Family Law (Scotland) Bill [H.L.]

HL Deb 04 December 1984 vol 457 cc1260-71

Lord Cameron of Lochbroom

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.—(Lord Cameron of Lochbroom.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clauses 1 to 3 agreed to.

Clause 4 [Amount of aliment]:

Lord McCluskey moved Amendment No. 1: Page 4, leave out line 11.

The noble and learned Lord said: This amendment raises a matter of no great importance. It was a matter that I mentioned at the Second Reading of the Bill. Clause 4(1) sets forth the matters to which the court should have regard in assessing or determining the amount of aliment to be awarded in an action for aliment. Paragraph (b) speaks of the earning capacities of the parties. Because paragraph (a) deals with the needs and resources of the parties and paragraph (c) deals with all the circumstances of the case, it is not entirely clear to me why the earning capacities of the parties become relevant if they do not form any part of either the resources or the other general circumstances.

I can understand that if a person on whom a duty to aliment another is laid decides quite deliberately to decline to work, then I suppose one would want to take that into account. But one would have thought that that would be covered by the circumstances of the case dealt with in paragraph (c) or by the resources of the parties, because one of the resources is his capacity to earn money. Perhaps this would be an opportunity for the noble and learned Lord in charge of the Bill to explain why the earning capacities of the parties are relevant apart from paragraphs (a) and (c) of subsection (1).

Lord Cameron of Lochbroom

This amendment conflicts with the views of the Scottish Law Commission—views which, I may say, the Government share. In their report, the commission made clear that they considered that a person's earning capacity should be taken into account as well as his resources. These would include for instance his actual earnings. The commission's view was that earning capacity in the sense of a person's potential to earn money, having regard, of course, to factors such as age, health and previous experience as well as the availability of suitable employment or the need to care for children, was a factor of some importance in the quantification of aliment. This must be of particular relevance where it concerns the capacity of the alimentary creditor to support himself or herself. It is surely reasonable when someone claims aliment that his or her ability to support himself or herself should be considered.

In these circumstances, I would suggest that earning capacity is an important factor which should be taken into account and that it is desirable to direct the courts expressly to consider it. Obviously, it is necessary at the same time to recognise that this is an area where precise rules cannot be laid down. The courts, for instance, could have regard to all or any of the factors I have mentioned in assessing earning capacity in a particular case. I make it clear that this is to bring clearly before the courts the fact that not merely are they looking at resources in the sense of actual available assets but that this is also a matter of potential, the nature of which I have referred to.

Lord McCluskey

If I always found the Lord Advocate as convincing on these Bills as I find him in relation to this amendment we could have risen a long time ago. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

Clause 7 [Agreements on aliment]:

Lord McCluskey moved Amendment No. 2: Page 5, line 27, at end insert— ("Provided that this subsection shall have no application to any provision contained in an agreement which was entered into not less than 10 years beforehand.")

The noble and learned Lord said: What Clause 7 does, insofar as this amendment is relevant, is to enable an agreement on restricting future liability for aliment to be denied effect or superseded. I have no quarrel with the principle of what is contained in the clause. The clause provides that such a provision shall have no effect unless the provision was fair and reasonable in all the circumstances of the agreement at the time it was entered into. It is absolutely necessary to look at the circumstances to see whether the agreement was fair and reasonable at that time.

What my amendment seeks to do is to say that that will be the situation provided that the agreement was made within the last 10 years. In other words, I do not really want the courts to be going into questions that are more than 10 years old and asking themselves whether this old agreement, made 20 or 15 years ago, is fair and reasonable in all the circumstances prevailing at that time. In other fields of law there are prescriptions and limitations that apply, and this kind of provision simply invites litigation—perhaps expensive litigation—about matters that have been covered by the thick dust of time. I should have thought that it was sensible to impose some kind of time limit.

I have suggested 10 years. The Government may consider that there is a better period. But, for the moment, I should like the Lord Advocate to take this chance to explain why it is that an agreement, however old, can be denied effect, and whether or not he agrees that that might lead to unnecessarily complicated and expensive litigation. I beg to move.

Lord Wilson of Langside

I can understand why the noble and learned Lord put down this amendment, but surely this is a matter that would be best left to the discretion of the court.

Lord Cameron of Lochbroom

The noble and learned Lord, Lord Wilson, has, in a sense, compressed all that I was going to say. It seems that the amendment, by introducing an arbitrary period of limitation and thereby preventing persons claiming aliment where an obligation of aliment under Clause l still subsists, may produce injustice. I would suggest that there is really no justification or necessity for a limitation of this nature. I take the 10 years as simply being a suggestion by the noble and learned Lord opposite. On the contrary, the introduction of any such rule of limitation may have very undesirable consequences. For example, an economically weaker spouse who had entered into such an agreement would be penalised if she delayed longer than whatever might be the particular period suggested before seeking to vary the terms of agreement in court.

I accept that there may well be cases where finality in a financial settlement is desirable but it has to be recognised that an obligation of aliment is of a continuing nature and accordingly that time limits may produce injustices. I hope therefore that the Committee will incline to the view that I suggest. The criterion by which such agreements should be assessed must be that they were fair and reasonable at the time they were made rather than an arbitrary and artificial test that they have endured for a certain period, whatever that period may be. For all these reasons, I would suggest to the noble and learned Lord that he might now see fit to withdraw the amendment.

Lord McCluskey

I might indeed, but I do not think it is a question of simply leaving it to the courts. If you have a provision of the kind that I suggest which places a time limit upon the attack on the agreement, the matter would never get to the courts. It would be dismissed as an irrelevant application if the application was one to unscramble an agreement more than 10 years old. What I am endeavouring to do with this amendment is to prevent unnecessary litigation, to prevent people dragging others to the courts, to blackmail them, in effect, by threatening to deny effect to an old agreement by an inquiry into all the circumstances obtaining at the time that it was entered into. However, in the absence of support for the provision. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 3: Page 5, line 30, after ("a") insert ("material").

The noble and learned Lord said: This is an amendment to the same clause and to very much the same effect. I am concerned here with the fact that application may be made to the court for variation of an obligation to pay aliment on a change of circumstances. I want to discourage applications being made to the court, or being threatened to be made to the court, simply because there is a change in circumstances. I want the change to be material enough to warrant the application. So, if a man has an obligation to pay aliment in respect of an agreement at a time when his earnings are £200 per week and he increases his earnings to £201 per week, one hopes that that would not be productive of an application to the court; but it technically could, because that would be a change of circumstances.

I think some word, some epithet—whether it be "material" or "substantial" or something of the kind—would improve the Bill and render it less likely that people would either be taken to court or would be threatened with court action and in effect blackmailed into changing an agreement which was not based upon materially different circumstances from those obtaining at the time of the threatened application. I beg to move.

6 p.m.

Lord Wilson of Langside

I have some difficulty in understanding why the noble and learned Lord associates this amendment, and its effect, with the previous one. I should have thought it was altogether sensible to put in the word "material". My recollection, which may be wrong, is that in earlier provisions on this very matter—statutory provisions—the word "material" appeared. Certainly in practice it was recognised that the change of circumstance should be a change of a material nature and not a minor, insignificant one. I should think the word "material" would add to the Bill.

Lord Cameron of Lochbroom

I think it is proper to see these words in the general context of the Bill. Your Lordships will have observed that in Clause 5(1) there is provision for a decree granted for aliment to, be varied or recalled by an order of the court if since the date of the decree there has been a change of circumstances". Equally, looking forward to Clause 13, there is provision for variation of orders for financial provision. Subsection (1) (c) (iii) refers to a situation where, since the date of decree there has been a change of circumstances". It would be unfortunate that there should be any different wording in this particular clause, Clause 7(2). It seems to me that different wording could well create inconsistency and uncertainty as to the reason why there should be a change of emphasis and wording in Clause 7(2), where these are all obligations of aliment which have been carried out in various different ways—in one by decree of court; in the second by agreement; and finally, of course, the question of periodical allowance, a matter determined after decree of divorce has been pronounced.

I suggest that your Lordships might feel that this is an area where it is proper that the court should have discretion to decide, according to the particulars of any case, whether a change in circumstance is such as to warrant a variation or termination of a contractual obligation, and that in this particular case it would not be desirable or fair to introduce an element of inhibition upon applications to the courts for this purpose when none such is introduced in other and similar analogous circumstances.

Lord McCluskey

The point there of course is that the same epithet ought to be introduced into Clauses 5 and 13. One should not have people running to court simply because they can point to a change in circumstances: one ought to put them to the task of showing that the change is material, and that is regardless of the actual character. Had I done my homework more thoroughly I should have put this epithet into Clauses 5 and 13 as well. I hope the Government might just consider using the epithet in order to discourage litigation.

If I may say so to the noble and learned Lord, Lord Wilson of Langside, that is the only sense in which I associate Amendment No. 3 with Amendment No. 2. We have a common purpose—namely, to reduce the likelihood of litigation and reduce the threat of litigation in support of claims for increases in aliment or the like. That is the purpose, and I think it might be achieved if the Government were to consider making it slightly more difficult in the way I have indicated. However, for the moment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 agreed to.

Clause 9 [Principles to be applied]:

Lord McCluskey moved Amendment No. 4: Page 6, line 42. leave out ("serious") and insert ("grave").

The noble and learned Lord said: Those of your Lordships who have not studied the Bill with great care must wonder what on earth I am on about when I suggest deleting the word "serious" and inserting the word "grave". I am reminded of an Irishman and an Englishman describing the same situation. The Englishman said it was serious but not critical and the Irishman said it was critical but not serious. In this particular case, the real reason why I have suggested deleting the word "serious" and inserting the word "grave" is not that I have any preconceived notions about the gradations of seriousness, though I suspect that "grave" is more serious than "serious" and that "gravity" is somehow a heavier matter than "seriousness". If there is an ascending scale of gravity I think that "grave" is higher up that scale than "serious".

But the reason I seem to get involved in the semantics is that the Scottish Law Commission deliberately used the word "grave". They did not do it by accident. They refer to the word "serious" and to the word "grave" on at least four different pages of their appropriate report, and they choose the word "grave" for their Bill because that is the word that appears in the 1976 Act, in Section 1(5). They were quite deliberate in putting in the word "grave", and one must assume that the parliamentary draftsmen and the Lord Advocate were quite deliberate in taking it out. So although I may seem to be playing with something quite evanescent and insubstantial, the Government must have a reason for doing it. I do not know whether their reasons are serious or grave, but I should certainly like to hear what they are before I withdraw this amendment. I think the matter may be related to the next amendment, or rather to Amendment No. 6, which is concerned with the substantial matter which is outstanding on this Bill; but the Government will no doubt tell us. I beg to move.

Lord Cameron of Lochbroom

This is a deliberate adjustment in the proposal that was made by the Scottish Law Commission. Indeed, I think the noble and learned Lord opposite has indicated that the word "serious" does have some different connotation from the word "grave". I might have been seriously upset by some of the criticisms that the noble and learned Lord made this afternoon, but I trust I have not been gravely injured by them.

The intention was to make clear that it was hoped that the degree of financial hardship which would constitute a ground for refusal of a decree of divorce in an action founded on five years' non-cohabitation should not be precisely the test which should be applied in the principles which would determine a court in making an order for financial provision. Accordingly—and I hope your Lordships will agree—it was felt that the exacting test of need which was specified in the Divorce (Scotland) Act really provided a more serious—I might put it this way—test than the test which should be more appropriately found in a question of determining the principles upon which financial support is to be awarded. Put another way, the word "serious" would seem apt to allow slightly more flexibility while making it plain that awards under Clause 9(1)(e) would be made only exceptionally. I trust that at least that gives some measure of answer to the point made by the noble and learned Lord and that he may now feel able to withdraw the amendment.

Lord McCluskey

I certainly intend to withdraw my amendment. I am not at all sure how a court will measure the seriousness. But when they come to do so they cannot of course look at the words of the noble and learned Lord opposite, at my own words, or those of anyone else in the Committee: they will just have to do the best job that they can with the words that they have before them. They will look in this Bill and find the word "serious" and they will look in the 1976 Act and find the word "grave" and they will have to conclude—as they rightly would—that the Government or Parliament decided to use a different word in order to achieve a different result, and then, in my view, they will be no further forward because they will not know what that different result has to be. So, if you provide a long piece of string in one Act and a slightly longer piece of string in another Act I do not know what difference it makes. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Factors to be taken into account]:

Lord McCluskey moved Amendment No. 5: Page 9, line 42, at end insert— (" but, in any event, the court shall not take account of any such conduct unless it is reasonably related to the financial circumstances, resources or prospects of the parties or either of them.").

The noble and learned Lord said: When I commenced my career a good deal of the time of the courts was taken up with battles between divorcing spouses, the object of those battles being that each would blacken the character of the other and the whole history of the marriage was gone into for that purpose. While it was very lucrative for lawyers and made good copy in certain newspapers at certain times, it was not a very edifying prospect. Since that time we have moved forward and nowadays we no longer go into the conduct of the parties in any detail.

This Bill in dealing with questions of aliment allowable, or sums of money payable on divorce, largely follows and advances that development. In effect it says that the court is not to take account of the conduct of the parties. But in Clause 11(7) it says: In applying the principles set out"— and those are the principles in Clause 9 which deal with the appropriateness of the order to be made for financial provision— the court shall not take account of the conduct of either party unless—

1. (a) the conduct has adversely affected the financial resources which are relevant"—

or(b)—and this is the provision that worries me—unless: it would be manifestly inequitable to leave the conduct out of account".

What worries me is that conduct which does not have any specific relation to the financial resources of the parties, the financial history of the marriage or the financial future of the separated and divorced spouses, should be gone into. I fear that there is a danger of that happening.

The purpose of my amendment which appears on the Marshalled List as No. 5 is that: the court shall not take account of any such conduct unless it is reasonably related to the financial circumstances, resources or prospects of the parties or either of them".

I do not doubt that the draftsman could formulate that principle in more precise and more effective words. But the principle is clear: the courts should be totally debarred from an inquiry into the conduct of the parties unless that conduct has some bearing upon the financial circumstances—past, present or future—of the parties to the marriage. For those reasons I suggest that your Lordships should accept this amendment in Committee. I beg to move.

6.15 p.m.

Lord Wilson of Langside

This amendment, like practically all the amendments of the noble and learned Lord, Lord McCluskey. is very well founded. The question is whether one should be more worried by the situation as it will be under the clause as drafted than one would be by the situation that will arise when lawyers start arguing about whether or not the conduct is reasonably related to the financial circumstances, etc., of the parties. However, I agree that the matter is worth looking at again, and I hope that the Lord Advocate may perhaps do so and that something maybe drafted to assist the courts. It may be that the situation would be better left as it is, but it is certainly worth thinking about.

Lord Cameron of Lochbroom

These provisions are really following the recommendations of the Scottish Law Commission who looked at this matter in detail. They came to the conclusion, in relation to what I might call the five principles which are set out in Clause 9, that conduct could be said to be relevant to them in different ways. They took the view in relation to the first three that the question of the effect of conduct upon financial resources might be relevant. But they recognised that different considerations could apply to conduct in relation to paragraphs (d) and (e)—that is, the principles of easing adjustment to independence and the relief of serious financial hardship. Here the commission concluded that it would be reasonable that the court should be able to have regard to misconduct which did not affect the parties' economic position—where, for example, a party might be required to support financially a former spouse who had manifestly and deliberately brought the marriage to an end.

Accordingly, while recognising that what they termed "economically irrelevant misconduct" should be taken into account in certain cases, the commission also made clear that the courts should be provided with an effective instrument to restrain or prevent the raking over of petty misdemeanours from the past. In those circumstances the commission's recommendation was that the conduct of the parties, except where it has affected the economic basis of the claim for financial provision, should only be taken into account in relation to the principles of fair provision for adjustment to independence (Clause 9(1)(d)) and the relief of what they called "grave" and what is now "serious" financial hardship (Clause 9(1)(e)) and then only—and this again is the qualification, the discretion which is given to the courts—if it would be manifestly inequitable to leave that conduct out of account.

The Government recognise that this is a difficult area, but they believe that the commission's conclusions have produced a fair and reasonable balance of interest and that it would be appropriate that some account can be taken of conduct in the particular circumstances in relation to the principles under subsection (1)(d)or(e), and then only if it would be manifestly inequitable to leave that conduct out of account.

Lord Wilson of Langside

I am very reluctant to introduce anything of a sour note at this late hour, when everyone is anxious to proceed to the next business, but I was very glad that the noble and learned Lord the Lord Advocate added his last two sentences. We have all expressed the utmost admiration for the Scottish Law Commission, but in the earlier part of the noble and learned Lord's reply I was beginning to wonder whether law commissions and other similar bodies are usurping the functions of government.

It is right that the Government should have taken into account everything that the Scottish Law Commission has said and done in this area and should have given careful consideration to it. But I was beginning to wonder whether perhaps governments felt from time to time that this relieved them of the necessity of any independent thought at all. However, as a result of the last several sentences of the noble and learned Lord the Lord Advocate I appreciate that the Government have thought seriously about the two possibilities. This is a family law Bill, and family tensions and family situations are very delicate matters. We must consider them carefully. I am now convinced that it is not just because the Scottish Law Commission said it, but because the Government have applied their minds independently and have decided that this is the best way.

Lord McCluskey

I am both glad and sorry that the noble and learned Lord, Lord Wilson of Langside, joined in. I am glad because I agree with what he said about the Scottish Law Commission, and I am sorry because that is what I was about to say myself. I would put it this way. However much we may admire the Scottish Law Commission, the Scottish Law Commission is not a substitute for parliamentary scrutiny and for independent judgment. A former chairman of the Scottish Law Commission told me that he was deeply concerned at the fact that from time to time—in fact, quite frequently—they had to take decisions which were essentially policy or political decisions, with a small "p", in relation to the reform of the law; and as there seemed to be very little help forthcoming from outside, they took those decisions and incorporated them in their reports. Therefore, we must not just look at those decisions and say that because the Scottish Law Commission did it, it is good. In some circumstances one wishes that that were so, but in this particular case it is not justified.

In particular, the noble and learned Lord the Lord Advocate ought to look at the position in England and at the considerable debates that attended the similar provisions in the Bill that was put through Parliament in the last Session. I should like to ask him this question, and I hope that he will be able to give me the answer now. In what case would it be manifestly inequitable to leave out of account conduct which is entirely relevant to the financial circumstances of the party? If the conduct is to take one's mistress on a first-class trip round the world in the "Queen Elizabeth II", that would certainly have an effect upon the financial resources of the parties. But if the conduct is entirely unrelated to the financial circumstances, in what case would it be manifestly inequitable to leave the conduct out of account? One cannot just leave it to the courts.

This worries me, because in Scotland we have a reasonable system of relevancy; in other words, we can stop cases going to proof, or stop particular parts of cases going to proof, if the averments that one party wants to prove do not lead anywhere, if they are irrelevant. Accordingly, it would mean that the court would never entertain allegations of wickedness on the part of one spouse or the other spouse unless the averments made it plain that that wickedness had some bearing on the financial circumstances of the parties. That is why I think that it should be in the Bill, and I hope that the Government will bear that argument in mind and make an independent reassessment of this particular matter. In the meantime, I do not propose to press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 agreed to.

Clause 13 [Orders for periodical allowance]:

Lord McCluskey moved Amendment No. 6: Page 10. line 37, leave out from ("allowance") to end of line 38 and insert ("shall not be made so as to subsist for a period of more than three years from the date of decree of divorce except where, in applying the principles set out in section 9, the court thinks it necessary to provide that such order shall subsist for a longer period.").

The noble and learned Lord said: This amendment to Clause 13 raises very sharply the question (which was a live question in the debates on the Bill affecting England in the last Session of Parliament) as to how long after the divorce is one party to be obliged to maintain the other. Part of my problem in assessing this Bill is to know precisely what the Government intend to do.

The Scottish Law Commission drafted a Bill which contained Clause 9 of the present Bill, except that the word "grave" appeared instead of the word "serious" and the Bill also contained the present Clause 13, except that subsection (3) was different. By my amendment I seek to alter the present subsection (3) by, in effect, putting in what the Scottish Law Commission had included in its draft Bill. One of my purposes is to discover from the Government what is being done.

The Scottish Law Commission's view was that in the great majority of cases the periodical allowance should terminate three years after divorce and, accordingly, both Clause 9 and Clause 13 were drafted with that in mind. As I read this Bill, the Government weaken the Scottish Law Commission's position on that, and I should like the Government to tell me whether they agree that the position under this Bill is weaker in that regard than it was under the Scottish Law Commission's draft Bill. If the answer is "Yes", I should like to know why. If the answer is "No", why has the wording been altered?

It appears to me that the court is given rather more latitude by subsection (3) of Clause 13 stating: An order … for a periodical allowance may be for a definite or an indefinite period or until the happening of a specified event".

I do not know what kind of a period can be spoken about that is not either definite or indefinite, but no doubt the noble and learned Lord the Lord Advocate will be able to explain that.

The real point is that what has been deleted is the reference to the three years, which was contained in the draft Bill. So perhaps the noble and learned Lord would be good enough to explain to the Committee what is going on, and why. I beg to move.

Lord Cameron of Lochbroom

I should say that the present draft of the Bill has been reached after consultations with the Scottish Law Commission, and it seeks to provide a more logical relationship between the provisions of this clause, which of course relate to the circumstances in which the court may make an order for periodical allowance, and the principles in Clause 9, to which these provisions apply. I think that the noble and learned Lord opposite will agree that the original subsection (3), which is in the Law Commission's draft Bill, refers to the principles set out in Clause 9(1)(c) or (e) as being the principles which will enable an order to be made for a period longer than three years. That is still the position, but it is brought about by a different formulation which it is accepted, at least by the Scottish Law Commission, produces a more logical relationship.

Perhaps I may just look again at Clause 13(2), which immediately precedes the subsection which we have under discussion. That subsection provides that: The court shall not make an order for a periodical allowance under section 8(2) of this Act unless— (a) the order is justified by a principle set out in paragraph (c), (d) or (e) of section 9(1) of this Act; and". In addition, it takes the view that… payment of a capital sum or for transfer of property would be inappropriate or insufficient to satisfy the requirements". 6.30 p.m.

If one turns to Clause 9(1)(d) that provides the principle that: a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of the decree of divorce, to the loss of that support on divorce". So far as that principle is concerned three years is the ultimate. But it will be clear to your Lordships that if one has regard to the remaining principles—paragraph (c) which reads: any economic burden of caring, after divorce, for a child of the marriage under the age of sixteen years should be shared fairly between the parties that might mean an order for periodical allowance which could extend further than the three years or it could be for a shorter time. That applies equally to paragraph (e).

The intention of the present Clause 13(3) is specific. It is to ensure that the courts have power to award a periodical allowance for a definite period or until a specific event as well as for an indefinite period. A recent decision of the Court of Session has held that allowances of this nature may be awarded only for an indefinite period, in effect until the death or remarriage of the payee. It is accordingly considered essential that the court should have power to award such allowances for an indefinite period when appropriate. In the case of the principle referred to in Clause 9(l)(d) that would be for a period of up to three years. In relation to paragraphs (c) and (e) that could be for such lesser or greater time as the court may think appropriate. Accordingly, it is for that reason that there has been departure from the wording, but not from the general intention of the draft Bill which accompanied the Scottish Law Commission's report.

Lord McCluskey

I think that explanation will be extremely helpful to those who are interested in this matter. It certainly clarifies it in my mind and I see no need to ask your Lordships to amend the Bill. Accordingly, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

Unless any of your Lordships disagree with me in this proposal, I propose to put Clauses 14 to 29 inclusive to the Committee.

Remaining clauses and schedules agreed to.

House resumed: Bill reported without amendment: Report received.