THE ROYAL COMMISSION ON MARRIAGE AND DIVORCE: FAMILY DEPENDANTS AND THEIR MAINTENANCE
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00380.x |
| Date | 01 November 1956 |
| Published date | 01 November 1956 |
| Author | O. M. Stone |
THE ROYAL COMMISSION
ON
MARRIAGE AND DIVORCE
:
FAMILY
DEPENDANTS AND THEIR MAINTENANCE
IN
contrast with those parts of the Report of the Royal Commission
on Marriage and Divorce' discussed elsewhere
in
this issue," it
is proposed here to consider the Commission's recommendations
on
two subjects
on
which there is generally little controversy, either
in the Commission
or
outside
it.
These are, the law relating to
children, and maintenance and aliment.s
If
the discussion seems
pedestrian, some small part of the reason may be that, on most
aspects of these questions, all passion is long spent. Indeed,
notwithstanding warnings in the Report on the fate of previous
recommendations for the reform of family law,' in this field even
Ministers might be agreeable to the point of activity; legislation
could be
a
pos~ibility,~~ and it may be hoped that, whatever the
shortcomings
of
the Report
as
a
whole, its positive recornmendations
in these questions will soon be brought into effect. In this branch
of the law
it
is particularly important not to throw the baby out
with the bath water.
THE
EFFECTS
OF
MATRIMONIAL
LITIGATION
ON
CHILDREN
Pcrhaps nothing about our marriage laws would more greatly
astonish that fashionable hero, the visitor from another planet,
than the fact that in
all
the law concerning matrimonial litigation
in England and Scotland, there is only one minor reference6
to
the interests of the children. Having grasped this fact, he might
be
steeled for the discovery that English lawyers group orders
for custody of children in matrimonial causes under the grotesque
description of
''
ancillary relief," and the courts not infrequently
deal with them accordingly. Custody orders
all
too frequently
follow the cause, without even the most perfunctory inquiry
as
to the suitability of the successful party to control the destiny
1
Cmd.
9568,
H.M.S.O.
196G
price
11s.
Gd.
a
See
0.
Kahn-Freund, p.
673,
ante.
J
Tho
desirability
of
consideriug quest.ione of maintenance and matrimonial
property
as
a
whole
is
maiiifeRt. Unfortunately the considerable controversy
still raging over mstrimonial property and shortage of
apuee
necessitate tho
separate
conflideration here of maintenance and aliment.
4
Including
thorn
of
the Gorell Commission, which reported
in
1012,
Cmd.
6478;
aco
paras.
2!?-2G
of the present
Report.
4*
See
notc
40
post.
p.
622.
5
By the Mntrimoriinl
Causes
Act,
1BG0,
E.
2
(2),
the judge
shall
have regard
to
the interests
of
any children of the marriage in determining applications
for
leave
to
petition for divorce within three yenrs of the marrisge.
001
602
THE
MODERN LAW
REVIEW
VOL.
19
of
children.6 The Royal Commission now makes the uncompro-
mising statement, none the less welcome for being half
a
century
overdue, that the custody of the children should be recognised
as
just
as
important as the question
of
divorce,‘ and
on
this
assumption makes some of its potentially most important recom-
mendations. The Commission itself, however, has surely adopted
an
unnecessarily restricted interpretation of its terms of reference
in assuming that they exclude consideration of the Guardianship
of
Infants Acts in England, and applications
for
custody by
petition to the Inner House of the Court of Session under the
nobile
ofxiurn
in Scotland. Although, as
a
result, the recom-
mendations made extend only to custody orders made in the course
of
matrimonial proceedings,
it
is to be hoped that
to
avoid
unnecessary distortions in the law their operation will be extended
also to these other applications.1°
The Commission recommends
l1
that the petitioner
or
pursuer
in
every petition for divorce, nullity,
or
judicial separation
l2
and,
if
custdy is contested, the respondent
or
defender also, should
submit to the court
a
detailed written statement
of
proposed
future arrangements for the care and upbringing
of
the children.
There should be provision for investigation and report by
a
court
welfare officerla in such cases
as
the court may direct, and a
6
The Donning Committee (Cmd.
7024,
para.
31
(iii)
)
quoted Rayden
on
Dioorcs
at p.
346
to
the effect that:
”
Custody, of children is
ally,
exce
t
for
grave cause, For the results me,
e.g.,
dnutes
of
Evidence %efore the Royal Commission, 3rd Day, May
22, 1962,
Paper
No.
9,
memorandum submitted by the National Society for
the
Prevention of
Cruelty to Children, para.
730,
.p.
78.
7
Para.
376,
p.
106.
The Denning Committee went rather further in saying
(Cmd.
7024,
para.
33):
”
It should be reco niscd that parents who have been,
or
are about
to
be, divorced have
no
abssute right
to
determine the future
of
their. ‘children. They
have
disabled themselves from fulfilhg their
joint
responsibility and
have
created
a
new situation
in
which the interests
of
the
$ild:en need conaidcration npart from those of the parents.”
To’4nquire into the law of England and the law
of
Scotland concerning
diva?
and other matrimonial causes and into the powers of
courts
of inferior
jurisd ction in matters affectin relations between husband and wife, and
to
consider whether any changes
s%ould
be made in the Inw or its administration,
including the
law
relating to the property rights of husband and wife, both
during the marriage and after its termination (except by death), having in
mind the need to promote and maintain health and happr married life
and
to
aafeguard
the
intereata
and
well-being
of
chifdren
. . .
’
(italics supplicd).
lo
See particularly the Guardiahflhip of Infants Act,
1886,
8.
5.
The statement,
twice made in the Report (paras.
363, p;,103
and
407,
p.
114)
that under the
Guardianship of Infants Act,
1926,
8.
1,
in any proceedings before
any
court
where the custody or upbringing of
a
child
is
in question the court,
in
deciding
that question, must regard the welfare
of
the child a6 the first and paramount
consideration,” is cdrrect as far
as
proceedings between the parents are
con-
cerned, hut it is not invariably applied in other cases, see,
e.g., Re
Carroll
[1931] 1
K.B.
317,
and particularly Slesser
L.J.
at
.
356
(custody of
an
illcgitimote child). The principle was, however, app!ic8 in
Re
Collins
[1960]
Ch.
498
(which concerned
a
legitimate orphaned chlld).
11
Paras.
374,
p.
106
and
414,
p.
116.
12
Separation
in
Scotland.
1s
The
Commission finds that the eurt Wclfafe Service, inaugurated in London
in
1960
8s
a
result of the Denmng
Committee
Report,
has
been
a
valuable
ivcn to the innocent party.
8
*
Para.
364,
p.
103.
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