Lords Sitting of 6 November 1969

Preamble
The House met at three of the clock: The LORD CHANCELLOR Oil the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.

LICENSING OF BULLS IN > ENGLAND AND SCOTLAND
LORD INGLEWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what advantage they see in perpetuating separate and differing systems for licensing bulls in England and Scotland.]
LORD BESWICK: My Lords, existing legislation requires that the Minister of Agriculture, Fisheries and Food must issue licences for bulls kept in England and Wales, and the Secretary of State for those kept in Scotland. The two sets of licensing regulations are, however, broadly similar, and in most cases a new licence is granted automatically and without charge when a bull crosses the Border. I might add that my two right honourable friends, the Minister and the Secretary of State, have decided that it is now right to consider whether the statutory arrangements for sire licensing are still appropriate. We shall shortly be consulting the organisations concerned, and these consultations will cover the case for retaining, amending or abolishing the present system of licensing. Decisions on future policy will be taken in the light of these consultations.
LORD INGLEWOOD: My Lords, may I thank the noble Lord for that most helpful and understanding reply, and also for the skill with which he chose the words "broadly similar", because that disguised the fact that there are a number of differences, particularly in the "B" licence in Scotland. May I ask the noble Lord whether he is aware that my question is not a criticism of Scotland? If anything, it is a criticism of England, who are much more long-winded in the
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two draft regulations which we are now asked to approve. Can the noble Lord move so quickly that the Government could withdraw these two draft regulations now before the House, and perhaps re-lay them in the form of one consolidated regulation, which would be much simpler for all concerned not least the bulls?
LORD BESWICK: My Lords, I disagree with the noble Lord. The bulls have no difficulty here at all. As for the "B" licence, this reflects a difference between the situation in Scotland and that in England and Wales. As the noble Lord knows, there have not been sufficiently adequate milk records for animals in Scotland until recently, and it was therefore necessary to have an intermediate category of sires in Scotland. It is possible that the "B" licensing system will be dropped, but I understand that that will not help the noble Lord in the particular problems he has had.
LORD FORBES: My Lords, will the noble Lord ensure that when the licensing is reviewed more attention is paid to performance rather than to looks'? It is performance that counts.
LORD BESWICK: My Lords, exactly. That is why I ventured to disagree with the noble Lord, Lord Inglewood. It is because it was impossible to license bulls in Scotland on their performance that it was necessary to have this separate category.
THE EARL OF DUNDEE: My Lords, is the noble Lord aware that bureaucratic restrictions of this kind are never any deterrent to Scottish immigrants into England?
LORD BESWICK: My Lords, I should not have called these petty restrictions. I should have thought that the bulls in Scotland and in England looked much more handsome now, as a result of this licensing policy, than they did some years ago.
THE EARL OF LAUDERDALE: My Lords, would not the noble Lord agree that, although smuggling in bulls has now ceased to be a serious matter for the policing of the Border, the way to get a common standard is to persuade the English, in this as in other matters, to raise their standard to the Scottish standard?
LORD BESWICK: My Lords, in this matter, as distinct from others, I think the noble Earl is in error. In the first place, there is no advantage at all in smuggling a bull across the Border if in any case he is not able to carry out his natural functions.
THE EARL OF LAUDERDALE: My Lords, would not the noble Lord agree that there is little doubt that the bulls are able to perform their natural functions, provided they can move freely, which requires a licence. The real answer is to get the English breed societies to accept Scottish standards on conformation.
LORD BESWICK: My Lords, I do not wish to pursue this subject, but if a farmer wishes to use an unlicensed bull he can do that, Border or no Border.

DIVIDEND RESTRAINT
LORD BESWICK: My Lords, at a convenient moment after half-past three, I propose to make a Statement on dividend restraint.

MATRIMONIAL PROCEEDINGS AND PROPERTY BILL [H.L.]
3.10 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, in moving the Second Reading of this Bill I am conscious that to an unusual extent I have deprived myself of any opportunity of surprising anybody by its contents. There was a time when there was a Bill in another place dealing with community of property, or something of that kind, and I ascertained that the Law Commission hoped by July to produce a Report which would not deal with that—which is a much more complex problem, affecting all married people and not just those whose marriages have broken down—but would modernise our provisions for orders for financial relief when a marriage breaks down.
Your Lordships may remember that on the Second Reading of the Divorce Reform Bill I had obtained a letter from the Chairman of the Law Commission stating what the Bill they were proposing would cover and what it would not cover. As I then said, I had had copies made and
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they were available in my office for anyone who wanted them. Subsequently, during the Committee stage of that Bill, I again intimated that the Report which the Law Commission were promising for July would not assist those under the five-year clause of the Divorce Reform Act because what could be done for them was already done in that Bill, but that it would deal with those who were subject to our then law.
This Report has been available. I think, for the last nine weeks. It arrived. I believe, in July, and was sent off to the printers, and it is in what I hope the House will think is a convenient form, in that it first sets out what are the deficiencies of our law in this field, recom-mends what alterations and improvements should he made and concludes with a draft Bill printed on the left of each page and an explanatory note on the clause on the right. As I said in the debate on the Address, subject, of course, to minor points the Bill which is now before the House is the same as the draft Bill in the Law Commission's Report, except that, for reasons which I then explained, this Bill does not include the implementation of the recommendation that we should abolish the right to claim damages for adultery, and actions for enticement, seduction, harbouring and breach of promise of marriage.
There are two elements in this Bill. First and foremost, it is a measure to rationalise and tidy up a branch of the law which, like Topsy, has "just growed". The maze of technical rules and anomalous distinctions which the Law Commission's Report reveals is the inevitable product of a century of patchwork legislation, much of which was devised to meet the needs of a society now changed beyond recognition. The Bill is intended to substitute a rational and complete code, covering financial provision on divorce and similar proceedings, which eliminates useless and confusing distinctions and does not discriminate between men and women more than the nature of the subject demands.
But this is not merely a tidying-up operation; the Bill also makes some substantive changes in the law which recognise changes in social behaviour to which the law should give effect. The position of married women is very different now from what it was when our

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courts first had power to dissolve marriages. The Bill recognises that the contribution made by a wife and mother to the welfare of the family must be taken into account and translated into terms of money and property if the marriage unfortunately breaks down. Equally, the Bill recognises that to-day women are very much better placed than they were in Victorian times to earn money for themselves, and are therefore now more often in a position to assume financial responsibility for their children and sometimes for their husbands.
Much has been said, most of it inaccurately, about the relationship of this Bill to the Divorce Reform Act. I have emphasised again and again, and so has the Chairman of the Law Commission, that whether or not Parliament had approved the Bill altering the grounds of divorce which is now on the Statute Book and will come into force on January 1, 1971, this Bill would still have been necessary. If we had decided to stick to the doctrine of the matrimonial offence as the ground for divorce we should still have been faced with all the anomalies and anachronisms which this Bill seeks to sweep away. Further, I have always emphasised that the Divorce Reform Act could stand on its own feet without this Bill, because in so far as it enables a deserted wife to be divorced it contains its own financial safeguards. But although neither measure is really complementary to the other, I think the House would agree that now that the Divorce Reform Act is coming into force at the beginning of 1971 it will be convenient for everyone if this Bill does the same and so gives us a completely new start in this field.
As I explained in the debate on the Address, the Bill is substantially the same as the Law Comminssion's Bill, with the exceptions which I have mentioned. As I said, there is not included in this Bill any implementation of the recommendation to abolish the right to claim damages for adultery, and actions for enticement, seduction, harbouring and breach of promise, because although many people—and I personally agree with them—would be pleased to see the disappearance of those proceedings, they are of course controversial and perhaps more suitable to a Private Member's Bill. What I am anxious to see is that this
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Bill reaches the Statute Book as soon as possible. On the other hand, it is clear from the Law Commission's Report that their proposals assume the abolition of the old Victorian remedy of restitution of conjugal rights which they had recommended in an earlier Report; and this the Bill does.
Part I of the Bill deals with financial provision and custody of children. As I have explained, it is based upon the proposition that as far as possible there should be no discrimination between husbands and wives and no unnecessary technical distinctions between the powers of the court in different types of proceeding. This does not mean that the courts will necessarily use their power to make wives maintain their husbands as readily as they will their power to order husbands to maintain their wives. It is still, and is likely to remain, the fact that in most families the husband is economically the stronger party; but where he is not, the court ought to be able to make its orders accordingly. If, for example, a well-to-do wife with means of her own goes off with another man, leaving her husband with the children, he may be in financial difficulties himself and it may be reasonable that she should contribute.
Clause I deals with maintenance pending suit; that is to say, maintenance ordered by the court after the institution of proceedings, to last until the proceedings are determined. The only point to which I would draw the attention of the House is that, in accordance with the principle I have explained, the order may be made against either husband or wife without distinction. Clauses 2, 3 and 4 set out the powers of the court to order financial provision to be made by one spouse for the other or by either spouse for the children. In substance, all the existing powers of the court will be exerciseable without any of the current technical distinctions. In addition, there is a radical extension of those powers in Clause 4, because in effect Clause 4 enables the court to redistribute capital assets on the breakdown of the marriage. The court can do this by ordering either spouse to transfer property to, or to settle it on, the other spouse or a child. The House will see how very valuable this power can be where, for example, the deserted wife is left with the children

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in the matrimonial home. The court could here order the husband to transfer to the wife ownership of the home.
The powers conferred by Clauses 2, 3 and 4 of the Bill must be read in the light of the very important provisions in Clause 5. Clause 5 sets out certain matters to which the court must have regard when making financial provision. I would draw the attention of the House in particular to paragraphs (e) and (f) of subsection (1). In paragraph (e) the Bill expressly enjoins the court to take into account the contribution made by a spouse to the welfare of the family by looking after the home or caring for the family. Here we have for the first time a direct express recognition of the value of the woman's part in staying at home to bring up the children.
Secondly, paragraph (f) expressly mentions the prospective loss of a pension as a factor to be taken into account. I need hardly remind the House of the importance of this: the debates we had on it in the course of the Divorce Reform Bill will be fresh in your Lordships' memory. I need not go into any detail about Clause 6. Under the current law a married woman can apply for maintenance on the ground that her husband has wilfully neglected to maintain her or the children. Clause 6 reproduces this but also gives a corresponding right to the husband: he can apply if the wife has neglected to maintain the children, or to maintain him if his earning capacity is impaired.
Clauses 7 and 8 need rather more explanation. Clause 7 provides for the duration of orders made in favour of a spouse and contains one provision which I think may be the subject of some discussion. As recommended by the Law Commission, it provides that an order for periodical payments is to terminate on the remarriage of the payee. I appreciate that there are two schools of thought about this. It depends upon whether one accepts the principle that, by remarrying, a woman elects to look to her new husband for the support to which her marriage entitles her, or whether one accepts the view that the obligations of the first husband are not superseded by those of the second. There are arguments either way, and no doubt we shall have to consider them at a
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later stage. I shall confine myself to saying now that I think the first principle is right and that the Commission's recommendation is sound.
Clause 8 deals with the duration of orders made in favour of children. Here again I think there may be a point of controversy, because some people will argue that in no circumstances should a parent be compelled to maintain a child who has attained his majority. Those whose marriage has not broken down cannot be so compelled, and it may be said that it is anomalous to give the court these compulsory powers merely because one or other spouse has invoked its aid in divorce proceedings. On the other hand, as a matter of common experience it is the breakdown of a marriage which often leads one of the parents to desist from giving to a child of 18 or 20 that financial support which he would otherwise have given to enable the child to complete his education or training. The Bill comes down in favour of giving the court these powers where the child, although over 18, has not completed his education or where there are other special circumstances.
My Lords, I do not think I need detain the House with a detailed explanation of Clauses 9 to 12. Generally speaking, they give the court extensive powers to vary orders already made, to relieve the paying party against the enforcement of stale arrears and to order the repayment of amounts paid in excess of what should have been paid. I can also pass very briefly over Clauses 13 to 15 (which restate with minor modifications the existing law governing the variation of maintenance agreements) and Clause 16, which also re-states in a modified form those statutory provisions which give the court power to prevent people from getting rid of their property so as to defeat expected claims for maintenance, et cetera, and to upset transactions already made for that purpose.
Clauses 17 to 19 deal with the vitally important subject of the protection and custody of children. Here again I need not go into any detail because, with the one exception that I am about to mention, they re-state the existing law in a more convenient form. The exception is that the definition of "child of the family" in Clause 26 means that these custody orders will now apply to a wider class of

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children. The House will see that "child of the family" in the Bill includes not only a child of both parties to the marriage but also any child treated by them as a child of the family. Thus, if there has been what is sometimes called a "de facto adoption" the court could on the breakdown of the marriage make an order dealing with the custody of the de facto "adopted" child even though there had been no formal adoption proceedings. I should make it clear that no such order would by itself affect the right of the natural parents in such a case, but it would mean that the interest of the child could be safeguarded in their absence.
Clause 20 is the provision I mentioned which abolishes the restitution of conjugal rights as a legal remedy. Those of your Lordships who followed the television serial of The Forsyte Saga will remember an episode when Winifred Dartie was, with difficulty, persuaded by Soames to tell the Divorce Court that she wanted Monty back and thereby obtained a decree ordering him to return. My Lords, this is really an absurd procedure in modern times, and I do not think that anybody would nowadays believe that any deserting spouse is going to return and save his marriage simply because a judge has told him to do so, when there is no penalty for his not doing so. The procedure may have, under the current law, some marginal technical advantage in connection with maintenance, but all that will go when the Bill comes into force and I think we can say goodbye to restitution without any regrets.
Clauses 21 to 27 contain a number of technical provisions with which I need not trouble the House, save to point out that the effect of Clause 21 is to apply to existing orders the "remarriage rule" which I have already explained, so that an ex-wife who has an order for periodical payments in her favour when the Bill comes into force and who subsequently remarries will thereby bring that order to an end.
My Lords, Part II of the Bill contains a number of miscellaneous provisions relating to the property rights of married persons. Clause 28 resolves, I hope finally, a doubt which has existed for many years and has trouble the courts, not least your Lordships' House in its judicial capacity. The question is: to
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what extent, if any, does a husband's or wife's contribution to the improvement of property entitle him or her to a share in it or in the proceeds of sale? We have all seen cases where, usually after a divorce, the matrimonial home is sold and fetches much more than was given for it in circumstances where the sale price clearly reflects the value of improvements made to the property by one of the spouses. The problem has been whether by making those improvements that spouse is entitled to a share in the sale price. Clause 28 says formally that if the contribution is of a substantial nature then the spouse in question is entitled to a share, and that if the husband and wife have not agreed between them what that share should be it is to be such share as seems just, in all the circumstances, to the court.
Clause 29 clarifies a technical doubt arising under the Matrimonial Homes Act 1967; and for the benefit of my noble friend Lady Summerskill I may say that the solution is in favour of the wife. Clause 30 enables the convenient summary procedure under Section 17 of the Married Women's Property Act to be resorted to after divorce, which is at present impossible. Clause 31 substitutes for the current anomalous rule a perfectly clear rule that where there is a judicial separation neither spouse has any right to take on the other's intestacy. Clause 32 extends to magistrates courts' orders the "remarriage rule" which I have already explained.
Clause 33 abolishes the old common law rule, which is of interest only to lawyers, whereby a wife is treated as being entitled to pledge her husband's credit for the purpose of obtaining what the law calls "necessaries". This rule had a place in a society where a married woman could not have property of her own and would, therefore, have no money even to instruct solicitors to apply for maintenance on her behalf. But it has no place in a modern society, where a woman is as much entitled as a man to own property and where, if she has to instruct solicitors and cannot pay for them, legal aid is available. The old rule is not only useless; it is also inconvenient because of its operation in relation to legal costs. This is not the moment to give any details which are fully explained in the Law Commission's Report. I am sure that we can get rid

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of this anachronism, so long as we remember that by doing so we are not in any way affecting the true agency, express or implied, of a wife to enter into everyday transactions on behalf of her husband.
Part III contains the necessary supplementary provisions, and the only matter to which I need draw attention is Clause 35(2). The House will see that this expressly authorises the courts to look at the Report as an aid to construing the Bill. In practice I suspect that in similar situations the courts very often do look at a Report on which a Bill is founded; although technically they may do so only for the purpose of ascertaining the mischief against which the legislation is aimed. I think it is very much better for Parliament to say openly that they can look at the Report as an aid to construction. My Lords, this is an important Bill. It will affect many thousands of people. I think it will enable the courts to do better justice between husband and wife and between parent and children, and I hope that your Lordships will approve of it.
Before I sit down I would say that this Bill demonstrates, perhaps better than any other measure we have so far discussed, the value of the operations of the Law Commission. One of the advantages is discussion. That is what takes the time: but hurried and rushed law reform is not really worth doing; it has to be done properly; it must take time. Their consultations are always extensive, starting with a working paper which is sent out for discussion; in this case to the Judges, the Bar Council, the Law Society, the Society of Public Teachers of Law, Government Departments and so forth. I thought that it might interest my noble friend Lady Summerskill to know that among those to whom it was sent and who were consulted were the Council of Married Women, the Co-operative Women's Guild, the D.S. Club for Divorced and Separated People, the National Council of Women of Great Britain. the National Marriage Guidance Council, the Married Women's Association, the Catholic Marriage Advisory Council, the National Federation of Women's Institutes, the National Federation of Townswomen's Guilds, the Women's Group on Public Welfare, the
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Mothers' Union and the National Joint Committee of Working Women's Organisations. I say this because I think it has been said that the Commission did not fully consult the women's organisations.
My Lords, the subject is a complicated one, and reform in this field has necessitated a degree of consultation and intensive discussion. Without the Law Commission I doubt very much whether such a study would have been practicable, and that is why I wanted to conclude my speech by expressing my admiration and gratitude for what they have done. I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a. —(The Lord Chancellor.)
3.33 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, the noble and learned Lord the Lord Chancellor has given a fairly full explanation of the provisions of this Bill, and he has pointed out that anybody's understanding of it is greatly facilitated by the very full Report of the Law Commission, Paper No. 25. I, too, want to draw attention to Clause 35(2), which I think for the first time expressly in a Statute allows the courts to look at the preparatory material on which legislation is based. This is an important innovation. I think it raises one matter to which I should draw the attention of the House, because it means that the more the Bill is altered in the course of its passage through Parliament the less use will the Law Commission's Paper be in explaining what it means and what it is intended to do after it becomes an Act.
I have no suspicions about the noble Baroness, Lady Summerskill, wishing to put down widespread Amendments but she said in her speech on the humble Address that this matter was one that should be discussed in detail, and I agree with her. I hope however, that the House will take note of the Long Title of the Bill which is almost unbelievably detailed. I think one reason for that is to make it out of order for Amendments which greatly increase the scope of the Bill to be put down in another place. Whether or not that is something to which we ought to advert here, I do not know. But if we are going to invite the courts, the public, the prac-

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titioners and everybody else to look at the Law Commission's Paper as an aid to understanding the Bill when it is law, we ought to be very chary indeed of seeking to add huge new areas in this House, where of course we are not bound by the Long Title. I hoped that I might make that point, because it is also perfectly plain, from the Law Commission's Paper and from what one knows, that this is by no means the only collection of items on this subject which is capable of, and probably needs, alteration by Statute at some time.
I understand the points made by the noble and learned Lord about leaving out the two clauses on damages for adultery and actions for enticement, seduction and harbouring. I do not think breach of promise was ever in the draft Bill; I think it was somewhere else. It may well be that, with the draft clauses that the Law Commission have produced, some private Member will find it quite easy to introduce a Bill on this subject. The absence of repeals in Schedule 3 to this Bill in comparison with the draft Bill is also the result of the omission of these clauses. I think the only real alteration that has been made is in Clause 5, where one paragraph—that is, paragraph (d) in subsection (1)—has been added, under which, in addition to the other matters recommended, the court now has to take account of
"the age of each party to the marriage and the duration of the marriage"
I find this very interesting, because a little while before the Law Commission published their Paper a research committee of inquiry set up by the Conservative Party produced a paper called Fair Shares for the Fair Sex. This was published in March of this year and that point is one of the many specifically put forward in that pamphlet. I am glad to see that it has found favour with the Government and now appears in the Bill. In fact, a great deal of the general approach which underlies the chapter on this subject in the Conservative Political Centre pamphlet appears in the Bill. It is true that there is not the same suggested division of property into family and non-family property that they put forward, but the power which the courts will have under this Bill goes a great way towards the fair distribution of pro
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perty, at any rate when the marriage has broken down.
My Lords, I must also accept— is of course where it may not be the complete solution that everybody seeks— Bill does not deal with property except after the breakdown of marriage. It was never intended to. The Law Commission did not suggest that this should be done, and there is no suggestion that the Bill deals with the knotty problem of community of property together with the other things in the Private Member's Bill introduced during the last Session in another place. These are very controversial matters, and I think we should be wise to wait for a considerable amount of further discussion and thought on this matter before we sought a solution in legislative form. I agree with the noble and learned Lord that, although the Bill is not a necessary concomitant of the Divorce Reform Act, it would be highly desirable that it should come into force at the same time. I think that is another reason why we should not go into contentious and controversial matters in this Bill by way of amendment.
I join with the noble and learned Lord in the general welcome given to the Bill. If I may I will turn to some other points. There is no necessity for me to go in detail into the provisions of the clauses, but I should like to make some general points and to ask a few questions of the noble and learned Lord. I very much approve—and I am sure that anybody else who has to deal with the subject will approve, too—of the great simplification brought about by this Bill. A great jungle of provisions have grown up, for historic reasons, but now the matter is put into a very much more simple form, and one which it is tolerably easy to comprehend. The other thing which is rather unusual —and again I think it reflects great credit on the Law Commission because this must have been their doing—is that instead of having the dismal collection of legislation by reference, which we could so easily have had, back to the Matrimonial Causes Act 1965, we have had whole sections of that Act repealed and re-stated, very often with exactly the same force of law. although sometimes the wording is a little different; there is no question of hunting to and fro between the law books. The Law Commission and their draftsmen have done it properly this time and set

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the whole thing out in full, so that we can forget the old and read this Act, which is comprehensible on its own. I hope that this is a precedent which will be widely followed by other draftsmen in other legislation.
I approve of the general enlarged powers that the court is being given of avoiding almost all the distinctions between husband and wife, petitioner and respondent, which, as has been explained, are no longer necessary on the social side, and so far as the difference between petitioner and respondent is concerned, will no longer be relevant under the Divorce Reform Act. There are of course exceptions to this, and I think that the noble and learned Lord perhaps did not quite draw out the difference from this general proposition that is seen in Clause 6(1) where, instead of giving complete reciprocity, the form of words used for magistrates' courts proceedings is also adopted for the High Court. The husband cannot be given maintenance from his wife in quite such wide circumstances as those in which the wife can be given maintenance against her husband. The Law Commission, in paragraph 19 of their Report, explained why this is so, and in paragraph 22 they suggest the lines on which our consideration of this matter might proceed. Here, as in other parts of the Report, it is interesting to see what use they have made (and this is one of the things for which they were set up) of Commonwealth legislation, particularly in New Zealand and Australia. The Law Commission have paid a great deal of attention to some of the Provincial legislation in these countries. I believe that the Queensland material, particularly, has been brought in. Therefore we are benefiting from the experience of these countries which have perhaps preceded us in this matter.
I approve, too, of the general provisions that at any rate periodical financial provision are to cease on the remarriage of the recipient spouse. I think that the Law Commission were surprised at the lack of contentiousness they met in this matter. The noble and learned Lord suggested that we might like to discuss it. There are plainly two points of view, but a great deal of discussion must have taken place between the Law Commission and their consultees, and so
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far they seem to be confirmed in their view that this is the right way to proceed. However, it may be that this matter is best left to the Committee stage, and also the question about the children, which was mentioned by the noble and learned Lord on the Woolsack. I do not myself wish particularly to pursue that point either, since I have no objection to it, for the reasons which he explained.
I noted the extension of the definition of the children who may benefit under this Bill. The child of the family is defined, but there is a safeguard that should be pointed out to help the court, in a difficult matter like this, where it is necessary to decide whether, where the husband or wife has accepted a child or adopted a child who is not his own or her own, they have really brought that child into the family. There are guide lines in Clause 5(3) and Clause 6(4) of this Bill, which I should have thought were both straightforward and comprehensive enough to enable the court to give a just decision on the very varying situations that will no doubt occur.
I suppose that there is no question about orders under this provision being appealable, as is generally the case throughout the Bill, so that if there is any divergence of opinion between the judges of first instance it may be possible to go to a higher court, perhaps before my noble and learned friend Lord Denning, and perhaps to this House, in order to get some general standards put forward.
Finally, I approve of the rationalisation of the court's power to vary, discharge, suspend and revive orders, which has been greatly simplified. It seems to me that the right distinction has been drawn between the powers of dealing with periodical financial payments and that it is correct that there should be no general power to vary, after lump-sum payments. settlements and other once-and-for-all transactions of this nature have been made; because these, once done, are difficult to undo, and it may be unjust.
There are some points that I should like to raise on the clauses. Going back for a moment to Clause 5, there is a rather complicated provision which I am not altogether sure has been worked out as it should be. In the notes on page 71

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of the Law Commission's Report they make a point about Clause 5(2). They say they wish to see that the expectations of the children are preserved, but only in so far as these are consistent with justice to the parents. If the marriage is dissolved, the probability is that both parents will remarry, and probably one or both may have more children than would have been likely had they remained married to each other. But it would clearly be unjust to insist on a settlement which would leave nothing to the new dependants.
Then one looks at the subsection. The court has to take into account the matters set out in paragraphs (a) to (d) of subsection (2) and to exercise its powers so as to place the children, so far as is practicable, in the same position as they would otherwise have been, but having regard to the two matters in Clause 5(1)(a) and (b). As I understand it, this is supposed to require a court to take account of the possible re-marriage of the parents, or of either one of them, and the coming into existence of further children. I do not think that that is so, however, because under paragraph (b) it is only the existing responsibilities of the parents that have to be taken into account, not the contingent or potential responsibilities they would have if they married again and had further children. I agree with the Law Commission in seeking this objective, but I am not certain that the wording of the Bill as it stands is altogether appropriate on this point. It is an important point, I think, and one to which we should return perhaps at a later stage.
On Clause 5, I was going to mention the contribution made by the wife to the bringing up of the family and the pension rights, both of which have already been explained to your Lordships. These must be very welcome improvements to the law. I am glad that the noble and learned Lord explained about the abolition of the decree for restitution of conjugal rights. It is not in this Law Commission paper but in the other one, but from the noble and learned Lord's explanation and what can be obtained from the other document, I hope that the change will commend itself to your Lordships, particularly as actions of this kind were brought mainly as a technical ruse to enable the petitioner to do better on
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the financial side. When that becomes unnecessary under this Bill, the whole thing ceases to have any point at all.
In Clause 32, subsection (2) is rather complicated, and as this is one for which we have had no explanation at all, I would ask the noble and learned Lord whether he would be so kind as to explain this a little further when he comes to wind up.
Then I go back briefly to the beginning for two small points, about which I give notice before Committee stage. The provisions for awarding lump sums under Clause 2(2)(a), Clause 3(3) and Clause 6(7)(a) are said to enable parties who receive lump sums to discharge a liability "reasonably incurred", and so on—the wording is common to all three subsections. I am not certain how this may be interpreted. It may be only an example of the circumstances in which a lump-sum order can be made. But if it is anything more than that, it is going to be interpreted as the only example where it is going to be done, and I believe that this is too restrictive. The Law Commission point out the usefulness of an order for a lump-sum payment—for instance, in the case where there has been an order for periodical payments which have not been paid and, on an application to vary the order or enforce it, the courts have found that the simplest way of dealing with this is to order a lump-sum payment, so that the unfortunate wife does not have to go back and back again, seeking to enforce an order which is not being complied with. I believe that the intention is that such circumstances should be covered, but I believe also that the way the Bill has been drafted could be restrictive and could leave out that set of circumstances. Finally, on the detailed points, why are the words in brackets in Clause 3(1)(a) in the Law Commission's draft left out of the Bill, whereas the same words appear in Clause 2(1) and Clause 4(1)? I should have thought that there must have been some reason for this but it is not one which I can understand on my own.
My Lords, there are a few general questions not arising out of the Bill on which I should like some help from the noble and learned Lord on the Woolsack. Paragraph 42 of the Report of the Law Commission deals with the case of children over the new age of majority,

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18, wishing to apply for financial provisions against their parents. This is clearly an exceptional case, because the general intention will be not to give children over the age of 18 financial provisions. But there are exceptions, and this could occur. The Bill is a complete re-write or re-draft of Section 34 of the old 1965 Act. Clause 3 makes no reference to who may apply for provisions for the children. There is the necessity, I believe, for rules to be made, and the Law Commission suggest that children over the age of 18 should not be allowed, except by leave of the court, to intervene in their parents' divorce suit to ask for financial provisions. I wonder whether the noble and learned Lord can say if rules to that effect will be made.
In paragraph 47 the question of tax is raised. Plainly, this is not a matter on which any assurance can be given, but I would draw it to the attention of the House, since it is made clear that as a result of the recent Finance Act, where money has been ordered to be paid for the benefit of children, the result of its being assessed together with the income of whichever is the parent concerned can mean that the child will receive less of the payment than would be the case if the tax position had not been changed. In these circumstances, it is possible that the person who is paying the money may not be able to pay more to compensate for this amount. He may not have more to pay, or it may be just that there should not be a greater burden upon him. This requires thought by the Chancellor of the Exchequer. It has been clearly pointed out that hardship is liable to be caused through a simple change in the tax law without any change in procedures or in the orders which are relevant, and therefore it must be something that should be considered, and I should have thought urgently considered, even before the Bill becomes law.
Then, under Clause 30, the noble and learned Lord mentioned that summary procedure under Section 17 of the Married Women's Property Act 1882 can now be used at any rate three years after the divorce and is not confined to the period during which the marriage subsists. It has been suggested in the Report that the only practicable method would be
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that the powers under that section to deal with the rights of the two parties to property should also be dealt with by the same court that is considering the redistribution of the property of the two spouses. This, I think, also requires administrative action, and I hope that the noble and learned Lord will be able to give us an assurance that he will take such action.
Finally, I wish once more to underline the point that has been made about the relationship of this Bill to the Divorce Reform Act. I am certain that it is right that we should improve the court's powers in all cases of divorce, but it is equally vital that nobody should think that this Bill will improve the circumstances where a party is divorced under the five years' separation section of the Divorce Reform Act. I agree that we need this change. It would apply to give considerably more safeguards in divorce on existing grounds, it will apply under all the other paragraphs of the Divorce Reform Act, and it will make improvements. But it will not improve the situation of the five years' separation respondent. I think that anybody who supposes that it will do so must be disillusioned. That matter has been dealt with in the Act that has now become law.
What we are doing is bringing the remedies for all persons involved in divorce suits nearer, but not so far as appertains to people dealt with under paragraph (e) of the section in the Act. That has been explained again in paragraph 50(a) of the Law Commission's Paper. But there is an important footnote which explains the justification for the lesser powers that will be available to the courts under this Bill, and it might be worth while to read it out to your Lordships in case there are any noble Lords who have not seen it for themselves. What the Law Commission say is what I have just explained about the relationship, but they say also:
"This apparent anomaly is, of course, explained by the fact that it is only in separation cases that an innocent'"—
which will no longer be relevant under the Divorce Reform Act—
"wife can be divorced against her will. In every other case she will either have committed the equivalent of a matrimonial offence or, being the petitioner, will have had the choice whether to be divorced or not".
I think that that explanation shows that there is a justifiable distinction still

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to be maintained in the remedies and in the powers available to courts to deal with all the other cases except that of divorce on five years' separation.
I have great pleasure in welcoming this Bill. I hope that noble Lords in all parts of the House will find that it is satisfactory and that it is well and truly explained, and I also hope that it will have a speedy and successful passage through this House.

DIVIDEND RESTRAINT POLICY
3.56 p.m.
LORD BESWICK: My Lords, with your Lordships' permission, I should like to repeat a Statement made by the Chief Secretary to the Treasury in another place. It is as follows:
"It is already known that further guidelines on the whole field of prices and incomes policy after 1969 will be set out in a new White Paper. In the meantime, however, the Government consider it desirable to give the earliest possible notice of the decisions which have been reached on dividends policy.
"The present 3½ per cent. ceiling scheme for dividends will come to an end when the reserve statutory powers in the 1968 Act expire on December 31. The Government gladly acknowledge that on no single occasion has it been necessary to use these powers; and they are confident of co-operation in asking companies to continue to observe the requirements of the scheme in so far as they concern recommendations of total dividends which are made public before December 31. Thereafter, it will remain possible for the Government to require notification of individual dividend increases under Section 12 of Part II of the Prices and Incomes Act 1966 if the need should arise.
"The need for companies to observe moderation when distributing profits will continue. The Government therefore reaffirm the general consideration which was set out in the joint statement of intent published in Cmnd. 2639, namely, that they have pledged themselves to use their fiscal powers or other appropriate means to correct any excessive growth in aggregate profits as compared with the growth of total wages and salaries, after allowing for
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short-term fluctuations. The Government also draw attention to the ability to refer for examination to the National Board for Prices and Incomes cases where the growth of profits or dividends appears to be based on price levels made possible by excessive market power.
"The specific scheme of dividend restraint introduced in the 1968 Budget was a necessary reinforcement of these more general policies, as a purely short-term measure associated with stringent statutory control of other incomes and prices. But with the end of the special powers over prices and incomes in the 1968 Act, it will be appropriate to revert to the more general policies which can combine restraint in the total of dividend payments with flexibility in individual company situations."
3.59 p.m.
THE EARL OF DUNDEE: My Lords, I should like to thank the noble Lord, Lord Beswick, for repeating this Statement, which I think is very simple, or nearly all very simple. We know that the statutory powers on restraint of dividends expires on December 31 and that thereafter notice can be required of any increase of dividend. We are glad to know that the exercise of compulsory powers has never been necessary, since all companies have voluntarily observed the dividend restriction. I think we would also agree that the examination by the National Board for Prices and Incomes in
"cases where the growth of profits or dividends appears to be based on price levels made possible by excessive market power"
is a function which is appropriate to the Prices and Incomes Board, as it was equally appropriate to its predecessor, the National Incomes Commission.
The only point on which I am not quite clear is the immediately preceding part of the Statement, which I think is a repetition of the last sentence in paragraph 17 of the White Paper referred to, Cmnd. 2639, which reads:
"The Government have pledged themselves to use their fiscal powers or other appropriate means to correct any excessive growth in aggregate profits as compared with the growth of total wages and salaries, after allowing for short-term fluctuations."
That is taken out of a White Paper which is now 4½ years old. I had always supposed that that was a purely general

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statement, and that "aggregate profits" meant general profits of companies in the whole of the United Kingdom; and that the action taken would be some Budget measure which would apply to the whole of the United Kingdom. But its repetition in the context of this Statement to-day appears to suggest the possibility that "aggregate profits" here may be the aggregate profits of some particular firm or group of firms. In that case, surely the question, if it arises, should be referred to the National Board for Prices and Incomes, and we should know who it is who should judge whether or not the aggregate profit is excessive. If, as I have always supposed, it means general profits for the United Kingdom as a whole, then it is a repetition in this Statement to-day, 4½, years later, which would appear to be quite unnecessary. But I hope that in a minute or two the noble Lord will be able to make the position clear.
LORD BYERS: My Lords, from these Benches I also should like to thank the noble Lord and give a general welcome to this Statement on dividend restraint. I want to ask only one question, to clarify one part of it. The Statement says that after December 31
"it will remain possible for the Government to require notification of individual dividend increases"
under certain sections of the Prices and Incomes Act, if the need should arise. May I ask the noble Lord what action the Government could take: what sanctions they could apply, and who is to determine whether increases are excessive, once the 3½ per cent. figure has disappeared?
LORD BESWICK: My Lords, may I first of all thank the noble Earl and the noble Lord for the observations that they have made and the general welcome they have given to this Statement. In answer to the noble Earl, Lord Dundee, about paragraph 3 of the Statement, I can only tell him that this is a reiteration of a policy which we held to be valid in 1966 and which is still applicable, or will still be applicable in 1970; namely, that if this additional flexibility which is given for the declaration or recommendation of dividends is abused—there is absolutely no reason to believe that it will be, but if it were and there were ex
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cessive distribution—then the Chancellor of the Exchequer would find it necessary to take other fiscal measures or to emphasise credit restrictions.
THE EARL OF DUNDEE: My Lords, may I ask whether "aggregate profits" refers to general profits for the whole of the United Kingdom, or means the profits of one particular firm?
LORD BESWICK: My Lords, I am re-emphasising what the position was in 1966. Of course, in 1966 one could not have a selective tax on a particular company which was held to be abusing the situation. Here, we are referring to the aggregate situation and to an aggregate counteraction which would be taken.
THE EARL OF DUNDEE: For the whole country?
LORD BESWICK: For the whole country, yes. To answer the point made by the noble Lord, Lord Byers, the powers referred to here would be powers vested in the Treasury to require information which, if on examination it was thought appropriate, would be referred to the Prices and Incomes Board, who would then look at the situation of the company in question to find out on what basis they were making their apparently excessive dividend recommendation. If it was because they were charging undue prices for their products, then of course action could be taken.
LORD BYERS: Yes, my Lords, but if the 3½ per cent. figure is no longer valid, who determines what is excessive? And what is excessive?
LORD BESWICK: My Lords, I take the noble Lord's point, but here we are dealing with a social as well as an economic problem. We have a general climate of opinion, which has to be recognised. So far, the trading community have recognised that excessive dividends were not warranted in the economic situation; and it is hoped that they will co-operate in the future. There is no arithmetical formula which can be applied, but I should not have thought it would be impossible for Her Majesty's Government or the Treasury to decide if a particular dividend limitation breached the general standards observed by other companies.
LORD BYERS: My Lords, is that not contrary to all forms of natural justice

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— to leave Not Knowing where they stand?
LORD BESWICK: My Lords, if the noble Lord wants to look upon this matter as a particular trouble I am prepared to discuss it with him afterwards, but I should not have thought it would be beyond the bounds of ordinary common sense to come to a conclusion as to whether a particular company was going contrary to a policy which hitherto it has willingly, voluntarily accepted.
THE EARL OF DUNDEE: My Lords, is it not the case that the only legal requirement is notification under the Act, and the Government have no power to do anything else? Of course, they could refer any case on any grounds to the National Board for Prices and Incomes, not on the ground of the figure being more than 3½ per cent.
LORD BESWICK: My Lords, I accept that gladly. It will not be possible to attempt to regulate the amount of dividends; that is quite true. But, again, if the declaration of a dividend is clearly contrary to the economic requirements of the country, then one would have thought that, for example, public opinion could be invoked in this matter; and if excessive prices are being charged then other action can be taken.
LORD CARRINGTON: My Lords, am I then right in understanding that the Government remove the 3½ per cent. limitation and substitute for it excessive, and then do not define "excessive"?
LORD BESWICK: No, my Lords. What the Government are saying (and possibly the noble Lord will read this Statement again) is that they are taking away the rigid 3½ per cent. limit. They are asking for further co-operation. They are recognising that in particular cases flexibility is required. If any individual company appears to be abusing this flexibility by using its market power or near monopoly position, then the Government would have to consider that particular case.
LORD LEATHERLAND: My Lords, can the noble Lord tell me—because this is a very complicated Statement, of which I myself have not a copy—what the answer is to this question? If I were still back at my old job of produc-
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ing newspapers, would I be justified tonight in putting up the heading: "Dividend Squeeze Eased"?
LORD BESWICK: My Lords, with the freedom which some newspapers exercise to-day they would be free to put up any headline they liked. What my noble friend could say in a newspaper is that the co-operation of the business community and the trading community is still expected.
LORD LEATHERLAND: My Lords, that would not fit into a heading type.
VISCOUNT ECCLES: My Lords, while I welcome the announcement we have heard, may I ask whether, when the Government are watching what happens in the future, they will remember that it is now very difficult to borrow money, and it is extremely expensive for small businesses? Quite a number of these businesses ought to put their dividends up quite a bit in order to have an issue of ordinary shares. Perhaps the noble Lord could tell some of his friends on the trade union side—because they may not all quite understand what is happening now —that this is very much in their own interests.
LORD BESWICK: My Lords, this is of course the kind of consideration which has led Her Majesty's Government to make this change.

MATRIMONIAL PROCEEDINGS AND PROPERTY BILL [H.L.]
4.10 p.m.
LORD WADE: My Lords, reverting to the Matrimonial Proceedings and Property Bill I should like to join with the noble Viscount in thanking the noble and learned Lord on the Woolsack for outlining the contents of this Bill with his customary clarity. In offering some comments on this Bill I shall certainly not attempt to cover the whole of the ground. The Bill contains a number of useful reforms, and should be supported. I think perhaps the only danger is that in some quarters rather too much may be expected of it.
As to the merits of the Bill, the changes in terminology, for example, seem to me to be sensible, and they follow the report of the Law Commission. To the lay

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mind the distinction between "alimony" and "maintenance" has always been somewhat confusing. I am not sure when the word "alimony" was first used in the courts: to the best of my knowledge the earliest use was at the beginning of the 17th century. But the noble and learned Lord the Lord Chancellor will know the origin of the word much better than I do. Be that as it may, I think it is a word which can now be dispensed with.
The Law Commission's Report on Family Law points out on page 3 that there are only three meaningful distinctions that need to be preserved: the first is the distinction between payments made pending the outcome of the suit, and payments made on or after the conclusion of the suit. The second is the distinction between periodical payments and the lump sum; and the third is the distinction between maintenance which is secured and that which is not secured. That seems to be a reasonable statement, and so, following the Report, we now have the new phraseology; namely, "financial provisions" and "maintenance pending suit".
I believe that Clause 5 of this Bill will be helpful to those practising in the courts, as well as to the parties involved in proceedings. As your Lordships know, it lists the matters to which the court is to have regard in deciding what orders are to be made. I think this is an advance in our law reform but, if I may take some of the words of Clause 5 a little out of context, I suggest that all too often it is not practicable for the party who is to be provided for to be placed in the same financial position as that party would have been, or ought to have been, had the marriage not broken down. Unfortunately, that is how things work out and no legislation can completely alter the facts of life in that respect. Clause 5, however, removes several difficulties, one of which concerns wilful neglect to maintain the other party, or children. I understand from those who practise in this type of case in the courts that the power to order payment pending suit will certainly be an improvement in the law.
I agree with the provisions of Clause 7 about the duration of orders, and of Clause 8 concerning certain orders in favour of children.
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If I do not mention every clause in the Bill I hope it will not be assumed that I have not read the Bill. I do not pretend to understand every word of it. Clause 28, which is certainly an important clause, goes some way towards taking account of the contributions of the spouse (and this is generally applicable to the wife), in money or money's worth, to the improvement of the home, and I note that it refers both to personal and to real property. I think this is a step in the right direction, although I believe that it does not go as far as some would wish. Another step towards equality between the sexes is the abolition of the wife's agency of necessity, which is now a quite out-of-date concept.
My Lords, there are many other points, a number of which have been mentioned by the noble Viscount, but looking at the Bill as a whole and considering the changes which are being made, I have posed myself certain questions. The first is the age-old problem of the husband who is liable to maintain his wife, whether it be before or after a separation, or before a divorce, and who is clearly determined not to pay. Nothing much is done in this Bill about that situation—indeed, it is doubtful whether any Bill could provide an entirely satisfactory answer. It is not within the scope of this debate to deal with the proposal for employers to deduct payments out of wages, but even when that is introduced one will still have the case of the employee who moves from one job to another, or who disappears altogether. In those cases no doubt only a minority, where one spouse evades his or her responsibilities—and it is generally "his"—it is very difficult indeed to know what to do.
Then there is the case of the man with little or no capital who cannot afford two homes. The principles laid down in Clause 5 of this Bill are admirable, but in those cases I think that in practice the difference will be minimal. It is said that he who calls himself a realist is generally either a pessimist or a cynic. I do not want to appear to be either, and I am trying to look at this as objectively as possible; but I recognise that there are limitations in any legislation.
If I may refer back to Clause 4 of the Bill, that clause, very properly, refers

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to ante-nuptial and post-nuptial settlements, but there are a great many married couples who do not know what they are. This is a kind of rarified atmosphere into which they never enter. There are some with very little capital, there are many who live in rented houses; there are some who are buying their own houses, often jointly, but at the time of the break-up of the marriage there is not a great deal of value in the equity: there is still a mortgage on the house. It is in the light of these circumstances that we have to consider how this Bill—and Clause 5 in particular—will be interpreted.
The noble and learned Lord the Lord Chancellor has pointed out that the Divorce Reform Act has its own financial provision, and the noble Viscount, Lord Colville, made the point that the purpose of this Bill is to bring the provisions generally into line with the Divorce Reform Act rather than to supplement Section 6 of that Act. I hope that is a fair summary of what he said.
VISCOUNT COLVILLE OF CULROSS: My Lords, not to bring them in line, but to bring them nearer.
LORD WADE: My Lords, I accept that amendment, but perhaps it is not entirely out of place to make a brief reference to the Divorce Reform Act. I was one who supported it; I think there is a great deal to be said on both sides on some of the amendments, and I appreciated very much the point of view of those who opposed it, particularly those who thought that there would still be hardship. But in applying the provisions of this Bill, and particularly the provisions of the Divorce Reform Act, it seems to me that the kind of circumstances that will be under consideration will often be similar.
Perhaps I may illustrate this by dealing with the one point of security. As I understand it—and I am sure that if I am wrong I shall be corrected by the noble and learned Lord, Lord Denning, or the noble and learned Lord the Lord Chancellor—if a petitioner comes to the court before a decree is granted, with certain proposals for making provision for his wife, the court may say: "This is not really quite adequate. You must go away and think of something better, having regard to your means and such
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capital as you have". But if he has no capital, if he has nothing which he can secure, if he does not own the house free of mortgage and has not anything much in the way of investments, I presume the court will not say, Go away and save up until you have enough capital to provide security for the maintenance for your wife". Therefore there is a limit to the reliance that one can place on this worthy proposal about security.
This being so, I think that in many cases the parties to proceedings of this kind will have regard to what is going to happen at the time of retirement, and therefore very rightly the subject of pensions was raised in the debates on the Divorce Reform Bill. There are many private superannuation schemes—and I do not yet know to what extent they will be affected by the latest Government proposals because I have not had an opportunity of considering them fully—where the head of the household will retire on a reasonably satisfactory pension, and that will mean quite a lot to the wife.
But when the marriage breaks, whoever's fault it may be, assuming the husband is the breadwinner these benefits will be lost to the wife. It may be that even on parting before an actual divorce, if the man leaves his wife and lives with another woman and starts another family, those benefits under the private scheme will already be lost. Be that as it may. that benefit is lost and the question we have to consider is how to make up that loss. One way would be by taking out by the husband, if he is to make the provision, a deferred annuity. There is still the problem of paying the premiums. However, that is one way of making up the loss suffered by not benefiting, either as wife or later as widow, from a private superannuation scheme of which the husband was a member.
The last question I pose myself and I am unable to answer is very closely related to that; namely, what will be the effect so far as State pensions are concerned? It is a very complex subject, but I think there are many people who want to know to what extent it is going to be possible, so far as State pensions are concerned, to put the wife who is divorced, maybe divorced against her will, in roughly the same position as if

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the marriage had not broken down. I hope it is not going too wide, but I think it would be helpful if a little more could be said on that subject; and certainly there are those who feel strongly in that respect in the case where—and this comes under the Divorce Reform Act—the divorce takes place against the wishes of one of the parties.
It is clear that though there are many merits in this Bill, and I do not want to belittle them, it is not a financial charter for deserted wives and it does not necessarily provide—I think this follows what the noble Viscount said—significant safeguards for spouses divorced against their will. Nevertheless, it does remove a number of anomalies. I think it is a step towards a fairer method of dealing with the whole subject of property, and I certainly think the Bill should be supported.
4.25 p.m.
BARONESS SUMMERSKILL: My Lords, it appears to me, looking at the list of speakers, that I am the only Member speaking here to-day who has not a legal qualification, but I can assure the House that what I lack in legal expertise I can make up for in my understanding of the problem we are discussing to-day. I welcome the last two speeches very much, particularly Lord Wades, because it is quite clear that both noble Lords do not welcome the Bill wholeheartedly but are very critical regarding certain important aspects.
May I just recall to the House the fact that over the last few years divorce reform has been discussed in another place and in this House, Bills have been introduced, Bills have been rejected, and there has been a great deal of time to think about those aspects of divorce reform which would bear hardly on either party, the man or the woman. Nobody can say at this stage that we have not had time to think about what the repercussions would be. And throughout these debates Members in both Houses, women's organisations and all the organisations which my noble and learned friend has just mentioned, have maintained that if provisions are made which permit of the divorce against her will of a wife innocent of any matrimonial offence, then a Bill to provide for her financial security should accompany the
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legislation. I think that is accepted. It was accepted in the other place and in this House, and I am absolutely convinced that the women's organisations which my noble and learned friend mentioned believe that the operation of the Divorce Reform Act is being delayed until January, 1971, in order to protect this particular woman.
Well, my Lords, I am not the only one who is criticising this Bill. The noble Viscount, Lord Colville, repeated two or three times to the House just now that nobody will think that the woman who is going to be divorced against her will under the five-year clause is going to benefit from this Bill. Then what is the purpose of delaying the Divorce Reform Act? So far as I am concerned, if this rather miserable little Bill is going to be accepted, the Divorce Reform Act can come into operation right away. I thought that the whole view of the House when we debated the Divorce Reform Bill on Committee stage in July, when we got that eleventh-hour Amendment, was that the Act should be postponed pending the introduction of a Bill to protect that particular woman. Because that, after all, is the great change in this so-called divorce reform: the fact that, for the first time in our history an innocent woman is to be divorced against her will. This Bill is not going to protect her; there is nothing in it to protect her. Therefore, let the Divorce Reform Act be introduced.
I would remind your Lordships that it was on July 24, during the Committee stage on the Divorce Bill, that what I am saying now was reaffirmed by Members on bo th sides of the House. Unfortunately, we are completely in the dark regarding the details of the Law Commission's Report. Therefore, after the House adjourned I was astonished to receive the Law Commission's Report containing a draft of a Bill similar to the one before us to-day, which was ordered to be printed on July 24. What a curious coincidence! As we were debating here on July 24—I think it was The Times which said we were passing the Bill in the dark—we did not have this Report, a very important Report, before us; and yet in a few days' time we were told that it was on that day,

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when presumably it was in draft, that it was ordered to be printed.
Perhaps if the contents of that Report had been revealed to us in July when it was in draft, I would have given my whole-hearted support to the Amendment moved by the noble Lord, Lord Sandford, who I am sorry is not here to-day, and who was persuaded to withdraw it. The noble Lord must have possessed second sight. He seemed to know. I thought then that perhaps the proposed Bill was not satisfactory, because the noble Lord suggested to the House that the date for the commencement of the Divorce Reform Act should be subject to an Affirmative Resolution of both Houses: in other words, if this Bill was not satisfactory the Divorce Reform Act could not automatically come into force in January, 1971. But that Bill has now been passed, and whatever kind of Bill is introduced the Divorce Reform Act becomes operative in January, 1971. I regret profoundly that the House did not support Lord Sandford's Amendment which, if this Bill was not satisfactory, would have prevented the Divorce Reform Bill being enacted.
My Lords, I want to say something which is quite strong. In view of what I have said, I really feel that a confidence trick has been played on the women of the country. These are strong words. I feel that the women have been betrayed. I believe they felt that there was this year in which they could be protected, and of course it is now too late. Whatever is said now about something else that might be introduced, it is too late. We shall probably have a General Election next October and there will be no time to introduce a Bill to give women real protection. This miserable little thing is all there is, and I have come to the conclusion that the Divorce Reform Bill was introduced for one reason only, to give the courts the completely new power compulsorily to divorce an innocent wife against her will, and that all these promises of Bills to protect her were absolute nonsense. I am sorry to say that all the high sounding utterances of my noble friend Lord Stow Hill, behind me, concerning irretrievable breakdown, and undertaking to introduce a compensatory Bill, can now be seen to
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be nothing but a torrent of verbiage calculated to deceive the women.
I had great support on this matter. Surely everybody in this House recognises the noble and learned Lord, Lord Reid, as a Law Lord of the highest eminence. What did he say? On the Third Reading of the Divorce Bill he summed the matter up in a few well chosen words. He criticised "the excessive claims" of the noble Lord, Lord Stow Hill, and he said that 95 per cent. of divorce cases will go on in exactly the same way and have exactly the same result as if the Bill had never been passed.
With regard to the safeguards which are supposed to be embodied in this Bill, the noble and learned Lord, Lord Reid, said that the Law Commission's Report is of very little use in this connection. He advised—and with this I heartily concur—that the man who discards an innocent wife should regard her as a first charge on his income, and his new wife and family as only a second charge. Noble Lords here and there on the Committee stage interrupted and said that a man cannot afford two wives. I have said that for a long time. But what he can afford, of course, is to make the first wife the first charge. But that is not done in this Bill. There is no indication that the Government, or the Law Commission, are prepared to follow that course, which is the only equitable one. Indeed, as I have mentioned before—and it has been mentioned by the noble Viscount, Lord Colville of Culross, who has clearly expressed some concern over this—the court is given an instruction on how to proceed on page 31, paragraph 3. That paragraph says:
"It would be clearly unjust to insist on a settlement which would leave nothing for the new dependants."
I commented last time on "the new dependants". How many more new dependants can a man have? The court has to sum this up.
The noble Viscount, Lord Colville, quite rightly said that this must be worded in such a way that at least it must be limited in regard to the number of dependants that the man already has by the second woman whom he either proposes to marry or not marry. Surely, as this Bill is worded now, we cannot allow the courts to disregard the needs of the first

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wife and her children because the court thinks that the man before it might have another three or four children and that these must be provided for. But that is how the Bill reads. It seems that if judges have to bear in mind the unborn children of a man, then the first wife and her children stand little chance of receiving even elementary justice.
The position with regard to widows' pensions is not at all clear. I understand from reading the Report that the Law Commission have not reached any definite decision, and it seems to me that the widow's pension. which is something which is absolutely concrete, and which, after all, a woman by her work in the home for years deserves, is still left in such a way that the second wife might get the widow's pension, albeit that the husband may have been married to her for only two or three years. It seems to me that all the thousands of words in the Report have little meaning for the ordinary housewife, the innocent discarded wife.
I feel that in view of the fact that three or four lawyers are to speak to-day, I should quote what the noble and learned Lord, Lord Reid, said on another occasion of the innocent discarded wife, namely:
"If she is to suffer the stigma of divorce, she is to suffer financial hardship, in many cases without any protection, all to bolster up this theory that breakdown ought to be a ground for divorce."
Knowing that there would be a number of lawyers here, I consulted another eminent lawyer, who summed up the Law Commission's Report for me in this way. He said:
"Do not think me cynical, but all this Bill does is to tidy up the position for the wealthy man and his legal advisers, and that is the beginning and the end of it."
In these recommendations there are to be no rules at all. Neither party is to have vested interests of any kind. Any provision is left to the discretion of the court; and to-day, of course, it is the rule that financial provisions are made after the divorce has been granted, in secret hearing and usually by registrars. No reports are published and there is no way of learning how the provisions of courts differ. I should like to know whether the same secrecy will be observed after 1971, when an innocent and
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unwilling spouse could be divorced compulsorily.
Furthermore, is it proposed to exercise more vigilance over the county courts in regard to divorce, they having had little previous experience of the jurisdiction? May I give the House an example of what can happen. I should like to remind your Lordships of the case of Porter v. Porter which was decided in 1969—not 1869, but 1969—in which a county court judge had ordered a husband earning £3,000 a year to pay Is. a year to his wife for 20 years, there. being a son of 19 and twins aged 13. This was because, when her marriage was already on the rocks after she alleged a long course of cruel ill-treatment by her husband, she had once committed adultery. In overuling this decision. the Court of Appeal said that some of the views expressed in the county court were decades, if not generations. out of date. The Court of Appeal said that two of the standard textbooks dealing with these matters mention in their notes authorities which have long been disused, and therefore should be revised. I am talking about the administration of divorce for these women in 1969.
The Law Commission decided to remedy such ills, and their remedy is set out in paragraph 82 of their Report. That paragraph lists the considerations to which the court should have regard when making financial provisions. There is no indication of the weight that should be attached to those considerations, however, and it is quite clear that any court so minded would he free to make the kind of provisions, or perhaps ten times the provisions—say 10s. a year—that were made in Porter v. Porter, after declaring that it had borne in mind all these considerations set out in paragraph 82.
My Lords, I hope I have been able to inject some doubt into your minds as to the value of this Bill, and I hope your Lordships have realised that the unfortunate wife, whether she be the five-year one or any other one, whose lot is to be decided in this Bill, is to be pitied. In a situation in which a well-behaved wife can be divorced against her will, it is to me grossly inequitable that this puny Bill should be offered as a safeguard for herself and her family.
BARONESS BIRK: My Lords, I wonder whether, before my noble friend sits

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down, she would clarify something for me. She has spoken very strongly against the Bill. Could she give us some rather more constructive indication of what sort of legislation she feels we should be passing which would protect what she will keep calling "the innocent wife" when there is no money and there is no property? I wonder, further, whether she would not agree that she is really arguing against the Divorce Reform Act and not speaking to this Bill at all.
BARONESS SUMMERSKILL: My Lords, perhaps my noble friend was not here when I was speaking, or she did not hear clearly, or perhaps she was doing something else. I specifically dealt with that point. When people interrupted me I think I used the words, "Where is the money to come from?". I am fully aware of the fact that in the lower income groups things are difficult, because I have said "men cannot afford two wives". But what I have said is that the first woman should be the first charge.
BARONESS BIRK: My Lords, is my noble friend aware—
BARONESS SUMMERSKILL: Perhaps my noble friend will let me speak. She asked me a question. I am saying that the first woman should be the first charge, and it is not clear in the Report, or in the Bill, that these are the directions to the court. I say that it is not clear, but in fact there is no direction of that kind. On the contrary (and if my noble friend had been listening closely she would have heard), I said twice in this House that it is stated that the court must bear in mind the dependants which the man may have in the future. All I am asking is that the first woman must be the first charge.
4.45 p.m.
LORD DENNING: My Lords, it is the task of the Court of Appeal, day by day, to deal with financial questions between husband and wife, and I should like to say at once on behalf of the Court how warmly we welcome the provisions of this Bill. I should like to pay a tribute —and follow the Lord Chancellor in this —to the work of the Law Commission in preparing the draft Bill and this Report before us. It is not really intimately connected with the Divorce Reform Act and I, for one, wish that the date for the coming into operation of this Bill had
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not been put as January 1, 1971. I should like to see it brought into operation as soon as possible, because it contains many provisions which are of day-to-day application and of use to us in the day-to-day work that we have to do.
In this Parliament there have been great reforms in our family law. The Divorce Reform Act, as it is now, is a great advance, I suggest, and we have three stages in regard to property and. property disputes between husband and wife. The first stage, which I will mention in a moment, is the Matrimonial Homes Act; the second stage is this present Bill; and the third stage we shall hear about is the Community of Goods Bill, which is to come later. But let me first mention what has been done in this Parliament with the matrimonial home.
When I first sat in the courts, if the husband was in law the owner of the house, and it was in his name, after he deserted his wife he could turn her out and go back to live there with his new mistress. The courts altered that situation. We said that a husband who deserted his wife could not turn her out. We went further: we said that if he sold the house to his new mistress, or if he sold it to a bank, or charged it to a bank, they could not get her out if they knew the position. This House reversed our decisions about the other two cases, but that has now been set right by your Lordships' House in the Matrimonial Homes Act, which the noble Baroness sponsored and put through so well. And to-day the deserted wife is protected not only against her husband but also against the purchaser, the bank chargee, and so on, so long as she has registered her charge. That is the first stage, the Act which your Lordships have passed.
Now we come to this second stage, and may I at the moment tell your Lordships what in the view of our Court would be the important provisions of this Bill? We have gradually been working towards a concept of what I might call "family assets". Again when I first sat as a judge the house, if it was in the husband's name, was his; and, as I have said, he could turn the wife out. But 16 years ago we had cases in which the wife went out to work, and where the building society instalments were paid out of her earnings. We held then that although the house was in the husband's name she

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was entitled to her share; and if the position was not clear, the shares should be equal. And the same in the next case, where the wife went out to work and pooled her earnings to pay for the housekeeping, but the husband paid the building society instalments. Here again, it is all the same. It did not matter which one paid if the payments were made out of their joint resources. Again, although the house is in the husband's name it belongs to both; and if there is no clear division, it belongs to each equally. That was the next stage.
Then we had the case (and this is the question which will be cleared up by this Bill) where a husband or wife made great improvements to the house himself or herself. We had cases where a man who had little means himself had done great work of renovation to his wife's house in which they were living. She left him, or told him to go, and said that the house was to be sold. He said, "Couldn't any share come to me for all the work I have done?" In another case, the husband had left off his outside work and had converted the house into flats, spending months on it. Could he not be allowed something for his work when the marriage broke up? The Court of Appeal held that that could be done.
Quite recently, in a decision in your Lordships' House, that question of improvements has been the subject of consideration and difference of opinion. In a previous case on that very point, two of their Lordships said it was right and two said it was wrong. This Bill will clear that matter up—and we have these cases day by day, my Lords. We want to know how to deal with such cases as those; and we want to be able to deal with them now, not 18 months hence. So, under Clause 28, when the husband and wife—and I put it in this way—have, out of their joint resources, whether in money or in money's worth, improved the matrimonial home or the furniture, then, whoever's name the property is in, the courts can make a fair division. That is a new principle, in effect, of family assets endorsed by this Bill, which I hope will be passed.
That is when the marriage is subsisting; but there is another, equally important, provision which has not been
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used much in the courts, and that is when the marriage has broken down, when there is a divorce and the question is what is to be done about the property. Again, in the old days it has always been, "In whoever's name it is, whoever's property it is, so be it; it remains his property—let the wife get her maintenance and the like if she can". But, now, under Clause 2 as to financial provision and Clause 4 as to property, after a divorce the court can order one party to transfer the property actually to the other or to the children. So the guilty party, if he is a wealthy man, for instance, can be ordered by the court to transfer a house, say, to the wife, and to make provision for her in that way.
This wide power in Clause 4 is amplified by Clause 5, which says that in considering those matters you can consider the history of the marriage and can also consider the fact (which we could not before) that the wife has been working in the home—perhaps not working and earning outside, but working in the home, bringing up the family—and that it is a joint concern. After the divorce, all that can be reconsidered and the court can order any transfer of property by the husband to the wife, or can order any secure position for the wife. Then there is a final clause which goes on to make provision for putting the wife, if need be, in just as good a position, so far as it can be done, as she would have been if there had been no divorce.
The noble Baroness says that this Bill does nothing to protect the innocent wife after five years' separation. She says that the Government have not honoured their promise. My Lords, as I read this Bill it gives the courts wide power, very wide power, to do whatever is just and fair by way of property dealings between the parties after a divorce, and, indeed, to take care so far as may be of any pension arrangements which could be affected. Those are the two new principles, as I see it, in this Bill, which are a great advance in our family law.
I welcome the abolition of the law concerning restitution of conjugal rights, which is quite out of date, and the wife's agency of necessity, which is also quite out of date; and I welcome the new provision at the end. Quite generally, in our Statute Law, we have a new provision here whereby the courts will not

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go just by the Act itself but can look at the Report of the Commission. They can look at the Commission's explanations and see what was really meant. That is quite a help to us, because although amendments may be made by the House, nevertheless, broadly speaking, it is a great help to the courts to be able to see what those responsible for the legislation or for putting views before your Lordships had to say in explanation. I may say that indirectly, sub rosa, one may look at them now, but after this Bill we can do it quite openly as a result of this new clause, Clause 35, to see what was behind your Lordships' minds when you were passing any particular legislation. As I say, I thank the Law Commission for the good work they have done; I warmly welcome this Bill, and I support its Second Reading.
LORD LEATHERLAND: My Lords, before the noble and learned Lord sits down may I put this question to him? I do so in all friendliness, because I admire him as one of the most progressive law reformers of the day. As I understand the law at present, a wife can be protected in the home by a land charge made on what is called an F form, and that protects her so long as she is a deserted wife. The moment she becomes a divorced wife, or has divorced her husband, that protection under the F form land charge ceases. Am I correct in that assumption? Then I move on to ask: under the Bill that we have before us to-day, will she be protected after she has moved from the status of a deserted wife into the status of a wife who has gone through the divorce courts?
LORD DENNING: My Lords, in answer to the noble Lord I would say that I believe that, under the Matrimonial Homes Act (I think my recollection is right), to be protected she has to have a charge, and I think that may well come to an end on a divorce. But as I read this new Bill—and that is why it is important that it should go through, and I believe quickly—under Clause 4(a) the court may make
"an order that a party to the marriage shall transfer to the other party —such property as may be so specified —"
I should imagine that in such a case as that a court could make an order. Whereas previously the wife had to have
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a charge, now, if it is thought right, she can have the whole property. I hope that that power will be in the new Act.
4.58 p.m.
LORD CONESFORD: My Lords, there is one point I should like to put to the noble and learned Lord on the Woolsack on which he may be able to say something to me this afternoon; or he may think it worth further consideration with his advisers. It relates to the very interesting provision to which the noble and learned Lord, Lord Denning, drew attention at the end of his speech; namely, the novel provision in subsection (2) of Clause 35 of the Bill which makes this possible:
"In ascertaining the meaning of any provision in this Act regard may be had to the report of the Law Commission."
I can quite see that that may be for many purposes a very useful provision. I think that for some time the learned Judge who presides over the Commission has recommended some such provision, and it is, I think, for the reasons given by the noble and learned Lord, very attractive. There is, however, one curious consequence which seems to me to arise, and that is what happens when what the Commission has recommended is altered by amendments made in Parliament. It will have the very curious effect, so far as I can see, that you will be able to look at and tell the court what the Commission recommended, but you will not be able to tell the court why Parliament altered it. Parliament's reasons for amending the Bill will remain as irrelevant from the point of view of anything decided in court as it is at the present moment, and that seems to me to put the court in a very curious position.
I have no doubt that the great ingenuity of the Master of the Rolls will be equal to dealing even with that problem, but it seems to me that this is a matter that the noble and learned Lord who sits on the Woolsack might wish to consider a little further with his advisers—not with a view to deleting this useful new provision but possibly in order to enable the courts in future, if they are to look at what the Commission recommends, also to look at Parliament's reasons for not agreeing with the Commission.
5.2 p.m.
LORD ROYLE: My Lords, before my noble and learned friend who sits on the

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Woolsack replies, I wonder whether he could answer a question on a matter which has given me some concern. It might not have to do with the Bill at all but it is to meet a lack of understanding. It is a very small point in proportion to the importance of the Bill, but I notice that in Clause 10 power is to be given to the High Court and to the county courts to wipe our arrears when a new marriage has taken place. Yet under Clause 32, while it is possible for magistrates' courts to order that an order shall cease, it does not make provision for arrears to be wiped out. From my reading of the Bill, it appears that we are giving powers to the High Court and the county courts which are not being given to the magistrates' courts in relation to the wiping out of arrears. In the case of the magistrates' courts this has been a source of great trouble for many years. Men who have orders against them and whose wives ultimately marry again can never understand why the arrears under a separate order should continue after her re-marriage. Am I right in my interpretation, that the magistrates' courts are not being given the same powers as the higher courts?
5.4 p.m.
THE LORD CHANCELLOR: My Lords, I am much indebted to all noble Lords who have taken such an interest in this Bill. If I may, I will deal with the point raised by my noble friend Lord Royle while it is in my mind. There are some differences with regard to magistrates' courts. These are under consideration at the moment. One of the difficulties is that a maintenance order is not the only kind of order in a magistrates' court for regular payments which may be in arrears. The point is being considered.
Now, if I may, I will take the points helpfully raised by the noble Viscount, Lord Colville of Culross. So far as the Long Title is concerned, I am at the moment discussing the whole question of Long Titles with the First Parliamentary Counsel—and this is a very long Long Title. It is a question on which there are two views.
A suggestion was made by the Conservative Lawyers' Association—the Working Paper was sent to the Association of Conservative Lawyers, the Asso-
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ciation of Liberal Lawyers and the Society of Labour Lawyers, for the Law Commission welcome comment from whatever source, political or otherwise. On the matter of appeals, rules will have to be made. It is important that the appeals should be on a wide scale, particularly with so many judges administering the Act.
The point raised by the noble Viscount on Clause 5(1)(b) looks to me to be a valid one, and I will consider it before the Committee stage. Clause 32(2) applies the re-marriage rule to which I referred to magistrates' courts orders made here in respect of husbands living in Commonwealth territories. They can become effective only if confirmed by the Commonwealth court in question but can be varied or discharged by the home court. As Lo the question of a lump sum, the provision to which the noble Viscount referred was certainly not intended to be restrictive. If I may, I will consider that point also. He referred to words which had been omitted. They were omitted because it was believed that they did not add anything to the words which were left. The Law Commission made observations with regard to tax; but naturally this is a matter for my right honourable friend the Chancellor of the Exchequer which he will have to consider in relation to his Budget. He has in fact been made aware of the observations of the Law Commission. So far as Clause 30 is concerned, whatever administrative action is necessary will be taken. If there is any other matter of detail that I have overlooked, perhaps I may write to the noble Viscount. I am grateful for his support.
On Clause 35(2), it is of course correct to say that the value of the Report to judges will diminish according to the number of Amendments which have been made. The judge will be able to see what Amendments have been made, although as the noble Lord, Lord Conesford pointed out, not why. I think that Lord Conesford will be interested to read another Report from the Law Commission which has been published on the Interpretation of Statutes. The recommendation that they make is that the judges should be able to look at other things besides Reports, including international treaties and, of course, anything

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in the Act itself including punctuations, cross-heads, marginal notes and the Long Title, as well as certain other documents. I think that that Report which is available would interest the noble Lord.
I listened with interest to the observations of the noble Lord, Lord Wade, who raised in particular the question of pensions. This is a difficult question. The Law Commission, in paragraphs 182 to 203 of their Report, dealt with the difficulties which arise on pensions. It is not possible simply to transfer the State pension. But the Divorce Reform Act will make two differences. The first is that if there is a position of hardship, the decree may be refused. Secondly, the judge may say in the case of the State pension—or of any other kind of pension —" You can have a decree provided that you take out a policy, which I am satisfied that you can afford to do, to give your wife after your death the same amount that she would have received by way of pension if there had been no divorce."
It is difficult to go further than that, but so much has been said about pensions that I think one should say this. First, one must bear in mind that half the number of women whose marriages are dissolved are 34 years of age or younger; so that when one is talking about the old-age ension one is looking about 35 years ahead. In any event, it does not follow that the husband is going to die first. About half the number of women whose marriages are dissolved re-marry; so one is not talking about an ordinary case but about a fairly small minority. The difficulty about community property, as the Law Commission point out, is this. If you say, "At all events, all property acquired after marriage is to belong to both equally", the first question that arises is: What is to happen if they do not agree? Perhaps the husband has had a good year in his business; he wants to plough the profits back into the business while his wife wants the house decorated and a second car. What do you do in such a case?
There are some States in the United States which have a system of community of property. Under that law, if there is a division of opinion the husband decides. But that seems to me to put one back to square one. In the system as it is applied
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in France (and I think also in South Africa) if there is a dispute the spouses go to the court. But it is not a very good foundation for a happy marriage, for the partners always to be rushing off to court. In fact, those systems allow contracting out. As I understand it today, it is a matter of form that everybody in France entering into marriage signs a contracting-out form; because it has been found that people do not want to rush off to court. It only makes matters more difficult. It is a difficult subject.
My noble friend Lady Summerskill said that this was a confidence trick. With great respect, I really cannot have that. Nobody, I think, could have taken more trouble repeatedly to make it plain, particularly to my noble friend, that whatever remedy that could be provided for those subject to the five-year clause under the Divorce Reform Act was contained in the Act itself. On the Second Reading of that Bill in June, at column 327, I said:
"Your Lordships will want to know the position about the Law Commission. They have kept their word. Next month they will be publishing their Report on financial relief. I asked the Chairman whether he would be good enough to summarise it for me in a form which I could read to your Lordships. and with your Lordships' permission I shall now do that. He says:
'You asked whether we could briefly summarise what matters of relevance to the debate on the Divorce Reform Bill will be dealt with in the Law Commission's forthcoming report on Financial Provision. May I say first that in our view none of these is in fact of much direct relevance since Clause 6 of the Divorce Reform Bill will enable the court to protect those who, despite the fact that they have not committed any matrimonial offence and do not want a divorce, may be divorced after five years' separation. It is to these "innocent respondents" that Clause 6 gives the maximum protection possible. All we can do in our promised Report is to extend the powers of the court to make financial orders. thereby affording greater protection than at present to other deserving parties. whether petitioners or respondents. Accordingly those who will principally benefit are those who might be divorced under the present law rather than those who, for the first time. may be divorced as a result of the Bill and whose protection will still depend largely on the draconian powers conferred by Clause 6…
'Our recommendation will attempt to rationalise the present position by'"—
and then he set out in detail the eight principal matters which he thought would be covered by the Report.

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I then said:
"… that this document is perhaps a little difficult to follow and I have therefore already arranged for copies of it to be available in my office, if any noble Lord would like to have one."—[OFFICIAL REPORT, 30/6/69; cols. 327-9.]
Subsequently, on the Committee stage, my noble friend Lady Summerskill again said something to suggest that she or somebody was waiting in some way for some magical provision in this Bill to affect the provisions of the other Bill, and therefore I said—this is on July 15, at column 235:
"In view of what my noble friend Lady Summerskill has said, I think I ought to say a few words with regard to finance. I have done my best to make it plain to my noble friend, and so has the Chairman of the Law Commission, that it is no good relying on a financial provisions Bill to do much that is not already in this, the Divorce Reform, Bill. The arrangements affecting financial provision which the courts can make at the dissolution of a marriage can be improved. It is for the purpose of improving them that the Law Commission is engaged in producing the financial provisions Bill. That would be necessary in their view whether the Divorce Reform Bill is passed or is not passed.
"As the Chairman said in the letter which the noble Baroness read out, he wanted to make it plain that those improvements would in the main apply to people, whose marriages were now being dissolved. This Bill itself contains draconian powers "—
by "this Bill" I meant the Divorce Reform Bill—
"which no petitioner has ever had before."
And then I explained why and referred to Clause 4, and I added:
"I wish that my noble friend would appreciate—I am sure that she must, if she thinks about it—that it is no good looking to me or to the Law Commission, or to the lawyers or to anybody, if in the 118,000 maintenance order cases to which I referred on Second Reading 87 per cent. of the orders are made against men earning less than £15 a week and 43 per cent. are made against men who are earning less than £10 per week. It is no good saying, 'I am waiting for the Lord Chancellor, or I am waiting for the Law Commission '. It is absolutely useless to think that any change that law can make can mean that the deserted wife is in a position in which one would like to see her."
Then I pointed out that her position is in any case not due to divorce at all; it is due to the fact that the marriage has irretrievably broken down. Out of the 118,000 cases, 14,000 had a divorce and the others had not.
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I ended by saying:
"I therefore say again, as I have said before, and as the Chairman of the Law Commission has said before, I do not think that there is going to be anything in a Bill on financial provisions which means that a woman who is the wife of a low wage earner and whose husband has unfortunately deserted her and who has been in that position for five years is going to be put. by anything the law can do, in the same financial position that she would have been if they were still living together."
Therefore I think that the suggestion of my noble friend that she was in some way misled, or that this is a confidence trick, is wholly unjustified.
I am grateful to the noble and learned Lord, Lord Denning, for his support on Clause 35(2). This recommendation has not been received well in all quarters, and so I am very grateful for his support. It is suggested that this will make some appalling difficulties for legislators in a sense that I am not personally satisfied about. I think it is hard for the judges to be criticised for construing an Act otherwise than in accordance with the intention of Parliament while Parliament obstinately refuses to allow the judges to look at documents which would assist them.
My Lords, I should say that the Law Commission are still considering the question of community of property, but it is a very difficult question. It is a much bigger question because, of course, it would apply to all married people in the country, the happily married as well as the unhappily married, and it would inevitably mean alterations to the law on intestate succession, and so on. They are still considering those problems. My Lords, if there is any other matter I have overlooked I will, if I may, write to the noble Lords concerned.
LORD SILKIN: My Lords, would the noble and learned Lord say a word about the date of the commencement of the Bill, to which the noble and learned Lord, Lord Denning, referred?
THE LORD CHANCELLOR: My Lords, I have no strong views about that and I should like to consider it, if I may. It may be that the noble Lord would like to put down an Amendment. There is not a great deal in it because, of course, rules would have to be made. If the Bill reaches the other House before

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Christmas I suppose it would be unlikely to receive the Royal Assent until Easter, so that there is not a great deal in that point. But I have no objection to its coming in early.
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On Question, Bill read 2a, and committed to a Committee of the Whole House.
House adjourned at seventeen minutes past five o'clock.