Clause 28 (Hansard, 27 May 1970)

§ Mr. E. S. Bishop (Newark)
I beg to move Amendment No. 40, in page 23, line 5, after ' the ', insert ' maintenance or '.
I make no apology for speaking for a few minutes, because as those who were in Committee will know, we spent three sittings of the Committee, covering 7½ hours, discussing five Clauses, whereas tonight we have dealt with more than 27 Clauses in about an hour. This is one of the most important Clauses, because, with Clause 5, it lays down the matters to which the court shall have regard when at a time of divorce the estate is to be distributed between the two parties to the marriage.
The Amendment seeks to amend the Clause so that if a husband and wife contribute in money or money's worth to the improvement of real or personal property, they may acquire an interest even though it is to the maintenance as well as to the improvement of the property.
Many will consider the limitation of the word " improvement " to be too great. Either party to a marriage may add considerably to the value of an asset through maintenance, as well as by improvement. I recognise that contributions in money or money's worth is a novel concept for legislation—this is probably the first time it has been put into legislation—but the contribution by maintenance may be considerable, even though, in the strict sense of the term, it may not be an improvement of the property within the meaning of the Finance Acts and other legislation.
How does one define " improvement " and how " maintenance "? What kind of weight would the court give to the considerations set out in the Clause? What about the wife who not only has children and runs a home, but keeps the garden tidy and makes it a thing of beauty? What about the wife who, instead of neglecting the home, industriously spends her time in do-it-yourself, adding to the attractiveness of the house by papering and decorating and modern- 1966 ising it? She has no recompense for her labours, but this work may be a considerable contribution in money's worth, and yet it is not deemed to be an improvement and would come under the heading of maintenance.
What about the farmer's wife who not only looks after the children, but works in the dairy, not improving it in the strictest sense but maintaining it in efficiency as well as milking the cows and keeping the accounts? Is she merely maintaining the property? Is she to be properly rewarded? Proverbs, Chapter 31, speaks of the virtuous woman whose price is " above rubies ": She riseth also while it is yet night, and giveth meat to her household. She considereth a field and buyeth it. With the fruit of her hands she planteth a vineyard. Is this improvement of property or maintenance of property?
" She maketh fine linen " garments. Is this maintenance of the estate or improvement? It certainly means substantial effort in the contribution by the wife in money's worth if not in money.
Proverbs also says: She seeketh wool, and flax, and worketh willingly with her hands. Can she reasonably hope that the courts will interpret her work as improvement of the matrimonial estate and reward her if the marriage fails? I ask my right hon. and learned Friend to pay heed to verse 31, which demands, as my hon. Friends and I do: Give here the fruit of her hands; and let her own works praise her in the gates. These may seem long-distance things to bring in on discussion at the conclusion of debates on this Measure, but many will want to know how they are to differentiate between improvement and maintenance of the estate. When Clause 28 is considered with Clause 5, which lays down various aspects relating to the marriage circumstances and the contribution of each in money and money's worth, what kind of weight is to be given to considerations in Clause 28? This is the dilemma which faces us in this Bill.
One recognises the haste with which we are trying to get the Bill through, but Clause 28 deserves a few minutes' discussion because it is one of the most important Clauses. I should like to see a situation in which the courts would 1967 prima facieassess the family assets as being jointly held by both parties. That is not to be, but, clearly, the courts, when they discuss the apportionment of the matrimonial estate must chalk up what is the contribution in money and money's worth in improving the estate before the wife can get any consideration.
One can think of many circumstances in a marriage when a wife, having looked at Clause 28 will say, " I will not do that because it will be reckoned as maintenance and I shall get no recompense ". She will need advice as to whether, in the end, she will get a return for all the effort she has put in. I move this Amendment in the hope that we can probe more deeply into the thinking of my right hon. and learned Friend on this aspect.

§ The Solicitor-General
My hon. Friend has moved this Amendment in evocative and perhaps emotive terms, which I greatly appreciated and the Committee will have done. I feel rather sorry to respond to them in expressions which are comparatively legalistic, but I am bound to remind him and the Committee that the wording of this Clause is declaratory of the law. We have had discussions about this in other connections. It is very important, in considering this Clause, to recognise what I have just said, that this is a declaratory Clause and is so expressed.
The law does not cover maintenance of property. The effect of the Amendment would, therefore, be to extend the provisions of the law so as to cover substantial sums of money spent on maintaining property. Such an innovation, in our view, and I would rather hope that the Committee would agree, is out of place in a declaratory provision of the kind which with this Clause is dealing. The whole Clause would have to be redrafted if the Amendment were accepted. That, if I may so put it, is my view of the drafting of my hon. Friend's Amendment.
I am not all persuaded with great respect to him, that the Amendment is right in substance, because the Clause is covering disputes as to the ownership of property in all cases, not just in the case of divorce. It affects the rights of other parties and not just the spouses.
1968 It would be impracticable, I think, to make ownership of a house dependent on how it was maintained. For instance, if one has in mind the sort of situation where difficulty would be created, if the husband spent on it a large number of small sums in maintaining the house during the 20 or 30 years of his ownership he would be able to oust any claim made by the wife as to her contribution to its maintenance. In practice, it would work harshly for the majority of wives.
It is also difficult to know where to draw the line as regards current expenditure on a house, if one includes maintenance, and to know whether that includes, for example, rates. It is felt better, therefore, to stick to the law, which is clear-cut although there may be some hardship in cases where substantial, large sums have been spent on maintenance. It is difficult to distinguish between a lump sum and a large number of small payments over the years. One asks the question: why should one be taken into account and not the other.
I take the view, with great respect to my hon. Friend, that his Amendment is at fault in not taking into account the basic character of this Clause, which is declaratory of the existing law; that is a serious fault, in my judgment, of his Amendment. I hope that I have said enough to indicate that even if one could get over that difficulty, and were to introduce into the Clause a provision not declaratory of the law, that would introduce changes, and there may be, and, in my opinion, there are, serious objections to be taken to the course of the Amendment, and I must recommend the Committee that the Amendment be rejected.

§ Sir D. Renton
I have a lot of sympathy with the hon. Member for Newark (Mr. Bishop). Indeed, I think that if this had been the subject of discussion in Committee, as some of his other Amendments were, he might well have carried the day in Committee. I for one would have been inclined to support him. May I say why? And give a simple example?
I think that the distinction between the maintenance and the improvement of a house, for example, is a very fine distinction, and a somewhat artificial one. The putting of a new roof on a house might be regarded—in fact, would be regarded, I think— as maintenance of the 1969 house, and would cost, perhaps, £500. The putting in of a new window, where one is need in an old house, would be regarded as an improvement of the property, and might cost only £50.
It therefore seems quite illogical and artificial that maintenance and improvement should be considered differently in the context of the Clause. The Government would have lost nothing by accepting this simple Amendment, which is impeccably drafted. It is one of the sadnesses of the Bill having to be dealt with in this peremptory way that we cannot have a full discussion and vote upon the Amendment, but I at least assure the hon. Gentleman that I personally—I do not know whether I speak for all my hon. Friends—have a lot of sympathy with what he has said.

§ Mr. Bishop
I beg to ask leave to withdraw the Amendment.