Second Reading Committee


20th April 1988




Second Reading Committee


Wednesday 20 April 1988


RESOLVED, That the Chairman do now report to the House that the Committee recommends that the Matrimonial Proceedings (Transfers) Bill [Lords] ought to be read a Second time.

Committee rose at fourteen minutes to Eleven o'clock.



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The Committee consisted of the following Members:

Chairman: Mr. David Knox

Adley, Mr. Robert (Christchurch)

Alexander, Mr. Richard (Newark)

Aspinwall, Mr. Jack (Wansdyke)

Baldry, Mr. Tony (Banbury)

Benyon, Mr. W. (Milton Keynes)

Bevan, Mr. David Gilroy (Birmingham, Yardley)

Blackburn, Dr. John G. (Dudley, West)

Boateng, Mr. Paul (Brent, South)

Bradley, Mr. Keith (Manchester, Withington)

Carlile, Mr. Alex (Montgomery)

Carlisle, Mr. John (Luton, North)

Carlisle, Mr. Kenneth (Lincoln)

Fraser, Mr. John (Norwood)

Fyfe, Mrs. Maria (Glasgow, Maryhill)

Ground, Mr. Patrick (Feltham and Heston)

Lyell, Sir Nicholas (The Solicitor-General)

Mahon, Alice (Halifax)

Steinberg, Mr. Gerry (City of Durham)

Miss P. A. Helme, Committee Clerk

3 Second Reading Committee Wednesday 20 April 1988

[MR. DAVID KNOX in the Chair]

Matrimonial Proceeds (Transfers) Bill [Lords]

10.30 am

The Solicitor-General (Sir Nicholas Lyell): I beg to move, "That the Chairman do now report to the House that the Committee recommends that the Matrimonial Proceedings (Transfers) Bill [Lords] ought to be read a Second time." The Bill fulfils an undertaking which the Lord Chancellor gave to the House of Lords last December to introduce retrospective legislation to deal with a lacuna in the Matrimonial and Family Proceedings Act 1984, which has caused certain transfers of matrimonial proceedings from the High Court to county courts to be declared invalid by the Court of Appeal in the case of Nissim v. Nissim. The result of that judgment is that the decrees and orders of county courts following such transfers are also invalid. It may be helpful to the Committee if I explain briefly how the problem arose. Part V of the 1984 Act deals with the distribution and transfer of family business. Before the coming into force of that part on 28 April 1986, the seminal date, the county courts had various duties and powers under the Matrimonial Causes Rules 1977 to transfer matrimonial causes and matters up to the High Court for determination. There were provisions in those rules allowing the High Court to transfer such causes or matters back to a county court in an appropriate case. Part V of the 1984 Act was intended to provide a complete regime for such transfers up and down. Accordingly, the 1977 rules governing those transfers were revoked when part V came into force. By omission, however, the part did not contain a provision which would allow proceedings already transferred up to the High Court before the part came into force to be transferred back to the county court once it had come into force. Therefore, such cases were effectively marooned. None the less, the courts continued to order the transfer of such proceedings back to county courts which, in turn, continued to dispose of them. I shall first deal with the Bill's retrospective effect and then consider the arrangements it provides for the future transfer of matrimonial proceedings. Clause 1(2) and (3), subject to one exception, will validate the purported transfers to county courts. All logical consequences of such transfers will then follow automatically. Not only will the decrees and orders of county courts be validated, but so will dependent transactions. Thus, remarriages will be validated and, for example, the children of those remarriages will be legitimate. Further, any property transferred on the basis that a county court decree or order was valid, for example on an intestacy, will be validated. It is possible, but highly improbable, that someone may have acted on the basis that the transfer of 4 proceedings to a county court and any decree or orders made there were invalid. He might, for example, have distributed property on an intestacy to a first wife on the basis that a decree was invalidly granted and the purported marriage to a second wife void. If such a case exists, the distribution will have to be unpicked. The Bill enables that to happen, but such cases are likely to be extremely rare. The Government's announcement immediately after the Court of Appeal's decision in Nissim that the position would be rectified retrospectively was widely publicised, particularly in legal journals. The Law Society was told of the Government's intention to legislate retrospectively and has been advising its members accordingly. Further, as this problem came to light only in December last year, there has been little time for such transactions to be carried through. However, even if such an improbable case has arisen, the Government's view is that the rights and duties of those affected should, in justice, be decided on the basis that decrees and orders of the county courts were valid, as, indeed, everybody expected and intended they should be. Accordingly, no advantage or disadvantage should accrue from a legislative error of that kind. I mentioned at the outset an exception to the otherwise general principle of retrospection in the Bill. It is contained in subsections (4) and (5) of clause 1 and relates to orders of the High Court. In some cases, having realised that the decrees and orders of a county court were invalid, some parties may have sought decrees and orders in the High Court where, in law, their case still was. In those circumstances the High Court may have granted a decree and then made orders about such things as financial provision, property rights and the custody and education of any children involved. When preparing the Bill, it was necessary to decide how those later decrees and orders should be treated. The conclusion, which is reflected in the Bill, was that the earliest decree—that of the county court—should stand, thus validating all transactions based on it including remarriage after its grant. Accordingly, any later High Court decree, having meanwhile served its purpose, will cease to have effect because the parties will already have been divorced by the earlier county court decree. As regards orders—for example, those about children's custody, maintenance and property rights—it was concluded that those of the High Court should, in general, stand. The Government's reasons were that if the High Court orders were the same as those made earlier by a county court there is no reason to choose between them. If, however, they are different, it would cause the least disturbance to people's lives and arrangements to leave matters where they stand on the coming into force of the Bill rather than requiring the parties to readjust their arrangements yet again to comply with a revived county court order. Further, as for orders for maintenance or those relating to the custody of children, those of the High Court will reflect the most up-to-date position and it would be undesirable to substitute for them any earlier and perhaps inappropriate county court orders. 5 Finally, the Bill deals with the future handling of the cases concerned. First, subsection (4) of clause 1 provides that where the parties have returned to the High Court and obtained a decree but there are proceedings still pending in that court when the Act comes into force, that court will retain jurisdiction over the case. In some cases, no doubt, it will decide any outstanding matters itself, but in others it may use the new power in subsection (1) of clause 1 to transfer the case back to a county court. As for the new power, subsection (1) of clause 1 amends section 38 of the Matrimonial and Family Proceedings Act 1984 by adding a new power which will allow the High Court to transfer down any matrimonial cases which have been transferred up to it from a county court at any time which are not otherwise transferrable down under that section. This short Bill will put those involved in matrimonial cases mistakenly transferred to county courts in the position that they thought they were in, and it will remove the lacuna in the 1984 Act which has given rise to invalid proceedings. As such it is an uncontroversial but necessary measure and accordingly I ask the Committee to recommend that it ought to be read a Second time.

The Chairman: May I remind hon. Members that they may speak only once on a Second Reading Committee except with the leave of the Committee.

10.38 am

Mr. John Fraser (Norwood): The Solicitor-General says that it is an uncontroversial Bill. I agree with him, otherwise we should not be sitting as a Second Reading Committee. I thank him for his courtesy in giving me advance notice of the details of his speech, in particular the explanatory notes. It is not an easy Bill to understand. I suppose the political life comes full circle. When I first joined Fulham Labour party, there was an active political section, and a swimming club and a drama club. Not only was I drafted to canvass in my first few days in the Labour party; I was also drafted to perform in a version of J. B. Priestley's "When We Are Married". The Committee may know that the play involves several middle-class couples who find on their silver wedding anniversary that there was a defect in the appointment of the curate as a result of which they all find themselves unmarried for part of the action of the play. Here, we are dealing not with matters of the Church, but with a defect in the legislation of the state, introducing fact, rather than the fiction of J. B. Priestley, which had a happy ending. As this is a non-controversial Bill, what happened in 1984 will also have a happy ending, and no doubt a new J. B. Priestley may write a play about it. In all languages there are words that are taboo. for example, people do not talk of dying but of passing over and expiring; we do not have Ministers of Aggression, but Ministers of Defence; the Treasury never speaks of cuts but of cash limits, with cost increases to be absorbed by the spending Department. We now have a new one. Instead of the taboo words "monumental legal cock-up" we have the word 6 "lacuna". We are here dealing with a lacuna and restoring the position to what everyone thought it was after 1984. I have two questions: first, as a result of the decision in Nissim v. Nissim, costs were incurred by people who went from the county court back to the High Court to ensure that their children were legitimated, their marriages saved and their divorces preserved. No doubt orders for costs were made. Those costs ought not to be paid by the parties but by the legislature. I am not suggesting that the costs should be paid by the draftsman, any more than I am suggesting that surcharges on Lambeth borough council should be paid by the councillors, but where substantial costs were incurred, they ought to be restored to those who paid them, and that might be done ex gratia. Secondly, what about the litigant who thought that the original draftsman and the Court of Appeal got it right? Dr. Johnson describes second marriage as "the triumph of hope over experience" and it is possible that there are some people who found themselves remarried, but now find themselves unremarried, who think that the legislative position should be left roughly as it is. In his "Miscellany-at-Law" Megarry records the time when divorce was not available in the courts but only as an Act of Parliament and tells of the case of a town clerk who wanted a divorce, so slipped into a private Members's Bill, which had to do with sewage beds, the phrase, the town clerk's marriage is hereby dissolved. Megarry, apocryphally, recalls that the town clerk was thereby divorced. That is an example of legislative divorce, whereas this is an example of legislative marriage. We are today marrying a number of people who found themselves unmarried. We ought therefore to conclude our proceedings with cake, champagne and the Solicitor-General reading the telegrams.

10.42 am

Mr. Alex Carlile (Montgomery): I also welcome the Bill, and thank the Solicitor-General for providing me, with too, an advance copy of his remarks. I cannot add anything to what has been said so interestingly and splendidly by the hon. Member for Norwood (Mr. Fraser), but I hope that someone, somewhere, will give guidance to the couples involved about the date of their real wedding anniversaries. Possibly it is the day of Royal Ascot.

10.43 am

The Solicitor-General: With the leave of the Committee, Mr. Knox, and subject to your helpful guidance, perhaps I could answer the questions that have been asked. When I began to scrutinise this matter I also thought of the problem of costs. When the Bill was debated in another place the Lord Chancellor was asked how many cases were affected. My noble and learned Friend put out inquiries, but the matter is so arcane that it is impossible to say how many cases are involved, or, indeed, whether any case has been affected as reports have not yet come back. 7 I agree with the general approach to costs put forward by the hon. Member for Norwood (Mr. Fraser). I cannot give a commitment, but I can say that any case that appears to have given rise to substantial costs will be looked at on its merits. If its seems meritorious, I can say, without commitment, that the matter should be dealt with on an ex gratia basis. At present we do not know of any case. As for when people should treat themselves as having been remarried, the Bill validates what was previously thought to be valid. Therefore that date would be that which it had hitherto been thought to be. The Bill's approach is sensible and wise. 8 The hon. Member for Norwood (Mr. Fraser) quoted the amusing words of Megarry—I believe that the original quotation was from A. P. Herbert. Our objective is that people should be where they thought they were—masters of their fate and captains of their soul. If the Bill receives a Second Reading, that is what they will be.

Question put and agreed to.

Resolved, That the Chairman do now report to the House that the Committee recommends that the Matrimonial Proceedings (Transfers) Bill [Lords] ought to be read a Second time.

Committee rose at fourteen minutes to Eleven o'clock.


Knox, Mr. David (Chairman)

Adley, Mr.

Alexander, Mr.

Aspinwall, Mr.

Benyon, Mr.

Bevan, Mr.

Blackburn, Dr.

Boateng, Mr.

Carlile, Mr. Alex

Carlisle, Mr. Kenneth

Fraser, Mr.

Fyfe, Mrs.

Ground, Mr.

Lyell, Sir Nicholas