HL Deb 06 November 1969 vol 305 cc494-518

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 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.

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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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- 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 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 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. 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.

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 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.

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

House adjourned at seventeen minutes past five o'clock.