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The Lord Chancellor: The question of what orders a court can make and so on is important in that while the parties are in the stage of their marriage having broken down, the intervention of the court may be necessary to regulate matters between them, particularly in respect of periodic payments. The wife might have no income at all, for example, and it must then be right for the court to have the power to intervene. Therefore, the power to make orders of some kind at an early stage is a necessary one.

The question of the matrimonial home is also important since there may well be situations in which (for example, because of violence) the best way to deal with the matter is to give the wife the matrimonial home as early as possible because if that is not done, the violence may well continue with damaging effects.

Turning to the rule on property adjustment orders, apart from in special circumstances such orders take effect on divorce or when the separation order is

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granted. I think it is important that where the parties are able to bring such matters forward, they have an opportunity to do so if that will help them in their relationship. We have to look not only at the past, but also to the future. I think that the court needs the power to make orders between the parties from the time that it is seized with the matter.

I have now set up an ancillary relief advisory group to look at the current procedures with regard to ancillary relief and, as far as is possible, I should like to have its advice on the various matters that have been raised in the Committee. There are two competing problems. There is the problem of things requiring to be done during the interim period. We need a structured framework to allow the court to intervene if the parties cannot agree during that period. There will not be a complete vacuum during that time. Therefore some power in the court to make orders is required. Of course the firmer the orders are, if they take effect only on the divorce order being made, the more clear it is what the future arrangements will be. That is part of what the period for reflection and consideration has to look to. I agree that it is important that the schedule should go in accordance with that principle.

So far as concerns divorce in all but name, if the Committee thinks back to our previous discussion, one of the possibilities that the parties have is to make agreements while they are still married about all their property, without intervention by the court at all. The parties could agree, for example, that the matrimonial home became entirely the property of the wife. They could do that before any divorce proceedings were considered.

To say that settling property matters is divorce in all but name is, with respect, to undervalue what the divorce order does. A divorce order is what frees parties to remarry. They can make any arrangements--subject to the point I made before about assignability and so on--with regard to their property that the law allows. They can make agreements about such matters if they want to. I do not want to do anything which would create unnecessary dispute. On the other hand, I do not want to do anything that freezes unnecessarily matters which have been the subject of discussion during the period of reflection and consideration.

I hope that the Committee will agree that it is necessary for the court to have powers under the equivalent of Schedule 2 in the interim period. Whether those powers should be further restricted than they are is a matter that I am happy to consider in more detail, but we need something of the kind. With regard to the drafting, I would wish to take the advisory group's views on that. The intention was to make the matter plainer. So far as concerns the noble Lord, Lord Meston, we do not seem to have been entirely successful in that respect. I hope that with that explanation the Committee will allow Clause 14 to stand part of the Bill.

5.30 p.m.

Lord Coleraine: I am grateful to my noble and learned friend for what he has said. I hope that he will look further into the point that I have made. It is obvious

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that at any time during a marriage there must be power for the court to intervene with regard to the matrimonial home, for example, but I should have thought it would be sensible if it were those powers which continued into the period of reflection and consideration.

Without wishing to change the thrust of the argument put forward by the noble Lord, Lord Clifford of Chudleigh, the way I would put it is that what we do not want is not divorce in all but name, but irretrievable breakdown in all but name. If there is acrimonious dispute over ancillary provisions very early on in the divorce proceedings that will negate any prospect of progress through mediation or reconciliation.

Clause 14 agreed to.

Clause 15 [Grounds for financial provision orders in magistrates' courts]:

On Question, Whether Clause 15 shall stand part of the Bill?

Lord Simon of Glaisdale: This is a short, strictly exploratory Motion, that Clause 15 should not stand part of the Bill. On the face of it is unobjectionable. It is concerned with a provision under the Domestic Proceedings and Magistrates' Courts Act 1978. A magistrates' court may make two sorts of matrimonial order: a separation order and a maintenance order. I am concerned purely with the maintenance order. Under Section 1 of that Act a magistrates' court may make financial provision if the respondent:


    "(a) has failed to provide reasonable maintenance for the applicant";

under (b) a reasonable contribution for the children; under (c) has been guilty of unreasonable behaviour; or, under (d) has been guilty of desertion.

The Domestic Proceedings and Magistrates' Courts Act 1978, in other words, brought the law of domestic proceedings under the Magistrates' Courts Act into line with the wording of the Divorce Reform Act 1969. What the Bill proposes is that paragraphs (c) and (d) relating to unreasonable behaviour and desertion should be omitted. That is presumably in line with the tendency of the Bill to try to eliminate fault when seeking relief. My noble and learned friend will correct me if I am wrong in that.

Does not the first provision, that the respondent, who will almost always be the husband, has failed to provide reasonable maintenance for the wife, itself frequently, in fact more often than not, involve the investigation of fault? The husband says, "It would be unreasonable for me to provide any maintenance at all in view of the conduct of my wife". There are infinite varieties of such a defence. Equally, the applicant has to prove that it would be reasonable for the husband to supply her with maintenance.

As I said, my question is a short one. Does not that provision itself, notwithstanding the elimination of paragraphs (c) and (d), invoke the investigation of fault, or be liable to, and will do so more often than not?

The Lord Chancellor: The provision that requires that the respondent has failed reasonably to provide for

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the applicant or child of the family may involve investigation of conduct, or something of the kind, or of the circumstances.

Lord Simon of Glaisdale: I do not believe that we are concerned with the child.

The Lord Chancellor: The child is of course one of the parties in respect of whom this may arise. The question is whether the respondent has failed reasonably to provide for the applicant--just to restrict it to that. It applies equally to a child. If reasonableness in the circumstances requires an investigation of fault, so be it, but there might be many cases in which what is really in question is whether the amount is reasonable. In other words, it is accepted that the respondent should be providing for the applicant, but the applicant may say, "It is not enough. You have given me £1 a week and it should be £20". Reasonableness is a broad concept. It requires investigation of matters such as fault only so far as the court may require to do that in order to judge whether in the circumstances what the respondent has done is reasonable.

Lord Simon of Glaisdale: I am obliged to my noble and learned friend. I respectfully agree that the quantum of maintenance may be sometimes in question. I wanted to ascertain--and I believe that it is conceded--that the conduct of the parties, the fault on either side, may require investigation. I wanted to know that because of the claim that an achievement of this Bill is to eliminate investigation of fault in case that exacerbates relations between the parties. I believe that my noble and learned friend wishes to intervene.

The Lord Chancellor: Only when my noble and learned friend has completed what he wants to say. I never said that it is possible to eliminate altogether such matters. I said that the purpose of the Bill is to eliminate them so far as possible; in other words, not to require that these matters be alleged or looked into unnecessarily. It may well be that sometimes it is necessary, and I make the point that we are saying only in so far as it is necessary to investigate these matters in order to decide on a question of reasonableness would they arise. Certainly there are many cases in which the main questions between the parties are as to the size of the payment.

Lord Simon of Glaisdale: I am obliged to my noble and learned friend. So be it. The point is that, here again, investigation of fault may be required. On Tuesday we heard that it might arise in different circumstances quite early in a marriage that an application for a separation order is made. My noble and learned friend said that that may well require follow up by an interim periodical payments order. He conceded that that too could well require the investigation of fault on either side.

I thought that we ought not to pass this provision before noting that, here again, investigation of fault in conduct may well be required. Later we shall come to the requirement in respect of the financial provisions under Section 25 of the 1973 Act and to property adjustment orders under that Act in Section 24.

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We are merely noting as we go through the Bill that time and again conduct and fault fall for investigation. Arguments that it is impracticable to ascertain accurately in a court of law where the fault lies, as was argued earlier in Committee by the right reverend Prelate the Bishop of Oxford, simply goes by the board.


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