HL Deb 27 October 1949 vol 164 cc1321-42

4.31 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Llewellin.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 1:

Extension of jurisdiction of High Court in certain matrimonial proceedings

(2) Without prejudice to any jurisdiction exercisable by the court apart from this section in proceedings for nullity of marriage, the foregoing provisions of this section shall apply to proceeding for nullity of marriage.

LORD LLEWELLIN moved to add to subsection (2): or for a decree of presumption of death and dissolution of marriage as they apply to proceedings for divorce. The noble Lord said: I rise to move the first Amendment to Clause 1. Its purpose is to ensure that the High Court and the Court of Session shall have jurisdiction in proceedings for a decree of presumption of death and dissolution of marriage where the wife petitioner has been resident for three years in England or Scotland, as the case may be. With that simple explanation, I beg to move.

Amendment moved— Page 1, line 17, at end insert the said words.—(Lord Llewellin.)

LORD MERRIMAN

I should like to say that to me this seems a thoroughly sound Amendment, and I hope that it will be accepted.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Extension of jurisdiction of Court of Session in certain consistorial proceedings]:

LORD LLEWELLIN

This Amendment does exactly the same thing in regard to Clause 2. I beg to move.

Amendment moved— Page 2, line 7, at end insert ("or for a decree of presumption of death and dissolution of marriage as they apply to proceedings for divorce.")—(Lord Llewellin.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

LORD LLEWELLIN moved, after Clause 3 to insert the following new clause:

Legitimacy of children of voidable marriages

" .—(1) Where a decree of nullity is granted in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if it had been dissolved, instead of being annulled, on the date of the decree shall be deemed to be their legitimate child notwithstanding the annulment.

(2) Subsection (2) of section seven of the Matrimonial Causes Act, 1937, is hereby repealed."

The noble Lord said: This is an important new clause which deals with the legitimacy of children of voidable marriages. There have been cases, oddly enough, where a child has been brought up for a considerable part of its life as a child of a marriage, yet when subsequently that marriage is made null and void the child suddenly finds that it has become a bastard. In one case, I believe, a girl had reached the age of seventeen when that happened. I do not think anybody wishes that kind of thing to occur. There are other cases where this matter has been considered in the courts, and that has been the result. Whatever may happen to the parties, I think the Committee will agree that nobody wants a child thus to be illegitimised. This Amendment will put a child, the marriage of whose parents has been annulled, into the same position as that of a child of parents whose marriage has been dissolved—that is to say, we are now ensuring in the few cases that may occur (but they are just as hard and just as sad because they are few) that these children shall remain legitimate despite the annulment of the marriage. I am sure that no further explanation is needed for such a good cause as this, and I beg to move.

Amendment moved— After Clause 3 insert the said new clause.—(Lord Llewellin.)

LORD MERRIMAN

Various ways of bringing about this desirable result have been tried and, if I may be allowed to say so, this solution is the best which has yet been produced.

THE LORD CHANCELLOR (VISCOUNT JOWITT)

For what it is worth, I give my hearty concurrence to this proposal.

THE MARQUESS OF READING

As I raised this matter at some length in your Lordships' House not so long ago, I would like to express my gratitude to the noble Lord for having moved this Amendment and to the noble and learned Viscount for having accepted it.

On Question, Amendment agreed to.

Clause 4 agreed to.

Clause 5 [Power to vary orders for maintenance in the event of remarriage]:

LORD LLEWELLIN moved to add to the clause as a new subsection: (3) For the purpose of the exercise of any jurisdiction conferred by this section in relation to an order made before the date of the commencement of this Act, no account shall be taken of any change of circumstances occurring before that date. The noble Lord said: This Amendment is moved as a result of a speech made in this House by the noble Lord, Lord Merriman, during the course of the Second Reading of this Bill. The noble Lord pointed out that what we were doing by Clause 5 was to allow the courts, if cases were brought before them, to reopen not only the question of provisions for secured maintenance which had been made after the passing of this measure but also the question of provisions for secured maintenance made before its passing. I know that this Amendment does not meet the whole of the objection of the noble Lord, who speaks with all the authority of the President of the Probate, Divorce and Admiralty Division of the High Court, but I submit that it goes a long way to meet his point.

We are moving this Amendment to secure that the parties cannot go before the court thinking that by reason of some event that occurred before the passing of this measure they can ask the court to reopen the question of one of these provisions for secured maintenance. If this Amendment is adopted they will have to prove that the new fact arose after this measure had become law. It may be said that we ought never in any circumstances to interfere with provisions for secured maintenance made before the passing of this Act; that they should be like the laws of the Medes and Persians, and that they should go on until death should end them. Though they may be few in number, there are, or may be, some cases in which a woman who has obtained this provision for secured maintenance marries, perhaps, an extremely rich man and is then in no further need of this provision which her previous husband was obliged to make. It might be well to give the court power to look into these cases and, if they think that injustice is being done, to remedy it.

This Amendment only gives discretion to the courts; it does not in any way give directions that they have to reopen these matters. The Amendment says in effect that if circumstances have arisen since the passing of this Act—as it will be—in some such way as I have described, and the court thinks that the provision for secured maintenance ought to be varied then by this subsection the court is allowed to use that discretion. In deference to the noble and learned Lord, Lord Merriman, we are preventing him and his colleagues in his Division of the High Court from taking into account any event which happened before the passing of this measure and which might cause them to reopen one of these provisions which have previously been made. It is because I have come along with what I trust I may describe as an olive branch in my beak that I hope we may meet one another half way, that the Committee may adopt my Amendment, and that the noble and learned Lord, Lord Merriman, will be happy that I have put it forward. Although all that he wanted may not be achieved by the Amendment, I hope that we shall be able to settle this clause satisfactorily with the aid of this olive branch which I am now holding out. I beg to move.

Amendment moved— Page 3, line 18, at end insert the said new subsection.—(Lord Llewellin.)

4.43 p.m.

LORD MERRIMAN

I am sorry, but I am afraid that I must interrupt the harmony which has hitherto prevailed by saying that I resist this Amendment. Before doing so I would like to say that I have known of the existence of this "olive branch" only since I rose from my labours yesterday afternoon. One would have thought that if it were intended to meet my point I might perhaps have been given a little more time for consideration. I have, however, considered this Amendment with my colleagues, or with as many of them as I could manage to collect together in the time, and with the Registrar. I cannot deal fairly with the Amendment without re-stating, if your Lordships will allow me to do so, my fundamental objection to the form which this clause takes.

I want to say at once, as I said during the debate on Second Reading, that I have nothing whatever to say against the inclusion in this Bill of that provision for making reviewable orders made after the passing of this Bill. My objection is solely to the power to reopen trusts which have already been created and on the basis of which a great number of women have regulated, and are regulating, their lives. I want, if I may, to make one small correction in what I said before, although it does not touch the point with which we are now dealing. I pointed out during the Second Reading debate that, as things are, the Registrars have power to insert, and frequently do insert, some limit other than the life of the wife. I went a little too far as a result of misunderstanding something that was said to me. They do not say that these secured provisions may be reviewable by further order in general terms. They do, in fact, frequently insert a clause that the secured provision shall come to an end, for example, on the marriage of the wife or on the attainment of majority by the children; but it is always some specific event or events of that sort. What I have just said does not affect the point the Committee are now considering, but I thought it right to make that correction in order that your Lordships might not be under any misapprehension.

And now, my objections to this Amendment. I use the word "trusts"—that is exactly what these things are. A woman, as part of the maintenance which is given for the disruption of her marriage, has set aside for her life—it is usually for life but may be for some shorter period—certain capital sums which are placed in the hands of trustees. Upon that, things being as they are, she is entitled to rely, or at all events to take account of it, in the regulation of her life. It is very important that your Lordships Should be aware that that type of provision is invariably linked with, and is an addition to, the provision of maintenance for their joint lives. To take round figures, it is the exception rather than the rule that the figure secured by such a trust reaches one-third of the maintenance. It is usually less than that. Suppose everyone is agreed—very often these things are a mere matter of agreement—that the total amount that the wife shall receive should be in the neighbourhood of £1,000. If she obtained an unsecured provision she would get £1,000 "until further order." That can be altered or reviewed at any time. But if it is thought right to fix the figure at £250 or £300 it is absolutely certain that the totality will be reduced because of the benefit which she gets in having a small portion of the total sum settled upon her, not for joint lives but for her own life, irrespective of the date, be it sooner or later, when the husband dies.

It is sail that this may cause great hardship. One is always confronted—I have been so confronted in private discussions—with the case of the woman who marries a rich husband. Of course, the fact that she may remarry is taken into account almost always if she is of marriageable age. But, it is said, you cannot take into account that she may be going to marry a millionaire. Equally you cannot take into account the fact that, having married someone who is not a millionaire, that someone may win a football pool. These are points that have been put to me. It is said that this justifies the ripping up of settled trusts. I ventured to say something on a former occasion which I repeat now, because I have brought my information up to date. I have consulted all my Judges and all my Registrars and only yesterday and to-day, as soon as I received word that this Bill was coming on, I made a special point of talking to the Senior Registrar about this topic. If one of these unexpected events happens there has hitherto, of course, been no power to touch the settled fund; but the unsettled fund, which is at least two-thirds of the whole, if not more, is liable to be altered at any moment and, in the event of a rich marriage or anything of that sort, to be altered to suit the circumstances of the case.

I asked this question of the Registrars, as I have asked it before. I may say in passing that the Registrars deal with hundreds of these cases, where we deal with only ones and twos. It is very rarely that there is an appeal to us about these things; so that the Registrars are the people whose knowledge really counts. I asked the Senior Registrar, and he has taken the voice of others, whether they could think of any case in their experience where it has been necessary, or would have been necessary to meet a possible injustice, to go further than cancelling the whole of the unsettled money, and their considered opinion is that no such case has ever come within their knowledge. The Senior Registrar speaks with twenty-five years' experience. When Parliament passes an Act, it is taken to intend to deal with a mischief, and I maintain there is no mischief here. It is said that we are only leaving it to the discretion of the court. Of course we are. But when Parliament passes an Act like this, the court must assume that it intends to deal with the generality of cases, with the typical case, and not with the exceptional case. I am bound to say that I fear that we shall see, I will not say a flood, but at any rate a minor spate of applications which, whatever pretext is put forward, will in fact be occasioned by the depreciation of the value of money—a circumstance which hits the wife as well as the husband.

That being so, I come to the Amendment. I am bound to say that this olive branch, on the brief consideration I have been able to give it, is worse than the disease. Have your Lordships looked at it? It says: For the purpose of the exercise of any jurisdiction conferred by this section in relation to an order made before the date of the commencement of this Act, no account shall be taken of any change of circumstances occurring before that date. It does not say that the husband is not to take advantage of any change of circumstances before that date, but "no account shall be taken." That counts both for and against the wife. May I take the simplest illustration?

LORD LLEWELLIN

If I may interrupt the noble and learned Lord, I would point out that "no account" is meant to apply to the court.

LORD MERRIMAN

Of course it is meant to apply to the court. I understand that. But the court shall take no account of any circumstances which have occurred before the passing of this Bill. In considering the question of reviewing a settled trust, we are forbidden to take into account anything happening before the commencement of the Act. Apply that to the value of money affected by devaluation of the pound. It does not matter which way we take it, either for the husband or for the wife, we may not take into account the fact that the pound has been de-valued. The court will have to make some arithmetical calculation of what money is worth as from the date this Act is passed and ignore everything else. The same thing applies to a progressive illness of a wife. It is impossible to go into all sorts of circumstances, but supposing a wife has had a very serious operation followed by a further period of treatment before the passing of the Act, we are not to take that into account. The Judge or Registrar may look only at something which has occurred after the passing of the Act. I would suggest that this imposes upon us an impossible task.

There is a perfectly simple alternative. I gather from what has been said to me that the promoters are under the impression that I want to get rid of this clause altogether: very far from it. The whole matter can be dealt with simply if in Clause 5 (1) (b), after the words "in relation to any order," there are inserted the words "made after the passing of this Act," and then correspondingly (because they would then become redundant) we should delete the words after "1925," because, of course, we would not then be dealing with orders made before 1925. I implore the noble Lord who is in charge of the Bill to think again. After all, as I ventured to say just now, we ought to be dealing with realities, not with imaginary cases or with an occasional hard case which is the exception. We ought to be dealing with the typical cases of women who are regulating and have regulated their lives on the footing that they have some secured provision; for example, with the simple case, which is an every-day occurrence, where a woman who has young children has had her home wrecked by a husband. She has the prospect of marrying again, and has to consider whether she is to do that at the risk of having her secured maintenance taken away from her, a maintenance on which ever since the making of the order—whether last month or last year or ten years ago—she has been entitled to rely in regulating her life. I ask the noble Lord, because of course I cannot move an Amendment now, to accept that qualification and leave the future to take care of itself by leaving things as they are with regard to existing orders.

4.58 p.m.

THE LORD CHANCELLOR

On several occasions during the last few days I have found myself in rather an embarrassing position. I do not pretend to be a master of this branch of the law. We have just heard an expression of opinion from one who is a great master of this branch of the law, and it ill becomes me to proffer any advice which differs from his. I am very sorry that, owing to a slip, either the fault of my Department or of the noble Lord, the noble and learned Lord did not receive his copy of this Amendment until yesterday. So far as the substance of the matter is concerned, as distinct from the wording of the Amendment, I myself made the noble and learned Lord aware of it as long ago as the beginning of August.

LORD MERRIMAN

Forgive me, but the noble and learned Viscount said it was suggested that we put that right by introducing some words, which I cannot recall but which were contained in a letter.

THE LORD CHANCELLOR

I received a letter from Major Manningham-Buller, who was responsible for the Bill in the other place, and I passed it on to the noble and learned President. Major Manningham-Buller said this: I wonder whether it would not meet Lord Merriman's point to provide that the power of the court should be limited to variation in consequence of some change which takes place after the Bill is passed. That is what this Amendment is intended to do. I have no doubt that the noble Lord, Lord Llewellin, after the criticism of the wording which Lord Merriman has put forward to-day, will deem it wise not to press the Amendment now and to reconsider the matter on the Report stage. I take it that what the noble Lord, Lord Llewellin, wants to do is to find an appropriate form of words to carry out the object which was expressed in that sentence of the letter which I have read—namely, to confer this discretion upon the court and to make it plain that the court in exercising its discretion should not base that discretion upon any pre-Act events—such, for instance, as the change in the value of money which has taken place recently in consequence of devaluation, or anything of chat sort—but should base it on post-Act events. That is the substance of the point. So far as the form of words are concerned, I am sure that if this form of words is defective we can find another to carry out that object. In view of the learned President's criticism—if I may make the suggestion—I am sure the noble Lord, Lord Llewellin, would be well advised to consider whether the form of words that we have here is appropriate.

LORD MERRIMAN

I wonder whether the noble and learned Viscount will allow me to interrupt at this point to deal with the letter?

THE LORD CHANCELLOR

Certainly.

LORD MERRIMAN

Unless I completely misunderstood the Lord Chancellor, there was the plain inference from what he said that I had—I will not say misled, but at any rate suggested to the Committee that I had never heard of any such proposal before. It is perfectly true that the Lord Chancellor sent Major Manningham-Buller's letter to me, and I wrote a long and reasoned reply in the sense in which I have spoken to-day. To that I received an answer on the 12th August saying that the Lord Chancellor was unconvinced, but still we have plenty of time to turn this matter over in our minds and to see whether any accommodation is possible. For what it is worth, it is the fact that I have had no further communication on the subject of which I was complaining.

THE LORD CHANCELLOR

I am not quarrelling with the noble Lord at all, and I certainly did not mean to suggest that he had misled the Committee. Though it is, the fact—and I say frankly the regrettable fact—that the learned President did not see the actual form of the Amendment until quite recently, I wanted to point out to him that the principle had been made plain to him as long ago as the beginning of August. It is right to say that he had then rejected the principle. As he rejected the principle on Second Reading, so he rejected it when he received Major Manningham- Buller's suggestion. The noble Lord's position has been perfectly consistent throughout; he does not like this proposal: his objection is not based upon the form of words, but on the whole idea. His idea—and I can well understand it—is that any order which deals with secured maintenance and which was made before this measure comes into force ought to be inviolable.

The issue here, therefore, does not turn so much on the form of words—we may be able to find a better form of words—but on a point of substance. That point of substance is this: Ought these settlements which have dealt with secured maintenance in the past to be brought under review, or ought they to be regarded as inviolable? That is the issue. Apart from the learned President's feelings and views, I should have thought that the logical basis of the matter is that if orders for secured maintenance should be inviolable then they should be inviolable alike before and after the passing of the Act. I do not see the logical basis for saying (taking January 1 as an imaginary date for the passing of the Act) that an order for secured maintenance made in December ought to be inviolable, but an order for secured maintenance made in January, after the passing of the Act, ought to be subject to the discretion of the court. I can see that the judge would be very slow to exercise his discretion in regard to what I may call pre-Act cases, but even in regard to a pre-Act case, if some wholly exceptional circumstance arose I should have thought it would be right that the judge had a power to exercise his discretion. I am not sure that the noble and learned President differs, except that he says that although the power might be useful in exceptional cases it would be a great pity to have it in all cases.

Let us take an imaginary case. Suppose that an order is made in favour of a wife for maintenance of £1,000, one-third of which (I understand that is the usual maximum) is secured maintenance; and suppose that the wife comes into a fortune after the passing of the Act, and the husband is in somewhat impecunious circumstances. I should have thought it right that, in view of those circumstances, the judge of the Divorce Court should have the power to say, the woman having inherited a vast fortune and the husband being poor, that it was a case in which he ought to exercise the discretion which Parliament had entrusted to him and vary the settlement. That is the proposition as I see it. I fully agree, however, that that ought to be done only in exceptional circumstances, in view of the fact that at the time the order was made it was made finally, and it was made when there was no power to review it.

Therefore, so far as I can assist at all here—I am afraid that I cannot assist much, because there is a fundamental divergence of opinion—what I would suggest to the noble Lord, Lord Llewellin, is this: that he should not press his Amendment now, but should take the matter back—with full liberty, of course, to restore an Amendment, or, indeed, this Amendment, on the Report stage—and consider most carefully the observations which the learned President has made. First, he will consider whether it is worth while to put down this Amendment at all; and secondly, he will consider whether he cannot so improve the form of words as to remove at any rate some part of the objection. I do not ask the noble Lord to press this Amendment, because it is obvious that whatever form of words he uses there is an objection of principle and there appears to be a divergence between the noble Lord and the learned President. On that issue of principle it may be necessary for the Committee to decide, but before we divide on principle let us at any rate see that, so far as words are concerned, we have them in the most appropriate form possible.

LORD LLEWELLIN

I am obliged to the noble and learned Viscount, the Lord Chancellor. Frankly, my position in this matter is this. This Amendment was put down to try to meet—although I admit only in part—the objections made by the noble and learned Lord, Lord Merriman, on the Second Reading of this Bill. I did not for one moment want to press it unless it were agreeable to the noble and learned Lord who is President of the Division of the High Court which deals with these matters. If he is objecting merely to telling that Division that they may take into account events occurring after the passing of this Act but not events which occurred before (the case of an illness of the husband or wife was one of the things which he quoted), I can well see that on that matter the Committee would be well advised to take the advice of the noble and learned Lord on this particular Amendment. If he says that it is unworkable I certainly am not one to press it.

But now we come to a matter which may be a matter for the Committee, and that is the principle whether or not any trust for secured maintenance made before the passing of this Act must be for ever inviolable. That is surely a matter upon which the Committee as a whole should make up their minds. I think we should be doing a silly thing if we drew a line between trusts made before the passing of the Act and those made after, because there may be exceptional cases with trusts to provide secured maintenance made before the passing of the Act just as with one made after the passing of the Act. I was not greatly impressed when the noble and learned Lord was talking about the wife who had based her living on such provisions made for her and suddenly found the whole settlement upset. After all, in existing circumstances she might have two-thirds of it upset anyway, and it is only the remaining one-third upon which she can rely. I believe we ought to make the same provision for both, but if the noble and learned Lord thinks that there ought to be more exceptional circumstances in the case of trusts made before the passing of this Act than for all those made after it then we might reframe Clause 5. Subsection (1) (b) could relate only to provisions made after the passing of this Act, and subsection (1) (c) would say: and if there are exceptionable cases also to those made before the passing of this Act. Here is another olive branch which I offer, and I hope something on these lines may be acceptable. If it is not, I shall, with the leave of the Committee, withdraw this Amendment now. It will then be a matter for the House on the Report stage to decide, if the noble and learned Lord puts down the Amendment he has indicated, whether we accept his Amendment or leave the Bill as it is. But do not let it then be said at that late stage that we ought to have some provision making a distinction between events that took place, apart from the trust itself, after the passing of this Act and those which occurred before. Your Lordships understand what I mean. I have tried to meet that point by my Amendment. If I withdraw it I think the question before the Committee will be whether we leave those trusts made before the passing of this Act completely inviolate or have them open to be reconsidered at the discretion of the court. I do not believe that this large spate of cases will arise, because the first time it is heard that the Registrars are turning them down there will not be very many more. After all, nobody wants to incur unnecessary costs. But the exceptional case can then be dealt with, as I believe it should be, if it is a case where justice does not continue to be done under the existing settlement, I think it ought to be just as much liable to be reopened whether the provision has been made before or after the passing of this Act. In deference to the views of the noble and learned Lord I will ask the leave of the Committee to withdraw my present Amendment now. Then I will decide next time, if the noble Lord puts down his Amendment, whether we make this refer to all trusts or only to those made after the passing of this Act.

I would remind the Committee that this is not a new clause; it comes to us in this form having passed the House of Commons. And because there is a great deal of value in this small Bill I do not want this House, unless it is in an exceptional case, to interfere with what has already gone through the scrutiny of another place. I should be inclined to take a more conciliatory stand with the noble and learned Lord if this clause had not come to us from another place; but as it has, I would sooner that no Amendments were made to it.

LORD MERRIMAN

May I ask the noble Lord a question—not in any hostile sense? I thought I understood the noble Lord earlier to say that on Report he would put down an Amendment to this clause to make it clear—he mentioned a paragraph (c)—that in dealing with cases of trusts existing at the time of the passing of this Act, the matter should be dealt with only in exceptional circumstances. The wording, of course, could be settled. I may say that the question whether I should even think of putting down an Amendment to this clause would materially depend upon the answer to that question. I understood hat the noble and learned Viscount was throwing out the same suggestion but the noble Lord, Lord Llewellin, shook his head.

LORD LLEWELLIN

I was not going to run the risk of putting down another Amendment and then having a battery fired at me by the noble and learned Lord on the next occasion. But if he and I could get together, with the aid of the Lord Chancellor (whom we can perhaps consult on the matter, to see whether he agrees with us), and settle some Amendment between the three of us, then it does not matter to me which of the three of us puts it down. I was only suggesting that we might have a compromise, but I am not going to put down any Amendment myself unless it is an Amendment which is agreed between the noble and learned Viscount opposite and the noble and learned Lord, Lord Merriman.

LORD MERRIMAN

That is what I was trying to indicate. If the noble Lord will assure us that he will put down an Amendment which covers the point that only in exceptional cases shall existing settlements be reopened, then I should not dream of moving the Amendment which I indicated I might feel obliged to move.

LORD LLEWELLIN

That may be a good way to leave it, and at the moment I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6:

Evidence of access

6.—(1) Notwithstanding any rule of law, the evidence of a husband or wife shall be admissible in any proceedings in England for divorce or nullity of marriage to prove that marital intercourse did or did not take place between them during any period.

(2) Notwithstanding anything in this section or any rule of law, a husband or wife shall not be compellable in such proceedings to give evidence of the matters aforesaid.

5.20 p.m.

LORD LLEWELLIN moved, in subsection (1), to omit "for divorce or nullity of marriage." The noble Lord said: There are three Amendments on Clause 6, and the point of all three is to get rid of the principle in Russell v. Russell, not only in cases of divorce or nullity of marriage but in all cases. This Amendment, I believe, would have been passed in another place but for some technical ruling on a point of order, and we have the opportunity in this House of putting it right. I do not think anybody is very much in love with the rule that was laid down in this House, sitting as a judicial Court in the case of Russell v. Russell.

VISCOUNT SIMON

It was only by a majority.

LORD LLEWELLIN

At any rate, the rule exists, and I think everybody wants to get rid of it, and to get rid of it in its entirety and not merely piecemeal. The object of my Amendment is to try to get rid of it in its entirety. I beg to move.

Amendment moved— Page 3, line 21, leave out ("for divorce or nullity of marriage").—(Lord Llewellin.)

LORD MERRIMAN

I welcome this Amendment, even in the limited sense, because of its repeal of the so-called rule in Russell v. Russell, which is not really a divorce rule at all but is a rule of general application which that case decided was to be applied in divorce as well as in other cases. If it were desired to limit that only to matrimonial jurisdiction, it would be disastrous if it were limited in the way indicated by the words which it is sought to remove, because it would have this effect: that if a wife brought a petition for judicial separation, the rule in Russell v. Russell would apply, even if it were intended to follow up that application after the lapse of three years by a petition for divorce; but if she brought a petition for divorce the rule would not apply. Equally, the result would be that courts of summary jurisdiction who also have to deal with charges of adultery would be bound by the ruling of Russell v. Russell, whereas the High Court would not; so that that, on any view of the matter, is a solution to be avoided.

I urged on the Second Reading that this principle should be made of general application, so that there should not be one rule for divorce and another rule for, say, bastardy cases. It is only fair to say to your Lordships that it must be plainly understood that the passing of this Amendment gets rid of the rule for all purposes and in all cases, and it will apply to peerage cases. I have said that, so that your Lordships may not be under any misapprehension. But with that, I am bound to say that I welcome the ridding of the particular jurisdiction in which I have some interest of what has been nothing but an incubus and a nuisance.

THE LORD CHANCELLOR

I am glad to think that everybody seems happy about this Amendment, and that the rule is being removed for all purposes. The President is quite right in saying that it was not merely a divorce rule but a rule of general application which has to be applied by the divorce courts. It was laid down in a celebrated case by a majority of one, and it has proved a great nuisance ever since. I am glad that we are taking the opportunity of getting rid of it.

On Question Amendment agreed to.

LORD LLEWELLIN moved, in subsection (2), to leave out "such." The noble Lord said: On behalf of the noble Lord, Lord Meston, who is not able to be here, I beg leave to move this Amendment, which is consequential.

Amendment moved— Page 3, line 25, leave out ("such") and insert ("any").—(Lord Llewellin.)

On Question, Amendment agreed to.

LORD LLEWELLIN moved to add to the clause: (3) Section 4 of the Adoption of Children Act, 1949, shall cease to have effect.

The noble Lord said: Here I am in some little technical difficulty. As your Lordships will see, I have an Amendment down which seeks to make Section 4 of the Adoption of Children Act, 1949, of no effect. My technical difficulty is that there is no such thing at the moment as the Adoption of Children Act: it is still merely a Bill. However, it has been through both Houses, though there are some Amendments made here which have to be considered in another place. There is every prospect, I am told, that before this Bill goes back to another place, the Adoption of Children Bill will have become an Act. I am therefore inviting your Lordships to look ahead, as we often do in this House, and adopt these words on the undertaking that we will not send this measure back to another place until this Amendment can be justified in fact. It is necessary only because the Adoption of Children Bill dealt with this particular point rather narrowly, and I understand it is preferable from the drafting point of view to have the alteration regarding the Russell v. Russell rule in one measure only and not in two. That is my reason for moving the Amendment, and I hope the Committee will agree to it on the undertaking I have given. I beg to move.

Amendment moved— Page 3, line 26, at end insert the said subsection.—(Lord Llewellin.)

VISCOUNT SIMON

I do not want to be troublesome, and I entirely sympathise with the purposes of Clause 6. I suppose there may be precedents for this course of action, but I was not aware of one. I took charge of the Adoption of Children Bill in this House, and I have been in communication with the Home Office and with others about seine Amendments. I share the hope of the noble Lord, Lord Llewellin, that that Bill will soon reach the Statute Book. I do not think the provisions of the Adoption of Children Bill are in any way contradictory to what is proposed in Clause 6 of this Bill I dare say the authorities have been into the matter more closely than I have, but to me it is a novelty that we should talk about an Act of Parliament which does not exist. But stranger things have happened.

THE LORD CHANCELLOR

I am glad to hear the noble and learned Viscount say it is a novelty, because it shows that I have been able to escape his eagle eye in some irregularities of which I have myself been guilty from time to time. I confess I have done this sort of thing before now and have "got away with it." I am quite glad to think that the noble Lord also is committing an irregularity and "getting away with it."

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

5.29 p.m.

THE LORD CHANCELLOR moved, after Clause 6 to insert the following new clause:

Amendment of s. 148 of 53 & 54 Viet c. 5

" .The following proviso shall be inserted at the end of subsection (3) of section one hundred and forty-eight of the Lunacy Act, 1890 (which provides that the percentage payable in proceedings relating to a patient and his estate shall be charged upon his estate and be payable thereout), that is to say,—

'Provided that neither the charge created by this subsection nor any payment made by virtue thereof shall cause any interest of the patient in any property to fail or determine or to be prevented from recommencing.'"

The noble and learned Viscount said: This Bill, with its wide title—against which I animadverted at an earlier stage—gives me an opportunity of moving an Amendment which I think will commend itself to the Committee and which I believe to be completely uncontroversial. The Bill already deals with divorce. It is, in the words of the Title: An Act to amend the law relating to divorce; to alter the law with regard to making infants wards of courts; and for other purposes connected therewith. We are proposing presently to amend the Title to make it quite plain that this matter comes in too. This is the trouble. We have had difficulty in regard to the administration of the law of lunacy, in these circumstances. It is frequently necessary, under the provisions of the Lunacy Act, 1890, to appoint a receiver to manage the estate of a person of unsound mind, and where that is done a percentage of the patient's income is payable in respect of the services performed by the receiver and the Court of Protection for the patient's benefit, such percentage being payable under Rules made by the Lord Chancellor under Section 148 of the Act of 1890.

Subsection (3) of Section 148 provides that: The percentage, or a proper proportionate part thereof … shall be charged upon the estate of a lunatic, and be payable thereout.… That word "charged" is the problem. Mr. Justice Cohen (as he then was), in a case in 1946 called In re Custance's Settlement, had to consider the effect of the appointment of a receiver where the patient was entitled to a protected life interest under a discretionary trust. He held that the effect of the charge created by the Statute which I have read was to bring about a forfeiture of the interest to which the patient was entitled, not-withstanding that the sole purpose of the charge was to secure the payment of expenses incurred for the benefit of the patient.

The result of the decision in Custance's case was not of great hardship to the patient, as he was one of the persons to whom the trustees had a discretion to pay the income of the property after forfeiture, and they continued to pay the interest. Where this is not the case, however, considerable hardship is caused, because, on the appointment of a receiver, it follows automatically that there is a charge; and the effect of a charge, where you have a protective life interest is, of course, to bring about a forfeiture. The Court of Protection tell me that they are aware of cases involving comparatively large estates in which it would plainly be to the advantage of the patient to have a receiver appointed, but they hesitate to take that course because the appointment of a receiver means that there is a charge under the Statute, and the charge means that that interest is forfeited. I am sure that it was not the intention of Parliament that Section 148 (3) of the Lunacy Act, 1890, should have this effect, nor is it conceivable that a person who settles property on protective trusts should intend that a beneficiary's interest should be forfeited in this way.

I have discussed this matter with Lord Justice Cohen (as he now is) and with Mr. Justice Vaisey, on behalf of the Chancery Judges, and they all think that this Amendment of the law is one that ought to be made. As this Bill is passing through the House now, it seems to me a convenient opportunity and a convenient vehicle by which to do it. I hope that the object of the Amendment will commend itself to your Lordships. I beg to move.

Amendment moved— After Clause 6, insert the said new clause.—(The Lord Chancellor.)

LORD LLEWELLIN

I certainly accept this new clause. I think it is an extremely useful one. As your Lordships will see when you look at my last Amendment, I have gone a little further by assuming that your Lordships would agree to this Amendment, because I have put down an Amendment to alter the long Title on the assumption that we were going to agree to this Amendment. Therefore, I hope your Lordships will accept it.

On Question, Amendment agreed to.

Clause 7 agreed to.

5.35 p.m.

THE LORD CHANCELLOR moved, after Clause 7 to insert the following new Clause:

Provisions as to Northern Ireland

" .It is hereby declared that the Parliament of Northern Ireland has and always has had power make laws corresponding with the provisions of sections one and two of this Act and section thirteen of the Matrimonial Causes Act, 1937."

The noble and learned Viscount said: The authorities of Northern Ireland who have observed this Bill are apprehensive about their position. This clause is put in to make it plain that they have like powers. I beg to move.

Amendment moved— After Clause 7, insert the said new clause.—(The Lord Chancellor.)

LORD LLEWELLIN

This is a matter which is rightly brought up by the Government. I understand the position is that, speaking from Government to Government, the Government of Northern Ireland have asked His Majesty's Government whether they cannot make some provision such as this. In those circumstances, as it has been agreed between the two of them, I am glad to acquiesce in this Amendment.

On Question, Amendment agreed to.

Clause 8 [Short title and extent]:

THE LORD CHANCELLOR

On page 3, line 42, after the word "Act" I beg to move to insert these words—I will, if I may, omit the last three words printed in the Marshalled List: (except section [Provisions as to Northern Ireland])"— I leave out the words: of this Act because that makes it read better. This Amendment is consequential upon what we have just decided. I beg to move.

Amendment moved— Page 3, line 42, after ("Act") insert ("(except section [Provisions as to Northern Ireland])").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

In the Title:

LORD LLEWELLIN

I beg to move the last Amendment which stands in my name. This Bill has progressed rather like an omnibus going down one of our main streets: it started with a very few passengers—with two clauses, I think; it came to us from another place with eight clauses and we have now added another three clauses. Thus I think this measure has performed a useful function in clearing up a number of small but important points that needed clearing up in the administration of justice—in particular, on the divorce side. It is, of course, a Private Member's Bill and there might well not have been time for a Government Bill dealing with similar matters. We now come to the end of this stage. I hope your Lordships will confirm what we have already done and allow the long Title to be expanded in the way proposed in my Amendment. I beg to move.

Amendment moved— Leave out from ("divorce") in line 1 to ("making") in line 2, and insert ("and other matrimonial proceedings, the admissibility of evidence as to access, the charge and payment of percentage under the Lunacy Act, 1890, and the").—(Lord Llewellin.)

THE LORD CHANCELLOR

This Amendment is completely agreeable to us.

On Question, Amendment agreed to.

House resumed.

House adjourned at twenty minutes before six o'clock.