§ Lords Amendment: In page 9, line 24, leave out from "marriage" to end of line 27 and insert "executed after".
§ 8.30 p.m.
§ Lady Tweedsmuir
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment removes an element of retrospection from the provisions of Clause 12. Clause 12 provides that nothing in an ante-nuptial contract shall operate so as to exclude on the death of either party to the contract the right of any child of the marriage to claim legitim from the estate of that party unless he elects to accept the provisions made in his favour under the contract in lieu of his legitim.
As the Bill left the House, Clause 12 applied not only to contracts made after the Bill became law but also to contracts made before the Bill became law, provided that they did not take effect by the death of one of the parties until a year thereafter. The intention was that provisions intending to exclude claims for legitim and ante-nuptial contracts made before the Bill became law should remain enforceable for a year, during which period the parties might be expected to revise their financial 140 arrangements to take account of the fact that after the year had expired these provisions would no longer exclude claims to legitim. The application of the Clause to contracts before the Bill becomes law was criticised in another place by a number of speakers, including two Lords of Appeal.
The case against the retrospective application of the Clause is, first, that it is wrong to interfere with contracts validly made under the present law, and, secondly, that the one-year period of grace allowed by the Clause might be illusory in that the parties might not be able to make alternative financial arrangements. These arguments were accepted by my noble Friend, and the Amendment has the effect of applying Clause 12 only to ante-nuptial contracts of marriage made after the Bill becomes law.
§ Mr. Lawson
This is a change which we do not like. It extends the transition period. I am surprised that the Undersecretary of State has shown that she is prepared to accept this proposal, because in Committee upstairs she brought forward evidence illustrating how detrimental to the interests of the child some of these agreements could be in many cases. She quoted the Mackintosh Committee's recommendation that the type of practice which had been engaged in under Scottish law should be eliminated.
We thought that, as the noble Lady agreed with the arguments which were advanced, there would be no worsening of the position. This is a very retrograde step and shows the nature of another place in matters of this kind. There is very little that we can do about it at this stage, but I protest that we have worsened the position in this important matter.
§ Question put and agreed to.