COMMONS AMENDMENT (Hansard, 19 May 1970)

§ THE LORD CHANCELLOR

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 56. May I also speak to Amendment No. 60? Under Section 43 of the Magistrates' Courts Act 1952, where a complaint is made with a view to proceedings in a magistrates' court, a summons is served on the person against whom the court has power to make an order as a result of the complaint. Where a husband is subject to an attachment of earnings order to secure maintenance payments and wishes to apply by complaint for the order to be varied or discharged, it is desirable that the wife should receive a summons so that she may have an opportunity to oppose the variation or discharge. She would, however, not be covered by the expression person against whom the Court has power to make an order. Section 20(4)(a) of the Maintenance Orders Act 1958 provides, in effect, that for the purpose of the complaint to vary or discharge she shall be deemed to be the person against whom the court has power to make an order, and the summons will therefore be served on her.

By reason of Clause 11(1)(d)(i) of the Bill, a debtor may apply to a magistrates' court for an attachment of earnings order to be made. A husband may make such application in respect of maintenance payments. But the wife may not, in every case, wish that such an order be made. There may be arrears, and she may know that the husband has some capital from which he could pay off the arrears immediately. For that reason she may want a committal order to be made instead. It is therefore necessary to provide that not only where the debtor seeks discharge or variation, but also where he seeks the making of an order, the summons shall be served on the wife, thus giving her an opportunity to be heard. The Amendment achieves this by inserting in Section 20(4)(a) of the 1958 Act a reference to an application that an order be made, in addition to reference to applications for variation and discharge. I beg to move.