LAW REFORM (MISCELLANEOUS PROVISIONS) BILL (Hansard, 14 May 1970)

§ LORD STOW HILL

I hope that the Committee may feel able to agree that Clause 2 should stand part of the Bill in its present form, but I think that your Lordships would expect that I should call your attention to a slight difficulty about the present text of the Bill. When the Bill was being drafted there was on its way through Parliament the Matrimonial Proceedings and Property Bill which, as your Lordships know, is a major Bill which rearranges property rights as between husband and wife, particularly in the event of the dissolution of a marriage. It was hoped and expected that both that Bill, the Matrimonial Proceedings and Property Bill, and this Bill, the Law Reform (Miscellaneous Provisions) Bill, would reach the Statute Book in 1970.

Clause 2 of the present Bill, which deals with the question of breach of promise of marriage, as your Lordships may recall from the Second Reading, provides for a simple and expeditious method of determining any property questions that may arise as between a young man and a young woman in the event of their marriage not taking place because the engagement has been broken off. What it does is to provide that the expeditious procedure at present laid down in Section 17 of the Married Women's Property Act 1882, which under the existing law applies as between man and wife, shall also be applicable as between a young woman 718 and a young man whose engagement to marry has been broken off. The sort of situation which is in contemplation is the case in which either one or the other or both have bought a house and have expended money or work on it in the hope that it will become the family home. Clause 2 is designed to deal with the position in the event of the engagement to marry being broken off.

The first subsection of Clause 2 lays down certain principles that are to be applied in determining how the property is to be divided between them. With your Lordships' permission, because this is where the difficulty arises, I should like to cite some of the actual wording of Clause 2 as it stands. The relevant words which set out the principles which are to be applied are as follows: … any rule of law relating to the rights of husbands and wives in relation to property in which either or both has or have a beneficial interest, including "— and these are the relevant words— any such rule as explained by section 28 of the Matrimonial Proceedings and Property Act 1970, … Your Lordships will therefore see that there is reference in Clause 2 to an Act which is not an Act, for it is at the moment the Matrimonial Proceedings and Property Bill. If next month there is no General Election, then no difficulty will arise; it is to be apprehended that that Bill the Matrimonial Proceedings and Property Bill, will in the ordinary way, reach the Statute Book before the end of this year. If there is a General Election, probably also it will reach the Statute Book before the end of this year. If it does, then the words "section 28 of the Matrimonial Proceedings and Property Act 1970" will give rise to no difficulty at all. But the difficulty arises in view of the possibility that that Bill, the Matrimonial Proceedings and Property Bill, may not reach the Statute Book by the end of the year in the event of there being a General Election next month. I hope that that will not happen. I do not think it is likely that it will happen.

The advice that I would respectfully tender to the Committee is to leave the text of Clause 2 in these circumstances as it is: in other words to leave in it the words "as explained by section 28 of the Matrimonial Proceedings and 719 Property Act 1970". But I am bound to point out to your Lordships that it is just conceivable that if that course is followed there may be on the Statute Book, an Act of Parliament; namely, the Law Reform (Miscellaneous Provisions) Act Section 2 of which refers to the Matrimonial Proceedings and Property Act 1970 when there is no such 1970 Act on the Statute Book. Those words will then bear no meaning. The advice that I would tender is that it does not really matter; it is an imperfection in drafting. If those words did appear in Section 2 of the Law Reform (Miscellaneous Provisions) Act 1970 when there was no Matrimonial Proceedings and Property Act 1970 in existence those words in Section 2 of this Act would have no effect in law and therefore would not make any difference: Section 2 would be construed as if those words were not in it.

The question then arose whether, having introduced this measure before your Lordships, I ought to propose some Amendment in order to deal with that defect. I thought long upon it and took advice upon it. The conclusion I came to is that the advice I should offer the Committee is to leave it exactly as it is at the moment; that it does not really matter. I think I am right in forming the view that it is the general wish of both sides of this Committee, as it was the general wish of all sides in the other place, that this Bill should become law. If it is amended now there is a serious risk that if there is an Election next month it will not reach the Statute Book. The worst that could happen would be, therefore, that if there were an Election next month this Bill would reach the Statute Book with that slight defect which would have no result in law. I hope that your Lordships will feel able to approve the course that I respectfully suggest might be followed and agree that this clause stand part of the Bill in its present form.