HL Deb 08 July 1976 vol 372 cc1368-73

6.20 p.m.

The Earl of SELKIRK

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 Earl of Selkirk.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clauses 1 to 9 agreed to.

The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill) moved Amendment No. 1:

After Clause 9, insert the following new clause:

Right of husband to cite paramour as a co-defender and to sue for damages abolished. (".—(1) After the commencement of this Act the following rights of a husband shall be abolished, that is to say— (a)the right to cite a paramour of his wife as a co-defender in an action for divorce, and (b)the right to claim or to obtain damages (including solatium) from a paramour by way of reparation. (2)Nothing in the provisions of the foregoing subsection shall preclude the court from awarding the expenses of the action for or against the paramour in accordance with the practice of the court. (3)Section 7 of the Conjugal Rights (Scotland) Amendment Act 1861 (citation of a co-defender in an action for divorce and decree for expenses against him) shall cease to have effect."). The noble Lord said: I will, with the permission of the Committee, speak at the same time to Amendments Nos. 4 and 5, which are related. The main purpose of these Amendments is contained in subsection (1) of the new clause. The subsection abolishes, first, the right of a husband to cite his wife's lover or paramour as a co-defender in an action for divorce, and, secondly, the husband's right to obtain damages for financial loss arising from the adultery, such as the expenses of the divorce action and solatium for his wounded feelings. Subsection (2), which is consequential on subsection (1), makes it clear that where an alleged paramour intervenes in a divorce action to contradict the allegation of adultery, then the court may award expenses for or against him or her in accordance with its normal practice; in other words, expenses will normally follow success. If the alleged paramour is successful in contradicting the allegation, he will normally be awarded expenses; and if he is unsuccessful, he will be liable for the expenses arising from his intervention in the process. Subsection (3) is consequential on paragraph (a) of subsection (1) and repeals Section 7 of the Conjugal Rights (Scotland) Amendment Act 1861 which entitles a husband to cite his wife's paramour in a divorce action.

As I said in the debate on Second Reading, these Amendments implement the main recommendations of the Scottish Law Commission in their Report on liability for adultery and enticement of a spouse, which was made after extensive consultations and was laid before Parliament by the Lord Advocate on 23rd June, 1976. I need not rehearse at length the arguments for abolition, which are fully canvassed in the Commission's Report. The Commission argued that the action for damages was anachronistic; that it had no deterrent effect and did not in practice protect family relations and the stability of married life; that if the action were used, it would encourage malicious and vindictive claims; that it is not consistent with the social policy of this Bill, which treats adultery as a sympton of marriage breakdown rather than as a civil wrong and recognises the compexity of the causes of breakdown; and that if the action were encouraged, it might lead to blackmailing actions in which the threat of publicity is used to force a settlement. The action also infringes the principle of sex equality, since a wife cannot claim damages from a woman with whom her husband has committed adultery. Rather than remove this element of discrimination, it is better to abolish the action altogether.

For much the same reasons, the Commission argued that the husband's right to cite the paramour as a co-defender and claim the whole expenses of a divorce action should be abolished. As the Commission point out, awards of expenses against a co-defender are currently treated as a species of damages for financial loss suffered by the husband, and although awards of expenses against co-defenders are not infrequent, they are open to much the same objections as damages for solatium or damages awarded for other forms of financial loss. It seems wrong to unload liability for all the expenses of the divorce action on a paramour when the breakdown of the marriage may have quite different causes. Abolition would, incidentally, stop the present unsatisfactory practice whereby the Legal Aid (Scotland) Fund meets awards of expenses against legally-aided co-defenders. As the Commission point out : It is not the function of the legal aid fund to relieve people of liability for their delicts ". These provisions represent a further step in the progressive modernisation of Scottish family law, and they further promote the social policy underlying the main provisions of the Bill. For these reasons, I trust that they will receive the approval of the Committee.

6.27 p.m.

The Earl of SELKIRK moved as an Amendment to Amendment No. 1:

In subsection (2) line 3 after (" paramour ") insert (" or alleged paramour ").

The noble Earl said: In moving my Amendment to the Amendment which the noble Lord, Lord Kirkhill, has just moved, 1 wish to make it clear that I am in full agreement with his Amendment. It is high time that the 1861 Act was repealed. My Amendment is purely drafting. I am suggesting that subsection (2) should read: …awarding the expenses of the action for or against the paramour or the alleged paramour …

One could not rightly assume that all co-defendants are necessarily paramours. That may not be the case. In these circumstances, I hope the noble Lord will agree to this Amendment.

Lord KIRKHILL

I fully accept that the Amendment to the Amendment is a considerable improvement.

On Question, Amendment to the Amendment agreed to.

Amendment, as amended, agreed to.

Clauses 10 to 12 agreed to.

Clause 13 [Citation, commencement and extent]:

6.28 p.m.

The Earl of SELKIRK moved Amendment No. 2:

Page 9, line 19, leave out subsection (3) and insert— (3) So much of section 11 of, and Schedule 1 to, this Act as affects the operation of section 16 of the Maintenance Orders Act 1950 shall extend to England and Wales and to Northern Ireland as well as Scotland, but save as aforesaid this Act shall extend to Scotland only.".

The noble Earl said: Subsection (3) says that the Bill shall extend only to Scotland. In one particular it does not, and that is in regard to maintenance orders. It is clear that maintenance orders under this Bill must be enforced in England and in Northern Ireland, and that is the purpose of the Amendment; it brings the financial arrangements under the Bill into line with those of the 1950 Act and the Succession Act of 1964. I suggest that it would be convenient for me to mention at this stage that Amendments Nos. 3 and 6 are consequential.

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Schedule 1 [Enactments amended]:

The Earl of SELKIRK moved Amendment No. 3:

Page 10, line 3, at end insert— 1. In section 16(2)(b)(i) of the Maintenance Orders Act 1950, for the words " under section 26 of the Succession (Scotland) Act 1964 " there shall be substituted the words " an order for the payment of a periodical allowance under section 26 of the Succession (Scotland) Act 1964 or section 5 of the Divorce (Scotland) Act 1976.".

The noble Earl said: This is consequential. I beg to move.

On Question, Amendment agreed to.

Schedule 1, as amended, agreed to

Schedule 2 [Enactments repealed]:

6.29 p.m.

Lord KIRKHILLmoved Amendment No. 4:

Page 10, line 23, at beginning insert—
("6 Geo. 4.c.120 The Court of Session Act 1825. In section 28 the words " or adultery ".")

The noble Lord said: I have already spoken to the Amendment. I beg formally to move.

On Question, Amendment agreed to.

Lord KIRKHILLmoved Amendment No. 5:

Page 10, line 25, after (" and "") insert—
(" 24 & 25Vict.c. 86 Conjugal Rights(Scotland) Amendment Act 1861. Section 7.")

The noble Lord said: I have already spoken to the Amendment. I beg formally to move.

On Question, Amendment agreed to.

The Earl of SELKIRK moved Amendment No. 6:

Page 10, line 36, in column 3, leave out ("except subsection (6) ")

The noble Earl said: This is consequential. I beg to move.

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

House resumed: Bill reported with the Amendments.