HL Deb 16 December 1959 vol 220 cc436-56

3.10 p.m.

Order of the Day for the Second Reading read.


My Lords, we begin to-day what we hope will be the final stage of a notable effort to consolidate and bring up to date the substantive law with regard to the jurisdiction and powers of magistrates' courts in matrimonial proceedings. The Royal Commission on Marriage and Divorce recommended that this branch of the law should be codified, and all those concerned with its operation have for some time felt that action was needed. A consolidating Bill was introduced into your Lordships' House in November, 1957, and was referred to the Joint Committee on Consolidation Bills. It was subsequently found, however, that the proper interpretation of some of the provisions that were to be consolidated was obscure, and there was no alternative but to withdraw the Bill.

What was needed, therefore, was not only consolidation but clarification, and the Government thought it right also to take the same opportunity to give attention to certain proposals which had been made for the amendment of the law. On withdrawing the consolidating Bill the Government accordingly decided to set up an expert committee under the chairmanship of Mr. Justice Arthian Davies to advise on the replacement of the existing provisions by a single up-to-date enactment, and at the same time to advise on the best method of including in the new measure certain relevant recommendations of the Royal Commission on Marriage and Divorce presided over by my noble and learn friend, Lord Morton of Henryton.

The Committee reported in January, 1959—and I would ask my noble friend, Lord Silkin, to note that we are still in 1959—and the draft Bill annexed to its Report is substantially, and with certain exceptions, to some of which I shall shortly draw your Lordships' attention, the Bill that I am now commending to the House. I am sure your Lordships would wish me at this stage to pay tribute to Mr. Justice Davies and to his Committee for their thorough and painstaking work, and we are greatly indebted to them especially because we recognise that they were all, in different ways, experienced in matrimonial law and in the work of magistrates' courts. The Committee's Report was generally welcomed by the Press, by the women's organisations and by the professional associations most directly concerned, and the Government feel that the Committee have produced a most useful Bill.

So much for the history of the Bill now before the House. Before I turn to the contents I should first like to say a word or two about the background, because I get few opportunities in this House of paying a tribute to the work of magistrates in this very difficult field. The magistrates, lay and stipendiary—and with them I bracket their clerks and the other court officers who are concerned in the matrimonial functions of the magistrates' courts—perform a most important and socially useful task. I can illustrate the size of it by saying that in 1958 over 24,000 applications were made to magistrates' courts under the Summary Jurisdiction Acts with which we are concerned this afternoon, and nearly 14,000 orders were made; to which we should add a further 5,000 orders under the Guardianship of Infants Acts and nearly 4,000 orders under the Affiliation Proceedings Act.

I would take the opportunity to deal with another point in which the noble Lord, Lord Silkin, was very interested when we had our previous Bill before the House. He will remember, and those of your Lordships who were interested will remember, that the Maintenance Orders Act, 1958, gave to magistrates' courts new and more effective powers by enabling them to attach earnings, and I am glad to be able to tell the House that, while as yet we have no figures of the number of attachment-of-earnings orders made, the striking reduction in the figures of civil prisoners of all kinds—from over 900 early this year to less than 400 last month—clearly suggests that the attachment procedure is being used with good effect. The third background point about which I ought to inform your Lordships is that it is my intention in the next financial year to extend the provisions of the Legal Aid and Advice Act, 1949, to matrimonial and affiliation proceedings in magistrates' courts and quarter sessions. So no one need fear that his or her case has failed because it was not properly presented to the court.

I will not weary the House with a lengthy exposition of the provisions of the Bill, since many of your Lordships will no doubt have studied the Committee's Report. I cone therefore at once to the principal changes in the present law that the Bill seeks to make. All but one of these are listed in paragraph 6 of the Committee's Report. The first is that the relief available to a husband should be substantially the same as that available to a wife. The second, which is closely related to it, is that the court should have power in certain circumstances to order the wife to pay maintenance for the husband. It is proposed that a court should be able to do this if it is satisfied that the husband's earning capacity is impaired through are, illness or disability of mind or body. The Royal Commission on Marriage and Divorce recognised that there is a small number of cases where a husband is unable to support himself or the family and his wife is in a position to do so. In those cases it seems right that the court should have a discretion to order the wife to pay. It is an interesting full circle. Your Lordships may have noticed that a few months ago I had the pleasure of unveiling a memorial to Dame Christabel Pankhurst, one of the Suffragette leaders. It is only logical and a proper ending of the full circle that in this Bill I should put before your Lordships the recommendation of the Royal Commission that in proper circumstances the wife should maintain her husband.

The third principal change in the law is that the court is given wider powers to make provision in the interests of the children, including power, where exceptional circumstances make it necessary, to commit a child to the care of a local authority, or to place a child under the supervision of a probation officer or a child care officer. These provisions will give to magistrates' courts powers similar to those that were given to the High Court in the Matrimonial Proceedings (Children) Act, 1958.

I might say here a word about the classes of children in respect of whom orders may be made, because I think this raises a difficult point on which in due course I shall be grateful for the opinion, advice and help of your Lordships. As the Bill stands, the provision made follows the Davies Committee's view that it should be a ground for complaint if a spouse fails to maintain a child of both parties, whether legitimate or illegitimate. As regards illegitimate children, this is an extension of the present law, and brings magistrates' courts into line with the High Court so far as neglect to maintain is concerned. But the Matrimonial Proceedings (Children) Act, 1958, gave to the High Court wider powers when the court was dealing with proceedings for divorce. In such proceedings, whether the court grants a decree or refuses one, it may make provision for the custody and maintenance of a child of one party only of the marriage, who has been accepted as a member of the family by the other party.

To enlarge the present Bill to enable magistrates' courts to deal with this class of children raises a question of principle, for it involves making it a specific ground for complaint that a spouse has failed to maintain a child whom at present he has no legal liability to maintain, and it would also raise technical and procedural difficulties. That is the argument on one side. On the other hand, there are arguments for saying that a husband, for example, who allows a child of his wife by someone else to come and live with the family undertakes a continuing responsibility towards that child, and that this should be taken into account. As I say, the Government are most willing to consider the matter further and will, as I have said, of course pay regard to anything that is said in the discussion on the Bill.

The fourth change is in regard to certain circumstances in which a matrimonial order ceases to have effect. At present that happens after three months, if husband and wife continue to reside together—I repeat, to reside together. The Bill substitutes the criterion of cohabitation for that of residence in order to avoid the hardship which arises when a wife wishes to leave her husband's home but cannot do so because she cannot find other accommodation, and so is obliged to continue to live separately in the same house. Finally, the Bill gives the court power in certain circumstances to revoke or vary an order for maintenance if the party in whose favour it is made is living abroad. It has long been recognised that hardship can be caused when a spouse in whose favour a matrimonial order has been made goes abroad, and continues to benefit from the order, but deprives the other spouse of the means of bringing proceedings for revocation or variation, because in those circumstances it is impossible to serve a summons.

My Lords, the main change in the law made by the Bill but not mentioned in paragraph 6 of the Davies Committee's Report, is the increases in the maximum weekly maintenance payments that a magistrates' court may order. The Committee drew attention in paragraph 8 of their Report to the need for an increase. The Government accept this, and Clause 2 provides that the maximum weekly amounts shall be raised from £5 to £7 10s. for a spouse, and from £1 10s. to £2 10s. for each child. These increases represent, in our view, a reasonable estimate of the limits within which magistrates' courts should be enabled to work at the present time, in view of the undoubted increases in costs and wages since 1949. I see that the noble Lord, Lord Robbins, is here. He will notice that I have covered both the contending views as to cost inflation and wage inflation. Whichever view he takes, I think he will consider that this is a proper step. Corresponding increases are made in the maximum amounts which may be ordered in guardianship and affiliation proceedings.

The other points on which the Bill diverges from the Bill appended to the Davies Committee's Report are not of a fundamental character. I have, however, been asked by my noble friend Lord Merthyr to say a word about subsection (4) of Clause 6, which I gather has caused some concern among our colleagues in the Magistrates' Association. Subsection (1) of that clause provides that if a magistrates' court adjourns the hearing of a complaint for a period exceeding a week, or if they refuse to make an order, on the ground that the matter would be more conveniently dealt with in the High Court, they may make an interim order for a period of up to three months. Subsection (4) provides that no more than one interim order may be made in respect of one complaint.

The Davies Committee thought, and the Government agree, that it is desirable to bring an interim order to an end as soon as possible, and to encourage the court to make a substantive order, for there is no appeal against a maintenance provision in an interim order, and it is unfair to have it extended indefinitely. I understand, however, from my noble friend that some magistrates have expressed the view that the three months' period is not long enough, and that provision should be made for the making of a further interim order. I am most ready to consider this point. I think that my noble friend will agree that the arguments are finely balanced. I should be grateful if, before we come to the Committee stage, either he, or the Magistrates' Association through him, would develop the point, in view of the difficulties I have expressed, and I shall certainly be pleased to consider it further.

My Lords, as you will see, this Bill is of a somewhat technical and complicated nature, as indeed must be the case when one is dealing with the enormous variety of situations that can arise in matrimonial proceedings and where it is so important to provide checks and safeguards for all the parties. It is, however, in the words of the Davies Committee, a convenient, workable and up-to-date system of law relating to matrimonial proceedings in the magistrates' courts. I am sure that your Lordships will wish to give careful and detailed consideration to the Bill in Committee, when the Government will be most grateful for the benefit of the great wealth of judicial, magisterial and other experience which your Lordships possess. This is not a Bill on which there are differing political views. The Government have an open mind on many of the issues, including the two that I have mentioned, and will be very ready to listen to suggestions for improving the Bill.

My Lords, I hope your Lordships will forgive me for having taken a little time over this matter. I think it is so important that the work of the magistrates should not be allowed simply to go unrecognised except in those few cases in which it comes in for criticism. We appreciate the immense amount of work they are doing, and in this Bill we are trying to help them by improving the law they have to administer, in accordance with the proposals of the Royal Commission presided over by my noble and learned friend Lord Morton of Henryton. I hope that he, and those of your Lordships who sometimes wonder at the danger of pigeonholing the Reports of Royal Commissions, will feel that we have gradually, but at every opportunity that presents itself, tried to implement their recommendations. My Lords, I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

3.29 p.m.


My Lords, your Lordships' House will be grateful to the noble and learned Viscount on the Woolsack for the clear and lucid way in which he has explained both the background to this valuable Bill, as I believe it to be, and the various considerations which led the Government to bring it forward. I think they are entitled also to be complimented on the comparatively short delay which has occurred between the laying of the Report of the Commission in January of this year and the introduction of this Bill. I imagine that your Lordships will also, like myself, have been interested to hear from the noble and learned Viscount that he proposes to bring out regulations extending the provisions of the Legal Aid and Advice Act, so that its provisions cover this very valuable branch of our law, where I should think possibly it is even more needed than in some other branches to which the provisions of the Act have already been extended. In any event, it is, I should have thought, a most valuable step to take, and we should be grateful to the noble and learned Viscount on the Woolsack and to Her Majesty's Government for introducing that extension to the provisions of that Act.

This Bill is the result of what I gather the noble and learned Viscount considers the very valuable consideration given to the draft Bill by the Committee under Mr. Justice Davies. It seems to me a valuable procedure to have a technical Bill such as this gone through by an expert Committee who have special knowledge and can amend, consolidate or dispose, as they think fit, the quite complicated and technical matters with which they have to deal. As a result, the Bill comes before your Lordships and another place having had its teething troubles, so to speak, and in a form which, your Lordships may think, will require very little amendment.

Having regard to the speech of the noble and learned Viscount on the Woolsack, and the fact that this is an unopposed Bill. I do not think it is necessary to go through it in great detail. Your Lordships will have appreciated the very important and remarkable change which will take place when the Bill comes into law, in that a man will then be able to obtain against his wife the same relief as the wife, in more or less similar circumstances, could obtain against him; in the special circumstances laid down in the Bill a husband may, in fact, be able to obtain maintenance from his wife. It would seem to me, and I imagine to your Lordships, to be a very remarkable result, but as the noble and learned Viscount has told us, it follows upon the various developments which have taken place in this branch of the law in the last few years. I feel that the Bill contains ample provision for dealing with every contingency with regard to children. It covers both illegitimate and adopted children and makes very wide provision for their care and custody, by local authorities, if necessary, in the circumstances which are set out in the Bill. Then there is the provision by which power is given to the courts, where one of the parties to a"matrimonial order," as it is called in the Bill, lives or has gone abroad, to vary or in certain circumstances to do away with an order. That seems a most valuable provision, because I know that in ordinary practice those circumstances have caused considerable difficulty; so that in that respect the provision should be of great advantage.

There is one matter about which I am not altogether happy. The Committee who considered this Bill said that they had had before them the recommendation of the Royal Commission that a notice of allegation of adultery should be sent by registered post to the last known address, if any, of the third person concerned, and that that person should then have the right to appear and defend himself (or herself) against the charge. This Bill does not include that provision, and therefore it will be possible for a third party to be accused of an offence which might be the subject of matrimonial proceedings without having notice of the allegations which were being made against him (or her) in respect of the alleged adultery.

Your Lordships will appreciate that a person's reputation might be greatly affected by a possibly wholly untrue charge made in proceedings of which the third person concerned had no notice. The majority of the Committee considering this Bill, notwithstanding the representations and recommendation of the Royal Commission, did not approve the inclusion in the Bill now before your Lordships of that provision as to the giving of notice to the third party. The minority thought that such a provision should be included, and I should myself express the hope that perhaps, in later proceedings on the Bill, that matter might be considered. For I should have thought that, unless there were strong reasons to the contrary, it would be perfectly right and fair that a third party accused in that respect should have notice of the allegations made against him or her.

There is one point on which I am not clear, and about which perhaps the noble and learned Viscount on the Woolsack can enlighten me, either now or at a later date. There seems to be no provision as to the order which magistrates can make in the possibly not very common case (although it does occur) of a husband bringing proceedings against his wife in respect of her desertion for less than three years, there being no children. I believe I am right in saying that it is not the custom for magistrates' courts—and certainly it ought not to be—to make an order (called a separation order) that the complainant is not bound to cohabit with the defendant. If such an order is made, it does away with the desertion which might thereafter, if it existed for three years, be a ground for divorce. For this reason, the courts, I believe, are averse to making such an order.

There does not appear to be any provision, in the five or six cases set out as examples of orders which may be made, to deal with proceedings where the case is brought by the husband against the wife, and there are no children. If I am right, it may be that an order might be made that the matrimonial offence charged against the defendant had been found to be proved, or something of that kind. But obviously in such a case it would not be desirable to make a separation or non-cohabitation order, such as would be made in the ordinary case.

A further point occurs to me. As your Lordships may know, the Income Tax Act, 1952, enables small maintenance payments to be made without deduction of tax. The limits of such payments are at present £5 in respect of husband or wife, as the case may be; and an order for 30s. may be made in respect of each child, as a maximum figure. Under this Bill it is provided, and I feel quite properly, that the £5 should be increased to £7 10s. and the 30s. for a child to 50s. I should like to ask the noble and learned Viscount whether in those circumstances Her Majesty's Government propose to make the increased payments equally"small maintenance payments" as the smaller payments of to-day, because your Lordships will appreciate that if a wife were in receipt of £7 10s. a week under an order and income tax had to be deducted and she had later to make a claim for repayment—which, as your Lordships will probably know, frequently takes some time—in the meantime she would be without the amount which had been deducted. It would seem only reasonable and proper, therefore, that the provision relating to the present small maintenance payments might be extended to the increased amount of £7 10s.

Those are the only comments that I have to make at this stage. I am glad to see that noble and learned Lords who are distinguished members of the Judicial Bench are here. No doubt they will be able to make suggestions for the improvement of what I believe, on the face of it, is a very good Bill. I venture to hope that the House will give it an unopposed Second Reading.

3.40 p.m.


My Lords, those of your Lordships who have an amended list of speakers to-day will see that it consists of those who are far more qualified to speak on this matter than I am. Indeed, of all the Peers listed every one is, of course, noble, but all but one are also learned. Therefore, having been so imprudent as to have put myself in this position of Daniel in the lions' den, I propose to take the course adopted by the small boy taking a bath: quick in, but quicker out.

My Lords, formally and on behalf of noble Lords on these Benches, I should like to welcome this Bill very much as obviously a good tidying-up Bill presented by the noble and learned Viscount the Lord Chancellor. It seems to have everything in its favour. It is progressive and I am sure it will proceed through your Lordships' House without difficulty. In general, Clause 1, which refers to the rights of men as being equal with those of women, is perhaps a rather striking clause; and it was perhaps a little surprising to hear in this year 1959 from the Woolsack that in some, though of course only suitable, circumstances it was quite proper for men to live on the earnings of women. Equality of the sexes has always been an aim perhaps more on this side of the House than on the other, and of course it is a political desirability though it appears to be a physiological nightmare. Apart from that, I think we can say that this Bill is a good one, and I hope it will get a Second Reading without difficulty.

3.42 p.m.


My Lords, I wish to add a few words of welcome and of congratulation to Her Majesty's Government on having introduced such a useful measure. So far as the consolidation provisions are concerned, they are always extremely useful, when nowadays it is a nightmare going through the great volumes of separate Acts of Parliament which cover a subject matter. I find that placing a wife on the same footing as a husband for the purpose of maintaining the spouse and any children of the marriage is a novel but perfectly logical provision. I only hope that when I get to the bathchair stage an order will be made for my wife to push me down Whitehall and place me on the Benches of your Lordships' House.

So far as an order for the maintenance of children is concerned, I understand that this covers"any child of both parties." I am referring to the expression used in Clause 1 (1), paragraphs (h) and (i). The noble and learned Viscount the Lord Chancellor has dealt with this matter, but I am a very foolish person and I am not absolutely clear what it means. Does the expression"any child of both parties" mean the same thing as"any child of either party"? And does it mean the same thing as the expression"child of the family", which has in recent months crept into matrimonial proceedings in the High Courts?

Let me explain what I mean. A woman has an illegitimate child by a man. Later she marries another man and has children by him. She brings the illegitimate child into the home and the husband accepts that child as one of the family and brings him up with the other children. For certain purposes that illegitimate child is a child of the family. Certainly he or she is so for the purpose of divorce proceedings. But whether or not that illegitimate child, who has become a child of the family, comes within Clause 1 (1), paragraphs (h) and (i), of this Bill is a matter for consideration.

The increase in the amount which may be ordered for maintenance is most welcome, although perhaps a party called upon to pay may take a slightly different view of the matter. It minimises, but does not abolish, the necessity of applications to the High Court for maintenance. The last matter to which I would refer, quite shortly, is to be found in Clause 3 (9) of the Bill, which provides that: Any provision of a matrimonial order that a child be under the supervision of a probation officer or local authority shall cease to have effect as respects any child when the child attains the age of sixteen years. I am getting old, which is quite apparent—I need not mention the matter—and the age of sixteen appears to me to be extremely young. I think your Lordships and I all know of cases of young people of sixteen or seventeen who are left in the world to fend for themselves. The parents are dead or, more likely, have quarrelled and are living with other parties, and the unfortunate child of sixteen or seventeen is left without any real care or supervision at all. I should very much like to see that age of sixteen years increased to eighteen years. Those are only a few suggestions I have to make. I am to be followed by some of the greatest jurists in the country, and having said those few words I will resume my seat.

3.46 p.m.


My Lords, the importance of this Bill can be seen by realising that some 25,000 applications a year by wives for maintenance come before the magistrates, running at nearly the same rate as divorce petitions. A few years ago, when I had the honour to preside over a Committee which dealt with some of these matters, the amount which could be ordered was £2 a week. By this Bill it is increased to £7 10s. a week. The magistrates deal with these cases with the confidence and trust, I believe, of all the people. Mr. Justice Davies's Committee, in formulating this Bill, have done a great work. Indeed they have followed out in many respects the recommendations of the Royal Commission presided over by my noble and learned friend Lord Morton of Henryton. First, the law should be codified. Here it is. Then, provision should be made for the children so that the courts, whenever a husband and wife are before them, can see—and it is their duty to see—that proper provision is made for the children. All this is embodied in the Bill.

My only—not really a criticism, but my only doubt is whether Mr. Justice Davies's Committee have been quite bold enough in refusing to follow all the recommendations of Lord Morton of Henryton's Royal Commission. Let me take just a few of them. The first one, of course, and the most spectacular, is that husband and wife should be on an equal footing. Just as in the old days up till now a wife could get an order for maintenance from her husband, so in the future the husband will be able substantially to get the same relief against his wife. For 80 years we have been busy raising women in law to be equal to men. Now we have started on the new departure: to raise men to be equal in law to women—but, indeed, not quite equal, because under this Bill, as I read it, if the wife comes to the court and asks for maintenance she may get it even though she has good earning capacity of her own. The husband, if he comes to the court against his wife, can get it only if his earning capacity is impaired through old age, ill-health or disablement. That is fair enough. All I would suggest—and this Bill does not make it clear—is that when the wife comes for maintenance against her husband, not only her actual means should be taken into account, not only her financial resources, but her earning capacity: what she could earn if she went out to work.

I have had cases before me in which the wife, maybe a young wife, childless, separates from her husband, goes back to her mother, gets an order for maintenance of £3 a week or whatever it may be from the husband, and then is content to draw a pension for life from him, not troubling to go out to work herself. My Lords, if she has earning capacity it ought not to deprive her from coming, but it ought certainly to be taken into account in assessing the amount. Mr. Justice Davies's Committee realised that the practice varied. I would suggest that the practice be made clear that not only the wife's means but her earning capacity should be taken into account.

Another matter in which the Committee do not feel able to go with the Royal Commission is as to the definition of what is an habitual drunkard. Your Lordships might not think it necessary to have a legal definition of an habitual drunkard, or of a drug addict. Lord Morton of Henryton's Commission and another Royal Commission, the Sovell Commission, roundly condemned an old definition, laid down in 1879, as being too stringent, and wanted it made wider. The Committee have kept the old, condemned definition, which was this: An habitual drunkard is a person who, by reason of habitual intemperate drinking (of course, that is one thing), is dangerous at times to himself and others, or is incapable of managing himself and his affairs. My Lords, that does not cover the many cases where the drunkenness is revolting and offensive. It does not cover the case of the man who comes back late night after night—and I have had such cases—is sick over the bedroom floor, and the wife has to clear it up. Nor does it cover the case of the woman who has her secret cupboard: where the husband refuses to let her deal with her grocer for whiskey, and so she gets it from her friends and has her secret cupboard. Lord Morton of Henry-ton's Royal Commission unanimously recommended that the definition should be widened so as to include all cases where the drinking or the addiction to drugs makes life intolerable for the other spouse. My Lords, I should have hoped that in this Bill the condemned definition of 1879 would be brought up to date in the way that Lord Morton of Henryton's Commission recommended.

The third way (a very important one) in which the Committee do not follow the Commission's recommendations is this. The Commission recommended that a wife should be able to get maintenance from her husband without having to leave him. Let me give your Lordships an instance of cases which often arise. It is the case of the man who is a spendthrift, who does not take his pay packet home to his wife, as so many men do, but spends it on gambling or drink or the dogs; and when he gets home on the Friday there are only a few shillings left for the wife and family. If the wife can show, as she could in such a case, that the husband is wilfully neglecting to provide proper maintenance for her, she can get an order against him—£3 a week, or whatever it may be—but she cannot enforce that order unless she leaves her husband. Lord Morton of Henryton's Commission, by 18 to 1, said that that was wrong. By an overwhelming majority they said that a wife should not be compelled to leave the home before she could get maintenance: that she ought to be able to get maintenance whilst living with him, thus keeping the home together. And surely, my Lords, that is right—that a man such as that should have to give proper money to his wife, even if they should live together; and that she should not be compelled to go away before she can get anything. In New Zealand, as the Commission pointed out, they have such a provision, and it works well. Why should we not have it here?

There is one further point—really an important one, too—which the Commission recommended, and that is regarding the law as to condonation. It is a little technical, but I will try to explain it. Take the case where a wife leaves her husband and gets an order for maintenance of, say, £3 a week from him on the ground that he is wilfully neglecting to maintain her. If she goes and commits adultery with another man whilst she is separated, the husband can apply to get the order revoked on the ground of her adultery. If she returns to him and he takes her back, reinstating her as his wife in the house, living together regularly, then, of course, he condones her adultery, and she is reinstated as a wife, with all the ordinary rights of a wife. But what is to happen (as does sometimes happen) if the wife comes back for one day, or for one hour, and persuades her husband to have sexual intercourse with her? My Lords, many guilty wives I have known know the law, or are told of the present law upon the subject, which is that if a husband has sexual intercourse with his wife on one solitary occasion he thereupon condones all her guilt known to him. The one solitary act is sufficient. She may leave him the next moment; but by it he condones her adultery.

Lord Morton of Henryton's Commission recommended that husbands and wives should be on an equal footing in this matter. A wife does not condone her hubsand's adultery simply by one act of sexual intercourse: nor should a husband be held irrevocably to have condoned his wife's adultery. Let me take an actual case on maintenance which appears in the books, and which is referred to in this Committee's Report. It is a case where a wife separated from her husband and got an order for £3 a week from him and £1 a week for the child. She fell in love with another man and committed adultery with him. She then saw her husband, and the husband threatened to stop her money. She went back late one night, persuaded her husband to have intercourse with her, stayed the night, and went off the next day. A little while later the husband again saw her with the man, cuddling in the dark. My Lords, is that wife entitled to her maintenance or not?

Under this Bill, if the definition of condonation remains unamended, that wife, by going back the one night to her husband, retains her right to maintenance because it is irrevocable, irrefutable. The one act of the husband condones all the adultery of the wife. If this Bill is to pass in its present form, with condonation being ground on which the order cannot be revoked. I would ask that the unanimous recommendation of Lord Morton of Henryton's Royal Commission be inserted—namely, that, just as with a wife, so with a husband: one single act of sexual intercourse is not absolutely and irrevocably, by itself, condonation.

My Lords, those are merely points which I would ask to be considered. My noble and learned friend who sits on the Woolsack has said that he would invite matters of suggestion. If the law on this important matter is to be codified, I hope we may codify it in the best possible way.

3.59 p.m.


My Lords, I feel that, having a certain interest in these matters, I ought to take part in this debate, although I do not intend to follow the noble and learned Lord, Lord Denning, in roving over the whole law about matrimonial causes, and all the recommendations of Lord Morton of Henryton's Commission. But I do want to join in thanking the noble and learned Viscount the Lord Chancellor and the Government for the introduction of this Bill. It has long been fought for. I should declare an interest—two interests, in fact. I preside habitually, as some of your Lordships know, over the appeals from magistrates in our Divisional Court; and it is rare that we do not have to search the books for two or three Acts of Parliament out of the twelve or so which one has to look at—and believe me, my Lords, they are not all contained in the same textbook. Now we have them all on a few sheets of paper in one Bill, and that is an enormous improvement.

I should also like to join in thanking Mr. Justice Davies (a very old friend and formerly a colleague of mine) and his Committee for their work in this matter. They have done a wonderful job. May I also take this opportunity of associating myself most fully with my noble and learned friend on the Woolsack in what he said about the way in which magistrates do this work. I have said this to the Morton Commission; I have said it when I have had an opportunity of doing so at magistrates' meetings, and I desire to say it publicly in your Lordships' House. I have been associated with these appeals, during the last 26 years, and the way in which magistrates do their work—and it is very difficult work—has to be seen to be believed. When I first became President, it was the exception to get anything that could reasonably be called a note of the evidence, or an intelligible statement of the reasons which had actuated the decision. Now it is very much the exception not to get an excellent note and an admirably clear statement of the reasons. I think that to some extent that is due to the habit which has prevailed since 1935 of having special panels for this class of work. Magistrates are constantly dealing with matrimonial causes, and they are keen on doing their job well. Whatever the reason, the fact is plain that we owe the magistrates an enormous debt of gratitude for the way in which this vast bulk of work is conducted.

Haying said that, I want to reassure magistrates, if I may, about one thing in this Bill, which possibly may be worrying some of them. The addition to the rights of husbands against wives is not wholly an innovation, because, as many of your Lordships know, even now the husband can sue for an order against his wife on the grounds of adultery, of cruelty to the children, of habitual drunkenness or of addiction to drugs. So that there is nothing new in the principle of the husband suing the wife. It is perfectly true that he will now be able to sue for cruelty and desertion, but I do not think that that will be a very large addition to the burden, for this reason: that a wife who is a deserter is precluded under the existing Acts from getting an order. Desertion often takes the form of expelling one spouse from the home by cruelty, and it is a common occurrence in cases now that, as an answer to the wife's complaint, the husband charges her with desertion in one or other of these ways. In the circumstances this extension is not really a fresh addition to the magistrates' duties. At any rate, I do not think that it is a serious matter and I am quite confident that, whether it is heavy or light, it will be faced with the same skill and patience with which all these cases are dealt.

4.5 p.m.


My Lords, in view of the other business before your Lordships to-day, I hope that noble Lords who have spoken, to whom I am greatly indebted for what they have said, will not take it amiss if I suggest that certain matters should either stand over to the Committee stage or he dealt with by correspondence. Having said that, I should like to express my real gratitude to noble Lords who have taken part, and especially, if I may reverse the order, to my noble and learned friend Lord Merriman for his last remarks with regard to magistrates, apart from the rest of his speech. As I said in opening this discussion, too often the life of a magistrate is one of criticism for every slip-up and no praise for the really hard and continuous work to which he gives up his time. I hope that magistrates will appreciate what my noble and learned friend has said from his experience in dealing with these cases.

The noble Lord, Lord Milner of Leeds, raised three points. As I have said, I will deal with them briefly. The noble Lord will find the arguments on his first point, as to the notice of allegation of adultery, dealt with on page 3 of the Davies Report. Perhaps when he has had a chance of considering them again, we could discuss the matter; or he could put down an Amendment on Committee stage. The position with regard to the effect of a non-cohabitation clause was stated accurately by the noble Lord, I think, subject to what my noble and learned friend Lord Merriman would say, but I am still in some doubt about to where we should go from there—whether the position is not that this provision is really wanted in separation orders for the reasons that the noble Lord gave. But, again, if he has any suggestion I shall be glad to look at it. As to his third point, the noble Lord will appreciate, from his long Parliamentary experience, that I am in a"danger zone" with regard to next year's Finance Bill, and in accordance with precedent all I can say is that the matter will be considered by my right honourable friend the Chancellor of the Exchequer. I think the noble Lord will realise that that is all I can say at the moment.

I will consider carefully what the noble and learned Lord, Lord Denning, had to say. His first point is dealt with by the Davies Committee on page 29 of their Report, and the second point, on habitual drunkards, is dealt with on page 27. On his third point, whether a wife should be able to get a maintenance order while still living with her husband, I should like to tell the noble and learned Lord that I considered this point very carefully. I shared the Davies Committee's hesitation because I felt that this would give magistrates' courts a difficult and invidious task, if they were required to intervene to this extent in the internal management of the ordinary household, particularly when we consider that the ordinary machinery for the enforcement of matrimonial orders made by the magistrates' courts includes committal to prison and attachment orders. I will, however, consider carefully what the noble and learned Lord, Lord Denning, has said, and I am grateful to him for responding to my request. With regard to his fourth point, on condonation, he will appreciate that to apply that to the magistrates' court when it would remain the law in the High Court would be a difficult matter. Therefore I hope he will rest content if I say that that matter also will be considered and I shall not forget what he has had to say.

I think my noble friend Lord Meston will find that the point which was worrying him, about the illegitimate child of one party of the marriage who is adopted in the family, was one that I dealt with rather fully in my opening speech. I would ask the noble Lord to read my speech—a labour which I hesitate to impose upon him just before the Christmas holidays—and I should be grateful to have his view after he has considered the matter again. My noble friend—I mean the noble Lord, Lord Rea (I nearly broke the Party convention, because we happen to have been personal friends for something over 40 years), made such a charming speech that I hesitate even to say this. When he said that the Party which he leads with such distinction had always taken a stronger position than other Parties on the equality of the sexes, I would only say this to him. If he will read a book written by the lady to whom I referred, and edited with great distinction by the noble Lord, Lord PethickLawrence, on the Suffragette movement, I think he will find that his remarks to-day will cause the Liberal leaders of the Government of 1910 to 1914 to purr in their graves with satisfied surprise.


I did not say the whole Party.


The noble Lord has exposed a flank; but, as I say, before Christmas I will not even direct your Lordships' attention to it. I will go through all the other points and consider them carefully. In certain cases I will write to noble Lords who have put them forward, and in other cases I suggest that noble Lords might put down an Amendment on the Committee stage when I shall be delighted to give a considered view. With that deliberately short reply, I should like to thank your Lordships for your contributions to the debate and the sympathy which you have shown to the Bill, and ask you to give it a Second Reading.

On Question, Bill read 2a, and committed to a Committee of the Whole House.