect the home, to give the wife remedies for what really are of the nature of police offences: and the law as it is administered by the magistrate—administered, as the noble Earl has said, with very numerous applications every year—has, in a broad way, that effect and also, I think, it does not tend at the present time, at any rate it does not generally or seriously tend, to the breaking up of the homes. But there is at the present time, and it becomes more marked as certain tendencies develop, a disposition on the part of spouses of a certain class to find offences, or at any rate to allege offences, in order to break up the home and to obtain maintenance without discharge of the marital obligations.
My first fear about the proposal of the noble Earl is that that very mischievous 670 and anti-social tendency would be directly encouraged by his proposal. The kind of evidence upon which adultery is suspected and upon which it is sometimes proved is, of course, of the most various description. The magistrates would be embarked on an inquiry which in contested cases would be an exceedingly difficult class of inquiry and would be embarked upon it on these conditions—that any finding of adultery which they might make would not be conclusive and that it would be open to the spouse against whom adultery had been found to go at once to the High Court. He could go under the Poor Persons Rules and have the case tried out, very possibly with the result of setting aside such an order as the noble Earl seeks.
The noble Earl, I think, has not given due effect to that part of this clause which enables a married woman to apply to justices for an order such as he proposes and to give her the right to apply for it while she is still living in the matrimonial home with the husband. Just fancy, if your Lordships will, a state of things in which a woman who is living in her husband's home goes to magistrates to make a charge of adultery with more or less of foundation for it, with the project, apparently, of continuing to live in his home but to discharge no duties, and to be given a magisterial order for maintenance! There is an element of burlesque in it. I know the noble Earl sincerely desires to benefit that class of the population to which his intended remedial measure is directed, but I really think that this proposal, quite apart from the question of whether you should tinker with the Divorce Law in little, casual ways of this kind, would, on the whole, have principally mischievous effects.
I was going to say that I was unable to follow the logic of the two noble and learned Lords who spoke first, and I fear that I must now say the logic of all three noble and learned Lords who have spoken. To take, first, the last point made by the noble and learned Lord who has just sat down, he says there is an element of burlesque in applying for this remedy while the wife is living with her husband in the case of simple adultery. If that is so, look at paragraph (b). There is surely still more an element of burlesque 671 in continuing to live with the husband when he has compelled her to submit herself to prostitution, which is one of the grounds for separation put forward by her. Of course, I am naturally impressed by the weight of opinion, but I cannot honestly follow the logic.
You have here this issue already triable by justices. Your Lordships will notice that under Clause 2, the justices are able to discharge an order if the Woman has committed an act of adultery. They therefore have to try that issue as it is, so that it cannot be said they are unable to try these things. I confess I did not follow the noble and learned Lord, the Lord Chancellor, when he suggested that some different kind, or at least I thought he suggested some different kind, of proof was required in a negative case of that sort than in a positive case of applying for a separation. The proof must, of course, be proof in either case, and proper proof.
§ LORD MERRIVALE
I do not know if I might tell the noble Earl, as a matter of personal experience, how it operates. Very often there are clear cases where a married woman has obtained an order for maintenance, and has been guilty of adultery, and there is no question about it, and it is obvious to everybody that the order ought to be set aside. It can be set aside by justices, and that is the mode in which the present power of adjudication. operates, but immediately a question arises where there is a serious conflict the question finds its way into the High Court, and the issue of adultery, where there is a grave question between the parties, so far as my experience goes is by one process or another inevitably decided in the High Court.
But I think I am right, subject to correction by the noble and learned Lord opposite, in saying that in all these cases you can have an appeal to the High Court on these issues so far as they involve the question of matrimonial offence or judicial separation. I was going on to say, apart from the capacity of the justices, that you have also here an offence which, in nine cases out of ten, is perfectly simple and straightforward and easy to prove. So far as I can understand the argument used, it was that these very frivolous cases might be less likely to be brought.
672 I think there is something to be said for that, because if it were to cost a person a matter of £10 £15, or whatever it costs to go to Assizes, instead of the few shillings that it costs to go to the magistrates, that circumstance would have some effect. But I do not follow the logical reason for exclusion. It is clear, however, that the weight of legal opinion, including that of the noble and learned Viscount on the Front Bench opposite, is against me, and, therefore, I feel that there is nothing left for me but to withdraw this Amendment, and also the next one which is consequential.
§ Amendment, by leave, withdrawn.
§ LORD ASKWITH had an Amendment on the Paper to insert, at the end of subsection (4):—" And any such order shall cease to have effect if for a period of six months after it is made the married woman continues to reside with her husband. "The noble Lord said: I am moving this Amendment in order to make the same principle apply to this Bill as to the Bill which your Lordships have just passed through Committee, but in view of what the Lord Chancellor said on the question of six months and three months, I ask leave to amend my Amendment and make the period three months instead of six months.
Page 2, line 8, at end insert ("And any such order shall cease to have effect if for a period of three months after it is made the married woman continues to reside with her husband.").—(Lord Askwith.)
§ THE LORD CHANCELLOR
I had intended to move an Amendment of this kind myself with a period of three months in it. Unfortunately, the form of the Amendment did not reach me in time to put it down for to-day, and it, therefore, does not appear on the Paper. However, I am quite prepared to accept the Amendment in, the form which the noble Lord has adopted, but I should like to add this, that I am not quite sure that I shall not have to ask the House on Report to alter the exact place in which this provision is found. I will consider that between now and the Report stage.
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ EARL RUSSELL had given Notice to move, after Clause 1, to insert the following new clause:673
§ Amendment of Section 5 of principal Act.
".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 declaring the person in whose favour the order is made to be the tenant of the premises where both husband and wife have heretofore resided:
- (1) That no such provision shall be made without the consent of the landlord notified in writing to the court;
- (2) That nothing herein contained shall affect the landlord's right upon any lawful ground to recover possession of his premises from the person declared by the court to be his tenant:
§ (g) 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 as may be ordered, may be transferred to and vested in the other spouse and that all the rights of the husband or wife thereafter to such furniture or part thereof shall cease and determine."
§ The noble Earl said: This Amendment is, perhaps, a little complicated. Before moving it I think I ought to say that I do not wish it to be supposed that I like this Bill itself at all. On genera! principles I am opposed to any extension of judicial separations. I regard them as inflicting a great evil and danger on the community, and in all these cases I am in favour of complete divorce. But the principle has been accepted for a good many years and this is merely one of a series of measures which give magistrates jurisdiction. This Bill also does a very curious thing, which has been referred to already. It enables a judicial separation to be obtained by a spouse who continues to reside with the other spouse. It is a curious thing for a wife to be living with her husband with what is really a pistol in her pocket, Which she can pull out at any time during a period of three or six months, or whatever the time might be; and I should have thought that such a condition of things was not likely to conduce to domestic harmony. But I am told that the reasons for this Bill are so strong that this Government, and successive Governments, have thought it desirable to make some provision of this sort. If such a provision is to be made it is well that it should be as complete as possible.674
§ The excuse, of course, for this legislation is the extreme difficulty of the position of a wife who has to put herself in the streets before she can make her application. She has to make herself homeless, and if she wishes to take her children with her, she has to make them homeless, too. This Bill is intended to get over that difficulty. But when the order has been granted and is about to become effective, further difficulties will arise of exactly the same character, as to where one or other of the spouses is to reside. The two spouses have occupied one house and they are going to be separated. Clearly only one of these spouses can continue to occupy the house. The Amendment I am moving provides that the magistrates shall have power to say which spouse is to be the tenant of the house. It seems a strong thing to give magistrates power of dealing with questions relating to the tenure of land, but these would be weekly tenancies, and the order is only to be made with the consent in writing of the landlord. Therefore, the landlord, necessarily, will be in favour of the course that is taken.
§ You have two people here, and one, the husband, is guilty, say, of habitual drunkenness. The landlord has his way of getting rid of the husband by giving him notice, getting him out of the house, not an easy process in these days, and not by any means necessarily effective. Then, after the lapse of the necessary weeks and months, he could reinstate the wife as the tenant. Is it not reasonable that you should give an opportunity to the magistrates to say which is to occupy the home, provided the landlord agrees? It simply means shortening the period for an ejeetment order. The magistrate has the facts before him. He knows which party has the greater merits. The landlord also has the facts before him, and if he agrees as to which party he prefers to take as his weekly tenant it is reasonable to give the magistrate this power. They may make an order, but they are not hound to make an order.
The Amendment; says—
A provision declaring the person in whose favour the order is made to be the tenant of the premises where both husband and wife have heretofore resided:
- (1) That no such provision shall be made without the consent of the landlord notified in writing to the Court;
- (2) That nothing herein contained shall affect the landlord's right upon any lawful ground to recover possession of his premises from the person declared by the court to be his tenant."
Page 2, line 8, at end insert the following new clause:
§ Amendment of Section 5 of principal Act.
(". 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 declaring the person in whose favour the order is made to be the tenant of the premises where both husband and wife have heretofore resided:—
- (1) That no such provision shall be made without the consent of the landlord notified in writing to the court;
- (2) That nothing herein contained shall affect the landlord's right upon any lawful ground to recover possession of his premises from the person declared by the court to be his tenant:—(Earl Russell.)
§ LORD MERRIVALE
I have very grave doubts whether it is wise to interfere with the general law of property upon the notional view of its giving assistance to married people who cannot get on together. The cases in which these questions arise under the class of Acts of Parliament under consideration here range over a very large area of the population. They arise very often between people of substantial means. You may have business premises, or workshops, or property of one sort and another, changed in title by an arrangement between a complaining spouse and the landlord of the premises, quite regardless of the common law rights of the other party. You get the rights of property of a man or woman varied because of a matrimonial quarrel on the supposition that they will find 676 difficulty in obtaining some other accommodation. In eleven cases out of twelve, in forty-nine cases out of fifty, before people resort to the magistrates they cease to be living together, and I think it would be a mistaken thing to put such a power in the hands of the justices and occupy them with questions which go far outside any of the police considerations which are properly involved in this class of legislation.
§ THE LORD CHANCELLOR
I am afraid I cannot accept this Amendment. The proposal is that, where a case Is made for an order for separation and maintenance, the wife shall be able not only to obtain such an order, and with it, of course, an allowance of a substantial amount, but also, if the justices think fit, to turn her husband out of the house where he lives and compel him to go where he can, thus disposing of his property in the tenancy, with the consent of the landlord, in favour of his complaining wife. That sort of power for magistrates to transfer property from one person to another at their absolute discretion is quite new and, I think, very undesirable. You would have the case of a husband turned out and then, perhaps, they would agree that the order should he rescinded, and he would have to be put in again. But really the whole thing is needless, because the Act gives power to the magistrates to order an allowance to be made to the wife up to 40s. a week, which is no doubt estimated on the basis that it will be enough to enable the wife to find lodgings elsewhere and, with the help of that weekly sum and an additional allowance of 10s. a week for each child, to maintain herself and the children whom she takes with her. I think it would be monstrous to add to the Bill a power for the court to turn a man out of the house to which he is legally entitled and to transfer his tenancy to his wife.
§ On Question, Amendment negatived.
§ LORD ASKWITH moved, after Clause 1, to insert the following new clause:
§ Amendment of Section 5 of principal Act.
". To the provisions which may be made by an Order or Orders under Section five of the principal Act shall he 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 as may be ordered shall be transferred to and vested in the other spouse and that all the rights of the husband and wife thereafter to such furniture or part thereof shall cease and determine.
The noble Lord said: I do not know whether the noble and learned Lord, Lord Merrivale, will dangle the rights of property before me with regard to this particular clause. I think I can understand that a man should not be put out of his house, but I think the question of furniture and its distribution rests upon a different principle. I may point out that the proposal in the Amendment is optional. It leaves it to the magistrates to decide to whom the property should belong. It adds 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 as may be ordered shall be transferred to and vested in the other spouse and that all the rights of the husband and wife thereafter to such furniture or part thereof shall cease and determine.
In addition to the powers being optional, it was well said in another place that this is a Bill to establish the economic position of woman.
§ Most of the people to whom the Bill will apply are people of small means of livelihood, and their furniture has either been purchased before marriage jointly, nobody perhaps knowing to whom the property belongs, or it has been in course of being paid for under a hire purchase system, largely by the savings of the wife. Hire purchase and bills of sale would, of course, be taken notice of by the magistrate in deciding the matter. I would further point out that this is done continually every day in court by agreement of one side or the other to go to the court missionary for a decision in a matter, or by the magistrates' suggestion that somebody should settle to whom the property belongs.
§ A woman being turned out or leaving with her children is put in a very difficult position if she has only this meagre allowance, with which she has no opportunity of buying furniture, when possibly a. considerable portion of that furniture may justly be hers, even including the 678 bed on which her children might sleep. The man, being angry, no doubt, at the woman leaving him, and with the keen interest in keeping as much as he can that so frequently characterises an angry man, would perhaps cling to the property without allowing her to have any. In order to avoid red tape and that a fair division of the income or property of the two parties may be settled at one and the same step, I suggest to your Lordships that this Amendment is reasonable, since it does not imply any new principle and does not and cannot affect the rights of property in any adverse way, n view of the fact that it is optional for the magistrates to decide how the furniture shall be divided.
Page 2, line 8, at end insert the said new clause.—(Lord Askwith.)
THE EARL Or ARRAN
I venture to rise to support the Amendment which has been moved by the noble Lord, Lord Askwith. I know that, technically, in nearly all working class houses the furniture belongs to the husband, but I think that in reality, if the case is further examined, the wife really has just as great a moral claim. Probably in most cases the money which has either gone to purchase this furniture or to pay the instalments which the noble Lord, Lord Askwith, mentioned has been provided by the husband, but in reality, when one comes to look fairly at the subject, the money has been just as much earned by the wife of the working man. I yield to no one in my admiration of the hard work which the working man does, but there is someone who works a. great deal harder than the working man and that is the working woman, the wife of the working man, because, to paraphrase the poem of the Poet Laureate, her work begins God knows when and her work is never through, and if it were not for the part which she takes in the domestic side of her establishment I do not think that the working man would be able to earn the money which has gone, to buy the property. I hope that the noble Lord will press this Amendment.
§ VISCOUNT HALDANE
Before the noble and learned Viscount answers, I would ask him to give us some information about the effect of this proposed Amendment. The transfer from one person to another of movable property 679 which remains in the apparent possession of the persons concerned is one of those things with which the law has concerned itself, and with which Parliament has concerned itself, in the most stringent fashion. We have already struck at hills of sale and prevented them from being effective unless they are registered, and we have also made a great deal of bankruptcy law by Statute dealing with furniture in the apparent order and disposition of the persons concerned. We have put, in other words, every obstacle we can in the way of deviation from the principle that apparent possession carries the property in the case of movable goods, such as furniture and so on.
But now a new mode of transfer is, perhaps to be introduced by a magistrate's order. I wonder what shopkeepers will say who sell furniture on the terms of part payment, and I wonder how it will affect all those transactions which are involved generally in the furnishing of very humble properties, and a variety of other transactions which will be affected by this arrangement. What I am anxious to make sure of is that this has been considered before we adopt the principle, because, if not, I feel pretty certain that an Amendment which will no doubt do good, but very little good, will do a very large amount of evil by way of the confusion which it will introduce. I would ask the Lord Chancellor if he can give the Committee some information upon this subject which will enable us to come with clear minds and good consciences to a decision.
§ LORD MERRIVALE
When my noble friend the Lord Chancellor answers the noble and learned Viscount opposite, I would ask him at the same time to say whether he has became aware of any urgent necessity for legislation of this kind with regard to property in furniture. The noble Lord said that in the normal course, if the question arises before the magistrates, the magistrates refer the parties in dispute to the court missionary, and they come, if they can, to some rational settlement. It they cannot come to a settlement, and because they cannot come to a settlement, is it conceivable that you should alter the whole law of property with regard to furniture in order to deal with possibly in infinitesimal class of cases? I suppose there are some cases of which my noble 680 friend has heard, but I have never heard of a case where practical difficulty has arisen.
THE LORD BISHOP OF SOUTHWARK
I am quite unable to discuss the legal bearings of this Amendment, but I can answer the question which has been raised by the noble and learned Lord who has just sat down I can assure him, from my own practical experience in a very large working-class district, that the kind of difficulty which this Amendment is intended to meet does arise in actual practice, not on very rare occasions—I hardly like to say frequently, but by no means rarely. I can think of cases where a separation order ought to have been applied for, where I used my influence in the strongest way to induce the woman, for her own safety, to apply for a separation order, and I can remember receiving the answer: "If I apply for a separation order, if I go out of this house, I do not merely lose my home but I lose the furniture." In the minds of working people this is a very serious consideration, and it does stand, at any rate occasionally, tin the way of their applying for a separation order, which certainly would be a real advantage to the woman.
§ THE LORD CHANCELLOR
My Lords, in dealing with this Amendment I should like to enter a protest against the assumption of the noble Lord who moved it that the purpose of this Bill is to establish the economic position of women. Really that is not the purpose of this Bill. If we were going to do that we should have to consider all kinds of questions. The only purpose of the Bill is to simplify and fortify the law under which magistrates may make orders for separation in matrimonial quarrels, and for the maintenance of the wife. Secondly, I want to make it clear that if any part of the property in the house belongs to the wife she can take it away without any special order. The only purpose of the proposal is that the bench shall have power to "transfer" (I think that is the word) furniture belonging to the husband to his wife—to transfer his property to her, so that, if she pleases, she may take it away and leave her husband with an empty house.
I quite see that the position of a wife to whom her husband has behaved badly, and whom he has compelled to apply for 681 an order of separation, does arouse sympathy, and I quite feel the force of what the right rev. Prelate has just said, but still we ought to keep level heads in a matter of this kind, and see what the policy of Parliament hitherto has been. It has been to allow an order to be made for separation, and fur a weekly allowance sufficient to maintain the wife in furnished rooms, with her children, until she finds some other home. If the husband's furniture is to be given to her, what is going to happen? Ex hypothesi she has no house to which to take it. Nothing of that kind is provided for. The magistrate is empowered to transfer to her either the whole of the husband's furniture or part of it, and how is he to do that without seeing the furniture and considering who shall be entitled to the bed, and who shall have the chairs, and making some kind of arbitrary division between the two?
Then there is the point mentioned by the noble Viscount. Much of this furniture is either hired, or subject to a bill of sale. The person from whom the furniture is hired depends upon the husband's capacity for earning money for the instalments of the purchase money, and if, before the instalments have all been paid, the furniture is handed over to the wife, who has no means, necessarily the security is gone, and I do not know what the position would be of the seller of the furniture. He depends upon the husband for payment, and if the furniture goes his substantial security goes with it. As to what would be the legal effect of an order of this kind upon the ownership of the furniture, I think the noble and learned Viscount opposite is quite as competent to say as I am. If he finds it difficult to explain, I find the same difficulty.
I wish to say one other thing. I am bound to say that I think these orders for separation, if too freely given, are apt to do some harm, and I say that with the support of passages in the Report of Lord Gorell's Commission with which most of us are familiar. I think it is to be hoped that in most of these cases the wife will, after a time, be able to go back to her husband. If you are going to strip and break up the home, and allow the wife to take away, and probably sell, the furniture, you remove any chance of an early reconciliation and resumption of cohabitation, 682 which is, I think, the end to which one has to look. I think it is a pity to turn to these new experiments. I think it is better to adhere to the law which has been administered for a long time, with such amendments as are already contained in the Bill, and I hope that on consideration the noble Lord will not press his proposal in this Amendment, for I think it would really cause more trouble, and give rise to more controversy, than it is worth.
There is clearly, I venture to think, a much stronger case for this Amendment than for some of the others. It does not, to begin with, interfere with the sacred law of real property, which has exercised the mind of noble Lords opposite.
Personal property, yes. It may not be drawn up with those precautions and provisoes which may be necessary, but it is perfectly easy on a future occasion to exclude furniture on which there is a bill of sale, and which has not been fully paid for. I think, however, that your Lordships have not all appreciated what are the practical facts and difficulties. It is the fact that the furniture in a small working-class dwelling stands nominally in the name of the husband, and probably is his legal property, and it has very often been bought with the help of contributions by the wife before marriage, and you cannot say so easily: "This is her bed," or "This is her table, because she bought it," but she may have contributed £15 to the husband's £30 for the purchase of the furniture, and she really has herself paid for part of it. There ought, perhaps, to be words in this Amendment, which are not there now, saying that the magistrate should make the division on some equitable principle. I rather agree that, as The Amendment stands, there is no arrangement for that, but the magistrate is to exercise his discretion, which he is very well able to do.
When I adumbrated these Amendments on Second Reading I said that some of them rather did put the magistrate in the position of a cadi sitting under a tree, and doing rough-and-ready justice, but I have had the opportunity since 683 then of discussing this particular Amendment with a learned Stipendiary who sits in a poor part of London, and he tells me that he would find no difficulty in administering an Amendment of this sort. In fact, extra-legally he does do something of the sort very frequently through the court missionary, and, when there is a sort of half claim by the wife, the court missionary makes some arrangement between the parties which saves trouble. That is very desirable, but it cannot be enforced where you have a cantankerous husband. If it is equitable, however, surely it is desirable to do it legally, and the only question is whether it is practicable.
Your Lordships have probably received, in common with the rest of us, a defence of these proposals, and I see that, on this particular proposal, there is a paragraph which says:—We have consulted with many magistrates and police court clerks in this matter, and find that they are of opinion that the proposal is both practicable and desirable.I can only claim personally to have consulted one, who happens to be a personal friend of mine. But I think the proposal really is practicable. It might be well to limit it to small amounts, if your Lordships would like, under £50 or £60. But what is your alternative? Your alternative, if there is an equitable claim, is a county court action, a very expensive and troublesome proceeding. Cannot the House depend on the magistrate to exercise this paternal jurisdiction quite reasonably?
The proposal is novel, I agree, but this Bill is somewhat novel. It has some peculiar provisions, which run contrary to the general ideas of the law, as it has been administered hitherto. If we are going to pass it, I think we may as well do all we can to make it workable, and I think this is one of the things that will help a great deal. Really, what you are going to do is to give legal sanction to what is the practice in the best police courts now, and is carried out sometimes unofficially by the court missionary. If the noble Lord who has moved the Amendment presses it to a Division I shall be very glad to vote with him. I sincerely hope that he will, because I do not think, without more reason than we have heard 684 against it, that we ought to be told that it cannot be done. Reasonable safeguards, if you like, could be put in at a later stage, but the principle seems sound, and I hope your Lordships will assent to it, remembering that we are not dealing with homes, as we understand them, but with collections of furniture, worth altogether £40 or £50, some of which does equitably belong to the other spouse.
§ LORD EMMOTT
My Lords, I have listened very carefully to the whole discussion, and I must say that the arguments brought against this Amendment do not convince me at all. The opponents of the Amendment do not seem to understand the lives of the poor, because so many of their illustrations seem to me to be drawn from a different class of life. Take this question of the furniture on hire or under a bill of sale. Where there is such furniture surely it can be left to the intelligence of the magistrate to make a reasonable division, and to take that into account. I hope that the noble Lord who moved the Amendment will press it to a Division, and if he does I shall vote with him. If the actual language used requires improvement an Amendment can be made on Report.
§ THE LORD CHANCELLOR
The noble Earl made a new proposal altogether. His remarks were directed to this view, that where the property belonged partly to the husband and partly to the wife the justices shall have the power to determine that question in a summary way. That, of course, is a wholly different thing, because he would determine it according to rights and equities. It is quite right that he should have the authority to do that, and if either the noble Lord who moved the Amendment or the noble Earl will, on the Report stage, propose a clause to that effect I will give it my very careful consideration. But this is something quite different. It is a transference of property from A. to B. on the ground that there is a case for a separation between two married people who cannot get on. I hope that the House will not establish a precedent by passing a provision of this kind. I will only add this with regard to the statement that some magistrates have approved of the clause: 685 of course, the Government have been in consultation with magistrates of great experience, and their view is that the clause is neither desirable nor workable.
I hesitate, very much to accept the offer of the noble and learned Viscount to bring up a new clause on Report. I would very much rather
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 2:
§ Amendment of s. 7 of principal Act.
§ 2. 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 hare 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 discharged686
§ have this clause put in now, and let the Lord Chancellor put in the necessary safeguards; we should be quite willing to accept them.
§ On Question, Whether the proposed new clause shall be there inserted?
§ Their Lordships divided: Contents, 16; Not-Contents, 15.685
|Beauchamp, E.||Southwark, L. Bp.||Morris, L.|
|De La Warr, E.||Olivier, L.|
|Eldon, E.||Askwith, L. [Teller.]||Stanmore. L.|
|Russell, E. [Teller.]||Balfour of Burleigh, L.||Strachie, L.|
|Emmott, L.||Sudley, L. (E. Arran.)|
|Bertie of Thame, V.||Gorell, L.||Thomson, L.|
|Canterbury, L. Abp.||Cecil of Chelwood, V.||Danesfort, L.|
|Haldane, V.||Lawrence, L.|
|Cave, V. (L. Chancellor.)||Hutchinson, V. (E. Donoughmore.)||Merrivale, L.|
|Salisbury, M. (L. Privy Seal.)||Muir Mackenzie, L.|
|Clarendon. E. [Teller.]||Banbury of Southam, L. [Teller.]||Stuart of Wortley, L.|
§ 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.
EARL RUSSELL moved to leave out of paragraph (a) "such payments as in the opinion of the court he was able," and to insert "any payments which he was required." The noble Earl said: The first proviso to Clause 2 of the Bill says:—
Provided that the court may, if the court think fit 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.…
My Amendment is to leave out from "to make" to "able" and to insert "any payments which he was required." Your Lordships will notice that as the Bill now stands the husband's payments need not be the payments which the court ordered him to make. He need only make such payments as, in the opinion of the court, he was able to make. The suggestion is that the adultery might be conduced to equally well by the failure to receive the money which was ordered to be paid as by the husband's failure to provide money because, in the opinion of the
court, he was not then able to do so. Presumably, when the order was made they considered he was able to do so and it is thought right that he should not be excused unless he has, in fact, made the payments which he was required to make. I beg to move.
Page 2, lines 21 and 22, leave out from ("make") in line 21 to ("to") in line 22, and insert ("Any payments which he was required").—(Earl Russell.)
§ THE LORD CHANCELLOR
I certainly cannot accept this Amendment. The effect of the clause is that if a married woman who has obtained an order for a separation afterwards commits adultery while she is separated from her husband the order may be discharged. That is the existing Act. It is proposed by the Bill that the court may refuse to discharge the order in the case of adultery if, in the opinion of the court, the adultery 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. In other words, if the husband is able to pay a separation allowance and refuses to do so and that is held by the court to conduce to the wife's act of adultery, then the order need not be discharged.
What the noble Earl proposes is something altogether different. It is that if the husband cannot make the payments, if he has no means out of which to make the payments for maintenance, then he is deemed, by his mere inability to pay, to have conduced to his wife's adultery. Anything more unjust or unfair I cannot possibly conceive. A man may be out of work, he may be a cripple, he may be sick, and he may be unable to make the payments required by the court; and because of that he is to be deemed to have conduced to his wife's adultery, the order need not be rescinded, his wife may continue in adultery receiving what her husband can pay, enforcing the order against him whenever she can, and he has no further remedy at all. Such a proposal is conducive to adultery, and I think it is most undesirable to make this change in the Bill.
§ Amendment, by leave, withdrawn.688
§ LORD ASKWITH moved, in paragraph (b), to substitute "twenty shillings" for "ten shillings." The noble Lord said: I understand that my noble friend Earl Russell wishes me to move this Amendment, which has the object of substituting 20s. for 108. so as to bring the figure to the same as that which occurs in the Affiliation Act. I understand that my noble friend Lord Muir Mackenzie moved that alteration to that Act and that your Lordships' House agreed to it. The increased sum would allow of a reasonable maintenance for a child, and I hope that your Lordships will accept the Amendment. I beg to move.
Page 2, line 30, leave out ("ten") and insert ("twenty").—(Lord Askwith.)
§ THE LORD CHANCELLOR
Under the law as it exists a husband is entitled to have the order discharged if the wife commits adultery, on the ground, I suppose, that the husband is not to be required to maintain his wife who is living in adultery. The Bill does not alter that principle, but it takes note of the fact that in some cases it may be in the interests of the children that they should remain with their mother. Accordingly, the Bill provides that when an order is discharged on the ground of her misconduct the justices may let the children continue in her care, and order an allowance to be paid to her, not for her maintenance, but for the children's maintenance. The allowance so provided is the same allowance which is provided in the ordinary separation and maintenance order. It is 10s. a week towards the maintenance of the child, and, on the assumption which the Bill makes that the wife in these conditions will be maintaining herself or will be otherwise maintained, the order for 10s. a week is held to be a sufficient sum. The noble Lord proposes to raise that to 20s. a week.
I am not sure whether he realises what that means. It would mean, in many cases, that, notwithstanding the adultery, the wife is getting just the same allowance as she had under the original order. Take the maximum figure. Originally she was getting 40s. a week. She may have had four children, for whom she was getting another 40s. a week. That makes a total of £4. Under this provision she will, notwithstanding 689 her misconduct, be getting exactly the same sum, £4 a week. In some cases she might get more under this provision than she would get under the original order, and so be rewarded for her misconduct. I really think this proposal requires further consideration, and I hope the noble Lord will not press it.
§ LORD ASKWITH
In view of the statement of the noble and learned Viscount, I do not propose to press this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clauses 3 and 4 agreed to.
§ LORD STRACHIE moved, after Clause 4, to insert the following new clause:—
§ Power to order interim, payments where application respecting maintenance of married woman adjourned.
§ (".Where, on the hearing by justices of an application for an order of maintenance against the husband of a woman the justices have adjourned the case, they may order and direct 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 the custody of the wife until the hearing be continued, and so from time to time until the final determination of the case, and in the event of failure to make payment it is hereby declared that any sum due be recoverable as a civil debt by the court making such order.")
§ The noble Lord said: I have put this and the following Amendments on the Paper at the request of the county solicitor to the court of Quarter Sessions for the West Riding of Yorkshire. This matter was considered fully by the court of Quarter Sessions for the West Riding of Yorkshire, and as a result these proposals were unanimously adopted and sent to me by the county solicitor to bring before your Lordships. I am sure, therefore, they will receive due consideration at the hands of your Lordships. The noble and learned Viscount, the Lord Chancellor, referring to another Amendment, suggested that separation orders were freely given. The object of my Amendment is to enable the justices, in cases where they think it ought to be done, to grant interim payments to the wife in a case where it is considered desirable there should be an adjournment. In the absence of this power they might be reluctant to adjourn cases because, in the meantime, there might be a grave 690 hardship upon the wife in being deprived of any allowance whatsoever. If they had this power to make an order provisionally, giving an allowance to the wife during the period of the adjournment, there would, no doubt, be many cases in which it would be desirable to exercise the power.
§ There are many cases in which it may be advisable not to come to a judicial decision at once. For example, there may be many cases in which, if an adjournment were made, the parties might come to a reconciliation. There are many districts in which the justices sit only at intervals of a fortnight, and if there is no business to do, the interval may very often extend to a month. In many of these cases, therefore, there would be a full fortnight, or it might be four weeks during which, if there was an adjournment, the wife would be getting nothing at all. Your Lordships will agree that it is very often desirable that these hasty applications made by a wife in a fit of temper or something of that kind should not be dealt with at once, but should be adjourned to give the parties an opportunity of thinking over the matter, and, if possible, of becoming reconciled. This provision would assist the justices in deciding to make an adjournment, and I understand that the justices of the West Riding of Yorkshire are anxious that they should have this power. I would point out to your Lordships that it is only a discretionary power.
§ In the absence of this power the wife would, during the adjournment period, be under a hardship. Moreover, if the husband had to pay maintenance in the interim it might have a good effect upon him. When he saw that an order had been made upon him, and that it was probable it would be enforced at the end of the adjournment if he did not come to a reconciliation, he might be more inclined to be reconciled; at any rate, it would very likely be an inducement to come to some arrangement. I am very glad to do this at the request of the justices of Yorkshire, because not long ago those of us who voted against Peeresses sitting in this House were told that we behaved badly in the matter of the interests of women. Of course, that statement was entirely wrong. I regret 691 that the noble Lord, Lord Astor, who introduced the Bill to give seats in this House to Peeresses in their own rights, is not here to-day, as I should claim his support for my Amendment. No doubt he is more amusingly engaged elsewhere. In this particular instance we are supporting the interests of women. We are anxious to do what we can to see that justice is done to women, to see that they have proper treatment, and that no injustice or harm is done to them owing to the fact that they are not directly represented in this House.
Page 2, line 20, at end insert the said new clause.—(Lord Strachie.)
§ LORD MERRIVALE
Before the noble and learned Viscount replies to what has been said by the noble Lord in moving the Amendment, I should like to say in his hearing that I think there is a good basis of sound sense under this proposal. It is a practical proposal. Justices have difficult cases before them, and very often are perplexed as to how they should meet the difficulty. At the present time, if they adjourn a case, although they may put pressure upon the husband if he is the alleged defaulter (as he usually is) to induce him to consent to some payment ad interim during the adjournment, they cannot make an order to that effect. A great many cases arise, I am sure, in which that power could be usefully exercised, and I do not think it would be abused. The noble Lord has, at the close of the Amendment, a provision as to enforcement of payments. I am inclined to think that that is a little cumbrous. It would be better, if there is an order, that it should be enforced in the manner in which payments under the Bill generally are directed to be enforced. With regard to the main proposal I think it very possible that it may require some safeguard in cases where, under cover of providing for an interim condition of things, the ultimate decision of the claim of the party alleging a grievance is postponed for an indefinite time. I think it would be desirable to insert a period to which the postponement of the operation of the interim order should be limited. Subject to that I must say I think there is good sense in the proposal.
§ THE LORD CHANCELLOR
I confess that I am rather attracted by this proposal, 692 but I would like to have an opportunity of consulting my right hon. friend who is responsible for this Bill in another place before saying that I will accept the Amendment. I hope, therefore, that the noble Lord will withdraw his Amendment now, and perhaps put it down again on the next stage of the Bill. In the meantime perhaps he would consider the points which have just been made by my noble and learned friend Lord Merrivale, and also consider this. It does occur to Me that this power should not be exercised where there is a short adjournment, say for a week or something of that kind, because you only complicate matters. Possibly it might be limited to cases where there is an adjournment for more than a week, but I do not at all put that forward as my final opinion. I would like the noble Lord, Lord Strachie, to consider that point with the others before the Report stage, and I would ask the House to deal with the matter then.
§ LORD STRACHIE
I should prefer to put this Amendment in now in order that it might be amended on the Report stage in the direction suggested by the Lord Chancellor and the noble and learned Lord behind him, but if the Lord Chancellor prefers not to do that, and is prepared to undertake to bring up a clause on Report, drafted on the lines he has suggested, I shall be quite satisfied.
§ THE LORD CHANCELLOR
I will, of course, undertake to do that unless some objection is brought to my notice by the Department concerned. In that case I will communicate with the noble Lord.
§ Amendment, by leave, withdrawn.
§ LORD STRACHIE moved, after Clause 4, to insert the following new clause:
§ Agreement as to maintenance of illegitimate child to be recorded.
§ ".Where an agreement in writing has been entered into whereby any sum is payable by the putative father of an illegitimate child by weekly or other instalments for the maintenance of a child, a memorandum thereof may be sent by the parties thereto or one of them to the clerk to the justices who shall, on being satisfied as to its genuineness, record such memorandum in a special register, and thereupon the memorandum shall for all purposes be enforceable as if an affiliation order had been made by the justices:
- (i) Where it appears to the clerk to the justices on any information which he considers sufficient, that an agreement as to the redemption of a weekly payment under an affiliation order by payment of a lump sum, ought not to be registered by reason of the inadequacy of such sum, he may refuse to record the memorandum of the agreement sent to him for registration, and refer the matter to the justices who shall make such order (including an order as to any sum already paid under the agreement) as under the circumstances they may think just;
- (ii) An agreement as to redemption of a weekly payment by a lump sum if not registered in accordance with this Act shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the weekly payment is payable from liability to continue to make that weekly payment, nor shall the payment of the sum payable under the agreement exempt the person by whom the said sum is payable from liability to pay the same unless he proves that the failure to register was not due to any neglect or default or his part;
- (iii) The payment of a sum in pursuance of any agreement whereof a memorandum has been registered may be enforced by the justices in the same manner as an order of affiliation may be enforced; and the justices shall have the like power of varying any such payments as they have in relation to an affiliation order."
§ The noble Lord said: I may be told that this is outside the scope of the Bill because it deals with unmarried mothers and that the Bill only deals with married women. But if it is outside the scope of the Bill it is quite easy for us to amend the title, as we have often done. The main object of the new clause is to give the same protection to unmarried women as to married women. Very often agreements are made between the mother of an illegitimate child and the putative father which are not enforceable in a court of summary jurisdiction. They can only be enforced in the county court, which is a cumbrous kind of machinery and rather more expensive. It might be said that the mother of an illegitimate child should apply for an affiliation order, but the reason she does not do so is obvious. Women do not like the torture 694 and disgrace of having to appear before a court of summary jurisdiction and, therefore, they enter into these agreements with the putative father. I am moving this Amendment on behalf of these women, who, I think, should be protected in these matters as far as possible.
After Clause 4 insert the said new clause.—(Lord Strachie.)
§ The LORD CHANCELLOR
This is asking your Lordships to go very far outside the scope of the present Bill and to deal with matters which have no connection with it. This is not a Bastardy Bill. It is a Separation and Maintenance Bill, and to attempt to bring into it matters relating to bastardy, which is always a subject that causes great controversy, is, I suggest, to go beyond the very indulgent practice which this House has adopted in a few other cases. I really do not feel in a position to criticise this new clause on its merits. It requires a great deal of careful consideration in relation to the Bastardy Acts, and I hope the noble Lord will not press it.
§ Amendment, by leave, withdrawn.
§ Remaining Clauses agreed to.