REPORTS OF COMMITTEES
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02436.x |
| Published date | 01 July 1977 |
| Date | 01 July 1977 |
REPORTS
OF
COMMITTEES
MATRIMONIAL
PROCEEDINGS
IN
MAGISTRATES’ COURTS
THE
general matrimonial jurisdiction exercised by the magistrates’
courts had its origins almost exactly a century ago in a measure
to
protect the battered wife of the
1870s
for whom the action for
judicial divorce introduced in
1857
was a financial impossibility. A
clientele drawn mainly from the poor, and reform of the jurisdic-
tion after and in response to developments in divorce law are both
features which persist today. The conclusion of McGregor, Blom-
Cooper and Gibson, from a survey of matrimonial orders live
on
January
1,
1966,
that the summary matrimonial jurisdiction was
“
used almost entirely by the working class and very largely by the
lowest paid among them”2 was confirmed by the findings of the
Graham-Hall Committee and, despite the removal of financial
limits
on
orders in
1968,
endorsed by the Finer Committee’s
own
research.&
As
important as the lack of any general appeal to all income
groups
is
the fact that the main business of the jurisdiction, whose
function is now seen as that of making provision for marriages in
temporary difficulties, has decreased dramatically in volume and in
comparison with the number of divorce petitions filed in recent
years.
In
1971
when the Divorce Reform Act
1969
and related legis-
lation came into force
66,225
petitions were filed by wives: in
1975
this figure had increased to
97,902.5
A
comparison with the sum-
mary jurisdiction shows that the figure of
26,009
applications for
maintenance orders by married women dropped to
20,993
in
1973
with a further fall to a provisional figure of
12,027
in
1975.T
The
abolition of the fault principle and other anomalies may be
suffi-
cient to meet the criticism that the magistrates’ jurisdiction was
used primarily by the badly advised but the downward trend in the
number of applications appears
so
marked that, even allowing for
the effects of any reform, it is difficult to accept the Law Commis-
1
s.
4
of the Matrimonial Causes Act
1878.
2
McGregor, Blom-Cooper and Gibson,
Separated
Spouses
(1970),
p.
70.
The
comment
of
the Law Commission in para.
20
of
its Working Paper
No.
53
was
that the “matrimonial jurisdiction
of
the magistrates is used mainly by the poorer
sections
of
the community, whereas the wealthier and better educated people, if
they cannot resolve their difficulties
out
of
court as many
of
them do, proceed
through the divorce court.”
3
Report of the Committee on Statutory Maintenance Limits, Cmnd.
3857 (1968).
4
Report
of
the Committee on One-Parent Families, Cmnd.
5629 (1974).
5
Judicial Statistics
1975.
It
remains to be seen how the recent extension
of
the
special procedure to all undefended petitions and the restriction
of
legal aid will
affect this trend.
Civil Judicial Statistics
1973.
The
volume of other business has also fallen: in
1971
there were
7,283
applications
for
affiliation orders and
6,088
applications for
guardianship orders. The
1973
figures
were
5,016
and
5,787
respectively.
This
figure
has been obtained from the Home Office. The provisional
figures
for
1975
for
affiliation and guardianship applications are
3,254
and
4,392
respectively.
450
July
19771
REPORTS
OF
COMMITTEES
45
1
sion’s optimistic assertion in its Report on Matrimonial Proceedings
in Magistrates’ Courts that it is
“
realistic to expect that the func-
tion of the magistrates’ courts in a dual system will, to an increas-
ing extent, be that [of
a
casualty-clearing station].”
*
The Finer Committee’s view that the characteristics of the juris-
diction were too deeply ingrained to be removed other than by
wholesale reorganisation prompted its recommendations for the
abolition of the summary matrimonial jurisdiction in its present
form and absorption in a system of family courts. Noting the
“
for-
midable economic, administrative and practical difficulties
”
this
proposal would involve and, indeed the Government’s refusal to act
upon it, the Law Commission considered that an appraisal of the
merits of establishing a unified institution, administering one system
of law for all matrimonial needs, was beyond its terms of reference.
Within this limited context the Law Commission has made pro-
posals for reform of the substantive law and also recommended
limited procedural change and the rationalisation of the jurisdiction
over children. There are some significant innovations: lump sum
orders, cautiously limited to
€500,
will be available for the first time
to magistrates, as will powers for the direct physical protection of
a
spouse or child in place of the toothless non-cohabitation order.
A
counter to the traditional emphasis and
“
inherent disadvantage in
the policy of English law in intervening only when a crisis situation
has arisen
”
is the proposal to remove the existing bar on the en-
forcement of financial orders whilst spouses cohabit. It was recog-
nised
lo
that this measure, coupled with the abandonment of the
old common law standard governing the duty to maintain, would
enable magistrates to make enforceable
“
housekeeping
”
orders
for
a
maximum period of six months. This proposal which, it is
suggested, is wholly consistent with the function that it was envis-
aged the jurisdiction would serve, contrasts oddly with the conser-
vative reaction to suggestions that the machinery and welfare
resources at the courts’ disposal could be better utilised to promote
the reconciliation or conciliation of estranged spouses. The Law
Commission’s view that “the primary function of any court is
adjudication and while that certainly does not exhaust its functions
a careful limit must be set to any functions going beyond adjudica-
tion
”
l1
seems peculiarly restrictive when applied to a domestic
relations tribunal, especially one whose role, it was confidently pre-
dicted, would be to act as a “casualty clearing station
”
for
matrimonial problems.
8
Law Commission Report on Matrimonial Proceedings in Magistrates’ Courts
1976 (Law Com.
No.
77) (hereinafter
RePo;!),
para. 1.14. The Finer Committee
disagreed with this
“
medico-military analogy and concluded that in
a
significant
number
of
cases marriages which were the subject
of
magistrates’
orders
had
irre-
trievably broken down. Cmnd. 5629,
Vol.
I
para.
4.383.
9
Foreword
to
Eekelaar,
Family Security and Family Breakdown
(1971), p.
8.
10
Law Commission
W.P.
53, para. 66.
11
Report,
para.
4.12.
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