§ After Clause 1, insert the following new clause:
§ Provisions as to separation agreements
§ (".—(1) In determining for the purposes of section four of the Summary Jurisdiction (Married Women) Act, 1895, whether a husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or her infant children, payments made by the husband shall not be deemed to be sufficient to provide such reasonable maintenance by reason only that they are made in accordance with an agreement made between the husband and the wife before the commencement of this Act.
§ (2) Where an order under paragraph (c) of section five of the Summary Jurisdiction (Married Women) Act, 1895, or under section one of the Married Women (Maintenance) Act, 1920, is made in pursuance of an application under section four of the first-mentioned Act, and the husband is liable, in pursuance of any agreement, whether made before or after the commencement of this Act, to make payments to or for the benefit of the wife or any child for whose maintenance provision is made by the order, the liability of the husband under the agreement shall be treated as discharged to the extent of any payments made in pursuance of the order.")
§ The Commons disagree to the above Amendment for the following Reason:
§ Because the Amendment, while seeking to alleviate a hardship, would constitute too great an interference with the freedom of the parties to a marriage to settle their differences out of Court.
§ LORD CROOK
My Lords, I beg to move that this House do not insist on the Amendment to which the Commons have disagreed. It might almost be said that there is no one more qualified to move this Motion than I am. I came here to persuade your Lordships to put this 1661 clause into the Bill, and now I have to ask your Lordships to be good enough to agree to its being taken out. This measure, as your Lordships know, came to this House from another place, and I was asked to handle it on its arrival here. During the Committee stage in another place, attempts were made to add to the Bill a clause having, broadly, the effect of the clause which now appears on the Paper. However, the form and nature of the proposals made did not meet with sufficient support, either in the Committee stage or subsequently in the House itself, with the result that the Bill came to your Lordships' House without any such provision, but with an understanding on the part of the promoters that if agreement on a form of words could be secured the Amendment would be moved here.
On July 21, I asked your Lordships to be good enough to add this clause to the Bill, pointing out the reasons why it was put forward. One matter which, I said, was probably in the minds of those who were disturbed about this question was to be found in the judgment of the noble and learned Lord, Lord Merriman, in the case of Morton v. Morton (1942 All England Law Reports, page 273), in the course of which the noble and learned Lord said:I am content to deal with this case on the basis that a deed like this, providing for periodical payments, the obligation to make which has been punctually performed, is very strong evidence indeed against the complaint of wilful neglect to provide maintenance.The point raised is whether the existence of the actual agreements might not cause a woman making the application to lose some of the benefits of the Bill. Agreement was secured on the form of words to come before your Lordships' House by co-operation between the promoters of the Bill and the Home Office, although, in a speech which followed mine, the noble and learned Viscount who sits on the Woolsack pointed out that the Home Office contented themselves by stating what the objects of the clause were as they saw them, and the serious nature of it. They did not, however, attempt to give any guidance to the House.
In fairness to your Lordships, it is only right to remind you of what the noble and learned Viscount the Lord Chancellor then said. He pointed out that the clause would allow a woman to go to the court and to allege wilful neglect, to allege that 1662 she should be receiving much higher payment than she is now receiving, notwithstanding the fact that there had been voluntary agreement. The noble and learned Viscount went on to say that the provision had the disadvantage of treating an agreement which was genuinely come to between the parties, rather as if it were a scrap of paper. The point that an agreement might be treated as a scrap of paper was one to which objection was taken when the Bill went back to another place in July. The Bill had a fairly difficult passage on that occasion. There was strenuous opposition on a number of grounds: first, that there would be interference with the freedom of the parties to compose their differences; secondly, that unfair favouritism was shown to wives, and thirdly, that there was some doubt as to the jurisdiction of the courts, whether in fact the courts were not capable of dealing with some of these matters as the state of the law now stands.
When the Bill came before another place for adjourned consideration on Monday of last week, clear indication was given that there was also some feeling on the part, I think, of the noble and learned Viscount the Lord Chancellor, and certainly of some of your Lordships concerned with the administration of justice, that there might be an additional objection—namely, the overloading of the courts of summary jurisdiction. To sum up, it became clear that this proposal is one that is so completely controversial that, in the view of those who have at heart the original proposals of the Bill, it would be wrong to ask your Lordships to insist upon the original Amendment. Accordingly, I ask your Lordships to acquiesce in the deletion of the clause.
§ Moved, That this House do not insist on the said Amendment.—(Lord Crook.)
§ On Question, Motion agreed to.