HL Deb 18 November 1969 vol 305 cc854-91

3.17 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 agreed to.

Clause 2 [Financial provision for party to a marriage in cases of divorce, etc.]:


moved Amendment No. 1: Page 2, line 36, at beginning insert ("Without prejudice to the generality of subsection (1)(c) above"). The noble and learned Lord said: I beg to move Amendment No. 1 standing in my name on the Order Paper. I should be grateful if the Committee would allow me to refer also to Amendments Nos. 2 and 5, which are on exactly the same point. The Amendment arises out of a question raised by the noble Viscount, Lord Colville of Culross, on the Second Reading of the Bill, when he suggested that, as drafted, Clause 2(2)(a) could be read as restricting the circumstances in which a lump sum order can be made under Clause 2(1)(c). That was certainly not the intention, and it had not been my view that a court would so construe it. But, as we all know, construction is something on which even lawyers are apt peculiarly to differ, and exactly the same point has been raised by the President of the Probate, Divorce and Admiralty Division. Therefore it is obviously a matter on which there may be doubt; and if there is doubt it is of course wise to remove it. The doubt is removed by prefacing this subsection—and similarly in Amendments 2 and 5—by the words, "Without prejudice to the generality of subsection 1(c) above". I beg to move.


I should like to thank the noble and learned Lord for this Amendment, which entirely meets the point.

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?


May I raise one point before we leave Clause 2? On Second Reading debate I referred to the payment of lump sums and pointed out that all too often the capital just is not there. It has been represented to me by a Committee of the Law Society, however, that where a lump sum is awarded together with periodical payments it is important that the party receiving the lump sum and the periodical payments should not be able to fritter away the lump sum and then seek to increase the periodical payments. It seems to me that where an application was made for a revision of the periodic payments the court would naturally take into account what had happened to the lump sum. I do not know whether it is possible to make any provision that the lump sum shall not be frittered away, but as this point has been drawn to my attention it seems only right that I should mention it.


I am grateful to the noble Lord for raising the point, but I think the answer is as he suggests. The Bill carefully provides that orders for lump sums cannot in the future be varied; they are intended, like a transfer of property, to be a settlement made on the breakdown of the marriage. I do not think any provision could be inserted in the Bill making it impossible for anybody to spend the lump sum, but I think such a person would get little sympathy if he or she tried to obtain an increase in the periodical payments simply because the lump sum had been squandered.

Clause 2, as amended, agreed to.

Clause 3 [Financial provision for child of the family in cases of divorce, etc.]:


This is the second of the three Amendments to which I referred. I beg to move.

Amendment moved— Page 3, line 30, at beginning insert ("Without prejudice to the generality of subsection (2)(c) above").—(The Lord Chancellor.)

On Question, Amendment agreed to.

3.22 p.m.

BARONESS SUMMERSKILL moved Amendment No. 3.

Page 4, line 3, at end insert— ("(6) Whenever the court shall make an order for periodical payments by one party to the other under section 2(1)(a) or (b) of this Bill and also an order under section 3(2)(a) or (b) for the maintenance of dependent minor children of the family, the amount of the order made under section 3(2)(a) or (b) shall adequately cover the cost of maintenance of such children of the family, including the cost of such adult supervision as they shall require, before any sum shall be expressed to be made under section 2(1)(a) or (b).")

The noble Baroness said: Although this Amendment appears to be a little involved, my object is quite simple, and I hope the Committee will agree that it is a praiseworthy one. The object of the Amendment is to provide greater financial security for the children of the parties by making them the first charge on the available resources. I feel that I have powerful support in this matter, for I would ask your Lordships to read footnote No. 70 to paragraph 33 of the Law Commission's Report No. 25. This footnote exhorts the courts to draw a clearer distinction than they do at present between provision for a spouse herself and provision for the children. May I just read that footnote in the Report? It refers to the case of Northrop v. Northrop, and it says: If our foregoing recommendation that provision for a spouse should cease on remarriage is implemented it will behove the courts to draw a clearer distinction than they always do at present between provision for a spouse herself and provision for children, since payments relating to the latter should not cease on the remarriage of the spouse.

I do not believe that this exhortation at the bottom of page 15 of the Law Commission's Report is enough. In my view, we need a legislative provision that where any maintenance order covers maintenance for a spouse and one totally dependent child of the family the first charge—say, £9 per week of the order—must be expressed to cover maintenance for the child, with correspondingly larger amounts for two or more dependent children. The reason I mention the figure of £9 is that £9 per week is suggested in paragraph 173 of the Report of the Committee on Statutory Maintenance Limits (Cmnd. 3587) as the appropriate cost of maintaining one such child. I believe there should be an end to the present fiction that a man is maintaining his former wife when probably in the majority of cases all he is doing is making an inadequate contribution towards the maintenance of the dependent children, whom he helped to bring into the world. I hope that my noble and learned friend the Lord Chancellor will agree with me on this matter because it is quite clear to me that within the Law Commission there must be some great sympathy with my point of view, otherwise the footnote that I have quoted would not have been included in their Report. I believe that only if we amend the Bill in this way shall we implement the Law Commission's Report. I beg to move.


I have listened with the greatest care to what my noble friend Lady Summerskill has said. We shall all, of course, agree on the importance of making proper provision for the children; indeed, this Bill emphasises that in many ways. Although certain applications cannot be made by a spouse after more than a reasonable time following a divorce, there is no time limit so far as children are concerned. But the Amendment which my noble friend proposes provides that whenever a court makes an order for periodical payments by one party to the other for the maintenance of the dependent minor children of the family the amount of the order made under Clause 3(2)(a) or (b) shall adequately cover the cost of maintenance of such children of the family, including the cost of such adult supervision as they shall require, before any sum shall be expressed to be paid under Clause 2(1)(a) or (b) —that is to say, for the wife.

No doubt it is a matter of opinion whether, if there is not enough for the proper maintenance of the wife and children, the children should have it all and the wife should remain destitute. But I should have thought that many of your Lordships would not think that that was the right principle. After all, where there are small children in the custody of the wife, as nowadays is normally the case, whether the wife is what used to be called the "innocent" party or the "guilty" party, the money obviously cannot be paid to small infants. It is paid to the wife, and out of it she provides for them as best she can. She does not write down on a piece of paper how much she spends on food for herself and how much for the children. Moreover, the wife is not necessarily looking after the children; and if she is not looking after the children then the Amendment would clearly produce the wrong result, because it would mean that she would necessarily get nothing unless there was more than was required to cover the cost of the maintenance of the children.

Another difficulty of principle about the Amendment is that it assumes that the maintenance of the children is the responsibility of one parent only. Of course, that is not so: it is the responsibility of both parents; and both should be expected to contribute, so far as they can and so far as their resources allow, towards it. If, therefore, the wife has earnings of her own, it may well be wrong in principle to make the husband responsible for the whole of the children's maintenance.

The Bill is carefully constructed and the Amendment is clearly inconsistent with the structure of Clauses 2 to 5 of the Bill. These clauses provide a code under which the matters to which the court is to have regard in making any of the possible orders are carefully set out. My noble friend's Amendment would, for the benefit of one particular case, cut across the principles laid down. It is clearly in conflict with Clause 5(1) if, as that subsection provides, the result to be achieved is prima facie to put the wife in the same position as she would have been in had the marriage not broken down. It must be wrong to provide that she gets nothing until the full claims of the children are catered for. It is equally inconsistent with Clause 5(3), which clearly contemplates that a husband may properly be ordered to pay reduced payments to a child of the family of which he is not the father. The Amendment would make this impossible. If such a child were included in the order, either he must get full maintenance or the wife can get nothing.

A further difficulty about the Amendment is that it assumes that there will be enough available to maintain the children and to provide, I suppose, for a nurse or a nursery school. I say that because of the words including the cost of such adult supervision as they shall require …". But there may not be enough, and the court cannot then both provide for the wife and comply with the new subsection, except, curiously enough, by making no order for the children, because there is nothing in the Amendment to provide that the court must make an order for the children. The court is given no guidance as to what adequately covers the cost of maintenance and supervision. Some people might think that it would be a good thing if the child went to a fee-paying school, but if so and that had to be provided, there again if there were insufficient to maintain the wife as well she would be left destitute.

One of the curious things about the Amendment is that it has no effect unless the court makes an order for periodical payments in favour of both the spouse and the children. So the court can easily exclude the operation of the Amendment by giving the wife a lump sum; the Amendment would not apply at all. It seems strange that the court's only alternative to giving the children everything may be to give them nothing, which would have the same effect. As a matter of fact, as I am sure the noble Viscount will appreciate, in a sense there is a logical impossibility about the Amendment, because it applies only where a judge is making an order for periodical payments to both wife and children. When it is applied, the wife must not have anything unless the children are fully provided for, but unless an order is made for the wife as well it does not start to operate. I hope very much that when my noble friend considers what I have said she will see the difficulties and will not press the Amendment.


The noble Baroness founded her argument very much on the footnote on page 15 of the Law Commission's Report. I wonder whether the learned and noble Lord could clear up the facts of the situation for me. Plainly, it is right that if periodical payments to the spouse are to cease on remarriage the courts should differentiate, if they can, between those payments and any periodical payments to the children. But even if they do not, as I understand it the periodical payments to the children under Clause 3(2) can be varied on subsequent appli- cation under Clause 9. So, even if the courts do not listen to the good advice of the Law Commission in this footnote and they make some inadequate order at the initial stage which then turns out to be wrong, upon remarriage of the wife there is no reason why somebody should not go back on behalf of the children and ask for the order to be varied. Therefore, the matter is not irremediable if it is not done correctly in the first place, and I think this is a complete answer to the noble Baroness's point.


The noble Viscount is quite right.


Once more I am all alone with the law on the other side, but as I feel I have the members of the Law Commission quite clearly supporting me I feel that I have a strength which, unfortunately, is not represented in this Chamber today. My noble and learned friend has not convinced me; in fact he frightens me when he tells me what the courts might do—the ruthless things which the courts might do. As I shall seek to show on another Amendment, in my opinion the fundamental weakness of this Bill is the fact that any decision is at the discretion of the court. The court is not one single entity; it represents all kinds of different human beings scattered all over the country. Because of that, I think the courts of this country should have much clearer directions, and I agree with the Law Commission in their footnote. We must recognise that leaving these matters to the discretion of individuals, who may well be subjective in their approach, is dangerous.

My noble and learned friend says he hopes that I will not press the Amendment to a Division. I have several Amendments down on the Marshalled List to-day and I probably shall not press any of them—not, I assure the House, because my convictions are weakened, but because whereas on the Divorce Reform Bill we had a free vote, and we were told in July that this Bill was expected to be complementary to the Divorce Reform Bill, there is no free vote to-day. I am astonished and disappointed that a Whip has been issued on this matter. Therefore, it would be simply wearying your Lordships to press the Amendment to a Division, however I regard the Amendment and whatever the justice embodied in it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4 [Orders for transfer and settlement of property and for variation of settlements in cases of divorce, etc.]:

3.37 p.m.

BARONESS SUMMERSKILL moved Amendment No. 4:

Page 4, line 32, at end insert— (" (2) Unless the court finds reasons to the contrary, which shall be stated, it shall make an order under section 4(1)(a) for the transfer to the other party of property which shall put that other party in possession of approximately one half of all property acquired by either or both parties during the marriage.")

The noble Baroness said: I beg to move Amendment No. 4. I am moving this Amendment in order to incorporate a provision to protect that wife for whom all the House had great sympathy on July 24, the woman innocent of any matrimonial offence who, on the operation of the Divorce Reform Act, can be divorced against her will. I am sorry to repeat this, but it is a piece of very important history which I think should be recalled. In July, when an Amendment was accepted by the promoters of the Divorce Reform Bill that the operation of the Bill should be postponed until January 1, 1971, we were under the impression that that would enable the Government to introduce a Bill which would contain provisions to protect that particular wife, whom we call the paragraph (e) wife. I have said this before but I must repeat it. The Bill before us now had already been prepared on July 24, and instead of being amended, as one would have thought after that debate on July 24, nothing at all was done; the Bill was printed and published as it was, and it is before us to-day. Therefore, all those excellent speeches showing the compassion of Members on both sides of the House for the woman who is going to be divorced against her will meant nothing. This Bill was printed, published and no amendment made.

What I am trying to do to-day is to move an Amendment which in my opinion should have been incorporated in the Bill. The Law Commission's Report No. 25 expressed the view that in considering financial provisions regard should be given to the contribution which over the years the woman makes to the home in terms of service—cooking, cleaning, bearing children, looking after children, looking after her husband and so enabling him to go out and earn a wage or salary. This point has been pressed time after time, and at long last it is a recommendation of the Law Commission's Report, and is mentioned in the Bill in Clause 5(1)(e). But this provision, which surely equity demands, is left to the discretion of the court. However individuals up and down the country may feel about the contribution which a woman makes to the home, it is left to the discretion of the court whether that contribution shall be reflected in the financial provisions which are made.

In many families the possessions accumulated over the years consist of a modest terraced or semi-detached house, probably with a mortgage on it, some furniture and a second-hand car—I am thinking in terms of people whose earthly possessions are things of that kind which have accumulated over marriage. I believe that these small accumulations can be attributed as much to the wife's good management and services in the home as to the husband's capacity to earn a wage or a salary, and I believe that the Matrimonial Property Bill, which passed its Second Reading in another place but was withdrawn in anticipation of an improved measure, contained this provision. That Bill obtained a large majority in another place.

I am not for one moment trying to legislate for the tiny minority of "gold diggers" who, having lead a parasitical existence, would on a divorce automatically take half of the property or goods. I am not concerned with those women. Everybody knows that they exist. We have heard so much in regard to this new Bill about a woman supporting her husband that I suppose that soon "gold digger" will be applied to both sexes. But since before this Bill is passed it refers to a female, I say that I am not concerned with her. I believe that she can be outwitted—I deliberately use the word "outwitted" about that kind of woman—by the opening words of this Amendment; namely, Unless the court finds reasons to the contrary, which shall be stated,"— in other words, the court shall be told that this particular woman has made but little contribution to the home and that she really is not entitled to a fair share of the accumulated goods. But with regard to the lower income groups, I am concerned that unless the first wife is specifically protected and given a first claim on the available resources she will be denied elementary justice.

This Amendment draws attention to what I have already said is a fundamental weakness of this Bill; namely, the lack of any rules limiting the discretion of the court. It lies with any court simply to decide how a woman, innocent in the matrimonial sense—not for one moment do I say that when a marriage breaks up one individual is completely innocent—is to be treated. I believe that the treatment accorded her in regard to financial provision is left to the complete discretion of the court. I think this is grossly unfair and that if we arc to secure justice there should be some specific direction. I beg to move.

3.43 p.m.


What the Bill does is all the Bill can do. It extends the powers of the court by allowing it, not alternatively but cumulatively and in a proper place, to award not merely those payments which have to be made while the suit is going on but, on a divorce, periodical payments, or a lump sum, or a transfer of property; and things can be secured. For the first time it puts down in writing in Clause 5 the matters which the court is to take into account. This is really the effect of the present case law plus something which has never been put down before; namely, that the court should have regard to the contribution which the wife has made by staying at home and looking after the family. But every case varies, and it would be quite impossible to draw up some sort of mathematical table as to what a judge should do. Naturally, where circumstances vary so much, it must be a matter of discretion.

What this Amendment would do is to introduce the substance of Mr. Bishop's Bill, which was designed to provide for community of all property. The Committee should be clear as to exactly what the Amendment says. It says: Unless the court finds reasons to the contrary"— so again it really all goes back to the judge's discretion— which shall be stated, it shall make an order under section 4(1)(a) for the transfer to the other party of property which shall put that other party in possession of approximately one half of all property acquired by either or both parties during the marriage". That is a principle which I should have thought is just as likely to lead to the wrong result as to the right or the fair one. Are half the wife's hard-earned savings to go to pay the husband's bookmaker? Are half his business assets, acquired independently of his domestic life, to be taken away from the business and given to a woman who knows nothing about business? He may have turned his business into a limited company with 100 shares, and he has the 100 shares. What happens if he gives 50 shares to his wife? All in the courts are familiar with the impossible position where two men jointly own a company and they fall out. If one calls a directors' meeting and the other does not attend, the only thing to do is to put the company into liquidation, just as, where there are two 50 per cent. partners who do not agree, the only thing to do is to wind up the partnership. Again, if the husband has deserted his wife and the wife remains in the matrimonial home with the children, is she to be obliged to hand to her husband half the furniture, although he may have plenty of pre-marriage furniture of his own? Curiously enough, under this Amendment the interests of the children appear to be ignored. And when a judge is to do this and when he is not is left entirely to his discretion. So one again comes back to discretion.

The fact is that in the Bill there is a consistent scheme. Clauses 2 to 5 constitute a coherent whole, and Clause 5, with its guide-lines, is equally applicable both to orders made under Clause 4 and to orders made under Clause 2 or Clause 3. The Amendment singles out a particular type of order and requires it to be made regardless of the guide-lines. It says nothing about the relationship of such an order to other forms of financial provision. Is a transfer in pursuance of the order to be treated as part of the financial provision made for the transferee, or is the court first to direct the transfer and then apply Clause 5 to the post-transfer situation. No guidance is given, and it is difficult to see what my noble friend intends.

But apart from this, when one thinks of the practical side of it one realises that the court has to take into account every piece of property which has been acquired by either party during what may have been a marriage of thirty years, and then it all has to be valued. It is clear from the Amendment that this includes property which has been acquired and subsequently disposed of. Whether that is to be given credit in the receipts, I do not know. But what ordinary people could write down everything which either of them has acquired during a period of thirty years, let alone value it? I suppose they both would have to engage valuers; and we have not got the Registrars or Masters who could do this work in 40,000 cases a year. Whether gifts or legacies received from a relative would be included or not, one does not know.

I have always wanted to see some form of community of property. That is what most married people arrange for, only they do not do it in a very legal way. They arrange between themselves who is going to pay the rent and who is going to pay the hire-purchase instalments, and how much of whose earnings the other spouse is going to have. Difficulties of this kind about community of property accounted for one of the reasons why Mr. Bishop's Bill really could not be allowed to go through. You cannot have any form of community of property which is limited to the spouses of marriages which break down. Otherwise you would leave the good wife, whose marriage endured until her husband's death, in a worse position than that of a nagging wife whose nagging had caused the marriage to break down. You would really have to alter our laws of intestate succession. You would find, too, that you would have to provide most carefully for the rights of third parties which arise in property transactions. You can only do what is proposed if you apply it to married people as a whole. That means that if you are going to have community of property—and if a practicable form can be found I have always been in favour of it—you have to apply it to married people as a whole. But you must remember that you are dealing in that case with virtually the whole of the private wealth of the whole country, because nearly all private wealth is owned by adults who are married.

The Amendment does not deal at all with the rights of third parties. It is silent about legal ownership. It says that possession has to be transferred, though what exactly happens to legal ownership I do not know. And surely it is not right, on the face of it, there being such things as millionairesses (though I do not know that I have myself ever come across one), that if a man marries a millionairess and the marriage ends, whether or not it is his fault, after two or three years, he should be able to walk off with half a million.

The truth is that the Amendment is seeking to introduce community of property by the back door; and it is open to all the objections and difficulties which the Law Commission, who are still considering the question of community of property, have found arises with regard to it. As I think I said on the Second Reading, one of the great difficulties about any scheme of community of property is what is to happen if the partners do not agree. In some American States where there is community of property they answer that by saying that, if the parties do not agree, in a case where the husband has had a good year in his business, and wants to plough the money back in his business and the wife wants the house redecorating and a second car, what the husband says goes. Well, that is not quite the sort of community of property that I have in mind: it seems to me that then you go back to square one.

Under the French system, and again I think in Roman Dutch law, if there is a dispute the parties go to the court. This is not really the best way of having a happy marriage, for the parties to be always going to court. Those systems, however, also allow for contracting out; and, as I understand the position, in France, owing to the practical difficulties which have been found in implementing their community of property, all modern people, as a matter of common form, now contract out at the time they enter the marriage. So the problem needs a very great deal of consideration, and I am afraid that the proposed new subsection, which in effect attempts a form of community of property in saying that the other party shall be left with one half of all the things which either party, or both of them, have acquired at any time during the course of the marriage, is open to all the difficulties which I have suggested. In these circumstances I hope that the Committee would agree that the Amendment should not be accepted.


I wish to make only one remark about my noble friend Lady Summerskill's argument. As usual, all the arguments made by my noble friend lead one to only one conclusion: that what my noble friend desires can be obtained only in a polygamous society. It is only under polygamy that one can have the discarded wife protected in the way my noble friend would like. I doubt whether she would like polygamy in this country, or whether most of the women in this country would also desire that, even to protect the discarded—and what my noble friend calls the "innocent"—wife.


With respect, I entirely agree with the noble and learned Lord the Lord Chancellor about the catalogue of difficulties of this Amendment, and I very much hope that the Committee will not accept it. However, there was one thing the noble Baroness, Lady Summerskill, said that greatly perturbed me; and it is a matter of the broad principle that runs right through this Bill. She said that it is a fundamental defect of this Bill that the type of order that is to be made, the financial provisions and various other matters of this sort, are to be left to the discretion of the court. I suggest to the Committee that this is not a fundamental defect; it is the cardinal merit of this Bill, and it is literally the only way in which these things can be dealt with. It is ludicrous to suppose that one can lay down hard and fast rules—as this Amendment proposes, in a subject matter of this complexity, and with the variety of different circumstances that come to the courts—and suppose that you are going to get justice. You will not get it. And if the noble Baroness thinks that is a defect, then I would suggest that her entire approach to this Bill is wholly misguided and really ought to be re-thought out again.

3.56 p.m.


I am very surprised to hear all these denunciations of me for suggesting something which, in my opinion, is based on equity. My noble friend Lady Gaitskell talks about polygamy. Is there polygamy in the Scandinavian countries? Is there polygamy in Norway, Sweden, Finland, France, Italy or Germany? Are all the lawyers there so utterly dumb and stupid that they do not know what they are putting on their Statute Books?


I wonder whether my noble friend—


Perhaps the noble Lord will wait until I finish the sentence. Surely these enlightened countries have lawyers who are equally eminent to the noble Lord opposite and my noble and learned friend here. Why is it that they put this provision on the Statute Book in their laws? Are they all stupid? Are they all convinced that this will ruin marriage? Do they have polygamy there? My noble friend on the left said that this could operate only in polygamous countries, though in fact it is operating in so many enlightened European countries. She may say that there may be some polygamy in the United States, but the fact is that this provision is also operating in States in the United States. Are all the lawyers there obtuse, stupid, failing to understand that they are putting on to the Statute Book something which should not be there?

I am very disappointed in my noble and learned friend the Lord Chancellor when he raises these niggling little legalistic objections, and then charges me with bringing something in by the back door. Does my noble friend think that I am afraid to bring anything in by the front door? I have been forced to do this because the Bill that we should be debating is the Matrimonial Property Bill, which gained a large majority when all this was discussed in the other place and the lawyers spoke and made their contribution on this provision now before your Lordships. And what happened after a long debate in another place? It was passed by a large majority. Am I so utterly stupid and blind in trying to get something on the Statute Book that will not work? What nonsense! I say that the situation that we have to-day is based on prejudice, custom, and a failure to recognise that the woman in the home is making a contribution to-day which should be recognised.


I wonder whether my noble friend could tell us, as she has mentioned a number of places which have this rule, how many of these have a provision for contracting out.


I should think that probably they all have. Of course, if they want to contract out, they can do so. If we want to do so, we can contract out of a great deal of our legislation. There is other legislation on the Statute Book which give those concerned a right to contract out. I do not object to people contracting out. What is the objection about that? There we have the back door for somebody to go out of the back door if he or she wants to do so. All I am saying—and the noble Lord is strengthening my case—is: let us try what these other countries are trying. To say that everybody arranges soon after marriage to contract out is not true. I should not be so foolish as to come to this House and discuss this question without having had consultations with some of the most eminent lawyers in the country—lawyers who know the law in other countries—who have discussed it with me; and all I am now asking is that we should introduce a provision which has been accepted in so many other countries, and which has benefited the innocent wives we are talking about. I shall not press this Amendment to a Division. There is a Whip on and the chances of my getting a majority are absolutely nil. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Matters to which court is to have regard in deciding what orders to make under ss. 2, 3 and 4]:

On Question, Whether Clause 5 shall be agreed to?


During the debate on Second Reading, I raised a point on Clause 5. The noble and learned Lord was good enough to write to me and say that it was still under consideration, and I understand that an Amendment may be forthcoming at a subsequent stage of the Bill. Will the noble and learned Lord confirm that that is so?


Yes, that is the position. We are still looking at the matter. I have to consult the Law Commission as to their original draft. I thought the point of the noble Viscount was right. As I said, this matter is still being considered and I hope to produce an Amendment at the Report stage of the Bill.

Clause 5 agreed to.

Clause 6 [Neglect by party to marriage to maintain other party or child of the family]:


I beg to move Amendment No. 5, which is one of the three Amendments with which I opened.

Amendment moved— Page 7, line 38, at beginning insert ("Without prejudice to the generality of subsection (6)(c) and (f) above").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Duration of certain orders made in favour of party to marriage and effect of remarriage]:

THE LORD CHANCELLOR moved Amendment No. 6: Page 8, line 28, leave out ("any such proceedings") and insert ("proceedings for judicial separation").

The noble and learned Lord said: Clause 7(2) refers in paragraph (a) to "proceedings for divorce or nullity of marriage", and in paragraph (b) to "such proceedings". That obviously refers to proceedings for divorce or nullity of marriage, but paragraph (c) refers to "proceedings for judicial separation". It is not quite clear whether "any such proceedings" in paragraph (d) refers, as it was intended to refer, to the immediately preceding kind of proceedings mentioned in paragraph (c)— namely, judicial separation—or to those referred to in paragraph (a). Therefore, the purpose of this drafting Amendment is to prevent any possible ambiguity. I beg to move.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Provisions as to powers of court to make orders in favour of children and duration of such orders]:

4.3 p.m.

BARONESS SUMMERSKILL moved Amendment No. 7: Page 9, line 38, leave out subsection (4). The noble Baroness said: May I read subsection (4) to the Committee, so that it will be quite clear what I intend to do? It reads: (4) An order made by virtue of section 3(2)(a) of this Act or section 6(6)(d) thereof shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order except in relation to any arrears due under the order on the date of such death. The purpose of my Amendment is to delete that provision. I feel that there is one matter about which we must all be agreed, and that is that dependent children must, wherever possible, continue to be provided for on the death of the payer. There is no reason why orders for the maintenance of children of the family should cease on the death of the payer, which makes it necessary for renewed application to be made under the Inheritance (Family Provision) Act for the child's maintenance during minority or incapacity.

I want to know why it is necessary to frame the Bill in such a way that this should have to be done. I believe that by deleting subsection (4) the children will continue to be maintained without further action, which I should have thought was highly desirable. I should like to know from my noble and learned friend whether this Amendment can be accepted, in order to remove the difficulties of taking further action on the death of a payer.


I gladly respond to my noble friend's request. As your Lordships see, the Amendment is intended to enable an order for unsecured periodical payments in favour of a child to continue in force after the payer's death. The Law Commission had canvassed the possibility of empowering the court to order unsecured, as well as secured, periodical payments to last for the life of the payer. But the practical advantages would be so slight and the resulting difficulties so great that the Law Commission concluded that no such power should be given to the courts. The Commission accordingly recommended the preservation of the current rule, that an order for unsecured periodical payments cannot last beyond joint lives. So far as provision for a spouse is concerned, this rule is embodied in Clause 7(2)(a); and subsection (4) of Clause 8, which the Amendment would delete, applies the same rule to orders in favour of children.

I am not quite clear why the noble Baroness distinguishes between children's orders and spouses' orders. But the reality of the situation is that, unless the estate comprises a substantial capital asset, there will be nothing out of which the periodical payments can be made, while, if there is capital, the surviving ex-spouse has her remedy under Section 26 of the 1965 Act, and any dependent child can apply under the Inheritance (Family Provision) Act 1938 for maintenance out of the estate.

There are many occasions on which it is both practicable and fair that periodical payments, whether for a surviving ex-wife or for children, should continue to be made after the husband's death. But an essential feature is his ownership of capital. If that capital exists at the time the order is made the payments can be secured on it. If it comes to light only on his death, then the ex-wife and dependent children already have their remedies.

There are also practical difficulties involved in the Amendment. On the death of the husband there would be nobody liable or authorised to pay until representation to his estate had been taken out. Secondly, a liability to make periodical payments not secured on any particular assets would raise estate duty complications and would lead to delays and difficulties in connection with winding-up the estate. Since the practical advantages, if there are any, would be so slight, it is not worth while creating all these difficulties. It is for those reasons that I respectfully agree with the course which the Law Commission have recommended, and which has been taken in the Bill.


I thank my noble and learned friend for that explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Variation, discharge, etc., of orders for financial provision]:

4.9 p.m.

THE LORD CHANCELLOR: moved Amendment No. 8:

Page 10, line 23, leave out subsection (5) and insert the following subsection— ("(5) No such order as is mentioned in section 4 of this Act shall be made on an application for the variation of an order made by virtue of the said section 2(1)(a) or (b) or the said section 3(2) (a) or (b), and no order for the payment of a lump sum shall be made on an aplication for the variation of an order made by virtue of the said section 2(1)(a) or (b) or the said section 6(6)(a) or (b).")

The noble and learned Lord said: This is a drafting Amendment. As drafted, Clause 9 (5) prevents the making of an order for the transfer or settlement of property, or the payment of a lump sum, on an application to vary an existing order for periodical payments for a spouse or child, whether made on divorce, nullity or judicial separation or in proceedings instituted on the grounds of wilful neglect to maintain. But there is no reason why the court should not have power to order a lump sum payment in favour of a child on an application to vary an existing order for periodical payments in his favour, since an application for a lump sum payment for a child can be made at any time. Accordingly, the amended version of Clause 9 (5) allows a lump sum order to be made on such an application in favour of a child, but not on an application to vary an order for periodical payments to a spouse. I hope that my noble friend Lady Summerskill will approve of the spirit of the Amendment. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 9. Page 10, line 42, leave out ("is") and insert ("was") The noble and learned Lord said: With the Committee's approval, I should like to take Amendments Nos. 9, 10 and 11 together, as they are all linked Amend- ments. These linked Amendments cure a drafting defect in Clause 9(7). As drafted, Clause 9(7) requires the court, in exercising its powers to vary, and so on, an existing order, to have regard to any change in any of the matters to which the court is required to have regard by section 5 of this Act. … Clause 5, however, applies only to orders made under Clauses 2, 3 or 4, and not to an order made under Clause 6, which deals with wilful neglect. Clause 9(7) is equally applicable to an order made under Clause 6, and it is therefore inappropriate to refer to Clause 5, which in such a case would be irrelevant.

As amended, the relevant part of subsection (7) will read: … change in any of the matters to which the court was required to have regard when making the order to which the application relates and where the party against whom that order was made…", and so on. I beg to move.

On Question, Amendment agreed to.


I beg to move Amendment No. 10.

Amendment moved— Page 10, line 42, leave out ("by section 5 of this Act") and insert ("when making the order to which the application relates")—(The Lord Chancellor.)

On Question, Amendment agreed to.


I beg to move Amendment No. 11.

Amendment moved— Page 10, line 43, leave out ("the order in question") and insert ("that order")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clauses 10 to 29 agreed to.

Clause 30 [Extension of s.17 of Married Women's Property Act 1882]:

4.12 p.m.

BARONESS SUMMERSKILL moved Amendment No. 12:

Page 23, line 39, at end insert— ("An application may also be made by a surviving spouse under the said section 17 as amended, against the personal representatives of a deceased spouse within six months from the date on which representation in regard to the deceased spouse is first taken out.")

The noble Baroness said: I beg to move the Amendment standing in my name. It seems to me that it is an outstanding anomaly that all the financial remedies under the Matrimonial Causes Act, under the Matrimonial Proceedings and Property Bill before us and under Section 17 of the Married Women's Property Act 1882 cease on the death of one of the parties. The Law Commission considered Section 17 of the Married Women's Property Act 1882, and in paragraph 61 of the Law Commission's Report No. 25 said: … on balance"— and I want to emphasise the words "on balance", because it is quite clear to me that the Law Commission must have been a little uncertain, and that there were those who took one point of view and those who took another— we believe that this would be inappropriate"— that is, that the remedy under section 17 should be available to or against personal representatives of a deceased spouse.… However, other lawyers believe that there are many good reasons why it should be available. Surely, there was no good reason why Section 23 of the Act of 1882 should have been repealed in 1962, and the recent decision in the case of Thornley in 1969, which is very well known in legal circles, illustrates the hardship which may result from the present position.

May I briefly describe to your Lordships the case of Thornley. In that case the husband and wife married in 1938. They opened a joint account, into which the husband paid £2,000 and the wife between £400 and £500. After various property dealings, they acquired for £5,000 a public-house with 32 acres of agricultural land, which they let. Of this sum, about £4,000 was borrowed and subsequently repaid. The judge found that the wife—and I quote: … worked hard and contributed to a considerable extent in the success of that business. The business was that of a public-house, and I think everyone realises that the right woman behind the counter in one of those places makes an important contribution and that it is a very hard and exhausting job.

From 1958 the husband became very violent when in drink, and in 1962, after twenty-four years of marriage, the wife left him after he tried to strangle her. The judge said: This gravely wronged wife, who, after some years of reasonably happy domesticity, endured four years of intermittent fear for her safety, was then ignominiously pensioned off with a weekly pittance of £5, her husband flatly refusing to give any undertaking even as to that". The husband continued to run the public-house with the help of another woman who came to live with him there and whom he treated with similar violence. In 1966 the husband took his own life after a quarrel with her. I remind your Lordships that this was only four years after the wife had left, and after she had been married for twenty-four years, during which they had built up the business.

His estate was worth about £16,000, of which he left £1,000, the public-house and agricultural land worth about £12,000 to the other woman; an annuity of £416 for life to the wife; and the residue equally between the wife and the other woman. On the facts, it is clear that if the wife had taken proceedings under Section 17 during the husband's lifetime she would have had a good claim to a considerable share, if not a half share, in the public-house and land. This property was not the husband's to give, but because he was dead before the wife applied to the courts all the property was considered his alone, and passed by his will. The widow was left with her £416 a year and such provision as the court could make for her from his estate under the Inheritance (Family Provision) Act. That was this year.

Even where there has been no marital disharmony there is a strong case to be made for an application under Section 17 after the death of one spouse. Suppose the couple engage in a joint enterprise, as in the Thornley case, and they have two adult children who also help in the business. Suppose also that the wife then dies, leaving to the children equally all her interest in the business, which has never been quantified by a court. As matters now stand, the children can claim nothing, and will be entirely at the mercy of the surviving parent, who might, for example, bring another wife into the enterprise, to the total exclusion of the children's claim under their mother's will, as well as under our present law of intestacy unless more than £10,000 is involved.

I should like to ask my noble and learned friend the Lord Chancellor not to give a hasty decision now unless he feels absolutely confident he can do so, but to examine the cases that I have quoted—cases which came before the courts and about which we therefore know all the details. But, of course, there is equal injustice in other cases of which we do not know the details because they have never come before the courts. I would ask him to consider this matter very carefully, particularly so since the Law Commission arrived at their conclusion on balance and perhaps—who knows?—if they had considered it longer or at another time (or even later on with, perhaps, a new Law Commission) they might have come to a different decision.


I should be happy to read the cases to which my noble friend has referred, to consider them and perhaps to return to the subject at the Report stage of the Bill. Meanwhile, if I may, I will explain my present view. It is this. It is quite right to say that the Law Commission considered making Section 17 applicable to claims after the death of a spouse, but they came to the conclusion that it was inappropriate. I am not sure that my noble friend realises that Section 17 does not confer any rights on anybody. It is a form of procedure. Where the form of procedure is used then the court has to apply what I might call matrimonial property law. Section 17 is merely a useful procedure between husband and wife where it is disputed whether some of the property—very often it is wedding presents—belong to both or to the husband or to the wife. It is a procedure which involves a hearing in Chambers at which the parties give their evidence before the Master or Registrar.

The two spouses are necessarily in conflict with each other and it is generally thought to be in the public interest that that kind of thing should be heard in private. That is what this particular procedure is for. But if one of the parties is dead there is no such public interest. Moreover, there is a public interest in seeing that disputed claims to a deceased person's property are not litigated behind closed doors. The widow, or widower, and the executors may have the same interest in establishing before the court that the property was not that of the deceased—for example, to avoid estate duty or to defeat a legatee. Indeed, the surviving spouse may himself or herself be the executor, and if he or she is to obtain a judgment from the court it should be obtained openly. If a right to apply under Section 17 is to be given to a surviving spouse against the other spouse's estate, a corresponding right would have to be given to the personal representatives to proceed against the survivor; otherwise cross claims which might exist could not be decided in the same proceeding. The Amendment does not do this.

Therefore, while I sympathise with my noble friend's objects, I think she is rather under the impression that Section 17 in some way confers a right on a spouse whereas it is really only a very convenient procedure where a husband and wife cannot agree as to whether something belongs to one or the other or both. I will read the cases referred to by my noble friend, and if she wishes to raise the matter at Report stage I have no doubt that she will do so.


I thank my noble and learned friend. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 agreed to.

Clause 32 [Order for maintenance of party to marriage made by magistrates' court to cease to have effect on remarriage of that party]:

4.24 p.m.

THE LORD CHANCELLOR moved Amendment No. 13: Page 24, line 29, at end insert ("and shall not be capable of being revived")

The noble and learned Lord said: This Amendment resolves a possible doubt which could arise on the construction of the new subsection (4) inserted by Clause 32(1) in Section 7 of the Matrimonial Proceedings (Magistrates' Courts) Act 1960. There is authority for the proposition that where a magistrates' court order has ceased to have effect it can nevertheless be revived by the magistrates' court. It is not intended that an order ceasing to have effect on the payee's remarriage should ever be revived and the Amendment makes it clear that there is no power to revive it. I beg to move.

On Question, Amendment agreed to.

Clause 32, as amended, agreed to.

Clauses 33 and 34 agreed to.

Clause 35 [Citation, construction, commencement and extent]:

BARONESS SUMMERSKILL moved Amendment No. 14: Page 25, line 26, leave out ("Matrimonial Proceedings and Property") and insert ("Financial Provision in Matrimonial Proceedings")

The noble Baroness said: I beg to move Amendment No. 14. I move it because I believe that the Short Title is misleading. The Bill is concerned not with matrimonial proceedings but with financial provisions and with children of the family; it is only marginally concerned with property. I agree that if this Bill had been the kind of Bill we anticipated (which of course would be complementary to the Divorce Reform Act) the present Title would be relevant; but at the moment it is not. I say "at the moment" because I anticipate (the Lord Chancellor has mentioned that the Law Commission have other things in their minds) that we shall have another Bill as soon as possible which will strengthen the one before us, and that we shall have one dealing with property and with matrimonial affairs which are related to finance. I feel that the Bill before us has failed, because the House was given a promise which has not been kept. Therefore, this Bill comes before us with this Title—which of course has no relationship to its contents.


There may always be two views as to what is the right Title for a Bill. I must again make it plain that my noble friend is quite inaccurate in saying that anybody made a promise which has not been kept. I do not want to repeat what I have said previously; but I would remind the Committee that on the Second Reading of the Divorce Reform Bill, I said that it was no good whatever relying on the financial provisions of the Bill which the Law Commission were working out to help wives under the Divorce Reform Bill because the Divorce Reform Bill itself, particularly in Clause 6, did everything for them financially which could be done.

I may remind the Committee again that on the Second Reading of the Divorce Reform Bill I produced and had copied and circulated a letter from the Chairman of the Law Commission making this plain. With great respect, I do not think that the alternative Title suggested by my noble friend would be right, or that it is either elegant or accurate. This is not a Bill simply to deal with financial provisions; it also deals with property—


And proceedings.


And proceedings. Clause 20 abolishes the restitution of conjugal rights. That is not concerned with financial provision. Nor are Clauses 17 to 19, which deal with the custody of children. A large part of Part II of the Bill has nothing to do with financial provision, but deals really with property. Clause 28, a most important clause, is in relation to property. Clause 29 deals with possession of the matrimonial home: that again is not financial. Clause 30 deals with Section 17—which again relates to property rights. Clause 33 abolishes the agency of necessity.

I never feel passionately about the question of Title, and I welcome the Committee's views. But I should have thought that "Matrimonial Proceedings and Property Bill" is a more accurate Title, in relation to the content of the Bill, than my noble friend's suggestion, which would make it the "Financial Provision in Matrimonial Proceedings Act". The latter I should have thought, with great respect, would not be an improvement.


I wish to thank my noble and learned friend. I did not think for one moment that I should succeed in persuading him to change the Title, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.30 p.m.


Amendment No. 16 is a drafting Amendment which extends Clause 35(2) so as to permit the court to refer also to the Law Commission's Report advocating the abolition of restitution of conjugal rights, as well as to the Report on financial provisions. I beg to move.

Amendment moved— Page 25, line 29, after ("had") insert ("to the Proposal of the Law Commission for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights (Law Com. No. 23) and").—(The Lord Chancellor.)


I wonder whether I may take the somewhat unusual course of asking the noble and learned Lord the Lord Chancellor to think again about this Amendment. I entirely appreciate that there is merit in the novel suggestion already in this subsection, that the courts and practitioners and the public should look at the Law Commission's paper No. 25, which contains a great deal of explanation about substantive changes in the law of great complexity. Paper No. 23 is a rather different matter, however. All that is done by Clause 20 of this Bill is to abolish the old remedy about the restitution of conjugal rights. The Law Commission's paper setting out the reasoning on this matter contains the following contents. There is an introduction saying when they were asked to look at this; there is a history of the decree of restitution, setting out the present position and the number of petitions under these proceedings in a certain number of years. Then there are the arguments for retaining the remedy and for abolishing it, and a conclusion in which they recommend that it should be abolished. There is also a draft clause, only part of which reappears as Clause 20 because the consequential Amendments were not made.

I cannot think that in construing Clause 20 a court would ever want to look at any of that. There cannot be any question of a court or anybody else construing Clause 20, because there is nothing in it to construe. It merely abolishes an old remedy and there will be nothing further upon which any litigation would take place. There does not seem to be any explanation that anybody would want to have, and I am a little nervous about getting too much of this material referred to as a matter of Statute. There are, no doubt, instances when it is quite right, but I think we ought to be rather careful and not go in for a wholesale inclusion of a whole lot of material, particularly when, as I suggest is the case here, it will not help anybody at all to see what the Bill means.

I do not know whether the noble and learned Lord would be good enough to look at this point again; it occurred to me only when I got the Law Commission's paper, but I think there may be something to be said for not having this Amendment. Certainly I should not wish to divide the Committee against it, but if the noble and learned Lord thinks there is anything in what I have said perhaps he will reconsider it, and we can come back to it at the next stage in the Bill if he still wishes to proceed.


I should have liked to proceed with this Amendment now. Obviously it is not a point of vast importance either way, but is it not going to appear to anybody to be rather odd if, in a Bill which everybody knows proceeds from two Reports of the Law Commission, there is a clause which says that you can look at one Report but you cannot look at the other? While I have not at present in mind an obvious conflict on the question of the construction of Clause 20, experience suggests that it is almost impossible to have a clause upon which some lawyers cannot find some point to raise. It would look very odd, and they would say, "I wonder why on earth they abolished the restitution of conjugal rights. I know there is a reference to go and look at which will tell me the answer, but I am not allowed to look at it." It will look odd—will it not?—if you get legislation, notoriously well known to have resulted from two different Reports, in which it is stated that you may look at one Report but, whatever else happens, you cannot look at the other? I should have hoped that the Committee would be prepared to accept the Amendment to-day. If, having considered that, the noble Viscount returns to the attack on Report stage I shall be quite ready to consider it again there.


May I just say that I should be perfectly content with that course, but I think it raises the question of why we are making a statutory reference to these papers. I should have thought, with respect, that what we wanted was to draw to the attention of the courts, the petitioners and the public the detailed explanation of how the major provisions of this Bill were arrived at, and how they are meant to work, and of the cross-references. For that purpose I think that reference to the Law Commission Paper No. 25 is a good idea, certainly as an experiment, and that this is an admirable occasion on which to carry out such an experiment.

But I think it is for the interpretation of the clauses of this Bill, and not for any other purpose; that the references are wanted. After all, if it is for any other purpose; if it is for writing learned treatises or making speeches in your Lordships' House, or anywhere else, one can look at the Law Commission's Papers, all of them. But if we are legislating in this way in order to extend the material which courts may look at, which is what I think we are doing, then I feel that we should be careful. After all, why should they not look at the OFFICIAL REPORT of the debates in this House? There are changes which the noble and learned Lord has moved by way of Amendment to-day. There is no suggestion that those should be looked at by the courts; and of course I am not suggesting that they should. But, according to the noble and learned Lord's argument, they would be just as relevant, I think, as the Law Commission's Paper No. 23.

I take the point that it would be a little strange, but it is strange only if you are embarking on a fairly widespread permission for the courts to look at extraneous material outside the Bill. If, as I believe, we ought to be careful about this and allow them to look only at material which is helpful in interpretation, I still think that the Law Commission's Paper No. 23 is not going to help interpret that clause. But I agree with the noble and learned Lord that perhaps we can consider the matter further before the next stage.


May I very briefly support my noble friend in this matter? I think that the Amendment which the noble and learned Lord, the Lord Chancellor, is moving would be justified only if it could help the courts in interpreting some clause other than Clause 20. If it could, then I agree that there is something in it; but I cannot see, for the reason given, how any conceivable question could arise that would give a court the least difficulty on Clause 20. So far as Clause 20 is concerned, this is completely unnecessary.


I was about to draw attention to Clause 35(2) because I think that we are probably embarking on an experiment which could be dangerous. I feel that to some extent it ties the hands of the judges. Hitherto we have always regarded it as the duty of the judges to interpret the law in the light of their own individual wisdom, and I do not think it is wise to ask a judge, when interpreting an Act of Parliament, to refer to a document which has not quite the statutory authority that an Act of Parliament has.

I am not a lawyer, but in my young days I spent many years reporting cases in every type of court, from the magistrates' court to the High Court. I have never been a member of another place although I spent many years in my young days as a lobby correspondent there. From time to time I have heard, both in the courts and in another place, that when an Act of Parliament is being interpreted the judge, the magistrate, or whoever he may be, must not have regard to what the promoting Minister said he wanted the Act to mean when he was introducing it. If we are not to take into account what a Minister says when introducing a Bill, and speaking from what is probably a very carefully prepared brief drawn up by the Department in which Bills are promoted, I hardly think it wise for us to say to a judge, "You are not to take the words of this law as they are printed, but you are to interpret them in the light of some other document which you will get out of the library".

I think that this would also tie the hands of a judge when he came to interpret certain provisions in the light of the decisions made in the past by the highest courts in the land. Our legislation should be drafted with such clarity that a judge can interpret it and understand what it means. If we are asking a judge not merely to read the Act of Parliament, upon which pleas are being put before him in his court, but to refer also to some semi-official document, I think that we are moving in a very dangerous direction.


I had not intended to intervene on this matter because I arrived rather late and did not have the benefit of the opening exposition of my noble and learned friend the Lord Chancellor and heard only a fragment of the subsequent speeches. But in view of the speech of my noble friend Lord Leatherland and of some other comments, I should like to put in a word in favour of this kind of provision. I venture to think that it is a progressive move.

Hitherto, our courts have always been rigidly tied to the literal interpretation of the actual words before them, even though in many cases it might be possible to ascertain what is the real intention of Parliament. In many countries, including the United States, a much freer use has been allowed of legislative material, such as Reports upon which legislation is based. I venture to suggest that this is a peculiar type of legislation, in which documents of this kind can be helpful. Here we have legislation which is based on a learned and well-informed Report of a highly qualified body, the Law Commission, and surely it is desirable that the courts should be given at any rate the opportunity of exploring the background of the provision in order to enable them to interpret the provision in the actual Act.

After all, we must not read too much into this kind of provision. It does not compel the courts to adopt any particular interpretation or construction. All it does is simply to allow the courts to look at this material and to derive from it such help as they may wish to glean from it. The notion that there is anything dangerous in this or that the courts are in some way going to be perverted or corrupted by giving them the benefit of being allowed to look at the Law Commission Report or the relevant portion of it, seems to me to be utterly exaggerated. Therefore, I wish warmly to support this provision, which I think is an interesting and valuable experiment, one which is in line with the general recommendations which the Law Commission have themselves put forward in an elaborate and carefully argued Report, which also pays regard to the practice in statutory interpretation in many other countries with wide experience in this kind of matter.

I wish to add only this comment. It is said: if we are going to allow this sort of thing, why do we not allow the courts to refer to the columns of Hansard, to Parliamentary debates? Logically, I suppose that we ought to allow the courts to do that. In practice, this probably would not assist the courts a great deal, certainly not compared with the assistance they would get from a learned Report upon which legislation is based. It may involve the court in an unnecessary amount of irrelevant inquiry. Experience shows that in most countries which allow legislative material to be cited, the tendency is not to rely so much on Parliamentary debate but rather upon actual Reports. Therefore, I would support this provision, which is limited in terms simply to the Report of the Law Commission upon which this Bill is based.

On Question, Amendment agreed to.

4.44 p.m.

LORD SILKIN moved Amendment No. 17: Page 25, line 32, leave out subsection (3).

The noble Lord said: Unfortunately, the noble and learned Lord, Lord Denning, is unable to be here this afternoon and he has asked me to deputise for him. I am afraid that I am a very inadequate deputy for the learned Master of the Rolls, but fortunately this is a simple Amendment. It is one that does not require a great deal of explanation, and the noble and learned Lord said a word about it on Second Reading. The short point is that the noble and learned Lord, Lord Denning, is desirous that this Bill should come into operation as soon as it receives the Royal Assent, arid the Amendment contains the operative words for that purpose.

I think that practically everybody in the Committee, with one exception, strongly supports this Bill and would like it to come into operation at the earliest possible moment. I think we all agree that it contains many provisions which are beneficial to wives and children and which will help them very much. If my noble friend really understood this Bill, I am sure that even she would support this Amendment and want it to come into operation at once. The noble and learned Lord, Lord Denning, said on Second Reading that in the Court of Appeal he was concerned with a considerable number of cases relating to disputes between husband and wife. But he merely receives them when there is an appeal. A great many more are dealt with in the courts of first instance, and there are also a great many cases pending at the present time. I know that there might be difficulty, in dealing with cases that are pending, as to which law should govern them once the Bill comes into operation. But, after all, this is not a unique problem.

The majority of Bills that come before the House come into operation once the Royal Assent is given. The provision for postponing the date of operation is rather exceptional. I do not say that it is unique, but it is somewhat exceptional. Only in certain special cases and for special reasons is the operation of a Bill postponed. In this case, it was stated that the Bill was to be postponed for a reason which, if my noble and learned friend will forgive me, I did not altogether understand. He related this Bill to the Divorce Reform Bill and gave the impression, at any rate to me, that he wanted both Bills to come into effect on the same day, when in fact his case was—and I agree with it—that the two had really nothing to do with one another. The real problem in the Divorce Reform Bill was dealt with in the Bill itself. This is merely a reform of the relationship between husband and wife and children and an improvement in the provision that was made for parties separated. Therefore, I can see no reasons, from that point of view, why it should not come into operation at once.

I can see certain difficulties. On Second Reading, my noble and learned friend referred to rules which might have to be made and some provisions which might not be easily brought into operation at once. Again, I am going to emulate my noble friend Lady Summerskill and not force this Amendment to a Division, but I should be grateful if my noble and learned friend would look at this carefully to see how much of this beneficial measure can be brought into operation at once and how much he feels it is essential should be deferred until January 1, 1971. I cannot think of any matter which need be deferred, even the sort of case that he has put forward. If he can give me an assurance that between now and the next stage of the Bill he will be willing to look at it from that angle and see whether, as I hope, the major part of the Bill can be brought into operation at once, I shall be happy to withdraw the Amendment. I beg to move.


I should have thought that my noble friend, being such an old Parliamentarian, would have thought once or twice before charging me with not knowing what I was talking about on this Bill or on the Divorce Reform Bill. He has admitted that he is in a confused condition. The confusion is in his mind, and not in mine. If he will allow me, I will help to erase that confusion by giving him a clear picture of why he should be moving this Amendment.

I think he will be shocked to learn that I am going to support him wholeheartedly. I see no reason why there should be great thought about this. He said to the noble and learned Lord the Lord Chancellor that he could not understand what was in his mind last July when he put this date into the Bill. The date was put into the Bill because, as I have contended again and again, it was agreed that this Bill should be complementary to the Divorce Reform Act, and, therefore, the two dates should synchronise as January 1, 1971, when the Divorce Reform Act should come into operation and at the same time this Bill, which was to give some help to a woman divorced against her will. That is why this date was put into the Bill. But, of course, it is no longer necessary, because this Bill has no relevance to the Divorce Reform Act. If this date was put in for that reason, there is no reason why we should any longer observe it as necessarily the date when this Bill should come into operation.

I agree with the noble and learned Lord, Lord Denning, and with my noble friend Lord Silkin that there is no reason why this Bill should not operate prior to 1971, because it has no relationship to the Divorce Reform Act which comes into operation on January 1, 1971. In fact—and I feel this strongly—the women of this country have been cheated. This is the date on which they were going to have protection. They are not going to have the protection; therefore I absolutely agree with my noble friend that there is no longer any need to honour this particular date of January 1, 1971.


I should like to support this Amendment. There seems to me to be very little reason why this Bill should not take effect before January 1, 1971. In particular, I would draw attention to Part II of the Bill, which has no relationship of any kind to the Divorce Reform Act: it is devoted entirely to tidying up some points of law of an entirely different character. It seems that the rest of this Bill might well take effect before January 1, 1971. It is intended to be an improvement in the law as regards provision for the maintenance of wives or children, and, in so far as it is an improvement, it would be a good thing if it could be brought into operation more quickly.

If this particular Amendment has some defect, then I would respectfully suggest to the noble and learned Lord the Lord Chancellor that he should on the next stage of the Bill put down an Amendment in a quite common form, giving power to bring different parts of the Bill into operation at different times. That would give the matter flexibility and enable it to be dealt with as quickly as possible.


The difficulty is to please everybody. I will certainly consider this proposal, and I am inclined to think that the course proposed by my noble friend Lord Douglas of Barloch is the right one. I get many complaints from lawyers that there ought to be a period between the time when a Bill receives the Royal Assent and when the Act comes into force if it is making somewhat complex changes in the law and, in particular, in its procedure and practice. They say: "We do not get enough time to study what you have done, because so much law reform has been going on. We are not interested in the Bills, but in the Acts, and until a Bill gets the Royal Assent we cannot get copies. Then we have to get copies, and with the busy lives that we now lead, overworked as we are, we ought to have a reasonable time in which to study it."

The position here is that Part I of the Bill will require extensive amendments to the matrimonial causes rules. The Divorce Reform Act, which comes into force on January 1, 1971, will also require extensive amendments to the matrimonial causes rules. That is why it was thought by the Law Commission that the convenient course would be to bring both into force on that date. I am in this difficulty about rules. The Government, as the House knows, have taken a view about the total number of civil servants that there should be, and it is not everybody who can draft rules.

I have at the moment to draft county court rules for the purposes of the Civil Evidence Act 1968, which I have not yet been able to get done; the matrimonial causes rules for the same purpose; county court rules for the purposes of the amendments made by Part I of the Law of Property Act 1969 in the Landlord and Tenant Act 1954; Supreme Court Rules to prevent process being served or executed on a Sunday, so as to honour the undertaking given to the Joint Committee on the Statute Law (Repeals) Bill; adoption rules for the purpose of enabling the Adopted Children's Register to be kept in a different form; new scales of county court costs to give effect to an anticipated publication (I think to-morrow) of the National Board of Prices and Incomes; a new scale of costs for cases within the extended jurisdiction of the county court conferred by last Session's Administration of Justice Act, and a number of amendments to the county court rules and other provisions in the Administration of Justice Act relating to county court jurisdiction, and so forth. I am in some difficulty, therefore, in getting rules drafted, particularly as it is not very satisfactory to draft rules until one knows the final form of an Act. So in general I should think there may be some difficulty.

This Bill will not receive the Royal Assent, I suppose, before Whitsun or round about then; so there is not a lot in it as between then and January 1, 1971. At the same time, there are some clauses such as Clause 28 which is only declaratory of the law, which would be useful soon. That is why I think the course proposed by my noble friend Lord Douglas of Barloch, of making provision so that an Order can be made bringing some parts of the Bill into force and not others, is probably right. I hope, in those circumstances, that my noble friend Lord Silkin will withdraw his Amendment.


I am quite satisfied with that assurance. I know that my noble and learned friend will look at this matter sympathetically as soon as he can, and I beg leave to withdraw the Amendment. Amendment, by leave, withdrawn.

Clause 35, as amended, agreed to.

Schedule 1 [Transitional provisions and savings]:

THE LORD CHANCELLOR moved Amendments Nos. 18 and 19.

Page 28, line 12, leave out ("is") and insert ("was")

Page 28, line 13, leave out ("by section 5 of this Act") and insert ("when making the order to which the application relates")

The noble and learned Lord said: If the Committee will allow me, I should like to move Amendments Nos. 18 and 19 together. They are drafting Amendments corresponding to the drafting Amendments made to Clause 9(7). The reference to Clause 5 is equally inappropriate to subsection (3) of Clause 5 because this operates on variation orders made before the commencement of the Bill. Ex hypothsi such orders must have been made at a time when the court could not have been required by Clause 5 to do anything. I beg to move Amendments Nos. 18 and 19.

On Question, Amendments agreed to.

Schedule 1, as amended, agreed to.

Remaining Schedules agreed to.

House resumed: Bill reported, with Amendments.