HL Deb 06 November 1969 vol 305 cc471-89

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 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 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 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 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 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 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 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 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 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- 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 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 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 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 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 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, 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 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 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.