MAINTENANCE AGREEMENTS BILL (Hansard, 28 May 1957)

LORD MERTHYR
My Lords, I beg to move that this Bill be now read a second time. The Bill has passed through all its stages in another place, and it applies to England and Wales only. It seeks to carry out, though with some modifications, certain recommendations of the Royal Commission on Marriage and Divorce—should your Lordships wish to took up the relevant paragraphs they are Nos. 726 to 733. The Bill seeks to remove a few anomalies in the present law and, in particular, one or two unfortunate consequences of recent legal decisions. I want to make it quite plain that not for one moment am I questioning the correctness of those legal decisions; on the contrary, if I may respectfully say so, I am satisfied that they were perfectly correct in law. However, it does not follow from that that the results of these decisions are altogether as desirable as they might he in modern circumstances.
Again, I want to make it clear that the Bill deals only with agreements. It does not deal with promises, and it deals only with agreements which are in writing and not with verbal agreements. I contend that it succeeds in removing some small hardships which are felt on both sides—that is, by husbands and by wives. Mainly, the Bill arises from a decision of the courts in a case which I understand has become well known in legal circles, known as Bennett v. Bennett, 1952. The effect of that decision, briefly, was that agreements containing a covenant not to apply for maintenance, when made in contemplation of divorce proceedings, are wholly bad. The reason underlying that judgment is that those agreements are contrary to public policy and tend to oust the jurisdiction of the courts. Those reasons, of course, are not unfamiliar to students of the law.
As I have said before, the consequences of this decision may have been a little unfortunate. The first main object of this Bill is that if passed into law, it would validate the agreement, but not the undertaking contained in the agreement—on the part of a wife probably—not to go to 54 court and seek redress. Thus, it reverses the decision in Bennett v. Bennett. The second main object of the Bill is to give a power to the courts—the High Court and the magistrates' courts—to vary very widely the financial terms of agreements upwards or downwards in the interest of either spouse where the agreement is considered by the court to be unjust in the light of changed circumstances.
Your Lordships will appreciate that very often proceedings arising from agreements may take place many years after the agreement was signed. This Bill is retrospective, and sometimes the House is a little suspicious of retrospective enactments. It does not, however, apply to agreements which are either superseded or have been rescinded. It is necessary, in my view, for this Bill to be retrospective, because the case of Bennett v. Bennett has invalidated some agreements which were thought to be valid when they were made and thus the wife, as it commonly is, has been put in an unfair position, and it would be wrong, in my view, to alter the legislation for future cases whilst leaving a ease of hardship in respect of agreements already made.
May I mention briefly one or two of the clauses? Subsection (1) of Clause 1 merely sets out to make quite plain the three kinds of agreement to which the Bill refers. Subsection (2) is the one which reverses and rescinds the decision in Bennett v. Bennett. I would ask your Lordships to note that this subsection affects agreements made before the Bennett decision. On the passing of the Bill—in future, that is—such an agreement will stand and be valid, but the clause in it which contains the undertaking not to apply to the court will not be valid. In this respect, I think it is fair to mention that the Bill does not follow the recommendations of the Royal Commission. They wanted the clause to be validated as well as the rest of the agreement, but I think there are good reasons here for not following the recommendations of the Royal Commission, which I think was not in a position, through no fault of theirs, to appreciate the true legal position. Under this clause the agreement can be enforced after the death of the husband, which I think the House will consider to be fair in the circumstances. But there is a safeguard. 55 As your Lordships will see, there is a proviso in this subsection that not more than one-fifth of the estate has been distributed at the time, and the material date in that regard is the date of the passing of the Bill. It is also stated in paragraph (b) of subsection (2) that it will not be possible to recover accrued arrears.
I pass to subsection (3) of Clause 1. I think I ought to explain shortly the reason for this subsection. It arises out of a case called Tulip v. Tulip, 1951, which gave power to the wife to apply for a maintenance order even where the husband had been keeping up payments under an agreement, but did not give a power to the husband to apply for any reduction. So that case, whilst again, I say, no doubt entirely correct in law, created a one-sided position. It imposed, I submit, a hardship on the husband and, perhaps, rather too much benefit on the wife. Consequently, this subsection gives to the courts a power to vary an agreement. It does not apply to agreements made more than six months after a decree of divorce has been made absolute, so there is some limit on the time. The reason for that is that if the parties choose to enter into an agreement long after a divorce there is no reason why the court should have such a power to vary.
It gives a wide discretion to the court for the benefit of the spouses, but only where fresh circumstances have arisen and render a change desirable. It also does something that the Royal Commission did not recommend; it gives power to the court to make provision for a child, or more than one child, even if there is no mention of the child in an agreement. This subsection applies only where both the parties are resident in England, but it applies in that case if the agreement was made overseas.
Subsection (4) of Clause 1 imposes a restriction on the jurisdiction of magistrates' courts in this regard. Your Lordships will remember that the High Court and the magistrates' courts both have some jurisdiction under this Bill, but you will agree, I think, that it is right that some limit should be placed upon the jurisdiction of the lower court. Magistrates' courts can deal with these matters only if both parties are resident in England and if one party at least is resident in the petty sessional division of that 56 magistrates' court. Thus the magistrates' courts will not have to deal with questions of domicile which, I may say, are rather notoriously difficult legal questions. Then, again, your Lordships will, I think, agree that it is right to impose the same financial limits upon the jurisdiction of the lower courts as they now enjoy—that is, the amount awarded may not be more than £5 per week to a wife or more than 30s. for each child. If more than that is desired or desirable, application will have to be made to the High Court. I need hardly mention subsection (5), but it is declaratory of the present law. It makes it quite clear—and I think it is necessary to have it in the Bill—that the jurisdiction conferred by other Acts is not affected by this Bill.
I pass to the only other clause in this small Bill, Clause 2. Subsection (1) enacts that, within a limited time after the death of one party to the agreement, provided that there is residence in England, the surviving party may apply to the High Court, not to the magistrates' court, to vary the agreement by making an increased payment out of the husband's estate. I think that that is of some little importance because, were it not for this clause, it would not be possible to do this after the death of the husband. I feel sure that there are several sets of circumstances in which it would be fair and just to give to the surviving spouse the right to apply to the court for assistance after the death of the other spouse. On the other hand there should be some limit. It should not be possible to do it years afterwards, and so the Bill imposes a time limit which I contend is reasonable. Subsection (2) protects executors of a deceased party's estate, and says that after six months they can distribute the estate without incurring any personal liability.
I do not pretend to have expounded the whole of this Bill; nor, I think, would your Lordships wish me to do so. I conclude, therefore, by making the assertion that this Bill, though a small one, contributes just a little to the improvement of the law in this somewhat intricate and difficult matter. I beg to move that the Bill be now read a second time.

LORD SALTOUN
My Lords, before the noble Lord technically sits down, 57 would he explain one thing? I should like to understand it. As I understand his explanation of the Bill, a court has power to review the terms of an agreement only after a change of circumstances. Will the court have no power to review the terms of an agreement made before the process of divorce where the intolerable conduct of one party may have driven the other party into such an agreement? That is a question that I should like to ask the noble Lord. Could he answer it?

§ THE LORD CHANCELLOR
My Lords, I wonder if your Lordships would bear with me for one moment. As I have a very important meeting to attend, I should like to ask your Lordships' indulgence to leave as soon as I have spoken. I should like to say that Her Majesty's Government entirely support this Bill. We are most grateful to the noble Lord, Lord Merthyr, for introducing it. We believe that it will, as he said, do a real service to the clarity of the law. I am sure that in due time your Lordships will be given the answer to the point raised by my noble friend Lord Saltoun. I should like to express my apologies to my noble and learned friend Lord Merriman that I shall not hear his speech, if he is going to speak. It is only a matter of urgent duty that calls me away.
House adjourned during pleasure and resumed by The EARL OF DROGHEDA.

LORD SALTOUN
Would the noble Lord, Lord Merthyr, answer my question?

LORD MERTHYR
My Lords, the noble Lord said, "Before the noble Lord technically sits down", and the trouble was that I had technically sat down. It is not easy to deal in a sentence with the question. It is true that the variation can be made only if there are changed circumstances. Of course, if the circumstances at the time of the application to the court are precisely the same as the circumstances which obtained when the agreement was made, then I conceive that 58 it would not be right for the court to make any variation. But, of course, one must take those words literally. For example, if the value of money fell, I should say that that would be a change of circumstance. The noble Lord, I think, mentioned the behaviour of one of the parties. I am not quite so sure whether that would be a change of circumstances, but if the misbehaviour, or the behaviour, of one of the parties was a relevant factor I which the court ought to take into account, then I conceive that, provided the court decided that there had been a change of circumstances—and I think some types of behaviour might amount to a change of circumstances—it would have the power to vary an order.

LORD SALTOUN
If I may interrupt again, want to make quite clear the sort of thing I have known happen without an agreement. If the previous conduct of one of the parties to the application for a divorce towards the other had been so intolerable that it might he held to have driven that other party into a prejudicial agreement, would the court be empowered to review the terms of that agreement when the application for divorce carne up?

LORD MERTHYR
If I understand the noble Lord aright, I think the answer to that is "Yes", but if I am wrong about this, I will certainly try to find the right answer and let the noble Lord have it either later or at a later stage of this Bill.

LORD SALTOUN
I thank the noble Lord.