Enactments Repealed

Orders of the Day — Law Reform (Miscellaneous Provisions) Bill – in the House of Commons at 12:00 am on 10th April 1970.

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Amendment made: No. 5, in page 4, line 18, column 3, at end insert— Section 46(2) so far as it applies for the interpretation of section 41(3) of that Act.—[Mr. Julius Silverman.]

12.58 p.m.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

I beg to move, That the Bill be now read the Third time.

It is not always the practice to have a Third Reading debate on a Bill of this character, but, in the circumstances, the House will have in mind that when the Bill first came before us, on the initiative of my hon. Friend the Member for Bury and Radcliffe (Mr. Ensor), there was very little debate. My hon. Friend had been successful in the Ballot and he undertook to put the Bill through for the Law Commission. All of us regret that, because of his illness, he has been unable to pilot the Bill through. The duty has, therefore, fallen upon my shoulders.

The Bill initially came before the House rather late in the day, and only about 13 minutes were devoted to the Second Reading. There were but two contributions, so there was nothing really in the nature of a Second Reading debate. As the Bill involves certain important principles and changes in the law, it is proper that their nature and the reasons for them should be stated. Our decisions may be wise or unwise, but at least the public should not be entitled to say that decisions as important as these have passed through the House of Commons without adequate discussion, or without discussion at all.

In Committee and on Report we have debated some of the issues involved, but several important matters have not been debated. Although there has been a great measure of unanimity on the general principles of the Bill, with opinions expressed on both sides free of any political considerations, it is important that the public should know what is being done and why. I shall, therefore, briefly outline some of the Bill's provisions.

Clause 1, which has had some discussion, provides: An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall lie in England and Wales for breach of such an agreement". In substance, this means the end of breach of promise cases. In the view of the Law Commission, and, I imagine, in the view of most hon. Members, the breach of promise action is an anachronism which cannot be justified in this day and age. Moreover, it is steadily disappearing from our courts; there are not many such cases nowadays, for various reasons.

The first reason advanced by the Law Commission for its recommendation, which is embodied in the Bill, is that the stability of marriage is so important that no persons ought to be persuaded by threat of an action to enter into a marriage which they would not otherwise undertake. In other words, people should marry because they retain their natural affection for one another. If that natural affection has gone, any pressure to persuade people to marry would be disastrous. In many cases it has been disastrous, for the consequences are a lingering resentment embittering the marriage which reacts upon the children, leading to wrangles at home, unhappy families, unhappy children, and probably delinquent children, too.

As a matter of public policy in consideration of the children likely to be born to such a marriage, it is quite wrong that any pressure should be brought to bear to persuade a man—or a woman, for that matter, since a breach of promise action can apply both ways—to enter into a marriage relationship which he, or she, does not really want and which is not based upon the deep affection necessary to make a marriage a success.

That was the major reason, but there are others. It used to be thought a simple matter for the courts to decide who had terminated the agreement in the last event. In fact, it is sometimes extremely difficult to decide who is responsible for the termination of the agreement. It may be the man, or it may be the woman, who makes the final act. A woman might say, "Take your ring back", or the man might say that it is finished, but there might have been an intolerable course of conduct on the part of the other partner. Indeed, like marriage itself, engagement is such a complicated relationship between the two parties that it is extremely difficult, or virtually impossible, for a court to decide who is really responsible for terminating the agreement. Thirty or 40 years ago, it would have been regarded as fairly simple to say who made the final act, but we take a more sophisticated view of human relationships now.

In addition, the breach of promise action gives opportunity for gold-digging and actions of a blackmailing nature. I hope that my hon. Friend the Member for Pontypool (Mr. Abse) will not accuse me of being a misogynist when I say that. As he knows, these things do take place. I do not say that they are common, but they do take place, and breach of promise as a cause of action gives facility for them. It was thought, therefore, by the Law Commission that this cause of action should come to an end.

Another point is that an action for damages for breach of promise tends to give marriage the character of a commercial bargain, and this hardly accords with the modern view of marriage or the equality of the sexes. It was based upon social assumptions which are no longer valid. Incidentally, this is the spirit behind a large part of the Bill, that marriage and engagement are personal rather than contractual relationships, and one should not consider them as being merely commercial bargains. This, also, was the view and recommendation of the Law Commission.

There is nothing new in the demand that the breach of promise action should go. In 1878 a Mr. Farrer Herschell introduced a Motion, That in the opinion of the House, the action of breach of promise of marriage ought to be abolished except in cases where actual pecuniary loss has been incurred by reason of the promise". Unfortunately, he made no progress.

Many hon. Members will be familiar with the case of "Bardell v. Pickwick", in which Charles Dickens lampooned the breach of promise action. Later, there was—I am sure that most hon. Members will have seen it—the Gilbert and Sullivan opera, "Trial by Jury", in which there is a somewhat savage lampooning of the court proceedings in relation to a breach of promise case—extremely enjoyable, but having all the ferocity of Gilbert at his best.

None the less, the breach of promise action has survived. More recently, my hon. Friend the Member for Brixton (Mr. Lipton)—I am glad that he has now arrived—put down a series of Questions about it. In 1955 he asked a Question. In April 1960, in February and November, 1962, and in December, 1964, my hon. Friend asked Questions about it. On the last occasion, he asked the Minister without Portfolio whether he will introduce legislation to abolish actions for breach of promise and the answer he received was: No, Sir. Legislation on this subject would not be justified in the present state of Parliamentary business".—[OFFICIAL REPORT, 23rd December, 1970; Vol. 704, c. 1209.] I feel that we can congratulate my hon. Friend the Member for Brixton that his perseverance and assiduity in asking Questions, for which he is so well known, has produced some fruit in this case. In a sense, he can be regarded as the putative father of this part of the Bill, the Law Commission being the mother, and myself being in the rôle of midwife. The time has come when this legal anachronism should go, and I am sure that I have the support of the House in that.

Clause 2 relates to the property of engaged couples. Frequently engaged couples, like man and wife, enter into various property relationships. One of them may buy a house and the other may do some work in that house. The question then arises: how can those property relationships be decided without having a wrangle about who jilted whom?

The proposal by the Law Commission, embodied in the Bill, is that the provisions of Section 17 of the Married Woman's Property Act, 1882, and Section 7 of the Matrimonial Causes (Property and Maintenance) Act, 1958, which confer power on a judge of the High Court or the county court to settle disputes between husband and wife about property, shall apply to an engaged couple on the termination of an agreement in the way that they apply to a husband and wife in the event of a separation.

Over the years this legislation has worked well. It allows reasonable discretion to the court to make a decision on what is sensible and reasonable. This is the best solution to the problem, and this is the way that it is dealt with in the Bill. In such an event, the High Court or the county court—usually the county court—will decide which property belongs to whom and how the joint property shall be divided.

One point was raised on this matter in Committee, and an Amendment was incorporated in the Bill to provide that where both parties have contributed towards a particular project—it may be a business or a house which has been bought by the man, and the woman has done some work in it, or vice versa—the work and the contribution should be considered by the court in deciding what part of that property belongs to whom. This is fairest decision that can be arrived at in dealing with property in these circumstances.

Clause 3 deals with gifts between engaged couples. This matter was considered to some extent when we dealt with the engagement ring. The Clause provides: A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement. This again prevents wrangles as to who jilted whom.

Under the rule in Cohen v. Seller, conditional property was not returnable to the party who broke off the engagement. I have pointed out that it is sometimes difficult to decide who is responsible for breaking off an engagement. This Clause alters that situation. It provides that a conditional gift is returnable. A man might buy a house and put it in the name of his fiancée. It would obviously be extremely bad if he could not get back that house. This kind of matter should be resolved without deciding who jilted whom.

The argument applying to the other financial pressures placed upon a man to embark upon a marriage which he does not want applies equally to this Clause.

I now turn to a matter which has not been in dispute in this House, although it may be a subject for argument—namely, the problem of damages for adultery. The hon. and learned Member for Surrey, East (Mr. Doughty) dealt with this to some extent earlier. The view of the Law Commission was that with the Family Law Reform Act coming in, it would be inappropriate to retain damages for adultery.

In the old days—it is still the position today until the new Act comes into operation—divorce was based upon a legal anachronism—namely, matrimonial misdemeanour: when one party commits a matrimonial misdemeanour, the other is entitled to divorce. This is so whether it is adultery, desertion or cruelty. I believe that the only exception is divorce on the ground of mental illness. Otherwise, divorce is based upon a matrimonial misdemeanour. This oversimplifies the relationships between human beings, which are not like that at all. It is not a question of one saint and one sinner. It is probably an interplay of circumstances. Sometimes the person most responsible for the breakdown is not regarded as the one who has committed the misdemeanour.

Human relationships are so complicated that we cannot continue on that basis. Therefore, the new law provides that the basis for divorce in future shall be on breakdown of the marriage. Has the marriage broken down? Are the parties not living together? Are they in such circumstances that they cannot be expected to live together? This is now the major basis. In this respect, adultery is only evidential. In these circumstances, quite apart from other considerations, it would be anomalous to retain damages for adultery.

Damages for adultery are not so important in many cases coming before the courts today. As my hon. Friend the Member for Pontypool pointed out, little more than 4 per cent. of petitions involve a claim for damages. The amount given in most cases is small. In well over one-third of such cases the amount is £250 or less. In the others it is less than £500. There is a suspicion that in a number of cases—a large number in this category are legally aided—damages may be given instead of costs. It is difficult to verify to what extent this is correct, but it is not an important consideration in the law relating to divorce. It is an anachronism, because the whole concept of damages for adultery is now out of date.

The House will remember that damages for adultery are given only to the man, not to the woman. They are based upon the old feudal concept that the man owned his wife like a chattel. Therefore, if somebody committed adultery with a man's wife, he defiled that property and the husband was entitled to compensation for such defilement. Such a concept is entirely out of date today. Therefore, it is anachronistic, and because it would be an anomaly when the new legislation comes into operation, it ought to go.

Clause 5 deals with enticement. That is another anachronism. According to some unofficial inquiries, in the last 20 years there have been only about six or seven cases for enticement. An action for enticement need not be taken in the divorce court; it can be heard in a say that there seems to be some logic because in this case, as distinct from a case of adultery a man complains that somebody has enticed his wife away from him and he has lost her services. I say that there seems to be some logicl for these cases, but, in fact, very few of them have appeared before the courts, and those which have have almost always been extremely nasty. They have all been unsuccessful, and recently Mr. Justice Baker said that this sort of action was entirely anachronistic and ought to go. The Bill proposes that it should.

Photo of Mr Robin Maxwell-Hyslop Mr Robin Maxwell-Hyslop , Tiverton

I think that there was an action for alienation of affections, but I may be misinformed. If there is a case which involves not the physical removal of either marital partner from the locus of a house but merely an alienation of affections, will that be abolished by the Clause?

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

I understand that it will apply in that case, too. Alienation of affections is usually embraced in an enticement action. Usually the wife is enticed away from the marital home.

The Clause also embraces the case in which a parent, theoretically at any rate, can bring an action because somebody has taken his child away. I am not talking about a young child. He can bring an action on the basis that he has been deprived of the services of his child, who, for this purpose, is considered a kind of servant. This type of action has largely disappeared in practice. This is an anachronism, and as such it ought to go. There is the exception that if there is a contractual arrangement between a father and daughter there will still presumably be some kind of action available, although I suppose that it will arise in the same way as the action which an employer can bring because somebody has persuaded his employee to break his contract of service.

The same comments apply to the offence of harbouring. If a wife leaves the home and stays at Mr. Smith's house, technically Mr. Smith can be actionable for damages for harbouring, on the basis that if he did not give shelter to the wife she would be obliged to return to her husband. Needless to say, such a barbarous action has not been brought in the courts for many years, but it is a piece of legal deadwood which ought to be removed from the Statute Book.

Clause 6 deals with the circumstances which arose in Shaw v. Shaw. In that case there was not only a promise of marriage but a form of marriage. The lady in question married Mr. Shaw, thinking that she was entering into a valid marriage. It transpired that he had been married before. His second marriage was, therefore, bigamous, but this did not come to light until after he died. There then arose the question of the rights of the woman who had entered into a form of marriage with him, his first wife having died after his subsequent "marriage". The case went before the court, which made the best decision that it could in the circumstances.

The Clause proposes that if a woman enters into what she regards as a bona fide marriage, and it later transpires that it is not, the provisions of the Inheritance (Family Provision) Act shall apply. This means that the woman will be able to claim against the estate if it is reasonable that she should be provided for just in the same way as a legal wife can, even though she is left nothing in the will. This provision has been introduced to deal with the situation which arose in Shaw v. Shaw, and I am sure that everyone will agree that this is just. These bigamous relationships leave trails of disaster, and we can only do our best to put things right.

Those are the major provisions of the Bill. The others are merely supplemental and technical. I am sure that this is a valuable Bill. It may be that not all its provisions will be accepted by everybody, but it removes much legal deadwood. It removes a number of legal anachronisms, and I think that it will remove from the courts a certain amount of bitter and unnecessary wrangling and domestic strife. It is in conformity with legislation recently passed by the House, and with the broad spirit of public opinion. I commend the Bill to the House, and ask that it be read the Third time.

1.27 p.m.

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

I am sure that the House will congratulate my hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman), who has steered the Bill through the House and been exceedingly sensitive throughout our proceedings to the opinions and feelings of all those who have been involved in the Bill.

We all regret that the original sponsor's illness prevented him from taking the Bill through the House, but he can feel confident that no one could have dealt with the Measure better than my hon. Friend for Aston has done in his absence.

It is a happy conjunction that the Law Commissioners found an hon. Member to pilot their recommendations through the House with such skill. It is right that we should thank the Law Commis- sioners for having so clarified the issues that it has been possible for us to take the major step of ridding the law of anachronisms which we all agree are totally out of date.

This considerable Bill has a serious blemish, and I hope that the issue which I am raising, and which I raised in Committee, will be considered again in another place, because it is important that if we put through Bills which impinge upon human relationships we should be careful always to ensure that the interests of those who cannot constitute a pressure group, the children, are in the forefront of our minds.

I am not referring to the new Clause which was not accepted, and about which I make no complaint, since, clearly, there are merits and faults in the view which I was presenting. That is a matter of judgment for the House. I regard it as serious that in the Bill we are taking away a right which has been used in the past to protect the interests of illegitimate children and giving absolutely nothing in return.

Despite the Jeremiahs of the self-acclaimed moralists who are always talking of how promiscuous young people are, the recent survey conducted for the Sunday Times by Mr. Geoffrey Gorer shows that nine out of 10 of our girls and almost half our young men are sexually inexperienced until an engagement takes place. But, as the research done by Mr. Gorer reveals, a great change takes place when a betrothal occurs.

An engament is taken very seriously in Britain. That is clear from the statistics provided by Gorer. Despite the imaginative accounts which avant-garde journalists and other communicators always seem to want to peddle, we are a remarkably respectable people, and, as is revealed by the survey, there is greater stability than we would imagine if we listened to those who are always talking about the evils of a permissive society.

If celibacy is the rule before engagement, it is, however, clear from the survey that a great change takes place on engagement. The pledge of marriage is given and taken in high seriousness. For one woman in four, intercourse starts at betrothal. That is the interesting revelation of this considerable survey. This means that for a very substantial proportion of our population, when young people become engaged, sexual intercourse follows for the first time. It is not surprising, therefore, that each year more than 80,000 brides go to the altar pregnant.

It is necessary to take account of this widespread conduct and that the law should be shaped so that, for their sake, illegitimate children born to mothers whose lovers have proved faithless do not suffer needlessly. Up to now it has been possible for a pregnant woman whose pregnancy followed her engagement to bring an action for damages and obtain a lump sum. The Bill abolishes that right.

One may take the view, as I think the House does, that adult men and women may vacillate and hesitate as much as they wish before entering marriage. We have decided, and are in the course of deciding, that no one should compel people to marry. But can we do this without the man, and, indeed, the woman, taking the financial responsibilities of which they are capable for the children they have conceived?

Despite the over-logical purists who complain that it is anomalous, as the law stands, a woman who has conceived during her engagement is able to recover in a breach of promise action compensation for her pregnancy. The Bill takes away that right and leaves the woman only with the right to take affiliation proceedings. This is not good enough, and I hope that the issue will be raised in another place.

Photo of Mr Julius Silverman Mr Julius Silverman , Birmingham Aston

My hon. Friend should point out that under the Maintenance Orders Act, 1968, it is possible to make a maintenance order for an unlimited amount in affiliation proceedings.

Photo of Mr Leo Abse Mr Leo Abse , Pontypool

I was coming to that point What my hon. Friend says is correct.

As the Law Commissioners indicated in their report in seeking to justify taking away this right, it is possible for a maintenance order involving a large sum, a weekly affiliation order, to be made against a man who can be proved to be the putative father of a child. But, as the National Council for the Unmarried Mother and her Child has indicated in the letters it has sent to many hon. Members, it is profoundly dissatisfied that a Bill should be passed which takes away the right to obtain a lump sum.

Men who are so feckless and reckless as to enter into an engagement and become the father of a child are often the sort of men who at one moment can be high earners and a little later low earners. In Committee, I commented on the high earnings of "pop" stars during their fews years of temporary popularity and their ability to limit their liability to the children they may have conceived during an engagement by a weekly payment. I mentioned "pop" stars, although it seemed to arouse the ire of some members of the Press concerned with "pop" music, because there are specific instances of such people evading their responsibility and being subjected to making only weekly payments.

But that does not only, or can only, apply to "pop" stars. There are reckless men, be they motor car dealers or actors, who at one moment may be high earners and against whom a substantial order may be made in respect of a child conceived during an engagement. It may well be that some years later, being reckless by general disposition and feckless by general temperament, they will be people of little means. Therefore, because an affiliation order involving a large amount may immediately be obtained, why should we assume that we have the right to take away, as we are doing, the right to obtain a large sum which could be settled upon a child so that it would not be necessary for a woman to pursue a weekly amount week in and week out through the courts? A settlement should be made which can assist with the long-term education and needs of the child. The taking away of this right is a serious weakness in the Bill.

It is no argument to say that the Bill is an inappropriate place to retain this right. There is a great danger that in our concern for the rights of adults we are overlooking the rights and needs of children. I therefore wish to sound a warning note. I am sure that the Solicitor-General is aware of the feelings which are bound to arise when a right of this kind is taken away without making an adequate substitute. I hope that he will use his offices to bring to the attention of the Finer Committee, which was set up primarily to review the social security needs of single parents, the views which I am expressing and which I am sure are widely held in the House so that in the considerable amount which undoubtedly it has to do in reviewing the position of single parent families it does not overlook the need to provide not only that a lump sum settlement can be made on illegitimate children, but that that right is extended so that it belongs not only to the child conceived during an engagement but to all illegitimate children.

I hope that my hon. Friend the Member for Aston will not regard this intervention of mine as in any way devaluing or detracting from the considerable merits within the Bill. It is extremely fortunate that we no longer have the bitter arguments, which have been mentioned in the historical survey given to us by the hon. and learned Member for Surrey, East (Mr. Doughty), about these sort of matters and that a more rational approach is being adopted.

It is good that the law is beginning to shrink from acting as if it were a "nosey parker" instrument, meddling in what are essentially personal relationships of adult men and women. I congratulate the hon. Member, I am sure on behalf of the whole House. I thank the Law Commission for the clarification it has given and hope that the Bill will go, subject to this one blemish, happily on its way.

1.43 p.m.

Photo of Sir Arthur Irvine Sir Arthur Irvine , Liverpool Edge Hill

The Bill deals with certain anachronistic features of the existing law. The consideration which Parliament has given to the divorce law recently, which culminated in the Divorce Reform Act, 1969, has meant that these anachronisms have been projected and brought to light in a way which has had the useful result that we are observing today.

I express the gratitude that I feel to my hon. Friend the Member for Bury and Radcliffe (Mr. Ensor) for originally sponsoring the Bill and for putting his opportunity to such good use. I also congratulate my hon. Friend the Member for Birmingham, Aston, (Mr. Julius Silverman) on his, if I may respectfully say so, extraordinarily constructive and well-informed contribution to the progress of this Bill.

I wish also to thank the Law Commission for the service which has been rendered. We have been working upon the basis of drafts and studies by the Commission, to which I express my gratitude. I take account, if I may respectfully say so, of the helpful contributions of my hon. Friend the Member for Pontypool (Mr. Abse), and I am happy to assure him that I will do what I can to ensure what I think would in any case be the event, that the Finer Committee will have regard to his propositions.

1.45 p.m.

Photo of Mr Marcus Lipton Mr Marcus Lipton , Lambeth Brixton

It would be ungracious if I were not to acknowledge the complimentary references made about me by my hon. Friend the Member for Birmingham, Aston (Mr. Julius Silverman). It is true that I started this campaign for the abolition of breach of promise and other actions mentioned in the Bill as long ago as 1955. I have learned from experience that that is not too long a time in which to achieve any reform in Parliament. This is because 15 years is a much shorter period than that which elapsed between the time that I first advocated the reform of the divorce laws in 1948 and action being taken.

On that occasion I said that action should be taken to implement one of the recommendations of the Denning Committee's Report which suggested that seven years' separation should be a ground for divorce from either party. That took 22 years to achieve. This Bill has taken only 15 years. I am not certain that my hon. Friend's reference to me as the putative father is altogether complimentary, because that seems to cast doubts upon the legitimacy of the Bill. Nevertheless this is a step forward in reforming the law.

For some time past judges have handled with increasing distaste this kind of litigation. In so many cases it was merely an outlet for spite and blackmail, and washing of dirty linen in public. These actions serve no useful purpose, and I congratulate the sponsors of the Bill on the success that they have achieved within what is, in the sphere of law reform, a comparatively short time.

Question put and agreed to.

Bill accordingly read the Third time and passed.