Maintenance and Esoterism
| Date | 01 March 1968 |
| Author | L. Neville Brown |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01178.x |
| Published date | 01 March 1968 |
THE
MODERN
LAW
REVIEW
Volume
31
March
1968
No.
2
MAINTENANCE
AND
ESOTEKISM
THaT
our law of family maintenance urgently needs radical reform
is evident from the priority given to it in the First Programme of
the Lam Commission, in pursuance of which the Commission have
now issued a Working Paper of
128
pages entitled
"
Matrimonial
and Related Proceedings
:
Financial Relief." A forceful reminder
of the difficulties with which the courts are meanwhile compelled
to struggle is to be found in the recent and important decision of
the Court
of
Appeal in
Northrop
v.
Northrop
which drew from
Diplock
L.J.
the anguished complaint:
"
I
have seldom heard
sustained citation of authorities on matrimonial causes without
an
uneasy feeIing that family rights form
a
branch of the law into
which the courts have introduced esoterism where Parliament
intended only simplicity." Before embarking upon an analysis of
that case and of its relationship to the Law Commission's proposals,
it seems pertinent to review briefly what appear
to
be the chief
defects
of
the law of maintenance that prompted such a judicial
rri
de
coeur.
DEFECTS
OF
THE
PRESENT
LAW
First
and foremost is its complexity, a complexity born of its long
historical evolution. As common law, equity and statute have each
in turn laid down their deposits
of
legal rules, the law of main-
tenance has become
a
treacherous quagmire through which textbook
writers vainly essay to chart
a
path for bewildered students and
harassed practitioners.s Moreover, rules have been retained from
social contexts wholly different from those that prevail today.
For
1
Law Commission's Published Working Paper
No.
9.
2
rlY67
2
All
E.R.
961 (C.A.);
[1966!
3
All
E.R.
707
(D.C.).
3
Brom
I
ey,
Family
Law
(3rd ed., 1966) spreads comideration
of
the law
of
maintenance
over
no
fewer than six out of
a
total of
24
chapters,
tiz.,
Chap.
I9
"
Separation and Maintenance Agreements." Chap.
XI
I'
Maintenance
during Marriage," Chap.
XI1
''
Separation and Maintenance Orders Made by
Magistrates'
Corirts,"
Chap.
XI11
''
Maintenance after Divorre and
Nullity,"
Chap.
x,yII
"Parents' Rights and Duties to Legitimate Children:
B.
Main-
tenance and Chap.
XIX
"
Illegitimate Children:
B.
Maintenance." A
more systematic,
if
lass detailed, statement of the Iaw
is
to ,,be found in
Johnson,
Fa~niZy
Law
(2nd ed..
1965),
Chap.
6
'*
Maintenance
;
hot main-
tenance between parent and child is dealt with in Chap.
11
"
Parental
Obligations in respect
of
Children."
121
VOL.
31
122
TEE
MODERN
LAW
REVIEW
VOL.
81
instance, the wife’s right to pledge her husband’s credit made sense
as the counterpart of the crude common law doctrine whereby the
husband became master of his wife’s property,4 but it has little
relevance
to
present-day realities, when the destitute wife turns
naturally for help to her local office of the Ministry of Social
Se~urity.~ Worse still, such logic as yesterday’s rules may have
had tends now to be distorted as the courts strive to adapt them to
current social needs, which (as it is proposed to show) was the
dilemma facing the Court of Appeal in
Northrop.B
Nor
(contrary
to what Diplock
L.J.
suggests) has statute brought simplification.
Rather
it
has added confusion by creating not one legislative
“
code
”
to govern maintenance but two: the Matrimonial Causes
Act
1965
(replacing the earlier Acts
so
named), on the one hand,
and on the other, the Matrimonial Proceedings (Magistrates’ Courts)
Act
1960
(replacing the Summary Jurisdiction Acts
1895-1949).‘
And each code has been given,
or
acquired through interpretation,
its own idiosyncrasies, even when using ostensibly identical
concepts, such as
“
wilful neglect to provide reasonable main-
tenance.”
s
Indeed
it
is an .abuse of the term to apply the
word
“
code
”
to these legislative labyrinths.
The second defect of the law of maintenance is its fragmentary
or
piecemeal character. When the normal economy of the family
breaks down, the victims of the breakdown usually have first
recourse, not to the private law of maintenance, but to the public
law of social security and the relief available under the national
insurance scheme
or
the supplementary benefits legislation.@ In
practice, therefore, the private obligation of support appears inter-
stitial rather than fundamental. Moreover, the obligation of main-
tenance in turn presupposes a system of matrimonial property
4
The phrase is Dicey’s:
I‘
a hy,sband on marriage became the almost absolute
master of his wife’s property (Dicey, Law
and
Public Opinion
in
England.
2nd
ed.,
373).
5
Since the Ministry of Social Security Act
1966
and the replacement of the
National Assistance Board by the Supplementary Benefits Commission, the local
National Assistance offices are regarded as falling directly under the
Ministry in the same way as the local National Insurance and Pensions offices
have always done: thus,
in
1067
telephone directories
both
categories
of
local
office are listed under the Ministry of Social Security.
8
Another example of distortion is the equitable gloss which extended the
common law
so
as to include
loans
for necessaries (Deare
V.
Soutten
(1869)
L.R.
9
Eq.
151;
Weingarten
v.
Engel
[lo471
1
All
E.R.
425);
its justification
in the equitable doctrine
of
subrogation has been criticised a8 fallacious, and
the
gloss
rejected, in some American jurisdictions: see
26
American Juris-
prudence,
‘I
Husband end Wife,” p.
975
and
authorities there cited.
7
If
the direct judicial remedy of a maintenance order had existed when the
Married Women’s Property Acts
1870-1882
were enacted, perhaps the
“
self-
help
”
of pledging the husband’s credit would have heen abolished by those
Acts. Instead the right to obtain a maintenance order was
not
generally
available until the Summary Juridiction Act
1895,
although the new technique
had existed in certain limited circumstances since the Matrimonial
Causes
Act
1878,
8.
4.
8
See Brown,
”
The Offence
of
Wilful Neglect to Maintain a Wife
”
(1960)
9
See
Aikin,
“
Social Insurance and the Family
”
(1965)
J.S.P.T.L.
167.
23
M.T,.R.
1.
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