COMMONS AMENDMENT (Hansard, 10 July 1984)

§ The Lord Chancellor
My Lords, with this, I will, if I may, speak, to Amendments Nos. 7 and 8. 7 Clause 10, page 13, line 22, after ("sections") insert ("(consent orders for financial provision or property adjustment) [No. 2]"). 8 After Clause 16, insert the following new Clause— ("Consent orders for financial provision or property adjustment. .—(1) Notwithstanding anything in section 16 above, on an application for a consent order for financial relief the court may unless it has reason to think that there are other 821 circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application. (2) Subsection (1) above applies to an application for a consent order varying or discharging an order for financial relief as it applies to an application for an order for financial relief. (3) In this section— consent order", in relation to an application for an Order, means an order in the terms applied for to which the respondent agrees; order for financial relief" means an order under section 15 above; and prescribed" means prescribed by rules of court."). This deals with consent orders. There has always been a degree of ambivalence about the attitude of the divorce courts towards applications for financial relief which are made by consent. On the one hand, the courts have never countenanced an ouster of their jurisdiction and it is now provided in the Matrimonial Causes Act that, although maintenance agreements are valid, any term of such an agreement which purports to oust the jurisdiction of the court shall be invalid; for example, only the court can conclusively dismiss an application for maintenance after divorce.
On the other hand, as the second arm of the ambivalence, the courts are understandably reluctant to spend time and effort on examining cases where the parties are agreed, especially where it is clear that they have been advised by solicitors who are reliable and competent. Therefore, although the courts are in theory under the duty imposed by Section 25 of the Matrimonial Causes Act to take into consideration all the circumstances of the case even in consent cases, in practice in cases where both sides are well advised many registrars have been wisely but simply been dealing with these cases swiftly and on the papers.
Now, the decision of the Court of Appeal in a case called Jenkins—it is extraordinary how often these Jenkins's get into trouble these days!

§ Lord Mishcon
My Lords, I hope the noble and learned Lord has noticed that the noble Lord, Lord Jenkins of Putney, is not in his seat.

§ The Lord Chancellor
My Lords, there is also the new Bishop of Durham and my right honourable colleague. They seem to have their little difficulties!
That case of Jenkins v. Jenkins, concerned an order for financial relief which was made by consent but without either the husband or the court being aware that the wife was on the point of remarrying. The husband subsequently sought to upset the order in the light of this. At the end of its judgment, the Court of Appeal made some general observations about how consent applications should be dealt with. The court said: In any ordinary circumstances we should regard an attendance before the registrar as necessary to enable answers to be given to any queries that he might have in the course of the exercise of his jurisdiction". This has had somewhat unfortunate consequences. Given the present trend, which is wholly satisfactory, towards attempting whenever possible to settle these unhappy cases by agreement, whether through conciliation or otherwise, obliging the parties still to attend court and answer the questions of the registrar may to a large extent defeat the purpose of seeking agreement in the first place; that is, avoiding unnecessay 822 argument and, perhaps equally importantly, costs; since even legally-aided parties often have to bear their own costs through the Law Society's statutory charge. Further, there are many thousands of consent applications each year and the dictum of the Court of Appeal would necessitate a considerable amount of court time being devoted to such applications, leading to consequent delay and frustration for the other cases in what is called the "pipeline".
The new clause will remedy this. It will relieve the courts of their duties under Section 25 to investigate all the circumstances of the case. The clause requires "prescribed information" to be provided, so it will be for rules of court to lay down exactly what would be required. It is presently considered that a bare minimum of what would be required would be a statement of the amount or value of the capital and income resources of each of the spouses (and, if relevant, of any minor child) on the basis of the disclosure made by the discovery or affidavit and a statement by the solicitor lodging the application for a consent order that, in his opinion, the agreement is a fair and equitable solution of the dispute based on that disclosure.
If both parties are legally advised, one would normally expect a consent order to be justifiable unless there is anything appearing in the papers to put the court on notice that it is not. If one party is not legally advised, then that in itself would be a circumstance which might alert the court to look a little more closely at the application and, if dissatisfied in any respect, to call for more information or require the attendance of the parties. In short, the proposed amendments would restore the practice substantially to what it was, without apparently causing any dissatisfaction, before the Jenkins decision. I therefore beg to move that this House doth agree with the Commons in the said amendment.

§ Lord Mishcon
My Lords, the extraordinary thing is not that the case was Jenkins v. Jenkins but that it was Jenkins v. Jenkins formerly Livesey. Whether somebody called Livesey altered her name to Jenkins, or that that is the lady's maiden name, at the present moment mystifies me. Nevertheless, it was a decision about which the legal profession, especially those dealing in matrimonial affairs, were very disturbed because it did look as though consent orders, which were so desirable where both parties had been properly advised, which meant that there would not be confrontation in court, would not go through without a proper investigation by the court, even though, as I said, the parties had been advised.
We are all deeply grateful to the noble and learned Lord for his clear explanation and there is not the slightest doubt that this is a valuable amendment. Unless anybody fears that there will be some sort of lack of safeguard for anybody who is not legally represented, there is not the slightest doubt that our registrars and, if necessary, our judges will look very carefully at an application for their imprimatur to be put upon a consent agreement and to make an order, will look carefully at the circumstances and might well 823 ask the parties to be present if the court is in the slightest degree doubtful about the justice of the settlement. We are always in favour of parties in family disputes and matrimonial affairs trying to settle their differences in a civilised way and without confronting each other in court. I think that this amendment helps it and ought to be welcomed.

§ The Lord Chancellor
My Lords, I am very grateful to the noble Lord for his kind support. In an act of carelessness I forgot to add to my original statement that Amendment No. 7 is a paving amendment for Amendment No. 8 and that Amendment No. 8 inserts a new clause into Part III of the Bill which deals in exactly the same way with applications for financial relief after a foreign divorce.

§ Lord Meston
My Lords, I welcome these clear and constructive amendments. This particular amendment really reflects the realities of the position of the court faced with an application to make a consent order. I certainly hope that the prescribed information will encourage the parties to reach a consent order having put all their cards on the table face up, and so minimise costly attempts to impugn consent orders. But certainly this amendment and indeed all the amendments are welcome.