§ 6.28 p.m.
The Earl of Selkirk
My Lords, I beg to move that this Bill be now read a second time. This is a draft Bill which was drawn up by the Scottish Law Commission during its study of family law in Scotland. I think I can say that it comes from the other place with all-party support and indeed—in a procedure which we can perhaps regard as remarkable—the Second and Third Readings were taken on the nod without one word being spoken. But what is perhaps more important is that this Bill removes certain inconsistencies between Scottish law and the terms of Part IV of the United Nations convention on the elimination of all forms of discrimination against women. We have already signed this convention but, apparently, we have not yet ratified it and in so far as these elements of Scots law are an obstacle, they will be removed by this Bill.
It is difficult today to realise the changes in relation to the law between husband and wife which have taken place in the past 100 years. We had a rather highly developed system of family life in Scotland, and the statute book has been very extensively changed to meet the modern status which we accord to women today. In many of the clauses of this Bill, we are really dealing with a situation which existed 100 or 150 years ago; and, accordingly, I sometimes find it a little difficult to explain the implications of the various clauses.
Clause 1 abolishes actions for breach of promise of marriage. This is already the position in England and, I understand, in Australia and New Zealand. I do not need to add a great deal. All I would say is that it is particularly anomalous that there should be a penalty for withdrawing from an engagement, whereas there is no penalty for withdrawing from a marriage. Such actions are, therefore, wholly anachronistic.
654 The first part of Clause 2 abolishes actions of adherence and is primarily intended to deal with desertion. It is clearly absurd that anybody should be compelled to live as either husband or wife by action of law. However, it was of value in deciding who was in desertion. This provision is not, however, necessary today and can be abolished. The second part of Clause 2 relates to the enticement of a spouse. Your Lordships may be interested to know that there is no recorded instance of such an action ever having been brought.
Clause 3 deals with the curatory of married women who are minors. This is clearly a breach of the equality of the sexes because it does not apply to men. It is also anomalous and quite unnecessary. Indeed, it is in conflict with the capacity of a woman to marry as a minor. If she is in a curatory condition, she will not be in a capacity to engage herself in marriage. This provision is altogether out of line with modern law.
Clause 4 deals with the choice of the matrimonial home. This provision was necessary in order to decide which of the two spouses was in desertion. It was left to the husband to choose which should be the matrimonial home. This rule is now rescinded; it is left to either party to decide. It is therefore left to the court to decide which of the two, the husband or the wife, is in desertion.
I turn now to the rules with regard to antenuptial marriage settlements. This was the only clause where I found that I needed some support for what it contains. Accordingly, I got in touch with Professor Love of the Department of Conveyancing at Aberdeen University and Dr. Clive of the Scottish Law Commission. May I make clear why it is that I believe that what amounts to the need for an antenuptial marriage settlement is no longer necessary and why marriage should no longer be regarded as an onerous consideration?
Many of us who have been trained in the law were brought up firmly in the belief that marriage was an onerous consideration and that it was important so to regard it. I should like to remind your Lordships, to quote Dr. Clive's words, that there was a time when this was necessary. First, it was necessary because donations between husband and wife could be recalled at any time. An antenuptial marriage settlement, which meant a settlement for a consideration of marriage, avoided the possibility of the recall of any gift or donation in marriage. Secondly, there was a considerable estate duty advantage in having a settlement of this character. Neither of those considerations now applies, partly because a woman now has control of her own finance, which in the middle of the 19th century was not the case, and partly because the estate duty advantage has now disappeared.
The real point at issue was whether, by making an antenuptial marriage settlement, you could avoid your creditors. In other words, you could put your funds into a settlement of this character and thus avoid having this money reclaimed. There was the further consideration that in a sense it implied that by making an antenuptial marriage settlement you were buying your way into marriage. This was an objectionable feature, to which certain ladies took exception. There is now very little advantage in making an antenuptial marriage settlement. Indeed, there is no difference between an antenuptial and a postnuptial settlement. 655 That is the advice I have been given, which I repeat to your Lordships. For that reason, Clause 5 seems to meet modern requirements.
Clause 6 deals with the abolition of a husband's remaining liabilities for his wife's debts incurred before marriage. This is out of date. The purpose of that rule of law was that when a man married a woman he took over all her finance, for which he was responsible. He also took over all the debts which she had incurred before the marriage. This was necessary at that time but it is clearly unnecessary today.
Clause 7 deals with what is called praepositura. This is a legacy of the past—of the time when the husband was responsible for the movable property of his wife. The result was twofold. First, she had no credit. Secondly, she could not be distrained or have what is called diligence against her. The result was that if she incurred debt she could not be responsible for it. However, it was obviously a matter of convenience that she should be able to deal with the daily household requirements. For this purpose a special rule of law was available: that she could call upon and use her husband's credit for buying what are called normal domestic requirements. She was in the position of household manager. That is no longer necessary, partly because the husband does not take over his wife's finance and partly because she can have diligence effected against her. For both of those reasons, therefore, praepositura is no longer necessary.
Clause 8 relieves the husband of any action at law in which his wife is engaged, for which he has no responsibility whatever. Again this goes back to the time when a wife's property was largely in the hands of her husband. If she was sued at law. it was quite clear that her husband would have to pay. That is no longer necessary. The removal of this liability on the husband is only right and proper.
The purpose of the Bill is very largely to bring the husband and wife into sexual equality. However, it is fair to say that it relieves the husband of a good many obligations which he otherwise would have to hold on behalf of his wife. On the whole, therefore, both husband and wife can be quite pleased with the passage of the Bill. I beg to move.
§ Moved, That the Bill be now read a second time.—(The Earl of Selkirk.)
§ 6.39 p.m.
§ Lord Wilson of Langside
My Lords, I have very little to say from these Benches, except to accord to this measure a very warm and wholehearted welcome and to express our appreciation of Lord Selkirk's presentation and admirably clear explanation of the provisions contained in the Bill. The principle of the Bill is admirable; it is concerned with bringing the law into line with the reality of the social and legal position of women in 1984. Who would want to quarrel with that?
The Bill effectively abolishes a number of quite long—some of them—and outdated rules. Not surprisingly, the consultations which the Scottish Law Commission had on the matter during 1982 and 1983 showed almost unanimous support for these provisions. I should like to pay tribute to the prepara- 656 tory work and the report of the Scottish Law Commission. It is an admirable body, which from time to time I have been inclined to criticise. I have absolutely no grounds for criticism of the commission's approach to this matter. I have read with great interest the commission's consultative document, so carefully and painstakingly prepared, as well as the report. I am sure that your Lordships will willingly give to this Bill a Second Reading.
§ 6.42 p.m.
§ Lord Ross of Marnock
My Lords, I should begin by apologising for the fact that my name does not appear on the list of speakers. This oversight is entirely my fault. Instead of sitting in my room I went to the Library; and no one would think of looking for me in the Library. This Bill is part of the review of family law which the commission is undertaking. We should be grateful to the noble Earl, Lord Selkirk, for having taken this matter up in the House and for going through the clauses with his customary clarity. If someone else had been introducing this particular Bill, I expect that the noble Earl would have had something to say about one or two of the clauses—so when we come to Committee stage, I will look forward to hearing some of the noble Earl's own opinions, because he always enlivens with his individual aspect some of the matters which come before us.
The noble and learned Lord the Lord Advocate has been very lucky in that he has had the Law Commission to prepare his Bill for him. If we look at the clarity and lucidity of this Bill, one finds none of the nonsense of having to refer to half a dozen different statutes. Each individual clause explains what the Bill is going to do. There may be some legal terms which are not familiar to everyone, but from the point of view of those who have been following family law. it is clear in the Bill what is being done. Let it be a model for the next roads Bill which the noble and learned Lord the Lord Advocate introduces. Let him await the Law Commission and he will save himself an awful lot of trouble.
We should be grateful that this Bill is bringing the law up to date because it is antiquated. I do not know whether the News of the World and papers such as that will be throwing their hats in the air at the fact that breach of promise will no longer be available in Scotland. When one thinks of it, as it is so easy to break a marriage today, why should we make it difficult to break a promise of marriage? That would be quite ludicrous. It has been suggested in some of the criticisms of the commission that we are offered in respect of this subject that one cannot judge by the number of actual cases of breach of promise; that behind a marriage there may have been a threat. To my mind, a threat of breach of promise is not a very good base for a marriage. It is sensible to bring this aspect up to date.
So far as adherence is concerned, before we changed the law in relation to divorce, it was one of the preludes to divorce to prove desertion. That is out now and I am sure we are quite right to get rid of that. The noble Earl said that enticement had not been used, but I gather that that is not exactly true. I believe that the Law Commission stated that there is no recorded case of damages being awarded for enticement; that is not the 657 same thing. No doubt the noble and learned Lord will put us right on that particular point. It was the unanimous view of all those consulted that enticement should be abolished, and who are we to differ from those who are more concerned?
I agree, too, with what is being done in relation to the family home. Why should it be the husband's right to say where they shall live? All the changes that are being made here so well—if slightly belatedly—are in keeping with today's position. There may be some argument about the repeal of the husband's liability for his wife's debts. In recollection, I am familiar with this aspect because it was the shame of any woman to find what was known in Scottish working class terms as her husband "crying down his wife's credit". I gather that there could be a legal inhibition registered; but the usual form, certainly in Scottish working-class life, was for a husband to take an advertisement in the local newspaper announcing that he would not be responsible in future for any debts unless personally contracted. All the gossips knew that it was his wife he was getting at.
It did not always mean that the wife was a spendthrift and was recklessly running up bills. It might be that the husband was mean and did not always provide her with money. Whatever merits that might have had in the past, life has changed. Today it may be that the husband is unemployed and his wife is working; why should the husband be made responsible for her debts? Marriage is now accepted as being not so much of a contract but more a partner-ship based on give and take on both sides. It is right that liability should be abolished. Some husbands will regret the fact and some wives may regret it; but some husbands will like it. It is right and fair that this discrimination be ended and that we should depend on general law to sort matters out.
To my mind, we have done very well with this Bill. It is very well worded. I warned the noble Earl that I would go over every word of it, and I am surprised that he did not do so, because there are two changes from the draft Bill. One was necessary to change "1983" to "1984", because the Government did not quite come up to scratch and get this Bill passed last year. The other change is that, according to the Law Commission, the Bill would come into force one month after its passing. In the noble Earl's Bill—and he must take responsibility for this—it states that the Act shall come into force,at the end of the period of two months".I hope that when the noble Earl is making his final remarks, he will tell us why there has been that change. Otherwise, I do not believe that anyone would object to making Scottish law much more realistic in respect of its attitude towards husband and wife.
§ 6.49 p.m.
§ Lord Drumalbyn
My Lords, I am afraid that I do not have my name on the speakers' list either, but perhaps I may say a few words before my noble and learned friend the Lord Advocate replies. When we are making what are really very substantial and radical changes to the law, it is perhaps appropriate to see what we are changing the law from. I wonder how many people are aware of the differences in the law that exist between England and Scotland at the present 658 time, yet there must be many tens of thousands of non-Scots in Scotland who are totally oblivious of what the law of husband and wife is. It would not be appropriate of course to ask my noble and learned friend to go through all the details of the law as it exists at the present time; but it would be at any rate a matter of interest, and I think a matter of importance, for us to know exactly what in fact the changes are.
It seems to me that we have been living in a good deal of ignorance about what in Scotland at the present time is the law governing our daily lives. The noble Lord, Lord Ross of Marnock, is shaking his head, denying that. He has probably moved in circles that discuss these things a great deal and knows exactly where he stands.
§ Lord Drumalbyn
My Lords, that is so, but I started in Scotland and started with some presumptions as to what the law was there. I am quite certain that I was not aware of what the law was then. I think that it would be appropriate if my noble and learned friend could indicate, perhaps even in passing, how people regard the law in Scotland, what the assumptions are, how much is taken for granted, let us say, in Scotland at the present time, where changes have to be made and what effect they will have. It seems to me that the effect of the Bill has been very lucidly described as to what it is going to be but less emphasis has been placed on the changes that are being made. I think that that is important if only to mark the historic changes that are being made and to make clear the changes in custom, as well as in law, that we are dealing with in this Bill.
§ 6.52 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, I am pleased to have the opportunity to make evident the Government's support for the Bill in this House. As has already been stated by my noble friend Lord Selkirk, the purpose of it is to abolish a number of obsolete and discriminatory rules and actions in Scots law. While some of these rules may have had a useful function in the middle of the 19th century, it is evident that they are at variance with the very different legal and social position of married women today. Some of the rules reflect outdated assumptions about the personal responsibilities of married women and their capacity to act on their own behalf—notions which in this day and age may be regarded not only as archaic but also as objectionable and discriminatory. As the noble and learned Lord, Lord Wilson of Langside, said, the Scottish Law Commission's proposals for reform are based not only upon its own thorough study of this area, but also upon consultations which indicated almost unanimous support for its recommendations. I have therefore no reservation in recommending to the Members of your Lordships' House that they should support this Bill.
I am very grateful to my noble friend for undertaking to pilot this important Bill through your Lordships' House and to his honourable friend and kinsman and my honourable friend for doing so in 659 another place. I am also indebted to all noble Lords who have taken part in the debate. I am glad that the noble Lord, Lord Ross of Marnock, has spoken, although, as he explained, his name was not down on the list of speakers. I entirely agree with what he said about the clarity of this Bill. The Law Commission is very much to be commended on the very clear terms in which the Bill is expressed. I shall be endeavouring as best I can to emulate those good qualities when I have the opportunity.
As has been done by other noble Lords, I, too, should like to put on record my appreciation of the work done on this Bill, and much else besides, by the Scottish Law Commission, commissioners and staff alike. I finally say to my noble friend Lord Drumalbyn that the Law Commission is in the habit—and the report on which this Bill is based is no exception—of setting out the present law, the difficulties in the present law and what it is proposing by way of reform. It has done that clearly, and I would commend the underlying report to anyone who wishes to have a very clear account of the present law.
As the noble Lord, Lord Ross of Marnock, has pointed out, there are two differences between this Bill and the Scottish Law Commission's Bill. The first is about the date on which it is actually being taken through Parliament. So far as the two months is concerned, I think that it has been generally agreed that, unless there are exceptional circumstances, two months after it has been enacted is a reasonable moment for an Act to come into force, so that everyone is clear about its terms before it actually takes effect. I think that that was agreed as a matter of general policy some time ago. I certainly entirely support this Bill.
§ Lord Wilson of Langside
My Lords, before the noble and learned Lord sits down, may I tell him that I had the greatest difficulty today in getting a copy of the Law Commission's report? I asked for it in the Printed Paper Office and they were unable to trace it. The request was put on the computer but defeated even that.
§ Lord Wilson of Langside
My Lords, they were unable to give it to me. I eventually told the noble and learned Lord's office and they finally gave me it, but I did have difficulty. On this occasion it was not my own stupidity. They could not give it to me in the Printed Paper Office and they could not trace it in the Library. I just thought that the noble and learned Lord should know that, as he commended that report.
§ Lord Mackay of Clashfern
My Lords, I am grateful to the noble and learned Lord for that information.
The Earl of Selkirk
My Lords, I should like to thank noble Lords for their support. I should particularly like to thank the noble and learned Lord, Lord Wilson of Langside, because he strongly congratulated the Law Commission on what it has done. I recall being very critical of the Law Commission. I wondered 660 what it was going to do. Was it going to short-circuit Parliament, or what were its activities? But what it has done is to turn out an enormous amount of detail. The details of this Bill itself could not have been found out by anyone except the students of learning who went through it with very great care. We are greatly in the debt of the Scottish Law Commission.
The noble Lord, Lord Ross of Marnock, with his detailed eye. accused me of not knowing what had been changed in the Bill from the Law Commission. The first thing he pointed to was the date. The date changes automatically without any effort. Secondly, the two-month period was an amendment put in by the House of Commons. I did not think that it was of sufficient importance to draw to the attention of the House.
The noble Lord, Lord Drumalbyn, asked whether we could have a full picture of family law in Scotland. The truth is that it is pretty difficult, partly because of what existed in the middle of the 19th century. We had a much more developed system than they had in England, with all sorts of detailed legal rights of one kind and another which I do not think existed in England at all. To adapt that to an entirely new situation is a highly complicated business. This small Bill touches only on the very perimeter of it. I commend the Bill for a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.