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Married Women (Maintenance) Bill

Volume 466: debated on Friday 24 June 1949

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As amended (in the Standing Committee), considered.

New Clause—(Continuance Of Payments For Maintenance Of Children In Certain Cases)

(1) The power of the court to vary an order made by virtue of section one of the Married Women (Maintenance) Act, 1920, shall, notwithstanding anything in that section, include power to vary the order in accordance with the following provisions of this section.

(2) If, upon the application of the married woman, it appears to the court that a child for whose maintenance provision is made by the order is or will be engaged in a course of education or training after attaining the age of sixteen years and that it is expedient for that purpose that the payments required by the order should continue, the court may by order direct that those payments shall continue for such period after the child attains that age, not exceeding two years from the date of the order, as may be specified in the order.

(3) The period specified in an order made under the foregoing provisions of this section may from time to time be extended by a subsequent order made thereunder, but shall not be extended beyond the date when the child attains the age of twenty-one.—[ Mr. Asterley Jones.]

Brought up, and read the First time.

1.35 p.m.

I beg to move, "That the Clause be read a Second time."

Under the law as it stands, no power is conferred upon courts of summary jurisdiction to order payments to be continued in respect of a child after the age of 16, but in the Standing Committee it was represented strongly that this causes a considerable amount of injustice because such a child may well be continuing, either at school or in some other form, further education after 16, and will, therefore, require maintenance to some considerable degree after that age. It appeared to the Committee to be most unfair that the father of such a child should be able to escape all liability for maintenance after that age. The Clause proposes that it shall be possible for application to be made to the court. Specific application is necessary where the child will be engaged in a course of educational training. It makes it possible for the court to order that payments in respect of the child shall be continued after the age of 16.

The question arises, how long after the age of 16 should these payments be continued? It appeared that it was a reasonable safeguard, first, to lay down that extension should not be for more than two years at one time, and that a further application should have to be made to the court after two years or, possibly, less, and that in no event should payments continue after the age of 21. Some Members believed that payments should continue after 21, it being represented that the training of a medical student, for instance, continues after that age, but we have to make a limit somewhere and I suggest that 21 is a reasonable limit and that the Clause will be a means of alleviating the conditions of a substantial number of victims where these circumstances arise.

Question put, and agreed to.

Clause read a Second time, and added to the Bill.

New Clause—(Appeals)

(1) An appeal shall lie to the court of quarter sessions in manner provided by the Summary Jurisdiction Acts from any order made by a court of summary jurisdiction under the Summary Jurisdiction (Married Women) Act, 1895, or under section five of the Licensing Act, 1902, from the revocation, revival or variation by a court of summary jurisdiction of such an order or from any refusal by a court of summary jurisdiction to make, revoke, revive or vary such an order.

(2) Section eleven of the said Act of 1895 (which provides for appeals to the High Court) is hereby repealed, and accordingly the Summary Jurisdiction (Appeals) Act, 1857, and section thirty-three of the Summary Jurisdiction Act, 1879 (which provide for the statement of cases on points of law by courts of summary jurisdiction), shall apply in relation to any such proceeding as is mentioned in subsection (1) of this section.—[ Mr. Asterley Jones.]

Brought up, and read the First time.

I beg to move, "That the Clause he read a Second time."

When the Bill was first presented to the House many of us received representations of various kinds in relation to what it contained and what it did not contain, and one of the strongest was that a very large number of men laboured under a sense of grievance about the treatment they received before a court of summary jurisdiction by which an order was made. At present, in respect of these matrimonial matters, there is only one form of appeal, and that is to the High Court. That has several disadvantages, notably that it is expensive, that the High Court is in London and in some cases a long way away and there is additional inconvenience, and the High Court does not normally, unless there is a clear miscarriage of justice, interfere on a finding on fact on the part of the justices. Therefore, it appears to us reasonable that the system of appeal should be brought into line with what is done in criminal cases, whereby there is an appeal on a mixture of facts and law, or on law. The purpose of this Clause is to bring the procedure in matrimonial cases into line with what exists in criminal cases.

Question put, and agreed to.

Clause read a Second time, and added to the Bill.

New Clause—(Duties Of Collecting Officer In Respect Of Enforcement Of Maintenance Orders)

(1) Where an order made under the Summary Jurisdiction (Married Women) Act, 1895, or under section five of the Licensing Act, 1902, requires that any weekly sum payable to or on behalf of a married woman shall be paid through or to an officer of any court, and the payments are at any time in arrear to an amount equal to four times the said sum, that officer shall, unless it appears to him that by reason of special circumstances it is unnecessary or inexpedient so to do, give to the married woman notice in writing stating the particulars of the arrears.

(2) Where an order made under the Summary Jurisdiction (Married Woman) Act, 1895, or under section five of the Licensing Act, 1902, requires that any weekly sum payable to or on behalf of a married woman shall be paid to or through an officer of any court, and any sums payable under the order are in arrear, that officer shall, if the married woman so requests, proceed in his name for the recovery of those sums; but the married woman at whose request the proceedings are taken shall have the same liability for all costs properly incurred in or about the proceedings as if the proceedings had been taken by her.—[ Mr. Asterley Jones.]

Brought up, and read the First time.

I beg to move, "That the Clause be read a Second time."

One of the comments which was most forcibly made in Committee, notably by my hon. Friend the Member for Sutton (Mrs. Middleton), was that it was very little use enlarging the powers of the courts of summary jurisdiction to make orders unless there was some guarantee of those orders being enforced. I agree that that is a most cogent argument. It was proposed during the Committee stage that certain steps should be taken by way of attaching wages at sources and in other ways to make the enforcement orders more effective, but those proposals did not, for various reason, commend themselves to the Committee. Nevertheless, one proposal was made, which did gain very general support, and this Clause puts that into proper form.

It is possible in a case for the payments which are ordered to be made by the court, instead of being made by the husband to the wife, to be made to an officer of the court. It lies within the discretion of the court to order that that shall be done. This system has very many advantages. Very often the women concerned are not perhaps particularly well informed about their legal rights. Always they are worried and embarrassed by the difficulties, into which they have unfortunately fallen, and it was proposed by a Departmental Committee which considered this matter some years ago that the use of a court official for the purpose of receiving payments ordered by the court and for the purpose of advising married women generally should be very greatly extended. Indeed, it is the practice, as I understand it, in a very large number of courts in this country to use the services of a collecting officer, not only to provide the machinery whereby these payments may be collected, but to advise married women generally in regard to the enforcement of their rights.

I understand it is the custom very often for the collecting officer to take the necessary action to enforce payment in his own name, but apparently some doubts have been raised whether that system is technically correct. Therefore, we propose in this Clause to make it quite clear that this method is proper, and, indeed, that it is one which should be adopted in all possible circumstances.

1.45 p.m.

The effect of the Clause is that if the court decides that the payment shall be made to the collecting officer of the court—and of course it need not so decide—then that officer is placed under a statutory obligation, if those payments fall into arrears for four weeks or more, to inform the married woman what is the exact state of those arrears. He is allowed a certain amount of discretion when he knows that special circumstances have led to those arrears having accumulated. In that case he is not under this obligation to inform the married woman. That is quite obviously reasonable, because he may know that the husband is sick, or unemployed or something of that sort. Therefore, there is no object in carrying the matter further.

When the married woman has been informed by the collecting officer of the state of affairs she may request the collecting officer to institute proceedings and he will do so in his own name. That avoids the necessity, which so many of us have observed, of the married woman starting the proceedings herself and having to go to court once or twice or several times on a fruitless journey. It means that the collecting officer is able to initiate and to undertake the proceedings himself.

I am a bit worried about the word "shall" in subsection (2). One gets cases time after time of a married woman who desires to be vindictive and forces her husband before the court over the arrears under an order. Why make it mandatory on the collecting officer; why should he not have discretion in such a matter?

The answer to that question is that it has been found under the present system that it works quite well in practice in a large number of courts, but there is a small number of courts which do not take their duties in a responsible way. Therefore, some mandatory order should be made. My hon. Friend's point is met by the last words of subsection (2), which enable the court to mulct the married woman in costs if she brings proceedings which are unjustified. My hon. Friend will see that even if proceedings are taken in the name of the collecting officer the married woman has the same liability for costs as if the proceedings had been taken by herself. That is the sanction——

But is that really correct? The cost of these proceedings are 4s. It is inconceivable that a man, who appears for maintenance on a warrant before a court, can employ a skilled advocate. This does not seem to be a sanction.

Normally the costs are 4s. but as far as we are aware there is no statutory limit on costs. If a collecting officer is put to extra work there is no harm whatever in the court making a greater order for costs provided that the costs are related to the actual amount of money spent. I have no doubt whatever that the court could deter a married woman from carrying out such a vindictive policy.

It appears to me and to my hon. Friend that some provision has to be made to deal with those courts which do not take their duties seriously. Apart from the arguments which I have advanced I would say it is better to accept the risk of one or two married women misusing this system than to allow a large number to go without a remedy or with an imperfect remedy merely because the collecting officer has the necessary power.

I agree with this Clause. I did not propose to oppose it, but I rose originally to express some doubt about the mandatory term. I accept the point put forward by my hon. Friend the Member for Hitchin (Mr. Asterley Jones), and I agree that this has to be dealt with. There are certain courts which completely neglect their duties in this manner. They are not numerous, but there has to be some method of dealing with them; and I accept that explanation.

The final observations of my hon. Friend the Member for Hitchin, which he made in response to an interjection from me—and for which, therefore I am to some extent responsible—must be commented upon. It is not the function of a court of summary jurisdiction to use an award of costs to express their views about the merits or desirability of the proceedings. It would be quite monstrous to say that they should award a fictitious sum having regard to the amount of work done by the collecting officer; he gets his remuneration on an ordinary basis and in no connection whatever with the costs of proceedings.

The only costs awarded are those which are precisely incurred: the court costs, plus, if it is thought fit, the fee for an advocate or the expenses of witnesses. Normally there would be no witnesses, and it is fantastic that there should be an advocate in a case of this kind. Therefore, there is really no mandate or sanction to prevent the vindictive married woman using the mandatory part of this procedure in circumstances that really must be remembered, and I ask the House to remember what these circumstances normally are. A husband is in arrear with an order. The very serious difficulty is that the husband is proceeded against by warrant—he is to be brought up; he is to be taken at least into formal custody and released on bail; he is to be away from his work in circumstances under which all too frequently he may very well lose his job. The result is that the bringing of a husband before a court at all in these circumstances is a course that should be exercised only when necessary; and the person who can judge of this necessity is the collecting officer.

All too frequently the married woman feels vindictive in the circumstances in which the marriage has broken down, particularly if there is another lady in the case; and all too frequently the married woman has been only too anxious to bring the husband up, weekly if she can, when he is a few days in arrear. It is exceedingly important that the discretion of the collecting officer should be preserved, if possible; the point made by my hon. Friend the Member for Hitchin about bringing the neglectful courts up to scratch could, perhaps, be dealt with in some other way. I have risen, therefore, only to express some doubt about the mandatory term. I hope this point will be considered before the Bill goes, as I hope it will, to another place. I certainly do not oppose the Clause. On the whole, I accept it as a most useful improvement to the Bill.

I rise to make one other point of a rather different character from those which have been made by my hon. Friend the Member for Oldham (Mr. Hale). The first part of the new Clause gives to the collecting officer a discretion whether or not to inform the married woman of the amount of arrears that have accumulated. Unfortunately, it is only too true that in cases of this kind the parties concerned are under a certain amount of emotional strain; and it may well be that by giving the collecting officer this very important discretion we are investing him with almost judicial functions. What he considers to be circumstances that make it unnecessary or inexpedient for him to write to the married woman about arrears might well be differently interpreted by the married woman herself.

The consequence would be to create, or tend to create, difficulties in individual cases as between the married woman whose maintenance is in arrear and the collecting officer. These special circumstances which create the arrears are just the very circumstances with which the magistrate himself so very often has to deal. It seems to be derogating in some sense from the powers of the magistrate to decide on an issue of this kind if the Clause goes through in its present form.

I wish to support the Clause. I hope it will be placed upon the Statute Book. I have some particular interest in it in view of the fact that in the Committee stage I tabled an Amendment intended to give effect to the proposals contained in the Clause; I withdrew it with a view to further consideration being given to the wording in order that it might cover some of the points mentioned in the Debate.

It seems most important that this power should exist. We all have had experience of these cases in our capacity as Members of Parliament who have been consulted by our constituents. I, like others, have had cases, some of them very painful, and I have been forced to the conclusion that unless the collecting officer were employed there would be a large number of cases, some of which I have encountered, in which the woman, not able to conduct her own case and without means to do so, not able always to get a solicitor who would help her—at any rate, at a cost which she could possibly afford—would be left simply stranded.

There is the further question, of course, of the arrears piling up. In one instance in my constituency the arrears piled up to over £60 in the case of a man who was earning, I think, only £4 a week. In practice, it would be impossible for him to discharge that debt at any one time. If it were not brought to his notice after a short period he would have got into the position where he would finally decide that it was better to get a decision against him in the court, be imprisoned and have the whole debt wiped out. That is a deplorable position.

I am grateful to those who have drawn up the Clause. We have been materially helped by the very kind advice and assistance of the Under-Secretary and I am grateful also to him for helping to get this excellent piece of legislation on to the Statute Book. I shall not weary the House at this stage with a long discussion on the Clause. Its principle and object are plain. The result of this legislation will be a very great improvement in the condition of women who have been deserted by their husbands and who need to be maintained by allowances paid by them; it will put the matter on a new footing and open up a new chapter for many women in this country.

My hon. Friend and I will look at the points made by our hon. Friends the Member for Oldham (Mr. Hale) and the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) and make sure that before the Bill is finally concluded all possible safeguards are inserted.

Question put, and agreed to.

Clause read a Second time, and added to the Bill.

New Clause—(Extension Of Finance Act, 1944, S 25)

(1) In relation to payments pursuant to any order made in accordance with paragraph ( c) of section five of the Summary Jurisdiction (Married Women) Act, 1895, or section one of the Married Women (Maintenance) Act, 1920, section twenty-five of the Finance Act, 1944 (which requires that certain payments for the maintenance of a married woman or for the benefit, maintenance or education of a person under sixteen years of age which do not exceed two pounds a week or one pound a week respectively shall be made without deduction of tax) shall have effect as if in subsection (1) of that section for the words "two pounds" there were substituted the words "five pounds" and for the words "one pound" there were substituted the words "thirty shillings."

(2) The references in the foregoing subsection to the Summary Jurisdiction (Married Women) Act, 1895, and the Married Women (Maintenance) Act, 1920, shall be construed as references to those Acts as amended by this Act.—[ Mr. Glenvil Hall.]

Brought up, and read the First time.

2.0 p.m.

I beg to move, "That the Clause be read a Second time."

As the House is aware, at present maintenance payments to women at a rate not exceeding £2 a week and similar payments for children up to £1 a week were, under Section 25 of the Finance Act, 1944, taken out of the rules for the deduction of tax at the source and were instead made subject to a direct assessment on the recipient. This was done originally at the request of the Magistrates Association because of difficulties, into which, perhaps, I need not enter now. Under this Bill we are changing the limits of amounts up to £5 in the case of a woman and 30s. weekly for a child. It therefore becomes necessary to move up the amounts to correspond with the change which I take it the House is now prepared to make. This is purely a matter of machinery. It does not affect the tax liability of anyone and I am sure therefore that it will commend itself to the House.

Question put, and agreed to.

Clause read a Second time and added to the Bill.

On a point of Order, Mr. Deputy-Speaker, are you proposing to call the very admirable Amendments on the Order Paper in the name of my hon. Friend the Member for Duddeston (Mrs. Wills) and myself?

No. Mr. Speaker has decided not to select them as they seek to amend the Guardianship of Infants Act, 1925. The effect of these Amendments is outside the scope of the Bill.

2.3 p.m.

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

I rejoice that this Bill has met with a general measure of approval. I am not unmindful that there have been criticisms, but I am satisfied that those criticisms have been entirely due to a misconception of the purposes of the Bill. The changes which are suggested, if the Bill becomes an Act, are neither numerous nor complicated. It is not my intention to reiterate what I said on Second Reading, but I would take the opportunity of expressing my thanks to hon. Members on both sides of the House for the co-operation which they have afforded in bringing this Bill to this stage. I am satisfied that everyone has been animated by a desire to remove an anomaly which has existed for far too long.

I feel that the measure of sympathetic consideration given by hon. Members of this House will also be given when the Bill goes to another place. If this Bill is passed we shall banish insecurity and despair and bring a ray of hope and added comfort and a great measure of happiness to many who have lost much of the joy of life, due to the circumstances with which we have been dealing. I would thank the hon. Member for Hitchin (Mr. Asterley Jones) for his kindly assistance in dealing with the legal complications associated with this Bill.

2.6 p.m.

I wish especially to thank my hon. Friend the Member for Barrow-in-Furness (Mr. Monslow) for promoting this Bill and I am grateful for the amount of hard work he has put into it. For a long time I have been anxious that this anomaly should be rectified, but I did not dream that I should ever be in a position to take a minor part in its rectification. It is an excellent Bill and will do a great deal of good to many people who have been sorely tried in the past. It does not come within the category of Bills, referred to earlier this afternoon, which give complete and universal satisfaction, because I think the hon. Member has received a number of threats from irate husbands regarding it. I wish also to thank the hon. Member for Hitchin (Mr. Asterley Jones) who has used his knowledge to remedy the legal defects of this Bill, and I thank the members of the Department concerned.

2.7 p.m.

I too am pleased that this Bill has arrived at this stage, and I hope that it will meet with no obstacle in its future career. The original idea of this Bill came from a casual conversation in a car between the hon. Member for North Bradford (Mrs. Nichol) and myself. She originated the idea; it has germinated; the hon. Member for Barrow-in-Furness (Mr. Monslow) watered and encouraged it, and in a number of ways other hon. Members have contributed to it. In particular I thank the Home Office and the Under-Secretary of State for the Home Department and the Parliamentary draughtsmen, without whose help this Bill would indeed be in a sorry state.

This is one more Bill dealing with one particular subject. The Statute Book on this subject—as on many subjects, but this one in particular—is getting more and more into a chaotic state. I find it quite impossible myself to understand it without a great deal of application and concentration. I hope the Home Office will find it possible, not just to consolidate, but to examine afresh the whole of the law on this subject; because I believe much of it is out of date and a relic from a day when our ideas and outlook on these matters were very different from what they are now. This Bill is a very valuable stop-gap in order to deal with an anomaly and an injustice which does exist, but I hope that something very much more comprehensive and far reaching will be brought before this House before very long.

2.9 p.m.

In congratulating the promoters of this Bill on the success which has attended their efforts so far, I wish to reinforce the point made by my hon. Friend the Member for Hitchin (Mr. Asterley Jones). Here we are taking advantage of such limited facilities as Parliamentary procedure affords to improve the conditions of various people who, whether through their own fault or for other reasons, have not been fortunate in their married life. I associate myself with the plea that at some time or other the Government will find it possible to deal with the whole subject of matrimonial relations in a comprehensive fashion. It is a long time since the matter was really adequately considered by a Royal Commission.

This Bill makes a notable addition to the powers of the magistrates courts in this country. To the extent that it makes that addition it detracts from the powers of the High Court. No longer will it be necessary for any woman to go to the High Court if she requires maintenance in excess of £2 per week. The fact that this Bill makes it unnecessary for certain people to go to the High Court does not worry me in the least. What does worry me in some small degree is the feeling which I have that these cases are not always dealt with as satisfactorily as they should be by the magistrates courts. My hon. Friend the Member for Hitchin (Mr. Asterley Jones) referred to the small number of courts which did not act in a responsible way or did not take their duties seriously. Of all the cases which leave a sense of grievance and heart burning in the minds of ordinary people, I should say that the matrimonial decisions of magistrates probably topped the bill.

I express the hope that magistrates called upon to come to a decision in cases where the maximum allowance may be as much as £5 a week for the wife plus additional amounts for the children, will realise that within the scope of such a provision, will come a large section of the working population. I hope that no false optimism will be created in the minds of women who have not hitherto been very well treated. I hope that they will not immediately assume that with the passage of this Bill their weekly maintenance will go up to £5. As far as I can see, the only people who are likely to gain from the provisions of this Bill are those women who are drawing the maximum £2 a week at present. In other words, women who are drawing less than £2 a week—unless of course there is a considerable change in their husband's circumstances—will not derive immediate benefit. It is right that this should be stated. People easily get a false idea of what is implied in an Act of Parliament. They are sometimes led away by what may appear in the headlines of the newspapers.

I hope that these important additional powers will be carefully exercised by magistrates. There are indications that the authorities are concerned with the age, quality and capacity of magistrates, and I do not think that I am transgressing the bounds of courtesy when I say that in some parts of the country magistrates have not carried out their duties in this and other respects in a way which left those who came before them without a sense of grievance for a long time afterwards. This Bill is a useful Measure. It fills a gap in our matrimonial law, as the hon. Member for Hitchin said. I hope that the reception which it has had will induce the Government to view favourably the possibility of further legislative reforms in our matrimonial law.

2.13 p.m.

In adding my congratulations to my hon. Friends who have promoted this Measure, I think it is wise to point out, not for the sake of hon. Members but for the sake of the general public, that the Bill only covers one really small part of the problem involved in the separation of married people. I was particularly sorry that it was not possible to extend the powers which will be granted under the new Clause moved by my hon. Friend the Member for Hitchin (Mr. Asterley Jones) concerning the duties of collecting officers in respect of the enforcement of maintenance orders. While that would help in a large number of cases, there will be a much larger number where even the enforcement officer will not be able to help the woman who is suffering because her husband has defaulted on the payments he has been ordered to make. That fact emphasises the point which my hon. Friend put later about the need for a complete revision of the law in this connection.

Also I was particularly unhappy that you, Mr. Deputy-Speaker, were unable to call the Amendments which stood in my name. There again if we had been able to consider them, we should have come up against an anomaly.

The fact that they were not selected means that they cannot be discussed on Third Reading.

I was merely referring to them, not to discuss their value had they been moved——

Question put, and agreed to.

Bill read the Third time, and passed.