Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Gardner of Parkes: My Lords, the case for this amendment was presented in a most interesting way. In replying, I ask my noble and learned friend to clarify a point for me. As I understand the law, if one has made a will and then marries, the will is no longer valid after the marriage. If one has a will and divorce takes place, does that affect an existing will which might have been made a long time ago? If I knew the answer to that I would be better able to consider this amendment.

The Lord Chancellor: My Lords, perhaps I may address myself in the first instance to this amendment. It is just worth pointing out at the start that the basic provision does not originate in the 1960s, but in the 1850s, as Section 25 of the Divorce and Matrimonial Causes Act 1857. There must be a fairly obvious point to made about that.

The original provision was intended to protect the property of separated women from their husbands. Section 25, which was consolidated into Section 194 of the Supreme Court of Judicature (Consolidation) Act 1925, and therefore into Section 20(3) of the Matrimonial Causes Act 1965, provided, on the one hand, for a married woman, after judicial separation, to be treated as not a married woman in respect of all after-acquired property; and for her after-acquired property, and any property which at the date of the decree of separation she had an interest in reversion or remainder, to pass on her intestacy as if her husband had predeceased her.

On the other hand, separated women, noble Lords will be glad to know, retained the right of inheritance on the husband's intestacy. So that was a somewhat one-sided provision designed to protect the property of separated women, while not giving the same protection to separated men. By 1969 the main justification for the provision had gone and the provision was criticised by the Law Commission in its Working Paper No. 9 and its report No. 29, as being half-hearted, arbitrary in its operation and a source of difficulty in administering estates.

The commission recommended that the provision should be extended so that it covered all property of the intestate, and so that it applied to property of both spouses. That was implemented by Clause 30 of the draft Bill annexed to Law Commission report No. 29, which became Section 40(1) of the Matrimonial

4 Mar 1996 : Column 53

Proceedings and Property Act 1970. So the point is that this matter was very thoroughly considered when it was reformed in the Matrimonial Proceedings and Property Act 1970.

The situation, so far as I am concerned, is that this particular provision is one which has been in the law. It is in this Bill only because, for reasons of convenience, we have repealed a number of provisions to which this measure corresponds. It was thought better, in the interests of clarity, to re-enact this measure. But if the Bill is sending out the message that there is a problem, it would not be very difficult to reinstate the existing law and alter the appeal schedule. It would be a little less convenient, but it would not make very much difference.

My noble and learned friend Lord Simon of Glaisdale referred to my letter to him and quoted from it. I do not know anything about "bad apples", but I take responsibility for all that is done. The letter is signed by me and therefore I am not speaking for anybody but myself. The point I was trying to make, rather inelegantly, was that, on the whole, experience seems to be that when parties become separated the husband, for example, does not intend or wish for his separated wife, if the separation has lasted until death, to benefit from his estate.

One can achieve that, I suppose, in a number of ways. One can make the intestacy provision go one way and then there will be a whole lot of wills going the other; or one can make the intestacy provision go the other way, in which case one does not require so many wills. I can see that it is in the interests of some that there should be a lot of wills. The point I was trying to make in the letter was that, as far as experience goes, it does not look as though there are many wills trying to alter the effect of the current law on this matter. I have not expressed it anything like as well in the letter. If I had to write the letter again I am sure that I would be able to improve on it. Your Lordships will appreciate that I have written one or two letters during the Committee stage of this Bill.

However, the most important thing I said in the letter was that I had had an opportunity of consulting, since Committee stage, with my Ancillary Relief Advisory Group, which is headed by Lord Justice Thorpe. It consists of representatives of the judiciary, the Family Law Bar Association, the Law Society, the Solicitors Family Law Association and two academic lawyers. Their view was that we should stick with the existing law. It is for that reason that I decided that the existing law should be left in. But if, as I said, there is a problem about the message of the Bill because it happens to be re-enacting existing law, I believe that I can deal with that by an amendment which takes this measure out all together and keeps the existing law in its present form.

I believe that what we have is probably more convenient for practitioners, but that of course is not certain. It has nothing at all to do with the legal effect of divorce on wills, which is a separate matter altogether, and where the only problem is separation. The law has been like this to some extent from as long ago as the 1850s although, as I have explained, it was modified considerably in 1970.

4 Mar 1996 : Column 54

5.45 p.m.

Lord Simon of Glaisdale: My Lords, I need not deal at any length with the letter which has been referred to. My noble and learned friend has not disputed that it shows complete confusion between testacy and intestacy, which invalidates the whole objection to this amendment.

My noble and learned friend was inclined to quarrel with my statement that this provision goes back to 1965 although that was supported by the noble Lord, Lord Meston. He said that it goes back to the middle of the last century. That is at best only half-valid.

There was a provision to which he referred and which arose out of the union of two very raffish figures; I am sorry to say that one of them was a predecessor of my noble and learned friend on the Woolsack, Lord Lyndhurst. I am very surprised that my noble and learned friend should take him in any way as a model. The other was Mrs. Caroline Norton, whose husband brought an action for adultery (criminal conversation) naming Lord Melbourne, the Home Secretary--or he may have been Prime Minister by that time--as her lover. That is the origin of what happened in the middle of the last century. It was partly a precursor of the Married Women's Property Act, which was designed to protect the property of married women who were living separately from their husbands under a separation order, as it is now called. That is only half of what is now proposed, which was fully expounded in 1965.

One comes back to this: although lipservice is paid to the right of anybody on conscientious objection to prefer a separation order to a divorce order, although that is conceded, the normal law of intestacy which would benefit only such a person making such a choice is altered to that person's disadvantage.

I said at the beginning that this is mainly a question of impression rather than of substance because the separated spouse can always make a will and the person who might benefit from intestacy has some rights under family provision legislation. As a question of appearance, this once again shows how divorce-minded the Bill is and how at every turn it is in favour of divorce as against separation (where there is still some hope for the marriage because there is no right to remarry). However, in view of the fact that this is largely a matter of presentation and not of substance, I ask your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Funding for marriage support services]:

The Lord Bishop of Oxford moved Amendment No. 93:

Page 9, line 40, leave out ("may") and insert ("shall").

The right reverend Prelate said: My Lords, in moving Amendment No. 93, I am seeking to insert the word "shall" instead of "may" in the first line of Clause 18. The amendment seeks, as far as any legislation can, to make grants mandatory rather than discretionary. I shall not speak of the value of marriage support services because the noble and learned Lord the Lord Chancellor is firmly committed to them, as are a good number of other noble Lords. I hesitate also to put forward a case

4 Mar 1996 : Column 55

of financial hardship because so many charitable bodies today are doing that, but it is important to place certain financial facts and figures on the record in view of the key role which marriage support services will be asked to play.

Over the past 10 years, the contribution of central government funding to each hour of counselling undertaken by Relate, for example, has dropped from 24 per cent. to under 10 per cent. of the unit cost. That means that currently Relate has to find £10 for every hour of counselling delivered to supplement the funding obtained from clients and government. The sum which Relate has to raise amounted to £4 million last year and is becoming increasingly difficult to find. Exactly the same story could be told in relation to the Jewish Marriage Council, the Tavistock Institute of Marital Studies, One Plus One, and Marriage Care, the Catholic agency.

We are all conscious of the huge cost of divorce to the country as a whole. At present the Government spend something like £3 billion on picking up the pieces of broken marriages, but less than 0.1 per cent. of that sum is invested in marriage support services. A simple way of putting that is to say that for every £3,000 spent on divorce, less than £3 is spent on supporting marriage. However, as I have said, the marriage support services will be asked to play an increasingly important role in that area in terms of marriage preparation, marriage research and marital counselling, all of which we believe in. It is important that they are funded adequately. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page