HL Deb 05 December 1983 vol 445 cc961-80

9.12 p.m.

House again in Committee on Clause 1.

Clause 1 agreed to.

Clause 2 agreed to.

(Amendment No. 5 not moved.]

Clause 3 [Orders for financial relief after divorce, etc.]:

Lord Elwyn-Jones moved Amendment No. 6: Page 3, line 18, leave out ("while a minor").

The noble and learned Lord said: When I spoke to the last amendment I made the foolish observation that I did not think that it was a matter that called for dogma and that I, myself, did not propose to make any dogmatic statement. My goodness, what a mistake that was! I was plunged into dogma and wondered where the Welsh Congregationalists came into it. Happily, there is nobody listening; so may I go on like this? We are now fortunately in an amendment free, I hope, from dogma, but it would be an exaggeration to say that there is no room for a difference in opinion.

The matter arises out of the provisions of Part II dealing with financial relief in matrimonial proceedings and in paragraph (2) (a) of the new Clause 25, your Lordships will see that it is provided that: It shall be the duty of the court in deciding whether to exercise its powers",— under the relevant financial provisions— and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen".

The effect of Amendments Nos. 6 and 7 is to require, in effect, that consideration should be given to the welfare of the child of the marriage up to the age of 21. The reason for this amendment is to meet the criticism (which has been expressed by various bodies that have been particularly concerned with the protection of the interests of children) that it failed to meet the situation of the children, many of whom go on to college and university—to full-time education. They are still dependent on the family provision, many of them at any rate, and on contributions from the family; and I feel—and it is felt by those who have written to me about this matter—that the consideration that is given to the welfare of the children of the marriage should include consideration of the position of those who are in full-time education.

That is why we have proposed the amendment to raise the age from 18 to 21. I do not know that I need elaborate upon the argument a great deal. It will affect quite a large number of young people, if I may so describe them, at university, and not only at university but undergoing training in various technical and other institutions where the training often, if not always, in the cases that we are concerned with, goes up to the age of 21. I beg to move.

Lord Donaldson of Kingsbridge

I should like to support this amendment, having two grandchildren of 18 who go to university—luckily without divorced parents. I can see how important it would be if the parents were divorced that their education should not be risked by all assistance being cut off at the age of 18.

The Lord Chancellor

At Second Reading the noble and learned Lord pointed out that many children remain dependent on their parents beyond the age of 18 for educational, medical and other reasons. Of course, in the majority of cases the children will cease to be dependent on their parents on leaving school at the age of 16, or shortly thereafter. These two first matters are dealt with in the principal Act in Section 29(2)(a) and Section 29(2)(b), but I think it possible—and I hope that I say this with due diffidence—that the noble and learned Lord has omitted to read Section 29(3), where the matter is already dealt with in the principal Act. Section 29(3) reads as follows: Subsection (1) above", which I think we can ignore, and paragraph (b) of subsection (2), which limits the period to the child's eighteenth birthday, shall not apply in the case of a child, if it appears to the court that—

  1. (a) the child is, or will be, or if an order were made without complying with either or both of those provisions would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or
  2. (b) there are special circumstances which justify the making of an order without complying with either or both of those provisions.
I am not at the moment able to see why that does not completely cover the point which the noble and learned Lord has made and which the noble Lord, Lord Donaldson, has also made. I will, having regard to what he has said, look again at the matter, but my provisional view at the moment—and I think there is no difference between us about the facts and other circumstances—is that the amendment is unnecessary.

Lord Foot

Before the noble and learned Lord withdraws the amendment, as I imagine he is about to do, may I just make this observation? It is well known to those who practise in this field that there is a power in the court to award maintenance in favor of children who are undergoing higher education above the age of 18. That I fully understand; but it does not seem to me to be a full answer to the noble and learned Lord's contention, for this reason: that what Section 25 provides is that, in considering the matter of maintenance, first consideration shall be given to the welfare of any child of the family who has, under the amendment of the noble and learned Lord, not attained the age of 21.

If the noble and learned Lord the Lord Chancellor was right in saying that this amendment was unnecessary, I suggest that it is not really quite right because you would actually have three categories of children. You would have those who were under the age of 18, to whom special attention must be given; you would then have the category of children between the ages of 18 and 21 who were undergoing a course of education, who would not acquire that special consideration which is required for a child under 18; and, apart from that, you would have the child over 21 who did not come into the picture at all. So, when the noble and learned Lord is considering this matter, would he give thought to whether indeed it is right to say that the statute he has quoted is a sufficient answer to the noble and learned Lord on the Opposition Bench?

The Lord Chancellor

Of course, I will do exactly that, but I would go on to say that my own feeling is that, in the ordinary case, when a child has reached the age of 18, rightly or wrongly—at the time I thought wrongly, but irreversibly—Parliament having made the age of majority 18, I rather doubt whether the child's interests should any longer have the same priority as we would all tend to give it in its period of pupilage before the age of 18. But obviously the existing Act does deal with the situation which I think the noble and learned Lord had in mind.

I think his amendment is defective because, if we are going beyond the age of 18, there are factors other than education we have to take into account. For instance, take a child suffering from Down's Syndrome, for whom continued provision would plainly be justifiable, that is clearly covered, I think, by Section 29 of the principal Act. It is not covered by the amendment.

What I promise to do is to look at it again in the light of what has been said, without commitment on either side. I do not think there is any difference of principle between us and one wants to do the right thing. There are really two questions to be considered: first, whether after 18 the child should have the same priority as it has in pupilage; and, secondly, whether the educational factor is the only one to be considered.

Lord Elwyn-Jones

I am much obliged to the noble and learned Lord for his obviously sympathetic response to the amendment. I emphasised the educational aspect, but I see no reason why it should not apply also to the Down's Syndrome case of the dependent child of the marriage who should at least be protected and provided for until the age of 21.

What troubles me—and I am grateful for the intervention of the noble Lord, Lord Foot—is that the court dealing with divorce matters will be governed primarily by the Matrimonial and Family Proceedings Act, as it will ultimately become, and, as it stands, the first consideration is to be, given to the welfare while a minor of any child of the family who has not attained the age of eighteen". I can visualise a good deal of difficult argument if an endeavour is made to protect the position of the full-time dependent student by reference to another Act of Parliament.

But I also will examine the other legislation to which the noble and learned Lord has referred and we must come back to this matter again. In view of the assurance of the noble and learned Lord, and in the light of my expectation that I shall return to this—if I may say so without threat—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Lord Mishcon moved Amendment No. 8: Page 3, line 24, after ("shall") insert ("not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded but shall").

The noble Lord said: I believe that we are coming to a very important matter in this Bill. It is one upon which the Law Reform Commission had quite a bit to say and it is one which was adverted to on Second Reading with some amount of emphasis so far as some Members of your Lordships' House were concerned. It is the issue of how far conduct should come into the question of the award of financial provision, whether by way of maintenance or capital provision, in divorce proceedings.

If your Lordships will permit me, I should like to quote from the Law Commission's report of 14th December 1981: on page 13, paragraph 37, the Law Commission state as follows: We adhere to the view expressed by us in the Discussion Paper that the courts as now constituted cannot reasonably be expected to apportion responsibility for breakdown in any save exceptional cases. This is because (in the words of Ormrod J.)"— and these words were in the very well-known 1973 case of Wachtel v. Wachtel— 'the forensic process is reasonably well adapted to determining in broad terms the share of responsibility of each party for an accident on the road or at work because the issues are relatively confined in scope, but it is much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown cannot be properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more the shares will, in most cases, approach equality' ". The quotation from Mr. Justice Ormrod ends there and the Commission continue: It seems to us (and our view was endorsed by the majority of professional and academic commentators on the Discussion Paper) that it would be quite wrong to require the court to hear the parties' mutual recriminations at enormous expense to the individuals involved (or, if they have legal aid, to the taxpayer) in those cases where such findings as the court could make would have little effect on the order made". The Law Commission goon to discuss the matter, but their discussion is wholly on the basis that conduct is not capable of being dealt with adequately and that in matrimonial cases it is not advantageous, unless public opinion and the question of a feeling of justice make it absolutely essential, for the court to inquire into it.

At Second Reading the noble and learned Lord the Lord Chancellor thought that he had adopted this principle and had got the matter right. He quoted the Law Commission report and felt that the matter had been adequately dealt with if one used the Law Commission's word "inequitable". However, it must be remembered that this is not a case where the Law Commission drew up the Bill for our consideration. We were considering a draft of the words which the Law Commission thought ought to be employed in an Act of Parliament. The wording in the Bill could be very misleading and, as I tried to say at Second Reading but not to the entire satisfaction of the noble and learned Lord the Lord Chancellor, it could create difficulty, in my view, for the legal practitioner and very substantially increase the cost of divorce cases.

I ought to say in parenthesis that in the course of these remarks I am speaking to Amendments Nos. 11, 29 and 32. Page 4, line 7, leave out paragraph (g). Page 8, line 24, at end insert ("not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded but shall"). Page 9, line 7, leave out paragraph (g).

What the Bill says at paragraph (g) at the top of page 4 is that the matters to which the court shall have regard shall include: the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it". As a legal practitioner I can say that if that paragraph were read to any client in an average matrimonial case—in which unfortunately there is considerable bitterness, as a rule, until the passage of time heals the bitterness and more civilised conduct can be hoped for—the reaction of that client, whether it be the husband or the wife, would be, "I can tell you about my husband's—or my wife's—conduct and in my view it would be quite inequitable for the court not to have regard to it". This means that the legal practitioner on instructions would have to bring in conduct and argue before the court that it would be inequitable to disregard conduct. I have no doubt that the adversary on the other side would tell whoever was pleading before the court that it would be quite equitable to disregard that conduct.

I submit that the wording of the Bill has got the matter wrong and creates grave doubts as to how it should be construed. I submit to your Lordships that the view of the courts as to what might be inequitable or equitable to exclude would differ from judge to judge. Therefore, it is our duty to be more precise. I hope your Lordships' Committee will consider that in this amendment we have got it about right. We dispose of paragraph (g) as being a. matter to which the court shall have regard, since we ask for the deletion of paragraph (g) in Amendment No.11 and we insert instead at line 24, after the word "shall", these words: not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded but shall". So there have to be "exceptional circumstances", and then the legal practitioner can say to the client. "There is nothing exceptional in what you have said; this is the sort of thing one hears of in all matrimonial cases, and the court will not accept this as some exceptional matter".

We ought to be quite specific that we are trying to keep conduct out of cases as much as we possibly can, because all of us know that in 90 per cent. of cases—I go as high as that—it is six of one and half a dozen of another, if one knew the whole story.

Apart from that, going into the question of conduct and arguing whether it is equitable or inequitable to go into ordinary matters of conduct and not exceptional conduct merely increases the bitterness between the parties. In many cases, where the children are old enough to understand what is happening, it is clearly upsetting to the children of the marriage, who have quite enough to put up with knowing that father and mother are going to separate. I beg to move.

9.36 p.m.

Lord Denning

I should like to support this amendment. I was engaged in the case of Wachtel v. wachtel, in which we had to consider how far conduct should be taken into consideration in these matters. We have long memories of cases in which for day after day we heard trifling evidence of cruelty on each side—one staying out late and the other using abusive words. It went on for days and days, and all at the expense of legal aid! This occurred not only in cruelty cases but also in many others. It was a scandal to the law, the way in which, in divorce cases, conduct had to be taken into account.

It was because of that that Lord Justice Ormrod said what he did: that we should have an end to all those mutual recriminations in such cases. In the case of Wachtel v. wachtel the whole court said that conduct should not be regarded except when it was obvious and gross. That has been a catchword which went too far; so much so that if the conduct of a wife was appalling, it was still disregarded and the husband was, if I may say so, very aggrieved. I may tell the Committee of a letter which I received, and which may amuse your Lordships, after we had decided against the husband: Dear Sir, You are a disgrace to all mankind: to let whores break up homes and expect us chaps to keep them. They rob us of what we work for and put us on the street. I only hope that you have the same trouble as us. So do us all a favour—take a Rolls and run right off Beachy Head and don't come back". That is what a husband wrote when the courts were disregarding conduct altogether; when a wife who had gone off with another man would nevertheless get, while living with him, pretty well the same maintenance and access to the children as a woman who was innocent. No, conduct must be taken into account in such cases as that.

But how can it be done? I feel the same nervousness as the noble Lord, Lord Mishcon, does about the wording as it stands in this Bill—just deciding whether or not the matter is inequitable. It seems to me that that opens the door to all those mutual recriminations and long inquiries which we had in the past. It seems that the way to get back on the right course is simply to use the words: not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded", for it seems to me that this amendment catches exactly what we sought to lay down in wachtel v. Wachtel but which has been misunderstood by other courts. I would support the amendment.

Lord McGregor of Durris

I wish to state to the Committee a layman's argument in favor of this amendment. It is of vital importance to the community and to the general law that the law regulating family relationships should be respected, and it will not be respected unless it is regarded as fair. And to be regarded as fair it must be understood. I think, from what the noble Lord, Lord Mishcon, said, it is clear that the amendment will be far more easily understood by ordinary folk than the phrase in the Bill as it stands.

We face really three groups of people who are anxious about this point in the Bill. The first are those who fear, as the noble and learned Lord, Lord Denning, has said, that we may be taken back to the squalor of the inquests on the pathology of marriages; there are those who fear that we may be taken back to a situation in which conduct may be used as a fine upon the guilty parties to a marriage; and there are those who fear that under the present law men are suffering because of the absence of a consideration of conduct. I submit to the Committee that for ordinary folk there must be a touch of conduct, because there are certain circumstances in which people will feel moral outrage if conduct is not regarded. But most people regard those as exceptional circumstances. I think that the amendment as phrased meets those needs of public understanding and respect for the family law which are not to be found in the Bill as unamended.

The Earl of Halsbury

I wonder whether the noble Lord, Lord Mishcon, could explain a difficulty I have with the drafting of this amendment. We have heard much of the difficulty of construing "exceptional hardship" and "exceptional depravity" due to lack of any standard of normal hardship or normal depravity. How far does that difficulty not arise in the use of the word "exceptional" in this amendment? Presumably in contrast to "exceptional circumstances as would render it inequitable" would stand "normal circumstances as would render it equitable". Does not that involve the same sort of difficulty, and, if not, can the noble Lord explain?

Lord Mishcon

I think there is a difference between adjectives that define hardship and adjectives that define depravity—which were the two contexts in which we were judging the word "exceptional"—and circumstances which one states to be exceptional. They are out of the ordinary and that is something that the layman, and the judge, if I may say so with respect, would understand. Our difficulty in regard to the other context was to know when hardship becomes exceptional hardship, when depravity can be tolerated as being perfectly all right and when it becomes exceptional. I do not think the difficulties apply in the same way to this amendment when you ally it to the word "circumstances".

Lord Coleraine

Nevertheless, I think the layman who is looking at the clause is going to ask why the circumstances should be exceptional. If there are circumstances which render it inequitable, why should those circumstances be exceptional? I understand "exception" as meaning very much out of the ordinary. I have in mind the case we have heard of many times before, the young girl who marries a rich man and walks off and takes a share of his fortune. I do not think that in a layman's use of the word that would be called an "exceptional" case: it is a fairly ordinary one. If an ordinary case is inequitable there is no need for the word "exceptional".

Lord Foot

I took the view when I was considering this part of the Bill that the best course was to strike out all reference to conduct. That would mean deleting paragraph (g) on page 4 and putting nothing in its place. I still adhere to that view. However, I am bound to say that I think it unlikely that the Committee would be prepared to accept so draconian an amendment as that and is likely to prefer the amendment moved by the noble Lord, which would, as it were, take up an intermediate position between striking out "conduct" altogether and trying to improve upon the wording of the Bill as it stands. I think that there are evident objections to the wording of paragraph (g), which have been admirably expressed by the noble and learned Lord, Lord Denning.

There are two faults in the present wording. It tends to bring back all those concepts of blame and fault which everyone apparently agrees are manifestly unwanted and it does that without giving any guidance as to what cases fall within the definition of "inequitable" and which do not. Therefore, it seems that the words suffer from every conceivable defect. Nevertheless, it must be borne in mind that this is based on the recommendations of the Law Commission and we must give due regard to that.

My view of the point as it was put by the Law Commission is that this is possibly one of the weakest parts of its recommendations. The noble Lord, Lord Mishcon, has quoted extensively from the beginning of its observations on this matter of conduct. I should like to give two further quotations; from the beginning of paragraph 38 and from paragraph 39 which contains the recommendations. The beginning of paragraph 38 states: The second issue relates to the question of identifying these exceptional cases in which the court can not only identify responsibility for the breakdown of the marriage but should also allow that assessment to influence the financial orders that are to be made. Paragraph 39, which gives the Commission's proposals and recommendations, says: We would accordingly propose to preserve a reference to the conduct of the parties as one of the specified list of circumstances to which the court should have regard in those cases where it would be inequitable to do otherwise. Any further elaboration can, in our view, best be left to case law development. That recommendation seems to suffer from two major defects. The first is that it gives no indication as to how the court is to identify inequitable cases—to use that shorthand—without embarking upon an inquiry into the whole history of the marriage. As the noble Lord, Lord Mishcon, pointed out, how can one tell whether the conduct of a party is conduct that it would be inequitable to disregard unless one has enquired into the conduct itself? If one once embarks upon that process, what is to stop an inquiry into the whole history of the marriage with all that that involves? The second defect in the reasoning is that there are likely, inevitably, to be the widest possible variations between the decisions of different courts as to what constitutes conduct which it would be inequitable to disregard.

Therefore, I do not think that the present wording will do, but I am nevertheless faced with the question whether the amendment proposed by the noble Lord is an improvement. I do not think it is good enough but I do think it is better. It is better, first, because it is expressed in this way: it proposes that the general rule should be that you shall not have regard to conduct. It goes on to say that that general rule should be excepted from only in the event of the court finding that there are exceptional circumstances. I agree with what the noble Lord said about the different effect of "exceptional" used in that context as compared with when it is used in connection with depravity and hardship.

The other point of merit in the noble Lord's amendment is that it provides that conduct shall be considered only in exceptional circumstances. I do not think that that is the best that we can achieve. I think that it would be better to delete the reference to conduct altogether, but I have to recognise that the noble Lord's amendment, together with the deletion of the paragraph, is much more likely to commend itself to the Committee than is my simple proposal for the deletion of the paragraph. I am not particularly enthusiastic about it but am nevertheless a supporter of the noble Lord's amendment and would commend it to the House.

9.51 p.m.

The Lord Chancellor

I do not rightly know either whether there is any difference of principle between us or whether the noble Lord, Lord Mishcon, realises quite the effect and the rather radical approach of his amendment, which he seemed to speak of as if it was simply a question of clarification, which it is certainly not.

The first question is, should conduct be considered at all? That was the question raised by the noble Lord, Lord Foot. I think it would outrage public opinion if conduct, either by the man or the woman, were not to be taken into account. It so happens that I had a letter from a Member of Parliament this very morning which included a letter by a lady who was the aunt of the husband. This is what she wrote: On 30th September she deserted my nephew, committed adultery and the same night went to live with another man. This man had money to burn and had bought a house and furnished it in which to take her. She is still working full-time. He is also working full-time at the bank, so that there is no home life for the children. No one worries about money or pleasures and yet she can still under the divorce laws demand half of everything, including my nephew's house, which will mean his taking up a mortgage for £20,000, payment of interest thereon and reducing his standard of living. So she gets away scot-free and proposes to give the new fellow the £20,000 to enable him to sell the house he provided for her to buy a much larger house, so the £20,000 will never come back to my nephew or his children. I think this is extremely unfair". That letter happens to relate to a wife's misconduct.

I know less than the noble Lord, Lord Mishcon. Perhaps it has been forgotten. but many years ago he was actually a practitioner. But my curious experience—such as it is—is that, when it is a question of misconduct, on the whole, I think, men behave rather worse than women. I may be wrong about that. I think one must be even-handed between the two. I have known men knock their wives about and drive them to divorce or desertion. I have known men undermine their wives' health to the extent that they can no longer earn their living. I can think of a case of a woman who worked for me as a part-time secretary. She had one breast sawn off for cancer. She had forgiven her husband for adultery about three times. But he went off for another piece of fluff and left her without a penny.

Is it all right to say that conduct does not enter into all these things? I do not agree with the noble Lord, Lord Foot. I think there is a difference here between us. I think that there is something to discuss about principle. I think that conduct must enter into it, and I believe that it would outrage the conscience of mankind if it did not.

I must keep on saying to the Committee, because I think that it is in danger of forgetting it, that we are concerned here only with an amendment to a principal Act. The Act says that conduct shall enter into it. Upon that broad statement of the Act there arrived the case of wachtel. I think that that was a very great advance, if my noble and learned friend Lord Roskill will allow me to say so. I see him sitting there—though not my noble and learned friend Lord Denning, who spoke earlier. My noble and learned friend Lord Roskill was also a party to the decision. That said in effect that we cannot go back to the awful business of who threw a plate of soup at the other on the third day of the marriage. It was degrading, it was hopeless, and it did not help us to decide anything.

So the noble and learned Lord, Lord Denning, invented the phrase—he is a great master of phrase—that conduct shall be disregarded unless it was gross and obvious. Anyone who understands law and judges knows that that was a piece of judicial rhetoric. But for a time it caused great confusion because people tried to apply it literally. Since when a number of cases have arisen, after wachtel. I shall give the names of some of them: Armstrong, Martin, Kokosinski, Evans and Robinson. They have all really shown that the courts have settled down to a state in which they disregard conduct unless it would he inequitable to disregard it.

That, curiously enough, is what the Bill says, and it is what the Law Commission in effect reported, though of course the noble Lord, Lord Mishcon, was quite right in saying that they did not draft the legislation. I hesitate to read, indeed I do not think that I shall read, paragraphs 36 and 37 of the report. But that is what the commission said, and on the whole it said what we have put into the Bill, assuming that the parliamentary draftsman has done his duty all right: and I think that he probably has.

Following that situation, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, prefer to paragraph (g) the amendment which they have proposed. I say respectfully to the noble Lord, Lord McGregor of Durris, that, whatever else it does, it does not make the situation any plainer—and I say it with respect also to the noble Lord, Lord Mishcon—because it destroys with one fell swoop all the case law that has taken place since Wachtel, since it is no longer applicable.

What the amendment does is to have a very peculiar effect. It directs the court not to have regard to the conduct of each of the parties unless in the opinion of the court a condition is satisfied. The condition is the existence of "exceptional circumstances", and they must be such to make it inequitable for the conduct of each of the parties to be disregarded. However, by virtue of the amendment, were it carried, the reason for taking conduct into account would not therefore be the nature of the conduct, which it is at the moment, but the existence of circumstances—whatever that may mean—which would make it inequitable to disregard the conduct. Contrast that with the Bill as it stands, contrast it with paragraph (g), which makes the nature of the conduct the decisive factor. Surely that is right.

Furthermore, the effect of the amendment is not to make conduct itself exceptional although that might be difficult to define. It is that some circumstances, apparently external to the conduct, should be exceptional but nonetheless circumstances relating to the conduct. Once the court is satisfied of the existence of the relevant circumstances, it might have regard to any conduct, any trivial matters. It is not easy to see what is meant by exceptional circumstances. But since they must be circumstances such as to make it inequitable to disregard the conduct, they must be in some way related to the conduct. It appears that exceptional circumstances must be the continuing effect of the conduct though not the conduct itself.

Moreover, the way in which the amendment is drafted requires that the exceptional circumstances must be in existence at the time when the court has regard to all the circumstances of the case. Thus, the amendment creates obscurity. It creates obscurity because it will be for the tribunal in each case to decide whether, at the time the court is considering all the circumstances of the case, exceptional circumstances exist. The present current authorities on when regard should be had to conduct of the parties would provide no guidance any longer to the courts. These authorities direct the courts to have regard to conduct when it is such that it would offend a reasonable person's sense of justice to ignore it. That is a very different test to that which would be introduced by the amendment since the effect of the amendment might be to leave conduct out of account for practical purposes. But a good many litigants wish the court to have regard to the other spouse's conduct. The amendment would inevitably give rise to a considerable amount of litigation until the appellate courts had once more established in a number of decisions what exceptional circumstances render it inequitable to disregard conduct.

I believe that the noble Lord's amendment would introduce greater obscurity. Of course, I understand that there are people who think that conduct should not enter into maintenance at all, but I have known cases and I have quoted one that happened to be on my table when I entered the office this morning. My own sense is that the public as a whole would be astonished to hear that conduct should not enter into it. I doubt very much, if we were to talk across the table less publicly, whether the noble Lord, Lord Mishcon, and I would differ very much about individual cases. I am sure that we would not agree with the noble Lord, Lord Foot, that conduct should be disregarded altogether. I doubt whether I should be entirely persuaded by the noble and learned Lord, Lord Denning, that this is as plain a matter as he seemed to think. I will, of course, having regard to what has been said, have the whole of this debate looked into to see whether I want to change my mind, but I do not think that this improves the Bill.

If I may point it out, the Law Commission treated conduct and how you phrase the way it should influence decisions under the heading of X, which I suppose is Roman for 10, to two intractable problems. That is in paragraphs 36 and 37. It comes to the conclusion that it should unless it was inequitable; that conduct should only be used as a factor in maintenance when it was inequitable not to do so. I think that this is what we have done in the Bill in paragraph (g) as it stands. But no one is infallible. As said in A Thousand and One Nights, "Allah is all-knowing". But I shall have it reviewed. I suspect that there is no real difference of principle between us. I suspect that the parliamentary draftsman has succeeded in hitting on a better form of words than those requested in the amendment.

Lord Elwyn-Jones

While not agreeing with the noble Lord, Lord Foot, that conduct should never be regarded and that it should always be disregarded, we are nevertheless seeking to avoid the appalling situation with which we are so familiar and have all suffered where conduct comes inevitably to be regarded as the awful inquest into every detail of the matrimonial relationship. I remember one occasion, during a case of this type, appearing for the wife of a gentleman who alleged as an act of cruelty that his wife required him to empty the grate, bring in the coal and the firewood and clean the oven from time to time. I remember the learned judge asking me, "Do you do that, Mr. Elwyn-Jones?" I said, "Constantly, my Lord" and the judge said, "So do I". We won that case.

However, to be serious, the position of the Law Commission on this matter is somewhat interesting. The word "exceptional" comes from their own report. I ask the noble and learned Lord to look at paragraph 38 of the Law Commission report, where it states: The second issue relates to the question of identifying those exceptional cases in which the court can not only identify responsibility for the breakdown of the marriage, but should also allow that assessment to influence the financial orders that are to be made". The amendment, therefore, prefaces consideration of the problem by requiring at the very beginning of Section 25 that there shall be inserted that the court shall: not have regard to the conduct of each of the parties unless in the opinion of the court there exist such exceptional circumstances as would render it inequitable for such conduct to be disregarded". That creates an entirely different emphasis, in our submission, from that in the present draft of the Bill which lists paragraph (g) as one of the matters to which the court shall have regard. So it becomes, in the light of that approach to the matter, an automatic duty of the court to consider all those items in paragraphs (a), (b), (c), (d), (e) and (f) and then the conduct of each of the parties. So the conduct of each of the parties is immediately subjected to microscopic and, indeed, magnifying glass examination; whereas it could be made clear at the very beginning of the consideration of the matters to which the court ought to have regard in making the financial provisions that consideration of the conduct of the parties should be exceptional.

I hope, therefore, that the noble and learned Lord will look at the matter again. We are aiming at the same thing up to a considerable point, but what we want to avoid is the appalling list of allegations of cruelty. I do not wish to add any macabre examples to what could be said or, indeed, trivial examples of the kind which I mentioned which really turned divorce proceedings in that type of case, with that type of expectation of proof, into a most odious conflict which ended all possibility of any conciliation, least of all reconciliation.

The Lord Chancellor

I am very reluctant to address the Committee again. I really do not think that there is an issue of principle between me and the noble and learned Lord. I must tell him, if only to amuse him, that he was reading from a different document from the one that I was reading from. Our Bill is founded on Law Commission report 112. I was referring to paragraphs 36 to 39 of that report. I will just read paragraph 39 and ask the noble and learned Lord to compare it with paragraph (g). It says: We would accordingly propose to preserve a reference to the conduct of the parties as one of the specified list of circumstances to which the court should have regard in those cases where it would be inequitable to do otherwise. Any further elaboration can, in our view, best be left to case law development". That is what I accept and that is what the Bill does.

Lord Elwyn-Jones

If the noble and learned Lord will allow me to say so, I was in fact reading from the same document, but from the earlier paragraph.

The Lord Chancellor

I think I still prefer paragraph 39, where they come to a conclusion. However, I shall of course refer this matter back to those who advise me on such things. I really do not think that there is any difference of principle between us. I think we would probably decide the same cases in the same way, whatever form of words we used.

Lord Mishcon

I do not think it would be appropriate to divide the Committee at this hour. In view of what the noble and learned Lord has said, that he is well apprised of the goal at which we aim and that he himself is aiming at the same goal, if he could only find himself somewhere with our team in scoring the eventual goal I am sure the Committee would be satisfied. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

The next amendment is Amendment No. 9, but perhaps I should inform the Committee that if it is agreed to it will not be possible for me to call Amendment No. 10.

10.17 p.m.

Lord Foot moved Amendment No. 9: Page 3, line 29, leave out from ("future") to end of line 33.

The noble Lord said: I was trying to absorb the words we have just heard, as to the effect of my amendment upon Amendment No. 10, but I think I understand it. Perhaps I may explain the purpose of my amendment. Under the law as it stands at the moment, Section 25(2) of the 1973 Act, as set out in Clause 3 of the Bill, reads as follows: As regards the exercise of the powers of the court under section 23(1)(a), (b), or (c), 24 or 24A above in relation to a party to the marriage, the court shall in particular have regard to the following matters— (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future". There the paragraph comes to an end. Under the Bill, what is proposed is that there should be added to that paragraph the following qualification: including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire".

My submission is that those words are both unnecessary and, indeed, undesirable. As it stands today, the existing section already requires that the court shall have regard, not simply to a party's earnings or to what the party has earned in the past, but to the party's earning capacity: and not only the earning capacity at the moment when the decision is made, but the party's earning capacity now or in the foreseeable future. In other words, the present law requires that the court shall have regard to the earning potential of the party concerned.

Therefore, the new words are simply a refinement or, if you like, an elaboration of the old words. The question which I raise by my amendment is whether that elaboration is either necessary or, indeed, desirable. My contention is that it is neither. First. I submit that the effect of these additional words is minimal or, at any rate, marginal. Secondly, I submit that the new words introduce a new element of speculation into the whole process. Under the law as it stands at the moment, the question is: what is the party's earning potentiality? Since the person who is at issue here is usually the wife, the question is, what is the wife's earning potentiality? Under the new words the question is. in what way might the wife be expected to add to her existing potentialities? I suggest that that introduces a new element not only of speculation but of uncertainty into the whole matter.

Thirdly, I suggest that it adds considerably to the complications confronting the court that has to decide this matter. I also suggest that it is a very unattractive complication. I do not see how the court will answer the question of what capabilities the wife might acquire in the future without going into questions of her character. behaviour, conduct and general attitude of mind.

For these reasons, I do not think that these words improve the matter. They introduce this element of speculation and uncertainty. I do not know any reason for thinking that the law, as it has been operating for the last 10 years, has caused any difficulties in this regard. There is no difficulty under the present law for the court in trying to determine what the wife's earning potentialities may be.

On the question of the importance of each party doing everything possible to become self-sufficient, to quote the words of the commission. I suggest that that matter is adequately coped with by the new Section 25A, especially subsections (1) and (2). Subsection (1) directs the court to consider the possibility of an early termination of payments, and subsection (2) requires the court to pay regard to their termination after giving the recipient time to adjust. In so far as the Law Commission was concerned with the importance of each party doing everything possible to become self-sufficient, it seems that that matter is adequately covered by the provisions of Section 25A. In those circumstances I beg to move.

The Lord Chancellor

I suppose I have to say something. One is never quite sure whether there is a difference of principle here. The fallacy of what the noble Lord, Lord Foot, has said is that he was always talking about the wife's earning capacity and not that of the husband. As it stands, the Bill is even-handed to both. I expect he has had, in his extensive practice, as I have had in my rather more modest one, experiences where the husband has deliberately limited his earning capacity, especially where he has not married again, to avoid paying maintenance to the wife. In the extreme case, it is not uncommon for a husband to go on to public assistance rather than pay maintenance to his wife and instead of trying to work. In periods of unemployment this is a comparatively easy thing to do. Sometimes he avoids promotion and sometimes he avoids an increase in earnings.

Lord Foot

Before the noble Lord moves on from that point, may I remind him that the Law Commission themselves, when they were considering this particular matter. considered that the real question at issue was the wife's earning capacity? The words I would quote in support of that are that, when they were setting out what are called the policy objectives, the second of the policy objectives was described by them in this way: Greater weight to be given to a divorced wife's earning capacity, and to the desirability of both parties to becoming self-sufficient". In the opinion of the Law Commission at any rate, what they were concerned with here was mainly the wife's earning capacity, as opposed to the husband's.

The Lord Chancellor

I do not need to be reminded of that. I am dealing with the terms of the Bill and with the effects of the amendment. I am only saying that my humble experience, such as it is, is that the thing requires to be fairly evenly handed between the two parties to a marriage, the variable factors in each of which are almost infinitely variable.

I quoted in connection with the amendment of the noble Lord, Lord Mishcon, a letter that I had had only this morning. Let me remind the noble Lord, Lord Foot, just what it says: This man had money to burn and had bought a house and furnished it in which to take her. She is still working full-time. He is also working full-time at the bank, so that there is no home life for the children. No one worries about money or pleasures and yet she can still under the divorce laws demand half of everything, including my nephew's house, which will mean his taking up a mortgage for £20,000, payment of interest thereon and reducing his standard of living. So she gets away scot-free and proposes to give the new fellow the £20,000 to enable him to sell the house he provided for her to buy a much larger house, so the £20,000 will never come back to my nephew or his children. She deserted my nephew, committed adultery and…went to live with another man". She apparently deserted the children, too. The fact of the matter is that earning capacity is a factor which I think has to be taken into consideration: and it is totally wrong and contrary to fact and experience to say that one must always talk about the wife's earning capacity or the husband's earning capacity. It is, of course, true. I may remind the noble Lord, Lord Foot, that this was dealt with in paragraphs 28, 29 and 30 of the report of the Law Commission. It said in paragraph 30: The response to the Discussion Paper indicated wide support for the view that the courts should be more clearly directed to the desirability of promoting a severance of financial obligations between the parties at the time of divorce; and to give greater weight to the view that in the appropriate case any periodical financial provision ordered in favor of one spouse (usually the wife) for her own benefit—as distinct from periodical payments made to her to enable her to care for the children—should be primarily directed to secure wherever possible a smooth transition from marriage to the status of independence. We believe that this general objective should he embodied in the legislation. These things have to be looked at in the light of the context, and I myself do not feel that there is any danger whatever that the effect of the words in the Bill as it stands would be contrary to the interests of mothers and children.

In the end I think that one has to make a broad political decision above these matters whether one is going to give greater flexibility to the courts or going to tie them up more tightly. The view that we have taken is to follow the Law Commission in these respects. I think it fair to say that the Law Commission said that it must be accepted that the occasions on which it is possible for the parties to arrive at a final, once-and-for-all settlement on the occasion of their divorce will be comparatively few and almost non-existent where there are young children.

One knows, of course, and so do the courts—because they deal with it every day—that a wife's earning capacity is impaired, and perhaps destroyed, by the duration of the marriage and by the obligation to look after young children of which she has care and control. But I rather doubt whether it is right to do the only thing which the amendment of the noble Lord, Lord Foot, purports to do because the purpose, and I think the effect, of the amendment is to eliminate from the matters to which the court is to have particular regard in consideration of all the circumstances of any case any increase in earning capacity which, in the opinion of the court, it would be reasonable to expect a party to the marriage to take steps to acquire.

If it is true that both parties can err in this respect, I think those things should be in the Bill and not out of it. Whether in practice there is any real difference of principle between the noble Lord, Lord Foot, and me I am not sure, but it seems to me that what is contained in the Bill is better than his amendment. I will, of course, as I always do on these occasions, ask those who advise me to consider what he has said, to relate it to the purposes and policies in the Bill, and to see whether we can improve it either in the way he suggests or in some other way. But my own conclusion at the moment is that the Bill is about right.

Lord Mishcon

It may be convenient—in the hope that possibly we can conclude at least the argument on this amendment before we adjourn our proceedings, so that the noble and learned Lord can, with his usual courtesy, consider the arguments—if I enlarge upon what has just been said and do so with due consideration for brevity. I hope to be able to do that in a few short sentences.

As I understand the difficulty here it is this. We are asking the court to decide upon the financial provision which should be made, first of all, for the child and then for the spouse, and are asking the court to take certain matters into consideration. In this part of the Bill we are asking the court to take into account certain matters and we have in mind certain priorities, as I said, the first one being the child or children of the marriage. The Bill already provides, as I see it, for dealing with the financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.

I am not saying that I necessarily support the amendment because there is a later, very important one to be debated which I think clarifies the position for the court, and that I think would be the amendment to be moved later in the Committee proceedings by the noble Baroness, Lady Lockwood. All that we are saying here, and I think all that the noble Lord, Lord Foot, is saying, is that provision is already here for looking at the foreseeable income of the parties. We do not want to go on to say that we include in the case of earning capacity, any increase in that capacity which would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire". If the court is really to carry out that process, I suppose that what one has to do is almost to conduct an IQ examination in order to see whether it is reasonable to expect one of the parties to a marriage not to be a private secretary, for example, but to aim at being a non-executive director of the establishment, or indeed not to be content with being a sub-manager but to be a manager, because if the party were to apply for such a position, in the view of the court a greater earning capacity could be acquired. It is an impossible position for a judge to have to adopt, and the words as they are now in this Bill say precisely that.

I am not saying by any manner of means—and I know that the noble Lord, Lord Foot, will forgive me—that the deletion of the words after the word "future" will necessarily give the court sufficient guidance. I say that because I happen to support a later amendment, which I hope will be moved on another occasion in the Committee stage by the noble Baroness, Lady Lockwood. What I am saying is that, whatever the position, the words after the word "future" should in fact go. I hope that the noble and learned Lord, in his consideration of the whole of the speeches that have been made on this amendment, and especially the speech of the noble Lord, Lord Foot, will take into account what I have tried to say by way of supplementing his remarks.

The Lord Chancellor

I hope I will take everything into account. But I still think that a man who goes on supplementary benefit rather than help his wife and children ought to have that fact taken into account by the court.

Lord Donaldson of Kingsbridge

What difference does it make?

The Lord Chancellor

I think they would treat his application for variation in a downward direction in a somewhat less enthusiastic way.

Lord Donaldson of Kingsbridge

In fact what happens—and I happen to know of a particular case—is that the man refuses to work and the wife does not get any money: that is all. The court cannot do anything about it.

The Lord Chancellor

That is exactly what I think the noble Lord, Lord Foot, was rather overlooking. He quoted the Law Commission in the opposite sense. People rather assume that it is the wife's earning capacity which is being hit at and that it is not an even-handed attempt to stop people not earning in order to get more money, or to give less money, to the persons with whom they are embittered: I think, with great respect, that one is trying to be even-handed as between the two parties to an unhappy situation, and not to take sides. That is what I am trying to impress upon the noble Lord, Lord Donaldson.

Lord Donaldson of Kingsbridge

I must come back once again. There is a very great difference, as a rule, between the man who refuses to earn more money and the woman who does not see how she can. I do not at all like the idea, nor do a lot of other people like the idea—I have heard many complaints about this—of a court telling a woman that she ought to go out and get a job when it is very difficult for her to do so. This has caused great offence—I think rather unreasonably—and I hope that the noble and learned Lord will take it into consideration. It is a very important view of a great many perfectly reasonable people, who do not include me.

The Lord Chancellor

I am glad to know that it does not include the noble Lord. It rather defeats the purpose of his argument. Of course we take into account all possible fears and anxieties which may occur, but we try when we legislate to achieve the result which, in spite of those fears, will prove to be equitable.

Lord Foot

The noble and learned Lord is, of course, quite right in saying that the words of the clause are, on the face of them, even-handed as between the husband and the wife. But the practical reality of the matter is that these words are of particular concern to the wife. This was amply recognised by the Law Commission when they were considering this matter and that, I suggest, was the reason why, when they were stating the second proposition with which they were concerned, they described it in this way: Greater weight to be given to a divorced wife's earning capacity; and to the desirability of both parties becoming self-sufficient. However, I do not want to pursue the matter any further.

But, as a practical matter, these words will be applied to the wife in nine cases out of 10 and to the husband in only one case out of 10. I am greatly obliged to the noble Lord, Lord Mishcon, for having, as he said, supplemented what I have said and for expressing what I wanted to say very much better than I did myself. I entirely agree with him that the words which have now been imported into this clause are closely involved with the amendments which we are to consider at the next stage from the noble Baroness, Lady Lockwood. They are intimately connected. Pending the discussion of those amendments, I hope the noble and learned Lord will be good enough, as he has indicated, to reserve his judgment and to consider together this amendment and the noble Baroness's amendments. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

We have probably gone as far as we usefully can tonight. I beg to move that this House do now resume.

Moved accordingly, and, on Question, Motion agreed to: House resumed.

House adjourned at twenty-four minutes before eleven o'clock.