§ 9.0 p.m.
§ Mr. MillanI beg to move, in page 19, line 31, to leave out "three" and to insert "two".
The purpose of the Clause is to prevent a delender in a divorce action frustrating the financial provision which might be made under Clause 26 by disposing of the property before the date of the prop arty settlement. As the Clause is drafted at present, any such disposal occurring three years before the making of the application for a property settlement may be set aside. The purpose 1307 of the Amendment is to reduce three years to two years.
This is a difficult point. We all accept the purpose of the Clause. There may be cases in which the property is disposed of by the defender to a bona fide purchaser. This seems to be covered—or it is covered in most cases, perhaps—by the special proviso at the end of the Clause that, where the purchaser has acquired the property in good faith and for value, he is protected. There may, however, be other cases in which the defender in the action has disposed of the property for less than the total value of the property, or has even given the property away, and the gift has been accepted in good faith by an innocent party. In those cases, the proviso about the acquisition being for value would not apply. In other words, there could be good faith without an actual market value of the property having passed between the defender and the third party.
In such circumstances, the third party could be very seriously prejudiced. That is why the Government should consider again the question of three years and perhaps reduce it to two years. I know that this would go against the recommendation of the Morton Commission on Marriage and Divorce, but this is a serious point. The only reason for allowing a period as long as three years to remain arises out of the unfortunate legal delays which often take place in divorce cases. Unfortunately, they take place in the case of everything else. I would like us to take a rather more hopeful and more optimistic view and hope that these unfortunate delays will not happen so much in the future as they have in the past. In those circumstances, two years might be adequate.
The main reason, as I hope I have made clear, is to protect the interests of an innocent third party to the transaction. I hope that the Government will at least seriously consider the Amendment.
§ Lady TweedsmuirI agree with the hon. Member for Glasgow, Craigton (Mr. Millan) and would also express the hope that we shall not have the delays which so often seem to attend settlements of this kind. I listened to the hon. Gentleman with attention. We are not 1308 firmly fixed to the period of three years. However, I ask the House to resist the Amendment, because we are dealing with a power in the Court of Session to vary a settlement or disposition which has already been made, where that settlement or disposition is in the first place intended to defeat the innocent party's claim to alimony.
It is unusual for the court to have a power of this nature to intervene on a civil contract. Everybody will accept that there is no doubt about the need for, and the value of, a power in this type of case. Obviously there is also a need for a time limit on the distance that the court can go back into the past carrying settlements or dispositions, otherwise the court might be asked to reopen contracts entered into many years ago. If, however, the time limit is too short, the power will be of less value to the innocent party. It is a very fine balance to take.
The hon. Member recognised that this was a recommendation of the Royal Commission on Marriage and Divorce. That is why it is in the Bill. On top of that, we are also following the line that has been taken before in legislation on the Royal Commission's recommendations. A similar provision to this Clause was passed into law in England and Wales in the Matrimonial Causes (Property and Maintenance) Act, 1958. The period included in that Act is three years. From what I understand of the working of it and people's opinions on the subject, it seems on the whole to be fair. I therefore suggest that the House does not accept the Amendment.
§ Mr. MillanThis is very much a matter of judgment and balance. In view of what the noble Lady has said, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.