§ 2.48 p.m.
§ Amendments Reported (according to Order).
§ Clause 1:
§ Jurisdiction of magistrates' court in matrimonial proceedings
§
1.—(1) A married woman or a married man may apply by way of complaint to a magistrates' court for an order under this Act against the other party to the marriage on any of the following causes of complaint arising during the subsistence of the marriage, that is to say, that the defendant—
(h) being the husband, has wilfully neglected to provide reasonable maintenance for the wife or for any child of both parties who is, or would but for that neglect have been, a dependant; or
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR) moved, in subsection (1)(b) (iii), to leave out "living with the complainant and the defendant". The noble and learned Viscount said: My Lords, your Lordships will see that there is a considerable number of Amendments 385 put down on the Report stage. I think it would be convenient if, in dealing with Amendment No. 1, I indicated to your Lordships at perhaps a little length the scope of the majority of the Amendments which deal with this point. Your Lordships may remember that, in moving the Second Reading of the Bill, I said that the Government were giving thought to the question of whether a child of one of the parties to matrimonial proceedings who was living as part of the family—that is, a child whose father has died and whose mother has remarried, or a wife's illegitimate child by an association before her marriage—should be brought within the scope of the Bill. This was one of the classes of children who the Royal Commission on Marriage and Divorce considered should be dealt with, and your Lordships may remember that the Matrimonial Proceedings (Children) Act, 1958, gave the High Court, when hearing divorce proceedings (though not proceedings for maintenance only, on the ground of wilful neglect to maintain) power to make provision for the custody, maintenance, and so on, of such a child.
§ I told your Lordships, and it is the fact, that to put a child of one party in the same position in matrimonial proceedings in magistrates' courts raises certain difficulties which do not exist in the High Court. The grounds of complaint for a matrimonial order have to be specified, and therefore in order to allow proceedings to be taken for maintenance of a child of one of the parties only, when there is no other available cause of complaint, it must be made a ground for complaint that a spouse has failed to maintain the child of the other party whom he accepted as one of the family though his obligation at present to do so is a moral one and not a legal one.
§ There are also procedural difficulties, in that the position of the parent of a stepchild thus brought within the competence of the court (who is not a party to the matrimonial proceedings) must be safeguarded. However, in my view there is much force in the argument that a husband or wife who allows a child of his or her spouse by a previous marriage, or an illegitimate child, to come into the family and live with the family undertakes a continuing responsibility towards the child which he or she cannot later shuffle off because of matri- 386 monial differences. The conclusion the Government have reached is that the balance of advantage lies in extending the scope of the Bill to include this class of children. The position in magistrates' courts will then be brought more nearly into line with that in the High Court. The necessary changes are accomplished by a series of Amendments, and the more important of these I will put to your Lordships as they arise.
§
I thought it would be useful just to set out the scheme of the Amendments which I have prepared, and that scheme is as follows. First, as to the scope of the extension, the term "child of the family" in introduced and is defined in the Amendment to Clause 16, at page 17, line 34, on the same lines as in Section 1 (1) of the Matrimonial Proceedings (Children) Act, 1958. That definition is as follows:
'child of the family', in relation to the parties to a marriage means—
The substitution in a number of places in the Bill of the phrase "child of the family" for "child of both parties" has thus the effect of putting a child of one party who has been accepted by the other in the same position as a child of both.
§ One had to face the possible conflict of orders; that in these circumstances another court might have made orders with regard to the child, and we had to make it clear that this court would not interfere with other orders. That is done by a series of Amendments. Your Lordships will see the good sense of that. There are similar provisions with regard to a child who has been put into the custody and care of a local authority for the proper reasons. But the bar to interfering with another order would not extend to a maintenance provision, which it would still be possible to make in favour of any person having the custody of the child under a custody order made by the court in question or another court; for example, the stepfather in an appropriate case could be ordered to maintain the child. Your Lordships will see the sense of that. You must not drive your non-interference with previous orders to the extent of depriving the child of the maintenance which is necessary.
387§ With regard to maintenance, the new clause follows the Act of 1958 in requiring the court, in considering whether to order a man or woman to pay maintenance for a child not his or her own, to consider the extent to which he or she has assumed responsibility for the child's maintenance and the liability of any other person to maintain the child. It might be that the natural father of the child was making a payment. That would have to be taken into account. And it might be that that was a payment under an affiliation order which was part of the maintenance of the child, and therefore the court would take that into account as well. As I mentioned, it involves being quite sure that the natural father or mother will have a chance to be heard as to the future of the child.
§ The whole basis of our legislation—and it is legislation on which not only all Parties but all thinking people interested in the future of children find agreement—is that the interest of the child must be the governing factor. There might well be a case where the natural father, whether he was the father in wedlock or otherwise, might have ideas as to what was the best future for the child, and therefore we thought that he ought to have the right to be heard and make his representations before the magistrates decided the case. There are various Amendments to deal with that point.
§ That is the general addition. I can only say this. Without, I hope, tiring any noble Lord in the House I have tried to let noble Lords who are interested in the Bill know what I was going to do and to indicate the reasons which constituted my motives in the matter, and I am empowered by my noble and learned friend Lord Denning to say that he has been through all the Amendments and agrees with both the principle and the scheme which we have adopted.
§ I come to Amendment No. 1, with which your Lordships might usefully consider Amendment No. 2; they are part of the series designed to bring within the scope of the Bill the child of one party who has been accepted as one of the family by the other. They are little more than drafting Amendments and I do not think I need detain your Lordships 388 with any further exposition. I beg to move.
§
Amendment moved—
Page 1, line 15, leave out from ("was") to ("or") in line 16 and insert ("a child of the family;").—(The Lord Chancellor.)
§ 3.0 p.m.
§ LORD SILKINMy Lords, I rise only to say that this very far-reaching extension of the provisions of the Bill will be welcomed by all Members of the House. It is indeed evidence of the fact that we all regard the interests of the child of the family as paramount. It is rather interesting to observe that the simple substitution of "a child of the family" for "a child of the marriage" has involved something like 30 highly technical Amendments to the Bill. I would not myself pretend that I have been through every one of them and am qualified to express an opinion as to their technical capacity; but I am comforted to hear that the noble and learned Lord, Lord Denning, has done so and is satisfied, and I can think of no higher authority. We welcome this formidable extension of the Bill, and I am sure that every Member of the House will do likewise.
§ LORD MILNER OF LEEDSMy Lords, I should like to join in congratulating the noble and learned Viscount on the Woolsack on this quite substantial alteration to the present law in so far as it affects these particular proceedings. I am just wondering what is going to be accepted as evidence that a child has been accepted as a member of the family. Supposing a man marries a woman who has had an illegitimate child by a previous association, and the husband pays money into the household to keep the child, I presume that that would be accepted as evidence that he had in fact accepted that child as a child of the family. But supposing that such an illegitimate child of the wife by a previous association only comes to the knowledge of the husband sometime later, then presumably he would not be held to have accepted that child as one of the family. It seems to me that there are difficulties of interpretation here. Of course, each case must be taken on its merits; but I should have liked to see some phrase whereby ipso facto, by the very fact that the child was a child of one of the parties, whether by a previous association or not, that would make it a child of the family and would 389 fix the responsibility on the parent. It seems to me that, while this is a move in the right direction, there may be difficulties of interpretation. I do not know whether the noble and learned Viscount can carry the matter any further, but I imagine that there will be difficulties of that sort.
§ THE LORD CHANCELLORWhat I had in mind, and what I think these Amendments carry out, is the position where there is a child, either of a previous marriage or of an association which has resulted in an illegitimate child, who comes into the family home, and the husband knows the child is there and accepts the child as if he had been either his own child or an adopted child. It must be a question of fact for the court to consider what amounts to acceptance. I think there would be some difficulty where, to take the case of an illegitimate child, that child has been boarded out, say, with an aunt, or with some other relative, and that person keeps the child, apart from a payment, say, under an affiliation order which the natural father makes, and that child does not come into the mother's house at all. I think that that would be an extension which it would be difficult to justify.
What we are contemplating is that the mother and father have a disagreement and the mother takes proceedings. It would be rather hard if the father had to pay for a child who, by general consent, had never come into the family at all. That, broadly, is the difference. But I am sure it is a question of fact which will be most carefully considered, because, as I said, and the noble Lord, Lord Silkin, has emphasised, the governing principle is the interest of the child, and I am sure it would be very difficult for anyone (to use my rather inelegant phrase) to shuffle out if there had been a real acceptance. On the other hand, if the policy of the family has been never to introduce the child at all, I do not think it would be equitable for the father to have to pay. That is the way I see it working, and I hope it will be successful.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I have dealt with this Amendment and the last one together. I beg to move this Amendment.
§
Amendment moved—
Page 2, line 13, leave out from ("was") to ("or") in line 14 and insert ("a child of the family;").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, the next two Amendments are also part of the series of Amendments dealing with the principle which I have endeavoured to enunciate to your Lordships. Your Lordships will see that the effect of the Amendments is to make it a ground of complaint if the husband or, in certain circumstances, the wife has wilfully neglected to maintain any child who is a child of the family in the sense that I have explained. I beg to move.
§
Amendment moved—
Page 2, line 29, leave out ("both parties") and insert ("the family").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 2, line 33, leave out ("both parties") and insert ("the family").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 2:
§ Order by magistrates' court in matrimonial proceedings
§
2.—(1) Subject to the proviso to subsection (3) of section one of this Act and to the provisions of this section, on hearing a complaint under the said section one by either of the parties to a marriage the court may make an order (in this Act referred to as a "matrimonial order") containing any one or more of the following provisions, namely—
(b) a provision that the husband shall pay to the wife such weekly sum not exceeding seven pounds ten shillings as the court considers reasonable having regard to their respective means;
§ THE LORD CHANCELLORMy Lords, this also is one of the series of Amendments to be made to Clause 4 which provide for the other parent of such a child to be given notice of the proceedings and to have the right to appear and be heard. For the reason that I have explained, this Amendment provides that any matrimonial order made by a court shall be subject to compliance with those provisions. I beg to move.
§
Amendment moved—
Page 3, line 25, after ("section") insert ("and of section four of this Act").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 3.8 p.m.
§ The LORD CHANCELLOR moved, in subsection (1)(b), to leave out "having regard to their respective means" and to substitute, "in all the circumstances of the case." The noble and learned Viscount said: My Lords, we now come to a different field and we might, with convenience to your Lordships, consider Amendments Nos. 6 and 7 together, because these Amendments are not part of the series but refer to a matter on which we had a most interesting debate on the Committee stage. The House will remember that the noble Lord, Lord Silkin, moved Amendments which sought to add, after "means," the words "and earning capacity and all other relevant circumstances." We had some discussion as to whether "means" included potential earnings. There were certain difficulties from the technicalities of legislation in the Amendments which the noble Lord proposed, and there was the difficulty which is always facing the legislator, whether, if you deal with one class, you throw doubts on others. So, again with the assistance of my noble and learned friend Lord Denning, we have found, we believe, words which meet the points of the noble Lord, Lord Silkin.
§ I agree, having considered the debate, that there may be advantage in deleting the reference to "means" which in the view of those supporting Lord Silkin's Amendment might be held to limit the factors which the court can take into account. The result of my Amendments will be that the court will be left to fix whatever sum, within the maximum imposed by the Bill, is considered as reasonable in all the circumstances. That will bring the powers of the magistrates' courts into line with those of the High Court, and will enable the court to take into account, in a proper case, earning capacity and any other relevant factors. I believe that this meets my difficulties and also meets the point of the noble Lord, Lord Silkin. I have been informed—I hope accurately—that my noble and learned friend Lord Merriman sees no objection to these words, and so I ask 392 your Lordships to accept the Amendment. I beg to move.
§
Amendment moved—
Page 3, line 36, leave out from ("reasonable") to end of line 37 and insert ("in all the circumstances of the case;").—(The Lord Chancellor.)
§ LORD SILKINMy Lords, I accept this Amendment as a sincere attempt to meet the problem which I put before the Committee on the Committee stage. I am not dead certain that it entirely satisfies what I had in mind. I have no doubt, that the new words incorporated in the Amendment will permit a court to take into account the earning capacity of a person who comes before the court as a complainant. It was argued that it was already open to a court to do so and that my words were unnecessary. What I sought to ensure was that the court would in fact be directed to take the earning capacity of a person into account. All this Amendment does is to permit the court to take earning capacity into account; it does not ensure that the court will do so. No doubt the noble and learned Viscount can give me assurances upon that. Having said that, I feel that this is an improvement on the existing language and makes clear beyond any doubt that a court can take these things into account, leaving open whether they do or not, I am prepared to accept the Amendment.
§ LORD MERRIMANMy Lords, as I was involved in the discussion in Committee I should like to add a word. I believe that this Amendment is a considerable improvement, and not only from the point of view on which the debate turned last week—the earning capacity of the wife. I say that for this reason: at the moment, so far as the Act of Parliament is concerned, means are not the only test so far as these words are concerned. It has been argued from time to time, for example, that as the Matrimonial Causes Act expressly says that the conduct of the parties can be taken into account in the High Court it therefore follows that that cannot be done in the magistrates' court, because only means are mentioned. We have not agreed to that view, and have gone a bit wider than means as a matter of practice and interpretation. I believe that in that respect, also, these new words are a considerable improvement.
393 Before I leave the question of earning capacity, may I just say one further word? It seemed to me to be a little implied in the last debate that if a wife earns, then the whole of her earnings must go in alleviation of the husband's responsibilities; and similarly, that if she has an earning capacity, the same thing would happen. I do not believe that that is the law now, and I hope that it will not be considered to be the law in future. Certainly these things must be taken into account, but it has been held more than once—indeed, it arose in one of the cases mentioned last time—that magistrates are perfectly entitled to take into account the fact that a wife is driven out to work, instead of being kept in a comfortable home, or who may be capable of being driven out to work if the marriage is disrupted, should be allowed to put a bit by for evil days, and not work solely in diminution of her husband's responsibility. And, speaking for myself, I believe that that will still be the law under these words, in all the circumstances of the case."
§ THE LORD CHANCELLORMy Lords, as this short debate has shown, there are obviously cases of very differing kinds. There is the case to which my noble and learned friend Lord Merriman referred, where there is an attempt to cut off supplies so that a wife is driven to work and made to reduce her husband's responsibilities. There is the other case where a wife, out of sheer desire to annoy, will not work at all. Obviously, the answer to that is to consider each case on its merits according to its circumstances. The noble Lord, Lord Silkin, was doubtful whether we have found the perfect answer. Twelve bitter years of being responsible for legislation have made me rather hopeless about ever finding the perfect answer, but I do assure the noble Lord that we shall not be weary in well-doing. We will have another look at this, and if we can find better words then we shall not hesitate to use them. But I am relieved that both he and my noble and learned friend Lord Merriman find these words an improvement, and as they are an improvement I would ask your Lordships to accept them.
§ On Question, Amendment agreed to.
394§ THE LORD CHANCELLORMy Lords, this is one of the same pair. I beg to move.
§
Amendment moved—
Page 3, line 44, leave out from ("reasonable") to end of line and insert ("in all the circumstances of the case;").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is one of the series to which I referred in my opening remarks. It enables a court to make a custody order in respect of a child in this enlarged class. I beg to move.
§
Amendment moved—
Page 3, line 46, leave out ("complainant and the defendant") and insert ("family").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this is another of the same series of Amendments. It is required as a result of the extension of the Bill bringing within its scope the child of a parent, and takes account of the fact that the parents of some children will not necessarily be parties to the proceedings. I beg to move.
§
Amendment moved—
Page 4, line 4, leave out ("parents") and insert ("parties").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this is a drafting Amendment, and I do not think I need trouble your Lordships with a further explanation. I beg to move.
§
Amendment moved—
Page 4, line 10, leave out from ("person") to end of line 11.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment also is one of the series. Its effect is to enable a court to make an order for access to a child by either party or by any other person who is a parent. I beg to move.
§
Amendment moved—
Page 4, line 21, leave out from ("access") to end of line 23 and insert ("to any child of the family by either of the parties or by any other person who is a parent of that child in a case where the child is committed by the order to the legal custody of a person other than that party or parent;").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
395§ THE LORD CHANCELLORMy Lords, I think I can take Amendments Nos. 12, 13 and 14 together. They are all part of the same series. The first enables the court to order maintenance for the child. The second is necessary to provide that the spouse who is not the parent of the child concerned, but has accepted the child as part of the family, can be ordered to pay maintenance. The third Amendment makes it possible for a court to order maintenance for a child in respect of whom it cannot (under the new subsection (4)) make a custody order because a custody order of another court is already in force. I dealt with this point in opening and I do not think I need to say more. But with the permission of your Lordships, I will put groups of Amendments of that kind together, if your Lordships do not object.
§ Amendments moved—
§ Page 4, line 26, leave out ("both parties") and insert ("the family")
§ Page 4, line 28, leave out ("parents") and insert ("parties")
§ Page 4 line 33, after ("order") insert ("or by any other order made by a court in England and for the time being in force").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment also belongs to the series and in part has a general application. The new subsection (4) in the Amendment contains restrictions on the making of orders where the circumstances are such that they could not usefully operate. I explained this point when I was introducing the series of Amendments. Where a custody order already existed, one would not interfere with the order or with an order giving the care and custody to a local authority, but would only give powers to deal with maintenance. This Amendment carries out what I said, and it is in that sense that I ask your Lordships to accept the Amendment.
§
Amendment moved—
(4) The court shall not make an order containing—
(5) In considering whether any, and if so what, provision should be included in a matrimonial order by virtue of paragraph (h) of subsection (1) of this section for payments by one of the parties in respect of a child who is not a child of that party, the court shall have regard to the extent, if any, to which that party had, on or after the acceptance of the child as one of the family, assumed responsibility for the child's maintenance and to the liability of any person other than a party to the marriage to maintain the child."—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 4 [Special powers and duties with respect to children]:
§ THE LORD CHANCELLORMy Lords, I think your Lordships might usefully consider Amendments 16 and 17 together. They belong to the series. The first provides that the court's powers in respect of children shall be exercised subject to the requirements of the new subsections (4) and (5) which I have just moved to your Lordships. The second Amendment is consequential. I beg to move.
§ Amendments moved—
§ Page 6, line 47, after ("made") insert ("but subject to subsections (4) and (5) of section two of this Act and subsection (5A) of this section,")
§ Page 7, line 2, leave out ("section two of this Act") and insert ("the said section two").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment, which your Lordships will see is of some length, is one of the same series: it contains provisions to safeguard the position of a parent who is not a party to the proceedings by giving him notice of the proceedings and a right to appear and to be heard on the disposal of the child. Again I dealt with this point in my opening speech, and I do not think I need repeat my remarks now. I beg to move.
§
Amendment moved—
(5A) On the hearing of a complaint under section one of this Act in the case of which there is a child of the family who is not a child of both the parties, other than a child with respect to whose custody an order made by a court in England is for the time being in force—
397
Provided that nothing in paragraph (b) of this subsection shall require notice to be given to any poison as the father of an illegitimate child unless that person has been adjudged by a court to be the father of that child.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 6 [Interim order by magistrates' court or High Court]:
§ THE LORD CHANCELLORMy Lords, this Amendment is indirectly made necessary by the extension of the scope of the Bill, and it is consequential on the Amendments introducing a new subsection with which I have already dealt, and the previous Amendments, which I have also put to your Lordships. Its effect is to provide that the courts' powers to make interim orders in respect of children shall be exercised subject to the requirements with regard to children who are members of the family in the sense that I have mentioned. I beg to move.
§
Amendment moved—
Page 9, line 11, after ("proper") insert ("but subject to subsection (4) of the said section two,").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, again if your Lordships would be so kind as to agree, I think we might consider Amendments Nos. 20, 21 and 22 together. The first is purely drafting. The others belong to the same series. The second of these, Amendment No. 21, is consequential on the Amendments that we have just made; and the third Amendment enlarges, as a result of the extension of the scope of the Bill, the classes of person to whom maintenance for a child may be ordered to be paid by an interim order. It takes account of the fact that the child may at the time be in the care of a party to the proceedings 398 or a parent who is not a party to the proceedings.
§ Amendments moved—
§ Page 9, line 14, leave out ("a") and insert ("any")
§ Page 9, line 16, leave out ("the") and insert ("an")
§ Page 9, line 17, leave out from ("to") to third ("the") and insert ("any person, being one of the parties or a parent of the child, who for the time being has").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 7 [Suspension or cessation of orders]:
§ THE LORD CHANCELLORMy Lords, again with your Lordships' approval, I will take Amendments 23 to 26 together. They are minor Amendments consequential upon the Amendments extending the scope of the Bill. Nos. 23, 25 and 26 are required because, under the Bill as extended, the parents of a child who is within the court's jurisdiction will not always be identical with the parties to the proceedings. The second Amendment is consequential on the Amendment to Clause 2 (1) (g). I beg to move.
§ Amendments moved—
§ Page 10, line 14, leave out ("parents") and insert ("parties")
§ Page 10, line 15, leave out from ("access") to ("or") in line 16 and insert ("to that child by either of the parties or by any other person who is a parent of the child;")
§ Page 10, line 20, leave our ("parents") and insert ("parties")
§ Page 10, line 21, leave out ("parents") and insert ("parties").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 10 [Parties to complaint for variation, etc.]:
§ THE LORD CHANCELLORMy Lords, I think your Lordships might consider Amendments 27, 28 and 29 together. They are part of the series. The first Amendment enables a parent who is not a party to the marriage which is the subject of the matrimonial proceedings to make a complaint for the variation of any provision of the matrimonial order relating to a child of his or hers. This applies whether or not the parent was notified of the original proceedings. The second and third 399 Amendments are drafting Amendments consequential on the first. I beg to move.
§ Amendments moved—
§
Page 13, line 41, at end insert—
("(a) where a child of the family is not a child of both the parties to the marriage, a complaint relating to any provision with respect to the child such as is mentioned in paragraph (d) or (g) of subsection (1) of section two of this Act may be made by any person who, though not one of the parties to the marriage, is a parent of the child;")
§ Page 13, line 43, leave out from first ("of") to ("may") in line 44 and insert ("the said subsection (1)")
§ Page 14, line 8, leave out from ("in") to ("may") in line 9 and insert ("the said paragraph (d) or (g)").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 16 [Interpretation]:
§ THE LORD CHANCELLORMy Lords, your Lordships will see that this Amendment gives the definition which operates on the extension of the Bill and which I dealt with in my opening speech. I beg to move.
§ Amendment moved—
§
Page 17, line 34, at end insert—
("'child of the family', in relation to the parties to a marriage, means—
§ On Question, Amendment agreed to.
§ 3.30 p.m.
§ THE LORD CHANCELLORhad given Notice of several Amendments to the definition of "drug addict", the first being to leave out "who". The noble and learned Viscount said: My Lords, I suggest that your Lordships should consider this group of Amendments No. 31 to No. 38, together. They arise from the attempts made on Committee stage to find a less stringent test of drug addiction and habitual drunkenness, which are grounds of complaint under Clause 1 (1)(f). We had a very interesting discussion on this matter on Committee stage, and I have tried to meet the ideas put forward and the feelings which were held by those who took part in that debate. I think the simplest way will be if I explain to your Lordships the effect of the Amendments. They would make the definition of "habitual 400 drunkard" read as follows:
'Habitual drunkard' means a person (not being a mentally disordered person within the meaning of the Mental Health Act, 1959) who, by reason of habitual intemperate drinking of intoxicating liquor—The definition of "drug addict" is similarly enlarged.
- (a) is at times dangerous to himself or to others, or incapable of managing himself or his affairs; or
- (b) so conducts himself that it would not be reasonable to expect a spouse of ordinary sensibilities to continue to co-habit with him."
The reason for putting in "a spouse of ordinary sensibilities" is to get rid of the difficulty, which I mentioned in the debate at Committee stage, of having a purely subjective test; because, as I ventured to point out to the Committee, the views of people as to what they find intolerable in respect of drink varies so much. Therefore one has to try to get some objective test, and I think the fair objective test is that of a husband or wife "of ordinary sensibilities", and whether the conduct would be such as to make it unreasonable to expect the ordinary, sensible person, with ordinary sensibilities, to continue to cohabit. As everyone agreed during the debate at Committee stage, this is a very difficult question. I did not think it right to leave it purely as a subjective test, and therefore I have tried to find something to meet nature and, at the same time, to meet the views of the House. I beg to move.
§
Amendment moved—
Page 18, line 1, leave out ("who").—(The Lord Chancellor.)
§ LORD MERRIMANMy Lords, I should like to say a word in favour of this Amendment. It seems to me to meet the difficulties which were present during the discussion last time. Drug addiction being comparatively rare (we do not often have to deal with that) I will take the much more common cause of drunkenness in relation to these matrimonial cases. It has long been settled that drunkenness by itself will not suffice: it is the treatment which the other spouse suffers as a result of the drunkenness that matters. I should like to requote—I have not the exact words with me, but I think I can quote it from memory—some words which my predecessor used, and which I am bound to say have always appealed to me: 401
Was the treatment such that a reasonable wife, being so treated by an unreasonable husband, could not be expected to continue the conjugal life?Those words are now plainly imported into this definition, and I suggest that that fully meets the case.
§ LORD SILKINMy Lords, I regard these words as a considerable improvement on the Bill as it stood on Committee stage and as it was introduced, and they do, of course, take into account the effect of drunkenness and of drug addiction on the other spouse. Both the noble and learned Viscount and the noble and learned Lord, Lord Merriman, have assumed that it is somehow wrong to have a subjective test. I myself should have been prepared to go much further and to have the subjective test. If a man is habitually drunk and his wife is particularly sensitive to drunkenness, more than a normal person might be, is she to be expected to go on living with that man? He must be deemed to be responsible for the natural consequences of his actions; and if a husband knows that his wife is exceptionally sensitive to drunkenness and yet goes on and becomes an habitual drunkard, I should be prepared to argue that in those circumstances the wife should have a cause for a separation order. That, of course, would be a subjective test. As I have said, I have no particular objection to this wording. I should have thought that my view was right: but this seems to me to be a reasonable corn-promise between having no test at all, ignoring altogether the effect on the spouse, and taking the full effect on her; and I am content to accept what would be the effect on a normal spouse. Therefore, rather grudgingly, I accept the Amendment.
§ LORD MILNER OF LEEDSMy Lords, I do not like to intervene, but I differ from my noble friend in one small respect. I should not myself have thought that it was necessary for a wife to be especially sensitive to drunkenness. I should have thought it was sufficient that the husband was in fact an habitual drunkard, and came home, and so forth, frequently drunk, and that it was not necessary that the wife should be especially sensitive to that sort of thing: I should have thought that the majority of wives would be so sensi- 402 tive. However, this Amendment is a decided improvement. I think it gives quite wide scope to magistrates' courts to make orders on these grounds in appropriate cases, and we are grateful to the Government for putting the Amendment down.
§ THE LORD CHANCELLORMy Lords, I am grateful for what has been said on this Amendment. The noble Lord, Lord Silkin, once instructed me (thirty years ago, I think it was) in a case which dealt with some industrial injury of a certain kind, and we had to go into the subject of 'people 'who were idiosyncratically allergic to the various processes. I do not want to go into it in as great a detail as 'that with regard to the question of taking drink; and I am glad that it is generally felt that I have managed to make some improvement.
As this is the last Amendment, may I say that I am most grateful 'to the noble Lords who have given so much help on this Bill; and if your Lordships will not think it conceited I should like to say that the course which the Bill has taken has been one which I found particularly helpful and particularly in keeping with the proceedings in your Lordships' House. We have treated this Bill entirely as a Council of State would do. I have considered and accepted a more than usually large proportion of the ideas that have been put to me; and, at the same time, I have tried, as I always do where it would not embarrass noble Lords belonging to a different Party from myself, to put all the information that I have at their disposal so that they could consider the matter. I feel—and I hope that your Lordships also may feel—that the result has been that great improvements have been made in this Bill. Without being fulsome I should like to express my gratitude to your Lordships for achieving this result.
§ LORD SILKINMy Lords, may I be out of order and say to the noble and learned Viscount, "Thank you"? I feel that the proceedings during the Committee stage of this Bill showed the House at its best. We have had a completely objective discussion. May I say, speaking for the Opposition, that we have felt that we are not voices in the wilderness? We have made various submissions and, as the noble and learned 403 Viscount said to me privately, 60 per cent. of them—I thought 50 per cent.—have been accepted. We are indeed grateful for the spirit in which this Bill has been discussed.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, I beg to move the remaining Amendments.
§ Amendments moved—
§ Page 18, line 3, leave out ("is notwithstanding") and insert ("who")
§ Page 18, line 7, after ("applies") insert ("(a) is")
§ Page 18, line 8, at end insert ("or
(b) so conducts himself that it would not be reasonable to expect a spouse of ordinary sensibilities to continue to co-habit with him;")
§ Page 18, line 9, leave out ("who")
§ Page 18, line 11, leave out ("is notwithstanding") and insert ("who")
§ Page 18, line 13, after ("liquor") insert ("(a) is")
§
Page 18, line 14, at end insert ("or
(b) so conducts himself that it would not be reasonable to expect a spouse of ordinary sensibilities to continue to co-habit with him").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.