SUMMARY JURISDICTION (SEPARATION AND MAINTENANCE) BILL.

WEDNESDAY, 11th MARCH, 1925.

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The Committee consisted of the following Members:

Mr. Short (Chairman)

Acland-Troyte, Colonel

Ainsworth, Major

Alexander, Mr. A. V.

*Astor, Viscountess

Barker, Mr.

Beamish, Captain

Beckett, Mr.

Bourne, Captain

Briggs, Mr.

Brown, Major C.

Clayton, Mr.

Cluse, Mr.

Craig, Mr. Ernest

Croft, Brig.-General Sir H. Page

Davies, Major G. F

*Davies, Mr. Rhys

Dennison, Mr.

Edwards, Mr. J. Hugh

Fairfax, Captain

Fall, Sir Bertram G.

*Greenwood, Mr. Arthur

Grenfell, Mr. D. R.

Grotian, Mr.

Gunston, Captain

Hall, Captain W. D.

Hartington, Marquess of

Henderson, Lieut.-Colonel

Hirst, Mr. W.

*Harney, Mr.

Hudson, Mr. Robert

*Hume-Williams, Sir Ellis

*Joynson-Hicks, Secretary, Sir William

Kenworthy, Lieut.-Commander

*Locker-Lampson, Mr. G.

Macdonald, Sir Murdoch

Makins, Brig.-General

March, Mr.

Milne, Mr. Wardlaw-

Morrison, Mr. H.

*Nield, Sir Herbert

Nuttall, Mr.

*Ramsden, Mr.

*Rawlinson, Mr.

Peto, Mr. Basil

Sandeman, Mr.

Scurr, Mr.

Simms, Mr.

Smith, Mr. Rennie

Smithers, Mr.

Somerville, Mr.

Taylor, Mr.

Thompson, Mr. L.

Tinne, Mr.

Waddington, Mr.

Ward, Lieut.-Colonel J.

Warner, Brig.-General

Watson, Sir F.

Watts, Dr.

Williams, Commander Charles

Williams, Dr. J. H.

* Added in respect of the Summary Jurisdiction (Separation and Maintenance) Bill.

Mr. COLOMB, Committee Clerks

Mr. EDENBOROUGH, Committee Clerks

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29 STANDING COMMITTEE A Wednesday, 11th March, 1925.

[Mr. A SHORT in the Chair.]

SUMMARY JURISDICTION (SEPARATION AND MAINTENANCE) BILL.
[OFFICIAL REPORT.] CLAUSE 1.
—(Amendments of principal Act as to grounds on which orders may be made.)

(1) An application by a married woman for an order or orders under the Summary Jurisdiction (Married Women) Act, 1895, as amended by any subsequent enactment (which Act as so amended is hereinafter referred to as the principal Act) on the ground of cruelty or neglect by her husband, may be made notwithstanding that the cruelty or neglect complained of has not caused her to leave and live separately and apart from him, and accordingly the words "and shall by such cruelty or neglect have caused her to leave and live separately and apart from him" in section four of that Act are hereby repealed.

(2) Amongst the grounds on which a married woman may apply for an order or orders under the principal Act there shall be included the following grounds—

  • that her husband has been guilty of persistent cruelty to the children of the marriage;
  • that her husband has compelled her to submit herself to prostitution.
  • Where the husband has, in the opinion of the court, been guilty of such conduct as was likely to result and has resulted in her submitting herself to prostitution, he shall, for the purposes of this subsection, be deemed to have compelled her so to submit herself.

    (3) Amongst the grounds on which a married man may apply for an order or orders under the principal Act there shall be included the ground that his wilfe has been guilty of persistent cruelty to the children of the marriage.

    (4) No order made under the principal Act shall be enforceable and no liability shall accrue under any such order whilst the married woman with respect to whom the order was made resides with her husband.

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    Rear-Admiral BEAMISH: I beg to move in Sub-section (2) after paragraph "B" to insert a new paragraph— "(C) that her husband has committed adultery." My object in moving this Amendment is to give people who have to have their cases tried in a police court equal opportunities with those who have their cases tried in a higher court. The Bill already provides for cases where proof of the adultery rests with the police court. That being so, it seems to me that, if the police courts are in a position to make a decision in regard to the act of adultery in one instance, they should be able to do so in another. I think it would add to the utility of the Bill and to the fairness as between man and woman if this addition were made to the Bill.

    The UNDER-SECRETARY of STATE for the HOME DEPARTMENT (Mr. G. Locker-Lampson): I have looked at this Amendment very carefully, and am afraid that we cannot accept it. There are a great many Amendments, logical Amendments, which might be added to this Bill. But the Bill is really the Bill of the late Government, and it is an agreed Bill, reached after a great many conferences and meetings. It very nearly passed into law in the last Parliament. It went through both Houses of Parliament in virtually the identical form of this Bill, and it was only on account of the Dissolution that it failed to get on to the Statute Book. I am very much afraid that if big Amendments be inserted, they will raise so much controversy that when the Bill is reported to the House, it will not get on to the Statute Book. I agree that there are several Amendments, logical Amendments, for which there is an argument, and for which there is a case. But I would appeal to the Committee as a whole, and particularly to my hon. and gallant Friend (Rear-Admiral Beamish), if possible, not to press controversial Amendments. If such Amendments be pressed, and carried in Committee, it will mean that the Bill will have to be dropped, because we shall find that there will be so much controversy aroused in the House that we shall never be able to pass it into law. Therefore, I hope that my hon. and gallant Friend will not press the Amendment.

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    Mr. HARNEY: I agree with the Under Secretary, and would appeal to the hon. and gallant Member not to press his Amendment. This legislation was originally passed to protect wives against brutal husbands. The Bill goes a good deal further than the Act of 1895, because that Act only gave the husband and wife power to go to the police court where the husband had been cruel or neglectful of the wife. This power is now extended to children, which is going very far. If you extend it to adultery on the part of either husband or wife, you open the road to a great deal of collusion, and to the possibility of homes being broken up on what is regarded, perhaps, as very slight provocation by the parties themselves. It would be going very far to give the magistrates' jurisdiction to deal with adultery in the sense that the Divorce Court does. I think, therefore, that the Bill as it stands in that respect ought to be accepted. There is one point which arises indirectly from the Amendment to which I should like to draw the attention of the Under Secretary. The Bill is framed to enable the wife to obtain an Order against the husband, even though she has not left the house. Persistent cruelty and neglect has to be set up as the cause of her leaving. Under this Bill, the neglect or cruelty, if it be sufficient, cannot be answered by the husband saying "She has not gone away." Here you say that the Order can be made, although the wife has not gone away, but the Order is not enforceable until she does go away. I think that there should be a date fixed, otherwise it may come about that an Order may be made, and although the Order may have been in existence five or six years, the wife may not have gone away. At the end of the period she may leave, and the Order would at once become operative when a new state of things may have arisen. It is fair that there should be some limitation placed upon the extent of the order in regard to period, and I suggest that, although the Order can be made, the wife not having left, the Order should not be enforceable after, say, a period of two years. There is a further point which arises with respect to persistent cruelty. The Bill relates to persistent cruelty to the children of the marriage. There may be 32 step-children. Why should not persistent cruelty to step-children be dealt with? Suppose a woman who has a family, marries, and the husband is cruel to her children. It is only fair that those stepchildren should come under the same category in regard to cruelty as the children of both of them.

    Mr. RHYS DAVIES: I feel sure that the mover of the Amendment will see what would happen if he pressed his Amendment to a Division. I have no doubt that there are several Amendments that ought to be put in a Measure like this. I incline to the view that the Bill is incomplete, but, as I had something to do with the Measure in the last Parliament, I feel sure that if we disturb it by setting up Amendments of this character, we may lose the Bill. I am very anxious that this first step should be taken. An Amendment has been submitted to me of a very important character. It is an Amendment almost more important than any Amendment on the Paper. Where an Order of the Court is made against the husband, and the husband runs away and declines, to pay, the Court is compelled to spend, in some cases, £10, or even £20, to bring the husband back to the very Court where the Order was made. The idea has been suggested to me that such a man should be tried in the place where he resides, and that no expenditure should be incurred in bringing him back. An Amendment of that character would, however, upset the whole equilibrium of the Bill. The Under-Secretary has informed us that he cannot accept the Amendment which has been moved by the hon. and gallant Member for Lewes (Rear - Admiral Beamish). I would ask my hon. Friends who are keen on this Amendment to withdraw it, so that we may get the Bill on to the Statute Book.

    Mr. BECKETT: I have no wish to press the Amendment to the extent of wrecking the Bill, but I think it is a very great pity that the Bill should be passed as it stands, and that this Amendment should be rejected, without the Committee and the House realising the very great injustice which is being done to Roman Catholic people under the Bill. These people are forbidden by their religion to accept divorce, and you are taking away from them the possibility of judicial separation—that is, poor people—which means a substantial injustice 33 under the law to a very large section of the electorate. I am very sorry to hear from the Under-Secretary and from the hon. Member for West Houghton (Mr. Rhys Davies), who was the Under-Secretary in the last Government, that such an innocent Amendment would have such a disastrous effect. As a new Member, I suppose, however, that I must bow to their superior judgment. But it does seem to me a very great pity that when, apparently, all parties are agreed on the principle, the principle should stop short in trying to do justice to a very numerous and very influential section of people in this country.

    Mr. MARCH: It is a remarkable coincidence that I should have had brought to my notice this morning, by a married woman who came to my house, a case bearing upon the point which we are now discussing. This woman told me that her husband had received a notice to attend the Court, and to answer for arrears of payment in respect of a child of which he had been adjudged the father. The woman wants to know what she can do in the matter. She got hold of the summons which had been delivered at the house. She knew nothing at all about the matter and is placed in a great difficulty as to what can be done. It seems to me that if there could be something in the Bill on the lines of the Amendment now proposed, it would give her redress, and she would be able to get that redress against her husband for committing adultery, as evidenced by the Order made against him. As far as I know, there may be provision in the main Act under which the woman may get redress, but, by the adoption of this Amendment, she would get redress straight away, and, therefore, I think the Amendment ought to be inserted.

    Mr. HIRST: Does the Under Secretary consider that the Amendment is of a very distinctive character, as compared with many Amendments which might be brought forward.

    Mr. LOCKER-LAMPSON: My difficulty is that there have been two suggestions made by the hon. and learned Member for South Shields (Mr. Harney), but there are no Amendments on the Paper dealing with those points, and I should be out of order if I were to discuss them. We have a specific Amendment proposed, 34 and we had better dispose of that first. I do not feel that I can add anything to what I have said as to the very drastic Amendments now before the Committee. When we have disposed of that Amendment, we shall be able to deal with the other matters.

    Mr. HARNEY: I plead guilty to not having put down any Amendment. In addition to the suggestion I made earlier, there is a further point which I should like to bring forward, and I should be glad if the Under Secretary would tell me when I may have an opportunity of drawing his attention to the matter.

    Mr. LOCKER-LAMPSON: It would be out of order on this Amendment.

    The CHAIRMAN: I cannot allow the hon. and learned Member for South Shields to proceed with his further points on this Amendment. Perhaps I might make a suggestion which would meet the position. I do not know whether the Under Secretary would be able to consider the hon. and learned Member's suggestions between now and the Report stage.

    Mr. LOCKER-LAMPSON: Off hand, I cannot give any definite pledge, but I should like to consider the points raised by my hon. and learned Friends. They are not on the Paper in the form of Amendments, and we have no chance of considering them, because to do so would be clearly out of Order on this Amendment. Perhaps, before the Report stage, my hon. and learned Friend will allow me to consider them.

    Mr. HARNEY: Thank you

    Rear-Admiral BEAMISH: I am sorry that the Amendment cannot be accepted by the Under Secretary, but having heard the various arguments put forward, I am prepared to withdraw the Amendment. The Bill is such a good one, and such an advance, that if there be a chance that it will be ruined if I press the Amendment, I beg leave to withdraw.

    Amendment, by leave, withdrawn.

    Mr. BASIL PETO: I beg to move in Sub-section (2) after paragraph (b) to insert a new paragraph— "(c) that the husband is suffering from venereal disease, and insists on cohabiting." This is a manuscript Amendment. My object is not to wreck the Bill, on which 35 I understand there is agreement. At the same time, we must remember that we are considering the Bill, and if we are to be precluded from discussing Amendments which we consider important, and which we consider would be improvements to the Bill, there is no object in the Committee meeting. Therefore, I do not hesitate to put forward this Amendment. It relates to a form of cruelty, or it may be held to be a form of cruelty, and constitutes a very special case, because it is one that has been considered by both the bodies which are struggling to reduce the terrible scourge of venereal disease in this country—the society for combating venereal disease, and the Society for the Prevention of Venereal Disease. I should like the Under Secretary to tell us whether the law as it stands would deal with such a case. I am informed that this form of cruelty is not uncommon. It is clearly a case of great cruelty equal to the cruelty, if not more cruel, than the cruelty stipulated in paragraph (b)— "that her husband has compelled her to submit herself to prostitution." One thing seems to me to be as bad as the other, and, from the national point of view, the one that I am putting forward is the more serious. Therefore, I ask the Under Secretary if he can give me any guide as to whether he would consider such an Amendment on the Report stage, or whether he considers that such a case as I have brought forward is already met under the existing law.

    Mr. GROTRIAN: Surely such a case must fall within the provision respecting the prevention of cruelty. It has been held to be cruelty.

    Mr. LOCKER-LAMPSON: I saw the hon. Member for Barnstaple (Mr. Peto) before the Committee met, and explained to him that I thought this point did come under the existing law. I should think that if the husband has infected the wife that that, undoubtedly, would come under the present provisions as to cruelty. Therefore, I do not think this Amendment necessary.

    Amendment, by leave, withdrawn.

    The CHAIRMAN: Does the hon. and gallant Member for Lewes wish to proceed with his further Amendment—in sub-section (3), at the end, to insert the 36 words "or that she has committed adultery."

    Rear-Admiral BEAMISH: This Amendment is consequential. It would unquestionably have the same wrecking effect as the first Amendment, and that being so, I should like to withdraw.

    Amendment, by leave, withdrawn.

    Motion made, and Question proposed "That the Clause stand part of the Bill."

    Mr. PETO: May I ask the Under-Secretary whether he could say a word on the point raised by the hon. Member for South Shields in regard to the children. It seems to me quite obvious that, if we are going to protect the children of the marriage, we ought to protect the step-children, because the step-children need protection more than the children of the marriage. Cruelty is much more likely to occur, and does occur, in the case of step-children than in the case of the children of the marriage.

    Mr. LOCKER-LAMPSON: I thought I had said that I would consider, between now and the Report stage, the two points raised by the hon. and learned Member for South Shields as to the question of the date of the Order and the question of the step-children.

    Question put and agreed to. Clause ordered to stand part of the Bill.

    Clauses 2 (Amendment of s. 7 of principal Act), 3 (Amendment of definition), 4 (Notice of change of address), 5 (Enforcement of Orders as to custody of children) and 6 (Short title, extent, and commencement) ordered to stand part of the Bill.

    NEW CLAUSE.
    —(Furniture and tenancy.)

    To the provisions which may be made by an order or orders under section thirty-five of the principle Act shall be added:— (e) A provision that the furniture of the matrimonial home be divided between husband and wife as to the court seems just and fair; (f) A provision declaring the person in whose favour the order is made to be the tenant of the premises where both husband and wife have theretofore resided (which provision while in force shall make it lawful for that person and the landlord of the said premises to exclude therefrom that person's husband or wife, as the case may be);

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    Provided—

  • that no such provision shall be made without the consent of the landlord notified in writing to the court.
  • that nothing herein contained shall affect the landlord's right upon any lawful ground to recover possession of his premises from the person declared by the court to be his tenant.—[Rear-Admiral Beamish.]
  • Clause brought up, and read the First time.

    Rear-Admiral BEAMISH: I beg to move "That the Clause be now read a Second Time." There are many circumstances which arise under the conditions covered by this Bill where a home may be seriously broken up in regard to the furniture. Although, under the law, the furniture is probably in the name of the husband, a woman with a number of small children, faced with the difficulty of replacing furniture, and making a fresh start, is placed in a very difficult position. The decision should be left to the Court to decide as they think just in regard to a fair division of the furniture, leaving the man with sufficient furniture and the woman with her share. I should like to press this Amendment, in order that justice may be done in cases of that kind.

    Mr. LOCKER-LAMPSON: The difficulty I see about this Amendment is that any question of ownership can now be settled by the County Court. The question is, to whom does the furniture belong. As far as I can see, the whole of this matter would be decided in the County Court according to the facts, and I do not believe that this Amendment would carry us much further.

    Mr. G. BARKER: I should like to support the proposed new Clause. I have in mind a case where a man and wife separated. The wife was mother of three children; the man got a furniture van, and cleared the whole of the furniture out of the house, leaving the woman absolutely destitute. The case later came before one of the local Courts, and the woman got a separation order. I contend that the furniture really belongs to the man and the wife. It is impossible to say that the man has been the purchaser of the whole of the furniture, or that the woman has purchased the whole of the furniture. The home is the joint 38 property of the man and his wife, and it should be impossible for there to be a repetition of such brutal conduct as that which I have described. I hope that the Under Secretary will accept this new Clause. The law cannot stand as it is at the present time. It is outrageous to think that, if a man and his wife separate, the man should be able to come along with a furniture van, and destroy the home at his own will, and as an act of revenge.

    Mr. BECKETT: During last week one of the women's societies interested in this matter took the trouble to obtain personal interviews with the clerks of three of the largest London police courts. All the three were emphatically of the opinion that this reform is needed, and they cited instances of hardships arising under the present law. It was the considered opinion of these three gentlemen that a great number of women are living with men with whom they ought not to be living, simply because there was no tenancy agreement, and they are afraid to ask for separation, because the separation means leaving them and their children without any home. The furniture of the home is one of the very few co-operative enterprises in which every members of this Committee believes. I cannot see anything provocative in this Amendment, and I hope it will have consideration from the Government.

    Mr. HARNEY: However desirable on general grounds such an Amendment may be, it is absolutely impossible to give it practical effect. By this Amendment you are clothing the magistrates with power, not only to arrange what is fair between husband and wife, but to break contracts, and to form new relations between landlord and tenant. This question involves very nice matters of law. It involves a very searching enquiry as to facts, and it means clothing the magistrates with the jurisdiction that is given to them by no other Act of Parliament. Even in cases of assault, you are always careful to say that, if the assault turn upon the question of title, or of determining a contract between the parties, then these are matters involving questions of law of so subtle a nature that it would not be safe to commit them to an ordinary lay magistrate. In this Amendment we are taking a fun- 39 damental proceeding. We are saying to the magistrate: "Because you think the husband has treated his wife shockingly, you are at liberty, irrespective of what may be the contractual rights, to divide property in which third parties may be interested. You are in a position to rearrange the relations of landlord and tenant, in which relations third parties may be interested." It is a far-reaching Amendment, which would involve us in great complication and, in the long run, I do not think it would have the desired effect.

    Mr. R. DAVIES: I am impressed with the point raised in paragraph (e) of the new Clause, which provides that the furniture shall be divided between the husband and the wife as to the Court may seem just and fair. I am not enamoured of paragraph (f), and would ask the Under Secretary to give consideration to this question between now and the Report stage. If he consent to do that, I should be satisfied. With respect to what has been said by the hon. and learned Member for South Shields, surely, if the Courts are to have the power to decide the destiny of the children, the same Court should have the power to decide the destiny of the furniture. I can well conceive the impossible position of a woman who separates from her husband, and has no furniture, to set up a new home for herself, but I am more concerned for the children even than for the woman. I would be satisfied if the Under Secretary can give consideration to the points which we raise particularly with regard to paragraph (e). I am not prepared to press for consideration of paragraph (f), because I would not like to see transactions entered into between the Court and the landlord as to the tenancy of the house when the husband and wife separate. I want to keep clear entirely of the landlord and of the employer in all cases of this kind, but I do press for the acceptance of paragraph (e).

    Mr. GROTRIAN: As one who is most anxious to see this Bill go through, I cannot help thinking that if this Clause be added, it will raise matters of extreme controversy. Therefore, in the interests of the Bill, which I support most heartily, I would ask that the Amendment should 40 not be pressed. Under this Amendment the hon. and gallant Member is attempting to give the magistrate power to transfer the property of one person to another person. My hon. Friend (Mr. Davies) has argued that, as the magistrates have jurisdiction over the children, à fortiori they ought to have jurisdiction over the property. Not at all. There is a court in this country which has jurisdiction over property already. That is the County Court. All these questions are proper to the County Court, and all other matters are regarded as being exclusively for the police court. It is sufficient to upset the jurisdiction of a magistrate for anyone to raise the preliminary objection that the matter in dispute involves a question of the rights of property, and in that event he cannot go on with the case. There is really no necessity to make the provision which is now proposed, and I would ask the hon. and gallant Member to think twice before asking for such a Clause.

    Mr. A. SOMERVILLE: While I am thoroughly in sympathy with the object of this Amendment, as a magistrate I can see that if it were embodied in the Bill, the result would be an immense addition to the business of the magistrates' courts, and it would be almost impossible to come to a fair decision.

    Mr. LOCKER-LAMPSON: I do not regard this Amendment in anything like the same light as that in which I viewed the first Amendment moved by my hon. and gallant Friend, though probably it would be found that there is a certain amount of controversy attached to it. I must confess that the argument used by my hon. Friend the Member for South Shields (Mr. Harney) and also by the hon. Member for Windsor (Mr. A. Somerville) who speaks as a magistrate, are very cogent. But I would not like to turn down this proposal straight away, especially paragraph (e) which has been referred to by the late Under Secretary of State (Mr. Davies). There may be a case for it, and therefore, if the Committee will allow this course to-be taken, we at the Home Office would like to look into the point and state our view on the Report Stage. Meantime, perhaps the Amendment might be withdrawn.

    Rear-Admiral BEAMISH: I am more than content to accept the suggestion of the Under Secretary that the matter will 41 be looked into more closely, and may be discussed on the Report Stage.

    Mr. LOCKER-LAMPSON: I would like to explain that I had only just seen these Amendments as I came into the room this morning. Owing to our procedure, Amend- 42 ments are seen by the Minister only one or two minutes before the Committee sits.

    Amendment, by leave, withdrawn.

    Bill reported without Amendment.

    The Committee rose at Twenty-Five Minutes to Twelve o'Clock.

    THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

    Short, Mr. (Chairman)

    Acland-Troyte, Lieut.-Colonel

    Ainsworth, Major

    Barker, Mr.

    Beamish, Rear-Admiral

    Beckett, Mr. John

    Bourne, Captain

    Browne, Major Clifton

    Clayton, Mr.

    Cluse, Mr.

    Davies, Mr. Rhys

    Fairfax, Captain

    Grotrian, Mr.

    Gunston, Captain

    Harney, Mr.

    Hartington, Marquess of

    Henderson, Lieut.-Colonel V. L.

    Hirst, Mr. W.

    Locker-Lampson, Mr. Godfrey

    Makins, Brigadier-General

    March, Mr.

    Nuttall, Mr.

    Peto, Mr. Basil

    Ramsden, Mr.

    Sandeman, Mr.

    Scurr, Mr.

    Simms, Mr.

    Smithers, Mr.

    Somerville, Mr. A.

    Taylor, Mr.

    Thompson, Mr. Luke

    Tinne, Mr.

    Warner, Brigadier-General

    Watson, Sir Francis

    Watts, Dr.

    Williams, Commander C.