New Clause. — (Provisions as to Separation Agreements.)

Orders of the Day — Married Women (Maintenance) Bill – in the House of Commons at 12:00 am on 28th July 1949.

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Lords Amendment: In page 1, line 22, at end insert new Clause "A": (1) In determining for the purposes of section four of the Summary Jurisdiction (Married Women) Act, 1895, whether a husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or her infant children, payments made by the husband shall not be deemed to be sufficient to provide such reasonable maintenance by reason only that they are made in accordance with an agreement made between the husband and the wife before the commencement of this Act.(2) Where an order under paragraph (c) of section five of the Summary Jurisdiction (Married Women) Act, 1895, or under section one of the Married Women (Maintenance) Act, 1920, is made in pursuance of an application under section four of the first-mentioned Act, and the husband is liable, in pursuance of any agreement, whether made before or after the commencement of this Act, to make payments to or for the benefit of the wife or any child for whose maintenance provision is made by the order, the liability of the husband under the agreement shall be treated as discharged to the extent of any payments made in pursuance of the order.

Photo of Mr Walter Monslow Mr Walter Monslow , Barrow-in-Furness

I beg to move, "That this House doth agree with the Lords in the said Amendment."

Photo of Mr Arthur Champion Mr Arthur Champion , Derbyshire Southern

I beg to second the Motion.

10.12 p.m.

Photo of Mr Marcus Lipton Mr Marcus Lipton , Lambeth Brixton

I rise to oppose this Clause. I have learned to my cost and have suffered from the doctrine that in connection with Private Member's Bills, no controversial proposals involving fundamental changes of the law should be dealt with in this way. This Clause is ill-digested and ill-considered. It received only the most perfunctory consideration when it was dealt with in another place. I gather, from what was said in the course of the discussions in another place, that this Clause has been drawn up in co-operation with the promoters of the Bill and the Home Office. The effect of it is to throw into the melting pot every voluntary agreement entered into by husband and wife, which, in effect, become mere scraps of paper.

This Clause introduces a novel and revolutionary principle, that a bonded deed entered into by two parties shall at the discretion of only one of the parties be set aside on application to a court of summary jurisdiction. I am prepared to admit that this problem which is caused by the effect of voluntary agreements upon subsequent matrimonial proceedings is a difficult and serious one. Although, as far as I can judge, the Home Office and the Government have no views on the matter at all, it does in my view add another anomaly to the sorry mess in which the matrimonial laws of this country have become inextricably involved. It is well-known that the magistrates court, on application of either party, may alter or discharge any order, or may on such application from time to time increase or diminish the amount of any weekly payments ordered to be made. So long ago as 1912, the Royal Commission on Divorce considered this problem. They made this recommendation, which I shall quote verbatim from paragraph 453 (3). In order to meet the new conditions the High Court should have the power on the application of either party, if in the opinion of the court it was reasonable in the circumstances to do so, to set aside any deed or agreement for separation on such terms as it may think fit. The words to which I invite the House to give its attention are these: "… on the application of either party. …"

I should have no objection to this new revolutionary Clause if either party had the right to ask the court of summary jurisdiction to set aside the voluntary agreement that had been entered into by both the parties concerned. What this Clause does is quite different from that. It gives to the wife, and only to the wife, the power to go to a magistrate's court for the purpose of setting aside the voluntary agreement into which she entered with her husband. I am bound to say that in view of the attitude of the Government, which has rejected the idea of a Royal Commission to go into all the anomalies that are inherent in the present position, I should like to put on record my strong objection to this piecemeal and indeed molecular approach to a very serious problem.

10.15 p.m.

As a matter of fact, the magistrates' courts have nothing like the same machinery at their disposal to investigate and verify the means of the parties concerned as has the High Court. In the discussion in another place, the Lord Chancellor, presumably speaking on behalf of the Government, made it quite clear that the Government had no definite views on the matter, and reiterated on three occasions that a serious point is involved in this particular Clause. If such a Clause is carried, no legal adviser in the country, I imagine, would find it possible to advise any man to enter voluntarily into a deed of separation where the amount involved was £5 a week or less, because there would be no finality or stability about the arrangement which had been voluntarily entered into by both parties. The effect of this Clause would be to deter husbands and wives from entering into voluntary agreements. It would force them against their will in many cases to go to court and have matrimonial disputes settled by the court with all the undesirable consequences arising therefrom.

As is well-known, in these matrimonial proceedings one party has to be proved guilty and the other one innocent, even if the real facts of the case show that it is six of one and half a dozen of the other. It has been said that marriage makes two people one. The question which arises is "which one," and I must say that this particular Clause cannot honestly be recommended to the House. It has been popped into the Bill at the last minute after inadequate consideration in another place and with no consideration at all in this House. I am strongly of opinion that it will create more confusion, more hardship and more injustice than at present exists. Unless the Government have changed their mind and are now prepared to come out openly in favour of this Clause and press the House to do so, I would ask the House to reject this very fundamental and controversial addition to the law which the promoters are seeking to introduce.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

I, too, hope that this Clause will not be accepted. It received very short consideration in another place. I do not know what the arguments for it are in its present form. My objections to it are threefold, and as it is getting late I propose to state them quite shortly and leave it at that. The first is that it is wrong that agreements voluntarily made should be kept on being set aside at the instance of one party and not of the other. It may be there are more cases on one side or the other, I do not know, and I doubt if there are any statistics about it. It depends so much on which point of view the magistrates look at, and I feel that the only safe course in those circumstances if such agreements are to be set aside at all—and no doubt there may be a case for setting aside sometimes—is for this to be done after proper consideration of all the circumstances.

My second objection—and I am bound to say it is the one that weights most with me—is that no existing voluntary agreement would now be regarded as safe. If this Clause is limited to agreements made before the Act comes into force, it seems to me a retrograde step to take up an attitude which is likely to discourage them being made in future. I feel strongly that the more questions of separation and maintenance can be decided by agreement, the better for us as a community in the long run. I humbly suggest that on that sort of ground as on many others, we still have something to learn from our neighbours in Scandinavia, who extended the scope of the agreement in these cases beyond what we in this country have so far ventured.

My third point is that I am profoundly uneasy if contracts are to be set aside, because that would really come to mean that the courts of summary jurisdiction would have to deal with those cases. I notice that the recommendation of the Royal Commission on the subject was that this should be done in the High Court. I can see objection to that. Equally, I can see objection to their being set aside in other courts. It is very easy to find cases in which agreements have lead to some sort of hardship or injustice, but if agreements have some value, it is important that they should be made wherever possible in the knowledge that they will not be interfered with. If this Clause is put through, it will open up a large number of agreements which were made in good faith in the assurance that they would not be interfered with. It will do so, moreover, at the instance of one party only.

I agree that in this and other matters the law with regard to husband and wife in this country badly needs a thorough examination, but that examination cannot be given on this single Clause, which introduces an exceedingly sweeping change which will affect other matters. It is a Clause upon which the Government, in another place, deliberately and carefully expressed no opinion and contented themselves with pointing out in most emphatic terms that it was a serious matter. I think that the other place has been rather hasty. I hope that we shall not be.

Photo of Mr Arthur Jones Mr Arthur Jones , Shipley

I listened most carefully to the arguments, and I agree entirely that it is a very serious matter to introduce legislation enabling a court to override and interfere with agreements freely arrived at between the parties. That is admitted, but I believe that the reasons for the Clause are overwhelming. I ask the House to recollect that the principal object of the Bill is to bring up the maximum payment which the magistrates can order from £2 to £5, the £2 having been fixed in 1895. In the past, wives have entered into agreements with their husbands to accept £2 or possibly £2 10s. per week, in the knowledge that if they went to the court they could not get any more. Therefore, that fact has been the compelling reason for accepting the particular agreement.

Very early in the course of this Bill, this fact was represented to us very strongly by correspondents from various parts of the country who pointed out what they had done. They knew they could not get any more by going to the court so they did what wise people do and settled their differences outside. They point out how unfair it will be if people who went to court will now be in the position to go back to the magistrates and ask for an increase, while those who made agreements cannot do so. That argument appeared to those responsible for promoting the Bill overwhelming, in suggesting that we should allow the court to look at the matter as a whole and not merely at the agreement.

It has been suggested that in future no one will enter into agreements in those circumstances, but I would draw attention to the fact that the Clause applies only to agreements made before the passing of the Bill. It brings existing agreements into the melting-pot because they were reached in conditions different from those which will prevail after the Bill is passed.

Another argument used, in the somewhat elegant language of my hon. Friend, was that this Amendment had been popped into the Bill at the last moment. That is not so. In Committee I moved a Clause which had the same object, but it did not meet with the approval of the Committee and the promoters gave an undertaking to the Committee which in general expressed the view that something on these lines was needed. This is the result. I believe it is a good proposal and one which will avoid injustice.

Photo of Sir Eric Fletcher Sir Eric Fletcher , Islington East

Why was it not put down on Report stage.

Photo of Mr Arthur Jones Mr Arthur Jones , Shipley

It was not put down then because the Report stage was reached before the promoters, in conjunction with the Parliamentary draftsman and the Home Office, had been able to secure a watertight Clause.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

Did the Clause put forward in Committee and apparently rejected by the Committee, give any rights to husbands or only to wives?

Photo of Mr Arthur Jones Mr Arthur Jones , Shipley

The Clause moved in Committee, so far as I remember, enabled either party to appeal to the court to vary the order. Personally, I thought the original Clause had certain merits, but, on the other hand, certain arguments were used against it which induced me to withdraw it.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Surely on a Private Member's Bill it is highly unsatisfactory to introduce in another place a highly controversial Amendment, particularly when that Amendment had been proved to be controversial in Committee. We did not get it on Report stage. It was suddenly inserted in another place, and I think we should be extremely grateful to the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) for having brought this to the attention of the House. I think it is an extremely bad Amendment.

Photo of Mr Arthur Jones Mr Arthur Jones , Shipley

If the hon. and learned Member will refer to the proceedings in Committee, I think he will find that it was not controversial in principle. It was merely the form in which the Clause was moved that caused controversy.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

Surely that is what I was saying. It is controversial in the sense that it is extremely difficult to draft anything which does not make manifest injustice, and that is exactly what has happened here. This new Clause covers every voluntary agreement that is made. It does not merely cover cases where a husband has been cruel or unfaithful; it covers also all people who come to a mutual agreement that they will be happier apart and have come to that agreement, perhaps at the request of the wife. The husband makes his own arrangements, designs his own way of life upon the basis of the agreement and the liabilities which he has undertaken under that agreement, and then he is brought before a court and charged with wilful failure to maintain his wife. He replies, "Well, I came to an agreement with her. I have paid every penny of it and on the right days." None the less, under this Bill he is to be condemned. To me it seems to be a scandalous injustice.

I hope very much that the Government, even at this late stage, having heard this argument, will feel that it is time for them to have a view on it. With regard to Private Members' Bills, the Government have a responsibility to this House and to the country. This sort of ill-considered Measure ought not to be allowed to just stray on to the Statute Book, and that is what is going to happen here. I am glad to see the Attorney-General here. I hope that now that this matter has been to some degree debated, we will not upset in this casual way a series of agreements which may have been standing for 20 years—agreements come to on the basis that people would be happier living apart—upset all the arrangements and the income calculated upon those arrangements. Really, we ought not to deal with a question of this breadth at this time of the night on a Private Member's Bill, on a Clause which has not been seen in Committee or on Report, but which strays in at the last moment.

Photo of Sir Eric Fletcher Sir Eric Fletcher , Islington East

I am not prepared to support the strong language with which the hon. and learned Member for Northampton (Mr. Paget) has condemned this new Clause introduced in another place. I can well appreciate that this Clause was conceived with the highest possible motives of attempting to remove certain causes of hardship where the parties had entered into an agreement in the knowledge that the maximum amount which a court of summary jurisdiction could award was £2 a week. I think their Lordships are entitled to have the fullest credit for the motives which inspired the new Clause; but on balance, I am bound to say that I think it would be unfortunate if this House agreed to this Amendment.

One of the difficulties in all these matrimonial cases is to remove one set of hardships without creating another set of hardships. Having heard the explanation given by the hon. Member for Hitchin (Mr. Asterley Jones), I think it is unfortunate that this particular problem was not brought before this House on the Report stage. I think that one of the evils of this Clause, as it stands at present, is the fact that it is one-sided and unilateral, that it merely gives the wife power to ask the court to tear up an agreement, and gives no similar power to the husband. That, I think, is objectionable in itself.

This is quite different in terms from the Clause as considered by a Committee of this House, and withdrawn with a view, as the hon. Member for Hitchin has told us, to consultation between the promoters of the Bill and the Home Office. It is significant that when this Bill was considered in another place, their Lordships were told that the Home Office had no particular view about it. The Government gave no specific guidance to the other place, one way or another. Therefore, I think this House must consider the matter on its merits.

I regard this as a very valuable Bill as it stands. I would be very loath that we should do anything to jeopardise its passage into law. For a long time I have considered it high time that courts of summary jurisdiction should be able to award to wives who were entitled to complain of a matrimonial offence a higher award of maintenance than £2 a week. I think that we are all in agreement with the main principles of this Bill; but the departure which is introduced by this Amendment is this. The Bill, as it stood before it left this House, entitled a wife who had ground for complaint of a matrimonial offence to an increased award up to £5 a week. Those were cases in which wives had a grievance. But this Amendment deals, not exclusively, but at any rate in part, with a totally different class of case. It deals with cases in which there has been no matrimonial offence committed but in which, for good or bad reasons, for fault on one side or the other, or perhaps for fault on both sides, the parties have agreed to separate and have entered into an agreement whereby each can go his, or her, own way, and the husband has agreed to make an allowance to his wife, which may be £2 a week, or less, or more; an agreement entered into recently, or many years ago, on the basis of which the parties have made their arrangements.

I agree with my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) that it would introduce an entirely new and undesirable feature to our legislation by a rather casual measure, if we sought to tear up these agreements by saying that the wife could complain that her husband was guilty of wilful neglect, notwithstanding that he had honourably observed a separation agreement freely entered into. For these reasons, and because, by agreeing with the Lords' Amendment, we might create more hardship than we should remove, I hope the promoters of the Bill will not press us to accept the Amendment.

Photo of Mr Kenneth Younger Mr Kenneth Younger , Grimsby

It is not correct that, as has been said tonight, the Home Office, in another place, did not take any strong line in this matter. At the same time, I think I should make it clear that if we had thought it raised such serious matters as have been spoken of tonight, we should not have allowed it to have gone forward without some sort of protest. But we did not believe that, in the form in which it is on the Order Paper, it did raise this very important issue.

It has been said by several hon. Members that such a matter should not have been so casually introduced by way of a Private Member's Bill. So far as the word "casual" is concerned, I do not think it is quite fair. The matter was raised in substance, and on the merits, in Committee upstairs and there has been plenty of opportunity for any hon. Member following the course of this Bill through the House to show some interest in this matter earlier, rather than to leave expression of that interest until this moment.

Photo of Mr Kenneth Younger Mr Kenneth Younger , Grimsby

If there is any charge of an element of casualness, I suggest that it is on the side of those who are intervening now, because there has been plenty of notice that this point would be brought forward. It was made clear during the Committee stage that a different form of the same proposition would be put forward at a later date. There was ample notice for those following the Bill, and only those who have not followed it until now can have cause to make complaint.

Photo of Sir Eric Fletcher Sir Eric Fletcher , Islington East

I would remind the Under-Secretary that the Bill was only considered in another place on Thursday last.

Photo of Mr Kenneth Younger Mr Kenneth Younger , Grimsby

I do not think that that is a very short time. When the Bill was previously in this House, it was said that the Committee as a whole had accepted the principle, and that it was only a matter of finding a more suitable draft.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

Will the Under-Secretary tell the House what opportunity there was for those of us who did not serve on the Committee to raise this particular point on a single Clause before?

Photo of Mr Kenneth Younger Mr Kenneth Younger , Grimsby

I say nothing about anybody's right to raise it now, but those who have given no notice to the promoters of the Bill, the Government, or anybody else, should not say that the matter is introduced casually. There is nothing casual about the way in which this finds its way on to the Order Paper tonight, and although not specifically backing it, my right hon. Friend made it clear that some such form would be put forward.

10.45 p.m.

Perhaps I may explain why it was necessary to re-draft this proposition and not accept it in the form in which it was put down in Committee of this House. The reason was that we had felt in the Home Office that, in the form in which it was put forward in Committee it did raise some of the objections about interfering with private contracts properly and freely arrived at. It was re-drafted in a way which we thought very largely got round this difficulty, and avoided precisely the criticisms made tonight. I do not think anybody would dispute that in many of the voluntary agreements entered into in the past, whether a short time ago or in many cases many years ago, the sum which was agreed was very largely influenced by the maximum figure of £2, which both parties knew was all that could be obtained, if the matter was taken to the magistrate's court. That is the merit of the thing.

That was inevitably the background of all these agreements which were entered into. [An HON. MEMBER: "All?"] It was the background against which all agreements were made. That was the background which may not have been the deciding reason, but the legal background against which all agreements were in fact made. It may have more or less weighed in particular cases. I do not think that can be disputed. That was in fact the law. The reason, as the hon. Member for Hitchin (Mr. Asterley Jones) said, this Bill was introduced and the figure of £2 was raised to £5, was precisely because it was considered that nowadays a reasonable maintenance was not represented by the figure of £2, and that £5 was more reasonable. All we sought to do—and I say "we" because it is no secret that the Parliamentary draftsmen assisted the promoters of this Bill—is simply to limit the variation which may be made in these old agreements to what is necessitated by the change in the law made in another part of the Bill. We are only saying when an application now comes before the courts in the new circumstances, it should not be what it otherwise would in effect be, a bar to the wife claiming that an agreement was in existence based on the old figure. That is all we have sought.

It has been objected that is not reciprocal and does not apply to applications of both parties, but I do not see how that could arise because the only change in the law which justifies this consequential change is a change in the upward figure available to the wife which is not a change in the law which could in any circumstances lead a husband to wish to vary the agreement. We have sought to draft this in such a way that the former voluntary agreement, if it is to be altered at all, should be altered only so far as an alteration may be justified by the change of the maximum figure from £2 to £5. I should not have thought that was really a very serious interference with the normal law.

In fact, I think it may be true to say, even at the moment, it is not an absolute bar, but there are decisions of courts to the effect if an agreement is in existence, that is strong prima facie evidence that the husband is providing reasonable maintenance. That is not really a reasonable proposition in the light of the change we have now made.

The House has in effect said it does not consider £2 reasonable maintenance and that is why it has raised the figure. Therefore, it is reasonable we should say that, at the discretion of the court, the term "reasonable maintenance" can only be defined in the light of the new Clause of this Bill and that the court is not precluded from doing so merely by the fact the old agreement made against quite different background has, in fact, been kept. I think that is as far as I should go. In another place we were prepared to say that the Home Office took no very special stand in the matter, but I think that if the Home Office thought that the great objections of principle raised by my hon. Friends had any validity, they would not have been taking even that degree of neutral attitude.

We certainly view this as a very useful Bill. The purpose of this Clause was agreed on all sides of the Committee, and I think it was not seriously disputed by anybody in another place. I ask those hon. Members who at this late stage have suggested that it ought to be dropped to think very carefully whether they have not used most exaggerated language about the legal principles which they say we are infringing, and to weigh very carefully on the other side the undoubted reality of the situation to which I have called attention, namely, that these old agreements were made against the background of the £2 maximum, and that, therefore, there is in equity a very good case for making a provision whereby the existence of these agreements should not be a bar to a wife obtaining what we now consider more reasonable maintenance at the new rate.

Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering

I am sure that my hon. Friend does not wish to mislead the House in any way. Am I not right in saying that the attitude of the Home Office in another place was that they did not attempt to give any guidance and that they simply wanted the Lord Chancellor to point out the serious nature of this Clause?

Photo of Mr Walter Monslow Mr Walter Monslow , Barrow-in-Furness

I am not unmindful of the spirit of collaboration and co-operation which the sponsors of the Bill have met up to this stage. I have duly noted the diversity of opinion and comment which has been expressed, and for that reason I beg to move, "That the Debate be now adjourned."

Photo of Mr Marcus Lipton Mr Marcus Lipton , Lambeth Brixton

On a point of Order, Mr. Deputy-Speaker. Does the Motion refer only to this Clause?

Photo of Mr James Milner Mr James Milner , Leeds South East

It refers to the whole Bill, but the hon. Member for Barrow-in-Furness (Mr. Monslow) has already spoken, and it will therefore be necessary for some other hon. Member to move the Motion.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I beg to move, "That the Debate be now adjourned."

Photo of Mr Frederick Willey Mr Frederick Willey , Sunderland

I beg to second the Motion.

Question put, and agreed to.

Debate to be resumed upon Tuesday, 18th October.