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Family Law: Financial Provision in Matrimonial Proceedings Report

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Family Law: Financial Provision in Matrimonial Proceedings Report The Law Commission (LAW COM. No. 25) FAMILY LAW REPORT ON FINANCIAL PROVISION IN MATRIMONIAL PROCEEDINGS Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 24th July 1969 LONDON HER MAJESTY’S STATIONERY OFFICE 448 Reprinted 1 97 1 9Op net The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are- The Honourable Mr. Justice Scarman, O.B.E., Chairman. Mr. L. C. B. Gower. Mr. Neil Lawson, Q.C. Mr. N. S. Marsh, Q.C. Mr. Andrew Martin, Q.C. Mr. Arthur Stapleton Cotton is a special consultant to the Commission. The Secretary of the Commission is Mr. J. M. Cartwright Sharp, and its offices are at Lacon House, Theobald's Road, London, W.C.l. ii CONTENTS Paragraph Page INTRODUCTION . 1-3 1 FINANCIAL PROVISION BY CASH PAYMENTS FOR A SPOUSE . 4-22 2 Ancillary Provision . 5-16 3 Summary of Recommendations . 17 8 Non-Ancillary Provision . 18-21 8 Summary of Recommendations . 22 10 FINANCIAL PROVISION BY CASH PAYMENTS FOR CHILDREN . 23-48 11 Definition of Children . 23-32 11 Payments for Children-Ancillary Provision . 3342 15 Payments for Children-Non- Ancillary Provision . 43-44 19 Duty of Court to Protect Children . 45-46 19 Tax aspects . 47 21 Summary of Recommendations . 48 22 FINANCIAL PROVISION BY PROPERTY ADJUST- mNTs . 49-80 24 24 The existing Law . 49-54 I Determination of Rights to Individual Items of Property 55-62 28 Summary of Recommendations . 63 32 Adjustments on Breakdown . 64-75 32 Tax Aspects , . 76-77 37 I Bankruptcy . 78 38 I Intestate Succession . 79 39 Summary of Recommendations . 80 39 CRl7XlU.A TO BE OBSERVED WHEN ORDERING FINANCIAL PROVISION. 81-83 40 PROVISION FROM THE ESTATJZ OF A DECEASED SPOUSE . .84 41 I VARIATION AND DISCHARGE OF ORDERS . 85-92 42 Summary of Recommendations . 93 46 I VARIATION OF MAINTENANCE AGREEMENTS . 94-95 46 Summary of Recommendations . 96 48 AVOIDANCE OF TRANSACTIONS . w-98 48 I ... 111 Paragraph Page DAMAGES FOR ADULTERY, etc. 99-101 49 Summary of Recommendations , 102 50 COSTS . 103-106 50 Recommendation . 107 52 THE WIFE'S AGENCY OF NECESSJIY . 108.109 52 Recommendation . 110 52 ENFORCEMENT OF ORDERS . 111 52 PENSIONS . 112-114 53 COMPREmNSIVE SUMMARY OF RECOMMENDA- TIONS . 115-116 54 APPENDIXI-Draft Bill with explanatory notes . 62 APPENDIX11-EXTRACTS FROM WORKING PAPER No. 9 128 The Agency of Necessity . 128 Costs-Agency of Necessity . 132 Damages for Adultery or Enticement . 133 Maintenance of Children . 137 Pensions . 145 iv THE LAW COMMISSION Second Programme-Item XIX Family Law FINANCIAL PROVISION IN MATRIMONIAL PROCEEDINGS To the Right Honourable the Lord Gardiner, the Lord High Chancellor of Great Britain INTRODUCTION 1. In April 1967 we circulated our Working Paper No. 9 under what was then Item X of our First Programme. That Item has now been subsumed under Item XIX of our Second Programme, and the object of this Report is to make firm recommendations regarding those financial provisions in the Matrimonial Causes Act 1965 and certain ancillary matters which we are satisfied require revision. These recommended reforms will be needed whether or not the Divorce Reform Bill now before Parliament is enacted. That Bill radically I amends the Matrimonial Causes Act 1965 in relation to the grounds of and I defences to petitions for divorce and judicial separation, but, in general, does I not affect the provisions relating to the financial arrangements which the court can make in respect of the parties and children. These, however, are equally I in need of reform. In Working Paper No. 9 we made tentative proposals on certain questions and raised other questions which required further consideration. I As a result of consultation on the Working Paper we have, for the time being, I dropped certain of our proposals but are now able to make some additional recommendations. The Report itself makes clear how far we have modified or added to our provisional conclusions and, for the benefit of those who have I copies of the Working Paper: we refer in footnotes to the numbers of the I relevant paragraphs of it. In order to keep this Report reasonably short we have not always repeated in full the arguments canvassed in the Working Paper but, where these arguments are relevant to a full assessment of our recom- mendations, the appropriate paragraphs are extracted in Appendix I1 and I footnote references made to it. In Appendix I we set out draft legislative clauses to implement those of our recommendations which require legislation. 2. This Report deals with the powers in matrimonial proceedings of the High Court and county courts, which we compendiously describe as “the divorce courts ” (not with the powers of magistrates’ courts). These powers are of two types: first to order cash payments by one spouse to the other or to or for the benefit of the children, secondly to adjust the property rights of the , spouses in the light of the breakdown of the marriage. We deal fist with cash payments by one spouse to the other, then with cash payments for children, , ‘Copies are obtainable on application to the Librarian at the offices of the Law Commission and are available at the major English law libraries. 1 then with property adjustments and finally with a number of miscellaneous matters. It should be emphasised that this Report does not attempt a root-and- branch reform of family property, a far more intractable problem on which we hope, within the next few months, to publish a preliminary study in a further Working Paper. Nevertheless if our present proposals are implemented they will go some way towards enabling the court on the breakdown of a marriage to deal with the family assets on an equitable basis, and will therefore achieve some of the objectives sought by the Matrimonial Property Bill, which recently received a Second Reading in the House of Commons but was subsequently withdrawn. We have also taken the opportunity to recommend certain amendments to section 33 of the Matrimonial Causes Act 1965. This section, which deals with the related question of the court’s duty to ensure that proper arrangements are made concerning children, was the subject of an investigation carried out on our behalf by Mr. John Hall of the Cambridge Law Faculty, and circulated in Working Paper No. 15.2 3. In Part I of Working Paper No. 9 we suggested a rationalisation and reformulation of the common law and statutory duties to maintain. At present these duties consist of an untidy amalgam of common law duties arising out of the fact of marriage and the birth of children, statutory duties to reimburse to public authorities sums expended by them on the maintenance of a spouse or children, and duties to maintain imposed by an order of the court under a number of miscellaneous jurisdictions conferred by statute. Clearly, a code of family law should contain a detailed statement of the duties of one member of the family to maintain another. But nothing so ambitious can be attempted within the limited scope of this Report. Our present recommendations are restricted to proposals for rationalising the present powers of the court in matrimonial proceedings. It may be objected that this will have the undesirable result of giving the spouses and children of broken marriages greater legal protection than those of happy marriages. In our view this objection is unfounded. The realities of the situation are that in a happy marriage the intervention of the courts is unnecessary; to allow suits for ~ancialprovision to be brought by one spouse against the other or by the children against their parents might be an unwarranted interference in the family relationship likely to do more harm than good. Where, however, the mamage has broken down, legal intervention is necessary unless the parties are able to resolve their differences. Clearly, legally enforceable rules are then required both to encourage the parties to resolve their differences and to enable justice to he done if they cannot. PROVISION BY CASH PAYMENTS FOR A SPOUSE 4. Powers to order cash payments by one spouse to the other arise in two circumstances: (U) where a financial order is applied for as ancillary to the grant of a decree of divorce, judicial separation, nullity or restitution of conjugal rights: and *Seen. 1. 8 We have, in our Report on Restitution of Conjugal Rights (Law Corn. NO.23) recommended the abolition of that remedy and in the present Report we.have assumed that it will be abolished before, or contemporaneously with, the implementation of the proposals herein. 2 (b) where the application is not ancillary to any such mahonial cause. Ancillary Provision 5. In Working Paper No. 9 we drew attention to the present confused terminology which draws distinctions between interim alimony, permanent alimony, maintenance and periodical payments. The following subparagraphs show the differentfinancial orders which the court can at present make and in what circumstances. (a) From presentation of the petition until the determination of the suit: alimony pending suit, payable by the husbqnd to the wife, except where the wife seeks a divorce or judicial separation on the ground of the husband's insanity in which case it is payable by the wife to the h~sband.~ (b) After a decree of divorce or nullity: any one or more of unsecured maintenance, secured maintenance, or a lump sum, payable only by the husband to the Wife, except where the wife obtains a divorce on the ground
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