9 Liability To Maintain And The 1984 Bill: Hansard and public misinformation

Before the passage through Parliament of the Matrimonial and Family Proceedings Bill in 1983 and 1984, the Law Commission issued two Reports. The first was Law Com. No.103, "The Financial Consequences of Divorce: Discussion Paper", and the second was Law Com. No.112, which purported to contain responses to Law Com. No.103. (For a discussion on those two papers and in particular the Law Commission's recommendation in Law Com No.112 that "overriding priority" be given in the new legislation to financial provision for "children of the family" - see "Overriding Priority": Another Cautionary Tale", "New Law Journal" 17th June 1982, by the present writer.) At paragraph 42 of Law Com. No.103, the Law Commission had said, of orders for periodical payments by former husbands for former wives, "What would be involved in abandoning the present practice would often be a transfer of the husband's proper obligation in respect of his first wife to the State. We do not think that would be acceptable." No authority was given for this astounding proposition, which was that notwithstanding that there was no liability to maintain a former wife under section 17 of the Supplementary Benefits Act 1976, a former husband nevertheless had a "proper obligation" to do so which he was not to be allowed to transfer to the State (and presumably however many former wives he might have had). The following exchanges in Parliament during the proceedings on the Bill included important mis-statements of law which might have found their way into Hansard without question if they had not been challenged through the present writer's initiative.

9.1 Lord Mishcon's amendment and the Lord Chancellor's reply.

Walter Merricks, in "New Law Journal", had mentioned a forthcoming amendment (No.20), tabled by Lord Mishcon and Lord Elwyn-Jones, described as having the purpose of making the "clean break" direction under section 25A of the Matrimonial Causes Act 1973, as amended by the Bill, binding on the D.H.S.S. by providing that "the obligation to maintain imposed by section 17 of the Supplementary Benefits Act 1976" was to cease on the giving of that direction (wrongly believing that Hulley v. Thompson (1981), which allowed the D.H.S.S. to intervene where orders for children were concerned, applied to orders for the parties also).

The present writer thereupon wrote to "New Law Journal" pointing out that the liability to maintain a spouse under section 17 of the 1976 Act ceased on divorce in any event, and the amendment would accordingly be unnecessary. Expectedly, "New Law Journal" did not publish the letter, but the writer sent a copy to Lord Hailsham, to arrive on his desk on the morning of December 12, 1983, in the evening of which the amendment was due to be considered.

Lord Mishcon duly moved the amendment, and in his reply the Lord Chancellor said:-

"I am advised, as of now, and without taking Hulley v. Thompson into account, that the amendment will be of no effect, save perhaps where the direction is made between decree nisi and absolute, because the direction can only be given on or after a decree of nullity or divorce. Therefore it will occur when the marriage has been dissolved, and hence when the parties are no longer husband and wife, and so the obligation under section 17 of the 1976 Act will have died with the marriage." (Hansard, House of Lords, Vol.446, Col. 49.)

The matter was to be resolved by Report Stage. It seems likely that the misunderstanding implicit in Lord Mishcon's amendment in fact resulted from an unintentional ambiguity in a footnote in a legal textbook. But the fact remains that but for the present writer's intervention there would have been a passage in Hansard which would have been taken to be confirmation that the liability of parties to a marriage to maintain each other under section 17 of the Supplementary Benefits Act 1976 continued notwithstanding divorce.

9.2 The Solicitor-General's incredible blunders.

Notwithstanding that unequivocal statement by Lord Hailsham in December 1983, the Solicitor-General, Sir Patrick Mayhew, in the Ninth Sitting of the Special Standing Committee, on 3rd May, 1984, made this remarkable assertion:-

"In clause 3, we are adjusting the guidelines that the principal Act gives the court in the exercise of their discretionary power to make orders for financial provision following divorce. That power, which is contained in sections 23, 24 and 24A of the 1973 Act, has to be exercised in the light of the duty that each party has to maintain his or her spouse. That duty - contained in section 17 of the Supplementary Benefits Act 1976 - does not terminate with divorce but continues for life." (Official Report, Special Standing Committee, 3 May, 1984; col. 597.)

The present writer, who attended all of the public debates and sittings, drew the attention of Mr. Nicholas Fairbairn (Perth and Kinross) to the Report of the Scottish Law Commission (Scot. Law Com. No.67), which had expressly contradicted the Solicitor-General's assertion. In the Tenth Sitting, Mr. Fairbairn referred to Sir Patrick Mayhew's statement, and said:-

"Section 17 of the 1976 Act applies equally to Scotland as it does to England. On page 85, at paragraph 3.45 under the heading "Relief of Public Purse". the Scottish Law Commission states:

"The purpose of financial provision on divorce could be seen as the relief of the public purse".

Indeed, the Solicitor-General asked why the taxpayer should pick up the bill when the spouse could when we were arguing about second wives. The report continues:

'On this view, if a person requires support after divorce his or her former spouse should pay rather than the taxpayer at large. The objection to this view is that the whole point of divorce is to sever the relationship of husband and wife. The parties become strangers to each other in the eyes of the law, and the desire to spare the public purse is not a sufficient reason for requiring a man or a woman to support an impoverished stranger. It is significant that for the purposes of supplementary benefit a person is not liable to maintain his or her divorced spouse. This particular policy decision has therefore already been taken by Parliament'"

In his response in the Eleventh Sitting on 10th May, 1984, the Solicitor-General admitted his error but compounded it with another. He said.-

"On a point of order, Mr. Wells, may I be permitted to correct a mistake that I inadvertently made in our proceedings last Thursday? In beginning my reply to the debate on amendment no.4, I stated correctly that we were in clause 3

'adjusting the guidelines that the principal Act gives the courts in the exercise of their discretionary power to make orders for financial provision following divorce' (Official Report, Special Standing Committee, 3rd May, 1984: col. 597.)

I then mistakenly said that there was a continuing mutual duty to maintain, under the provisions of section 17 of the Supplementary Benefits Act 1976; in fact that is terminated by divorce.

What I should have said was that, on a decree of divorce, the duty to maintain may be continued by the exercise of the powers conferred by sections 23 and 24 of the principal Act of 1973, to which the guidelines apply. The mistake was correctly pointed out by my hon. and learned friend the Member for Perth and Kinross (Mr. Fairbairn) at our last sitting, and I apologise to the Committee for it.

The duty then continues until remarriage or death of the other party or, at present, until the application for an order is dismissed with the consent of the party making it. What was inaccurate in my opening remarks was to suggest that the duty continued to be owed under the first statute. I am very grateful for this opportunity to put that right."

Sir Patrick's assertion that the "duty to maintain" may be continued by the exercise of the powers conferred by sections 23 and 24 of the Matrimonial Causes Act 1973 was a total nonsense. He had already said that the discretionary power to make orders for financial provision after divorce had to be exercised in the light of the duty that each party had "to maintain his or her spouse" - contained in section 17 of the Supplementary Benefits Act. When he had to accept that the duty under section 17 of that Act did not continue after divorce, he tried to argue that the discretionary power itself "continued" that duty. That is something that is often referred to as "hauling oneself up by one's own bootstraps".

As a matter of law, a Matrimonial Causes Act (being an Act - not surprisingly - concerned with matrimonial causes and not general law) is not competent to impose a duty to maintain. And of course it does not do so. It empowers courts to make orders for the payment of money. In Price v. Price [1951] P.413, Denning LJ said that the statute conferring upon the High Court the then new jurisdiction to make orders in cases of wilful neglect to maintain spoke of wilful neglect to maintain but did not define the duty to maintain; and for that, they had to look at the common law.

9.3 "The Matrimonial and Family Proceedings Act 1984: Your Questions Answered".

When the Matrimonial and Family Proceedings Act 1984 came into force, a booklet so entitled was issued by the Lord Chancellor's Department.

The 1984 Act had amended the Matrimonial Causes Act 1973 by the insertion of section 25A, which commenced:

"(1) Where, on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24 or 24A above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable."

Subsections (2) and (3) set out how those powers might be exercised: subsection (3) in particular saying that the court could dismiss a party's application for periodical payments (etc.) with a direction that neither party could apply for such an order in future: the "clean break" direction.

Under the heading, "Some Questions Answered", the booklet asked the question:-

"Do these changes mean that the right to life-long maintenance from a former spouse (the so-called "meal ticket for life") will have been abolished?"

The answer given commenced with the following words:-

"No. The Act does nothing to change the legal obligation * that a husband owes to his former wife, which may continue until she remarries or dies." (* Present writer's emphasis.)

The assertion in this answer that there was a "legal obligation" on a [former] husband to maintain his former wife for life was something that could not go unchallenged, and the Campaign for Justice in Divorce NEWSLETTER published a notice urging members to write to their M.Ps. asking, "What is this legal obligation, and where is the authority for it?" Some twenty-five letters, which were duly passed to Lord Hailsham by M.Ps, resulted in much stimulating correspondence but no convincing evidence that any such "legal obligation" existed or that there was any authority for one. The most that could be said was that the only "legal obligation" was the obligation that came into existence when an order was made by a court. And that was simply an obligation to pay whatever the court ordered. Without such an order, no such obligation could exist. Where, as in one case known to the present writer, no order was made until ten years after the divorce, no "legal obligation" could have existed during the whole of that period.

The difficulties which were presented by these questions are indicative of the highly unsatisfactory state of the divorce financial provision laws which now exist in this country. There is no liability to maintain a former spouse under any law - common law or statute - but the Matrimonial Causes Act gives courts power to make orders with no legal basis whatever for them. When matrimonial guilt was the basis for divorce, breach of the matrimonial contract was a sufficient reason - with the normal rule of contract law that the party in breach should be required to put the other party into the same position as if the contract had not been breached. Basically in order to save public funds, the divorce courts make orders in favour of the weaker party almost every time, virtually regardless of who was to blame for the divorce.

9.4 No liability to maintain after divorce: existing legal authority ignored

A worrying feature about these conflicts in 1983-1984 about whether or not a liability of former parties to a marriage to maintain each other continued after divorce is that judicial authority already existed in England to the effect that it did not do so; and this also raises serious questions about whether the Law Commission for England and Wales was properly discharging its statutory duty under the Law Commissions Act 1965 in relation to "reviewing" the law when it referred to "a transfer of the [divorced] husband's proper obligation in respect of his first wife to the State" in Law Com. No. 103. Scot. Law Com. No.67, "Report on Aliment and Financial Provision", ordered to be printed on 4th November 1981, referred at footnote 69 on page 81 to Forbes v. Forbes 1978 S.L.T. (Notes) 80, in which the judge had stressed "a husband's 'prospective liability to support"', saying, "It is only in a loose sense that such a liability can be referred to. There is no legal obligation of support between ex-spouses after divorce. The only obligation is to pay whatever the court orders to be paid". And in Re Fullard [1981]J 2 All ER 796, Ormrod LJ said:-

"The judge referred to his [the deceased's] having towards his former wife (as he said): 'the responsibility and obligations of a former husband for the maintenance of a former wife.' I am not quite clear what he had in mind because the responsibility and obligations of a former husband for the maintenance of a former wife are to comply with such orders as the court has made or that the parties may have agreed between themselves. There are certainly no other legal obligations." (Present writer's emphases.)

The Law Officers' Department ought to have been well aware of Fullard by May 1984 when the Solicitor-General so blatantly misinformed the Special Standing Committee on this subject, quite apart from Lord Hailsham's clarification on 12th December 1983.