MATRIMONIAL CAUSES (PROPERTY AND MAINTENANCE) BILL (Hansard, 16 June 1958)

LORD MESTON

My Lords, I beg to move the Second Reading of this Bill, which is known as the Matrimonial Causes (Property and Maintenance) Bill. The Bill gives effect, with some modifications, to the recommendations of the Royal Commission on Marriage and Divorce with regard to the maintenance and property rights of husband and wife. I think that I may pass on to deal with the Bill at once.

Clause 1 deals with a small though important point of procedure. At the present time a court has power to make or order for maintenance on any decree of divorce or nullity of marriage. The word "on" does not mean forthwith or immediately, but within a reasonable time. The practice of the court is to require a wife to obtain leave to file her application for maintenance if more than two months have elapsed from the date when the decree nisi was made absolute. In any event, the court has always the power to take into consideration any delays which may have occurred in making an application. It is really unnecessary that there should be this limitation on the power of the court, and Clause 1 of the Bill provides that the court may make an order for maintenance in pronouncing the decree or at any time thereafter. It is only correct to say that the doctrine of the law will still obtain—that is to say, although an application may be made for maintenance at any time after the decree is made absolute, nevertheless, if there has been delay, that is a matter which the court may take into consideration.

974 Clause 2 of the Bill enables a wife who has applied in matrimonial proceedings for financial relief against her husband to ask the High Court to set aside a disposition of property made by him within the previous three years with the intention of defeating her claim. As a matter of procedure, it is not necessary for a maintenance order actually to be made before such a disposition can be set aside. The Bill enables a wife to make an application to set aside such a disposition in the course of maintenance proceedings and not necessarily when an order is actually made. There is, however, protection for a bona fide purchaser for value who has no notice of the husband's intention to defeat the wife's claim for financial relief. It should be noted that "valuable consideration" does not include marriage. A husband should not be able to defeat his first wife's claim to maintenance by transferring all his property to his second wife. Subsection (4) of Clause 2 deals with voluntary dispositions. The Bill adopts the rule established under Section 172 of the Law of Property Act, 1925, by providing that if the effect of the disposition was to defeat the wife's claim it shall be presumed to have been made by the husband with that intention.

Clause 3 of the Bill enables provision to be made for a former wife out of the estate of a deceased former husband. At the present time if a marriage has been dissolved or annulled, the former wife loses at once and for ever her rights under the Inheritance (Family Provision) Act, 1938. For example, if a woman has been married to a man for twenty years and has borne him children, and some unhappy dispute arises and she divorces her husband on the ground of infidelity, from that moment she loses any right she may possess against her husband's estate under the provisions of the Inheritance (Family Provision) Act, 1938.

Clause 3 goes on to provide that where a man dies domiciled in England without having made reasonable provision for a former wife, the latter may, if she has not remarried, apply to the High Court for provision to be made for her out of his estate. These provisions are limited to cases in which the deceased died domiciled in this country. Only a former wife whose marriage was dissolved or annulled by the High Court in England 975 will be able to apply under this Bill. The Bill excludes a former wife who has remarried. An application to the High Court must be made within six months of the date when a grant of representation was first made; nevertheless, with the permission of the court, an application may be made after that time, but before the administration and distribution of the estate has been completed.

Clause 4 of the Bill empowers the court, on application, to discharge or vary or suspend temporarily any order made for a former wife out of her deceased husband's estate. The court will be required to take into account all the circumstances of the case, including any change in the circumstances to which the court was required to have regard in determining the application for the original order. In passing, it is satisfactory to note that the husband is not left out of the picture. Clause 5 provides in effect that a husband or former husband shall have the same right as a wife to apply to the court to set aside a disposition made to defeat the applicant's right to maintenance, or for financial relief against the estate of a deceased wife under the Inheritance (Family Provision) Act, 1938.

Some explanation is required here, as one does not normally talk about a husband obtaining maintenance against his wife. But there is one case where this can be done. A husband can obtain an order for maintenance against his wife where she has divorced him on the ground of his insanity. A husband can also obtain an order for a settlement of his wife's property only where he has divorced her on the ground of her adultery, cruelty, or desertion. As for a former husband being able to apply for maintenance out of his deceased wife's estate, this will apply only where the marriage was dissolved or annulled by the High Court in England.

Clause 6 contains a number of supplementary provisions, among other important matters, as to orders under Clauses 3 and 4, which enable the personal representatives to distribute the estate after six months from the date on which representation was first taken out. Clause 7 of the Bill extends the operation of Section 17 of the Married Women's Property Act, 1882, which deals with disputes between husband and wife as to property. No 976 order under Section 17 can be made where the respondent has parted with the property in dispute and there is no identifiable fund in his hands representing the proceeds.

I hope I may mention a case which is no longer sub judice. A husband, with a certain amount of justifiable exasperation, took all his wife's dresses and threw them out of the window into an adjoining canal. The husband and wife owned a house adjoining a canal, and if they wished to throw anything out of the window it landed in the canal. When the summons came on for hearing under Section 17 of the 1882 Act, there was no doubt that the husband had had his wife's property, but it no longer existed, and therefore no order could be made concerning her property. Furthermore, there was no jurisdiction under the Act to make any financial order.

Clause 7 provides, in effect, that the court is able to order one spouse to pay the other compensation for the loss of an interest in property to which the other spouse has been able to establish title. Moreover, if the wife makes a claim alleging that the husband has had in his possession a sum of money belonging to her and she does not know whether it is still in his possession or not, the court can, if it transpires that the husband has bought goods (say a motor car) with the money, order the husband to deliver up the car. Clause 7 also clears up a doubt which has existed in the past as to whether or not the court has power under Section 17 of the 1882 Act to order a sale of the property in question. Clause 7 makes it perfectly clear that the court now has that power.

Clause 8 is the interpretation clause. Clause 9 provides that the Bill will come into operation on the day the Lord Chancellor may appoint. This is to allow necessary time for alterations to be made in the Rules of Court before the Bill comes into operation. The Bill does not extend to Scotland or Northern Ireland. My Lords, I have the permission of the noble and learned Viscount on the Woolsack to say that he agrees with the Bill. I cannot imagine a better recommendation; and with that view I have no hesitation in commending it at this extremely late hour to your Lordships' House. I move that the Bill be read a second time.

§ LORD MERRIMAN

My Lords, I wish to say a few words in support of this Bill, but at this hour they will be very short. The noble Lord, Lord Meston, explained at the end of his speech the provisions relating to Section 17 of the Married Women's Property Act which enable courts (High Court or county court) to deal with disputes between husband and Wife. I am not going to repeat the reasons which he gave why the present scheme is unsatisfactory. It is enough to say that this amendment will be an extremely useful amendment.

With regard to Clause 1, I should like to express my own gratitude to the Royal Commission for adopting or recommending the reform which is embedded in it. When I gave evidence before the Commission, I pressed for an Amendment on this particular point. I can explain the matter in one sentence. According to the Act of Parliament, the application for maintenance by a wife must be made on the decree. Some time ago the Court of Appeal said that that meant "on or within a reasonable time after"; but at the same time they said that seven years could not possibly be "within a reasonable time." More recently the Court of Appeal has said that it is by no means proper to rule out an application made even after eighteen years. That is the reason why I support this Amendment, because it makes it so easy for Judges to know what they are to do, and in future we shall have a much simpler task than we have had in the past.

My Lords, the real reason why I have come down to take part in this debate is because it seemed to me that, owing to the course the Bill took in another place, there was a grave danger of a misapprehension of the point of Clause 3, which provides for a former wife out of the estate of a deceased former husband. It was argued in another place on the basis that this was, so to speak, a charter for guilty wives. In the Bill we are providing that, in addition to obtaining maintenance from a husband during his life, a wife in a proper case may obtain it from the estate of a deceased husband. If that is right in the case of an ordinary wife against whom nothing can be said, there is no reason really why it should not be open to a wife who can be described as a guilty wife. The application 978 for maintenance in any case is open to any wife by the Act of Parliament.

I have made a point of ascertaining how often in practice anybody who can be described as a guilty wife applies for maintenance at all. I am assured by the Senior Registrar at the Principal Probate Registry—who has, of course, experience over many, many years of these matters—that the number of applications by a guilty wife for maintenance is negligible. If that is so, as things stand at present it necessarily follows that applications by wives in that same condition for this relief out of the husband's estate will also be negligible. I wanted to make it clear that we are not in this Bill opening the door wide to disruption of the inheritance to estates by allowing unfounded claims to be brought in in a proportion that has never been in fact reached as the law is at present. My Lords, this is a thoroughly good Bill, and I support it wholeheartedly.