HC Deb 28 November 1984 vol 68 cc1047-55

1 am

The Minister of State, Northern Ireland Office (Dr. Rhodes Boyson)

I beg to move, That the draft Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984 which was laid before this House on 13th November, be approved. The main purpose of this order is to bring the rights of occupation in respect of the matrimonial home in Northern Ireland broadly into line with those in England and Wales under the Matrimonial Homes Act 1983. The order also follows both England and Wales and Scotland in giving cohabiting couples protection from domestic violence. In addition, the opportunity is taken to abolish the action for breach of promise of marriage and to restate the law relating to the prohibited degrees of relationship in marriage.

The order covers some rather technical ground and, as a non-lawyer, I crave the indulgence of the House and especially of the right hon. and learned Member for Warley, West (Mr. Archer) if I lend more emphasis to the general principles underlying this legislation rather than the legal minutiae. I shall deal first with occupation rights in the matrimonial home where one spouse—usually the wife—is not entitled to occupy the matrimonial home in her own right but does so by virtue of the other spouse's right to occupy it. In this situation the non-entitled wife has little protection if her husband puts her out of the home or sells it over her head. This is most likely to happen when the marriage is breaking down. The husband might first exclude his wife from the matrimonial home or simply sell it behind her back; or he might desert the wife, leaving her in the matrimonial home. Were he then to mortgage the property and subsequently default on the mortgage, the mortgagee could enforce his security by taking possession proceedings against the wife which would result in the wife losing the matrimonial home.

Part II of the order is designed to remedy this state of affairs. It applies equally to both non-entitled husbands and wives. But, as I have indicated, in practice it is usually the wife whose occupation rights are dependent upon the husband and it is she who is generally in the weaker position.

Article 4 gives the non-entitled wife the right not to be excluded or evicted from the matrimonial home by the husband without a court order or, if not in occupation, the right with the leave of the court to re-enter and occupy the matrimonial home. Those are the new statutory rights of occupation.

Articles 5 and 6 contain the provisions which protect the non-entitled spouse from sales or mortgages over her head. In such circumstances, the rights of occupation operate as a charge known as a matrimonial charge. To be effective and binding against a purchaser, defined in article 3 to include a mortgagee, a matrimonial charge must be registered in the Land Registry or Registry of Deeds in accordance with article 6 at the appropriate time. The charge must be so registered before the purchaser enters into a contract to purchase an estate affected by the charge or before the mortgagee takes a deposit of title documents as security for a loan.

These provisions strike a balance between the rights of occupation of the non-entitled spouse on the one hand and the rights of purchasers and mortgagees deriving title from the entitled spouse on the other. The non-entitled spouse must be able to protect her rights of occupation in the matrimonial home; and the purchaser or the mortgagee must be able to establish that he is not purchasing property or advancing money on a security which is subject to binding rights of occupation on the part of the non-entitled spouse.

Article 10 is an important provision which expressly provides for the release of the rights of occupation or for the postponement of a matrimonial charge in favour of another mortgage or charge. This provision will be useful where the non-entitled spouse is agreeable to the sale or mortgage, so that the purchaser or mortgagee may proceed in the certainty that he will not be bound by the nonentitled spouse's rights of occupation.

Before I leave this part of the order, I wish to draw the attention of the House to paragraphs (2) and (3) of article 6 which represent the most significant alterations to the order since it was published as a proposal. They result from the extremely helpful recommendations of the Northern Ireland Assembly—

Rev. Ian Paisley (Antrim, North))

Hear, hear.

Dr. Boyson

—and from representations made by the Law Society of Northern Ireland. I am gratified to hear the words "Hear, hear," if only once, while describing a somewhat complicated order. Having received that sign of approval, I can enhance my position further by telling the House that, of the 14 recommendations for change put forward by the Assembly, 13 were accepted.

Rev. Ian Paisley

Hear, hear.

Dr. Boyson

We stated clearly to the Assembly—the letter was written after I came to this post—why we could not accept the remaining recommendation. If necessary, I shall enlarge on that point tonight. However, 13 of the 14 recommendations for change advanced by the Assembly were accepted by the Government.

Paragraph (2) of article 6 is an additional provision which has been inserted to define the word "estate" for the purposes of paragraph 1. Its purpose is to ensure that matrimonial charges are only registrable in relation to estates in land which are themselves registrable in the Land Registry or Registry of Deeds, namely, freehold estates and leaseholds exceeding 21 years. These are the estates which are likely to be sold or mortgaged.

Paragraph (3) of article 6 alters the time before which a matrimonial charge must be registered to be binding against a purchaser. I have already indicated that the charge must be registered before the purchaser or mortgagee enters into a contract to purchase or before he takes documents of title as security for a loan, thus creating an equitable mortgage. As originally published, the order followed the English position more closely by providing that a charge would be void, and therefore not binding, against a purchaser unless registered before registration of the purchase in the Land Registry, or, in the case of unregistered land, unless registered in the Registry of Deeds before completion. But because of differences in the system of conveyancing in Northern Ireland—I am informed that there are major differences as compared with England—strong representations were made to the effect that the original provision did not strike the intended balance between the non-entitled spouse and the purchaser. Paragraph (3) takes account of the representations and produces greater certainty.

Part III follows the recommendations contained in Law Commission Report No. 26 on breach of promise of marriage, which was implemented in England and Wales by the Law Reform (Miscellaneous Provisions) Act 1970. Article 15 abolishes the action for damages for breach of promise of marriage, which is no longer used in practice in Northern Ireland. I inquired when the last case had been and was told that in the past seven years there been only one, and that it was not completed. Article 16 provides for property disputes between the parties to a terminated engagement to marry by applying the same law and procedure as in property disputes between spouses. Article 17 amends the rules of law which relate to gifts between the parties to a terminated engagement.

Part III also restates the law relating to the prohibited degrees of relationship in marriage in Northern Ireland. Article 18 sets out the prohibited degrees in a table which corresponds to schedule 1 to the Marriage Act 1949 in England and Wales.

Part IV contains an important provision to extend to cohabiting couples and their children the legislative protection from domestic violence currently available to spouses, Article 20 widens the scope of articles 18, 19 and 21 of the Domestic Proceedings (Northern Ireland) Order 1980. It empowers courts of summary jurisdiction to make personal protection orders and exclusion orders in respect of couples who are living or have lived together in the same household as if they were husband and wife. Protection from domestic violence in respect of such cohabiting couples is already available in the rest of the United Kingdom under the Domestic Violence and Matrimonial Proceedings Act 1976 and the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

The order has been well received by those who were consulted, including the Northern Ireland Assembly. There was only one division in the Assembly, and it was on the rights of the cohabiting woman. The provision was accepted by 18 votes to five. The order has been welcomed as a vehicle for some timely and necessary reforms in family law. It brings family law in Northern Ireland more closely into line with that in the rest of the United Kingdom. I am sure that the House welcomes that.

1.9 am

Mr. Peter Archer (Warley, West)

This is another order in respect of which it is no task of mine to express any deep disagreements of principle. The Opposition's reaction is chiefly to wonder why provisions so sensible took so long to introduce.

There are substantial points of detail which we might have wished to discuss had we been accorded the luxury of a Committee stage. One of the unhappy consequences of direct rule is that subjects which on this side of the water would be dealt with in a Second Reading debate, a Committee stage with a plethora of amendments and subsequent stages—which are still frequently insufficiently considered to spare us the mistakes and oversights that bedevil our law and administration—are foisted on Northern Ireland after a brief debate on an unamendable order.

The extension of rights of occupation in the matrimonial home to a non-entitled spouse is long overdue.

Mr. Peter Robinson (Belfast, East)

Does not the right hon. and learned Gentleman believe that it is of significant value to the people of Northern Ireland that this order, like others that we shall discuss in the early hours of the morning, has been fully scrutinised by the Northern Ireland Assembly, to the extent that 13 of its 14 recommendations have been accepted and are included?

Mr. Archer

Yes, the Assembly does an important Job in scrutinising orders of this kind.

As long ago as 1967, I was privileged to be asked by Baroness Summerskill to pilot through the House a Bill which she had introduced in another place, and which became the Matrimonial Homes Act 1967, which first introduced this principle on this side of the water. It is only now being extended to Northern Ireland.

It is understandable and agreeable that the order has been welcomed by the Equal Opportunities Commission, the Women's Law and Research Group and by the women's committee of the ICTU, but I believe that it will be welcomed far more widely by all those who believe in elementary justice. A Committee stage might have been valuable to consider the anxieties of the Law Society about the mechanics of registration, but those were considered in the Assembly. If experience reveals a genuine problem, I hope that the Government will come back with an amending order.

One consequence of having no Committee stage is that we are compelled in this debate to refer to matters which we might otherwise have explored at a subsequent stage. Article 4 (3) provides that in relation to the occupation of a non-entitled spouse, the court may make such order as it thinks just and reasonable, having regard among other things to the conduct of the spouses in relation to each other". I share the anxieties which have been expressed about the consequences of that. Some of us are long enough in the tooth to remember when the courts investigated conduct, both in considering whether to terminate a marriage and for ancillary purposes. The Minister was kind enough to refer to the fact that some of us with legal experience in these matters might have points of detail to contribute. I can remember the tedious hours spent in cross-examination and investigating such allegations as distressed the Petitioner by serving him cold tea". I remember how the time of the court was consumed, large costs accumulated and, more seriously, how the parlies were forced to undergo the embarrassment of a public inquiry into the daily incidents of their domestic life. Some were so dismayed by the prospect that they were prepared to forgo a claim to justice rather than submit to such an inquisition. I hope that these words are intended to be construed as limited to conduct related to the disposition of the home. But I fear that once they are in the order it may be difficult to exclude conduct which is alleged to be relevant to the question whether one spouse can bear to be in the same house as the other. This might be a backward step towards resurrecting Victorian values.

I am troubled by article 5(7). It has never been easy to reconcile the demands of insolvency law with a compassionate approach to the problem. It is unfair that the rights of non-entitled spouses may be overridden by debts which they could and would have paid if they had been given the opportunity. It is even more unfair if a husband deliberately makes himself insolvent to out-manoeuvre his wife. It seems that a not unreasonable suggestion was made by the Law Society, and adopted by the Assembly, that the courts should have discretion and that that should be achieved by making a matrimonial charge not void but voidable at the discretion of the court.

The decision to extend the principle of the Domestic Proceedings (Northern Ireland) Order to cohabitees is very much welcomed by the Opposition. There can be no reason why a woman living in the same house as a man should not be protected from violence even though she lacks a marriage certificate. And it is high time that we abolished the old concept of breach of promise.

The procedures of direct rule being what they are and leaving us with no opportunity to discuss these matters in Committee, we must judge the order as a whole, balancing its contents with its omissions. On that basis, we have no hesitation in supporting it.

1.17 am
Rev. Martin Smyth (Belfast, South)

The Minister said when presenting the order that he did not have legal training and would therefore deal only with the generalities and principles. I, likewise, do not have legal training. Perhaps it is significant that my young colleague in the Assembly from South Belfast, the late Edgar Graham, had had legal training. The draft order was first submitted to the Finance and Personnel Committee when he was chairman of it. Next week will be the anniversary of his brutal murder. The Province lost an able politician and lawyer in that dastardly deed.

I welcome the kind remarks about the scrutiny role of the Assembly, but I was aware when the right hon. and learned Member for Warley, West (Mr. Archer) referred to the need to study these matters in Committee that one of the problems that faces the Assembly is the technical absence of a Government representative to defend Government legislation. We have discovered tonight how important it is to tease out information in the course of debate. However, with those limitations, I believe that the Assembly has done a worthwhile job. Despite the invitation to be present, there are problems that mean that Ministers do not like to stay with the Assembly into the small hours of the morning answering questions and supplying information that is vital to us.

My right hon. and hon. Friends welcome the order. We do so because in an age when we hear critics minimising the importance of the family, we discover that there is still a remarkable degree of stability, especially within family units in Northern Ireland. We acknowledge that while the institution of marriage can often be the butt of music hall comedians, it is still a desirous state. Anything which strengthens the institution is to be welcomed. I share the sentiments expressed by the right hon. and learned Member for Warley, West who welcomed the order as long overdue and needed to give protection to spouses—especially the wife—of a marriage in Northern Ireland.

In some ways, we may not have gone so far down the road in financial arrangements as is evident in other parts of the United Kingdom where, in joint tenancies or joint accounts, husband and wife have an equal interest. In some parts of Northern Ireland, there is still a tendency for everything to be in the name of the husband. Accordingly, as I understand this, the most important of the three orders before us this evening, it seeks to implement the rights conferred by the Matrimonial Homes Act 1983 on the occupational right of a spouse where one spouse has no estate.

Before this measure was introduced, the husband—especially in the Northern Ireland context—owned the house, and the wife had no legal estate—her name was not on the deeds—and neither did she have any beneficial estate. Because she had not put any money into the house she had no equitable right. I welcome the fact that in recognising the reality of life today, where a woman contributes much in the creation of the home, the order gives her a recognised stake in it. Until now, the law meant that the wife occupied the home only at the pleasure of the husband. The 1983 Act and the order seek to rectify that problem.

I was interested to note that tribute has been paid to the contribution of the Women's Law and Research Group and the Equal Opportunities Commission. They specifically referred to the taking into account of conduct, and criticised that provision. The Assembly rightly came down in favour of retaining conduct in the order. I am aware that some are terrified of the concept of what they call the "establishment of a fault" principle. The right hon. and learned Member for Warley, West referred to the restoration of Victorian values. I am not so sure that some of those values do not need to be restored today for the good of the nation. Therefore, I welcome the fact that the order retains the concept of conduct.

The crucial element in the order is contained in article 4, which gives the occupational right to which I referred. It brings the benefits of the 1983 Act to non-owning spouses in Ulster. Article 4 (2)(a), (b) and (c) provide that a non-owning spouse is given positive power to act against an owning spouse, and article 4(2)(b) is especially useful.

Perhaps it is my theological and ecclesiastical background that heaved a sign of relief when I discovered that the degrees of relationship had not been changed. It appears that despite the headlong rush for modernity, the nation has a fair amount of sense and sensibility. I welcome the fact that those laws have not been changed. However, they codify what, in a sense, has been traditional. Article 18(3) is interesting. Does it mean that we amend our laws about who can or cannot marry according to the laws of a foreign country? If so, why? I do not fully understand the method of expression and would be grateful for clarification of it.

I share the sentiments of those who welcome the cancellation of the old breach of promise laws. They were unenforceable and could have left have a difficult position open to abuse. Because it eliminates the legal action that could have been pursued if someone broke off an engagement, this long overdue amendment is welcome, as are the terms on which a marriage-type settlement for property of such an engagement is applied.

The Minister referred to the one element of disagreement in the Assembly's publication. It was interesting, because it met the terms of the Act—it evidenced widespread support and did not come from one section of the Assembly. It manifested a concern that one part of the order may have tended to undermine the institution of marriage. Members of the Assembly who opposed the article on cohabitation were concerned about that. However, I believe that even they share the belief that if two people are cohabiting, especially if it is for any length of time, have assumed the responsibilities of husband and wife within a family context and the husband mistreats the cohabitee, it is unfair that there is no right of redress. It is essential to the law of natural justice that the rights of such a person should be defended.

I welcome the general import of the order, which strengthens the traditional concept of family law and ensures that there is a degree of equality between the parties.

1.28 am
Rev. Ian Paisley (Antrim, North)

I, too, welcome the order. Tonight we have illustrated the value of the Northern Ireland Assembly. I sat in the House before there was an Assembly to scrutinise such orders. Tonight we meet at 1.30 to pass the order, when one is not at one's brightest.

Mr. J. Enoch Powell (South Down)

Speak for yourself.

Rev. Ian Paisley

Neither the Minister nor the right hon. Member for South Down (Mr. Powell) is at his brightest at this hour of the morning. It does not matter whether the right hon. Gentleman wishes to make a loud protest. It is ridiculous to pass laws for a nation at this unseemly hour. The order should have been debated at a reasonable hour.

However, the Northern Ireland Assembly was able to spend many hours on this order. I entirely endorse the remarks of the hon. Member for Belfast, South (Rev. Martin Smyth) about the noble and excellent work of Edgar Graham. It is difficult to realise that a year has passed since his terrible murder. Mr. Graham put his hand to this legislation to try to do something for the ordinary people of Northern Ireland that would benefit all sections of the community.

The fact that 13 of the Assembly's 14 recommendations were accepted shows that the Assembly is carrying out its work with diligence, courage and zeal. It put forward reasonable amendments to the orders, and the Government accepted the vast majority of them because of the reasoned way in which they were put and because of their sense. It should be put on record that Northern Ireland and the order would be the poorer if we did not have the Assembly. The right hon. and learned Member for Warley, West (Mr. Archer) said that there is no Committee in the House to deal with such orders, and that Northern Ireland Members have no opportunity in Parliament, which is the sovereign Parliament of the nation, adequately to deal with them. Therefore, it is even more important to maintain the Assembly structure, and to encourage it to continue the good work that it has done with the orders.

As the hon. Member for Belfast, South said, with this order we are underscoring the importance of safeguarding family life and its vital contribution to society. Some members of the Assembly felt strongly about cohabiting, not because they believed that a cohabitee should not be protected by the law, but because they believed that such conduct should not take place. I appreciate their dilemma, and understand why they voted against that section. The Minister will probably agree with that when he replies.

The order is an example of the necessary work being done by the Assembly to ensure the better government of Northern Ireland and better legislation passed in the House. We have no opportunity to bring the Minister before a Committee of the House and talk to him about our problems. I hope that Ministers will attend Assembly Sessions more often when it deals with such orders; arrangements will be made to ensure more playback from Ministers. That is the only way in which legislators will have the opportunity properly to scrutinise and digest the laws that govern Northern Ireland, and to make suggestions for amending and strengthening them.

I welcome the order. I believe that its approval will be helpful. I am particularly pleased about the arrangements made for the break-up of an engagement. Anyone involved in pastoral work knows the difficulty that occurs between two families and the two parties in such a break-up. I am glad that there is to be some redress in law. It is a very important part of the order.

1.35 am
Dr. Boyson

With the leave of the House, perhaps I may be allowed to make a brief reply to the debate.

It is interesting that the emphasis has been on the moral and the principle side, because I see Parliament's job as being to consider general principles and then to bring people within legislation from there. I do not think that the order can be criticised for undermining any moral values. It restates in modern terms what was laid down in the 17th century.

The hon. Member for Belfast, South (Rev. Martin Smyth) drew attention to the end of article 3 about links with people outside the country. I am told that it is highly technical. I was supplied with some material to enable me to reply to the hon. Gentleman which I found extremely difficult to understand because it touches on international law. I shall write to the hon. Gentleman when I understand it fully so that he may share my understanding. I feel that it is pointless to read out an explanation which I do not fully understand.

Mr. Archer

Perhaps I may assist the hon. Gentleman. Any person is normally subject to the law of the country in which he or she is domiciled for this purpose. It would be arrogating to ourselves the right to overrule the law of the country if we said that the law of Northern Ireland should apply in the case of someone who was domiciled elsewhere. It is as simple as that.

Dr. Boyson

I am grateful for that intervention. I trust that at other times when I have complicated legal matters to deal with I can rely upon the right hon. and learned Gentleman, and that he will always interpret the law correctly. If there is any dispute about this matter, obviously I shall still write to the hon. Member for Belfast, South about it, because it is not one that I have met before. I am sure that others have, but I had not until the question was asked of me.

We heard two views on the subject of conduct and whether it should be considered. It is one of the factors enumerated in article 4(3), namely the conduct of the spouse, and it is intended that this, with respective needs and financial resources, the needs of any children and all the circumstances of the case, should be taken into account during an assessment. The court would consider all the factors there enumerated and weigh them according to their relevance to the facts of the case.

Conduct might be considered by the court to have particular relevance in two kinds of case. The first is an application for an ouster injunction under article 4(3), where, for example, the entitled spouse was violent to the non-entitled spouse. In an appropriate case the court would have power to exclude the entitled spouse from the matrimonial home. The second case in which conduct might be considered relevant is where a non-entitled wife with rights of occupation acquiesced in the sale of the matrimonial home without the knowledge of her partner in marriage. I shall not go into further details. The issue is one that is raised in the event of divorce in that the court has to decide whether there is a guilty party. At this hour it would be dangerous to start that debate, with differing views being expressed by right hon. and hon. Members.

We can all welcome the order. I want especially to underline what hon. Members have said about the value put upon it by the Assembly when considering it before it came back to the House, to say nothing of the fact that 13 of the 14 recommendations were accepted. Although the Assembly may not have liked the 14th recommendation, it brings the law into line with the rest of the United Kingdom.

We are grateful for the scrutiny given to the order by the Assembly because it has resulted in an order of which the House can approve. It does not undermine any of the morality that we uphold. It does that morality even greater justice, in modern terms.

Question put and agreed to.

Resolved, That the draft Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984, which was laid before this House on 13th November, be approved.