HL Deb 07 July 1966 vol 275 cc1184-219

3.19 p.m.

Order of the Day read for receiving the Report of Amendments.

BARONESS SUMMER SKILL

My Lords, I beg to move that this Report be now received. I understand that the noble and learned Viscount, Lord Dilhorne, will open the debate with an Amendment.

Moved, That the Report be now received.—(Baroness Summerskill.)

On Question, Motion agreed to.

Clause 2:

Effect of statutory rights of occupation as charge on dwelling house

2.—(1) Where, at any time during the subsistence of a marriage, one spouse is entitled to occupy a dwelling house by virtue of an estate or interest, then the other spouse's rights of occupation under section I above shall be a charge on that estate or interest, having the like priority as if it were an equitable interest created at whichever is the latest of the following dates, that is to say,—

  1. (a) the date when the spouse so entitled acquires the estate or interest;
  2. (b) the date of the marriage; and
  3. (c) the commencement of this Act.

LORD WILBERFORCE

moved, in subsection (1), to leave out all words after "an estate or interest" and to insert instead: then, if the other spouse obtains an order under section 1 of this Act, any right of occupation conferred by that order shall be a charge on that estate or interest having priority as if it were an equitable interest created at the date of such order: Provided that a spouse who intends to apply for any such order may register a priority notice and if an order under section 1 is in fact made and registered within six months from the date of registration of the priority notice, the charge hereby created shall have priority as from the date of registration of such notice.

The noble and learned Lord said: My Lords, my noble and learned friend Lord Dilhorne, and my noble and learned friend Lord Hodson, have asked me to introduce this Amendment which I will shortly explain. I should like first to offer an apology for raising it at this stage, after we had a fairly full discussion on a similar point at the Committee stage. My reason for doing so is twofold. In the first place, at the Committee stage the matter came before your Lordships' Committee rather late in the day, when very few of your Lordships were able to be present; and as this matter touches upon a subject which is of very wide importance in relation to matrimonial property, since it is going to affect the title to every house owned by married people throughout the country, we felt that it ought to receive some consideration by your Lordships in a fuller House.

The second reason for raising this Amendment again is that during the Committee stage the noble Lady, Baroness Summer skill, pointed out a number of technical defects in our Amendment as then drafted, upon which she invited your Lordships' Committee to reject the Amendment. We have taken the opportunity of, we hope, dealing with those technical defects and of making one alteration in substance by way of extending the period, so that the matter now comes before your Lordships in a somewhat different form from that in which it was previously considered.

It would be possible without much difficulty to become a bore on the subject of registration of land, but I must take just a little time to explain the purpose of this Amendment, which otherwise may not be very easily understood. The importance of it is that the Bill, as drafted, proposes a very far-reaching change in the law relating to matrimonial property—a change greater in extent than that needed for the immediate purposes for which the noble Lady has introduced the Bill. In the draft of the Bill before your Lordships at the present stage, the Report stage draft, your Lordships have not the Explanatory Memorandum which originally accompanied the Bill, but it told your Lordships this: that the purpose of the Bill was, first, to deal with the situation created in relation to deserted wives by a recent decision of this House in its Judicial capacity; and, secondly, to give substantial effect, though differing in detail, to the recommendations relating to the matrimonial home made by the Royal Commission on Marriage and Divorce—and I ask your Lordships particularly to note that last point, because it is one to which I shall return.

If your Lordships will look at the Bill as amended in Committee, you will see, first of all, in Clause 1, that the deserted spouse is given a very substantial and very new measure of protection against the other spouse, the owner of the matrimonial home, who deserts her. All this is new; it is radical, and it is important. Your Lordships can see the effect of it by glancing at subsection (3), which enables the deserted spouse to apply to a court for an order giving him, or her, a right of occupation of the house notwithstanding that he or she has no right of property in that house at all. And your Lordships will see that that is followed through, in a great deal of detail, in cases where the house is let, where it is a protected tenancy, and so on. With all of that, we are fully content. It is a very necessary and salutary reform, and it gives what we hope will be a very useful measure of protection to wives—and husbands, should the case arise—who are deserted by their spouses and who otherwise might fear ejectment from the matrimonial house.

But then we come to Clause 2 of the Bill, which enters into a different field. That enters into the field of property, and there it at once causes us to think that there may be other interests involved. Indeed, there are; and here we must be careful to strike a proper balance. We have to strike a balance between, on the one hand, the rights of the deserted spouse who has to be protected against the possibility that the house may be sold over her head or mortgaged over her head, and, on the other hand, the property rights of all the other spouses in this country, of whom there are hundreds of thousands, who live happily in matrimonial homes and are not threatened by break-up of marriage or differences such as might lead to the application of the rest of the Bill. The point here is that it is necessary to strike a balance between the need to protect the deserted spouse, on the one hand, and the need not to interfere unduly with the property rights of the very much greater number of happily married spouses who own matrimonial homes.

It is necessary to bear in mind that all spouses—every single spouse in the country, whether rich or poor—have a great and vital interest in keeping transactions in property cheap and expeditious; in keeping lawyers out of them, if they can; in avoiding complications over the title, which will arise if, in every case, one gets the Land Registry brought in; and in having the title to their house in such a condition that money can easily be raised upon it from building societies or banks for the mutual interest of both spouses. It is because we believe that this clause as at present drafted does very substantially interefere with the rights of the normal spouse in that respect that we have ventured to put down this Amendment.

May I just say at this point, in order to make it clear, that this Bill is not the occasion—and I do not think it is now treated as the occasion—for introducing a substantial reform as to the rights of spouses in matrimonial property? It does not profess to introduce community of property, or anything of that kind. That, of course, was canvassed by the Royal Commission. They came out against community; and, as I understand the noble Lady's objectives, she does not intend to use this Bill as a vehicle for bringing about indirectly some regime of community of property. May I also say that, if there were a regime of community of property, one spouse would then have the right to manage the property. That is always so under systems of community. But under this Bill, as Clause 2 is drafted, a spouse who has not a legal interest in the property is given a right of veto over dealings in the property by the other spouse, which in a way ties the position up more tightly than it would be even under a system of community.

Of course, the Royal Commission dealt with this problem of the matrimonial home, and they made a recommendation about it. What they suggested was that a charge should be conferred on the matrimonial home for the benefit of the deserted wife which should take effect on the making of an order such as we now find referred to in Clause 1. That was their recommendation: that the charge should take effect on the making of a court order. This Bill, as your Lordships will find if you look at Clause 2, subsection (1), makes the charge take effect on the latest of three dates, one of which is the date of the marriage. So this is not a case of a charge arising when a court order is obtained, which was the recommendation of the Royal Commission; this is a case of a charge which may arise right from the date of the marriage.

Our Amendment is a half-way house between the two; it is a compromise. What it does is to contemplate' the making of an order, and says that, if an order is made under Clause 1, a charge shall take effect on that date; but, in order to deal with the possibility, which is a real one, that before an order can be obtained a charge or a disposition of the house may have been made by the deserting husband which would prejudice the deserted wife, we make the provision, to be found in the proviso, enabling the deserted spouse to go to the Land Registry six months before and put on what we call a priority notice. So that, in effect, gives a spouse who is deserted, or who is about to be deserted, a six-months' period of grace. She can go to the Land Registry, put her charge on straight away, the moment she thinks that there is going to be a threat to her home. And then, providing she does, in fact, go to the court within six months and get an order under Clause 1 of the Bill, the charge takes effect and is given priority right back to the date when the priority notice was put on. We suggest that to your Lordships as a sensible compromise which does all that is necessary to protect the deserted wife in a practical sense, yet does not involve a very far-reaching, general interference and clogging of the property rights of the hundreds and thousands of other people who will never be in the position of being a deserted spouse.

May I say a word or two in explanation of some of the changes we have made, since the noble Lady was good enough to comment on our previous Amendment? We have altered the drafting of the first paragraph in such a way that the charge takes effect as from the date of the order; that is a change from the previous drafting. In the proviso we have altered the period, which in the previous draft was one month, to six months. This was done to meet the point made by several noble Lords in that discussion; and we hope that that is for practical purposes enough. We have anticipated the second Amendment and have drafted a separate paragraph which merely deals with the case of registered land which the noble Lady said we had not dealt with properly in our previous Amendment.

So there is our Amendment. I hope that with that short exposition I have made it intelligible. The Amendment fits in with the purpose of the Bill as announced to the House when it was introduced. It gives effect to the intentions of the Royal Commission on Marriage and Divorce; it is mechanically possible, and, we believe, fits in with the structure of lande registration. I beg to move.

Amendment moved— Page 3, line 15, leave out from ("interest") to end of line 23 and insert the said new words.—(Lord Wilberforce.)

3.32 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, with the permission of my noble friend Lady Summerskill, as this is partly a matter of law, may I express first the Government's attitude towards this Amendment? On the Motion recently moved in this House by the noble Lord, Lord Alport, I did not think it right, as Lord Chancellor, to take part in the interesting discussion which then took place, nor to vote upon his Motion. Had a Select Committee been established or constituted, it may be that one thing they might usefully have considered would have been whether it is really necessary for your Lordships always to consider every Bill four times.

To one who is perhaps not so used to your Lordships' House for so many years as many of you, it would seem at first sight that here, at least (I suppose I ought not to say what I thought might or might not happen in another place) as we can read a Bill and can see what Amendments we think ought to be made to it, one would produce one's Amendments and there could be a full debate on the whole thing and a decision reached. What in fact we do is to have a Second Reading when anybody who has some objection to the Bill can say what it is and exactly what Amendment he would like to see made; and, after a discussion, that is replied to by whoever introduced the Bill. Then, in the Committee stage, which in this House is a Committee of the Whole House, the same point is gone into all over again and a decision reached. Then on the Report stage, exactly the same discussion can take place all over again for the third time; and on the Third Reading we do it all over again for the fourth time.

Here is a case in which we had an interesting discussion on the Committee stage of the Bill, and the Committee were, I think, much assisted by the speech made by the noble and learned Lord, Lord Denning, who, after all, had been for years a Judge of the Divorce Division and subsequently hearing appeals as Master of the Rolls in the Court of Appeal. Having then reached a decision (and at least this can be said about the decision: it was in no way at all—and rightly—a decision on Party lines, because most of those who supported my noble friend Lady Summerskill were, I think, Members sitting on the Opposition Benches) and the noble and learned Lord, Lord Denning, being unable through other duties to be here, we are now considering the matter all over again.

My Lords, the field we are in is that of human relations and, in particular, our divorce law. I suppose most of us to-day in the field of divorce law are middle-of-the-road men. On the one hand, we think that the ideal to aim at is the union for life between one man and one woman; but we realise of what human nature consists; that if there is no divorce there will inevitably be a large number of unions and a large number of illegitimate children; and that divorce must exist for the purpose for which it really does exist, and that is the relief of human suffering. On the other hand, we feel ourselves unable to take the view that anybody who wants to get a divorce ought to be able to go to a post office and get it, because we think that society has a very real interest, first of all in the stability of married life and in the promotion of good marriage, and, secondly, to see that the injured party, and particularly the children of the marriage, are properly provided for.

I believe I am right in thinking that the State pays out from the taxpayer something like £20 million a year to support former wives and children; because we have to face the fact that in truth not a great many men can afford to support two families. When we are considering the financial position between married people we have also to acknowledge that in most civilized countries today the law recognises the fact that if there are children somebody has to cook the food, look after the children and keep the house. If the wife does not do it, either because she is otherwise occupied or will not, then the man must do it—the children cannot be left abandoned—or they must pay somebody else to do it. That is why the law in most civilised countries recognises that it is only because women as a whole are prepared to devote themselves to cooking the food and looking after the children that the man is free—free from what otherwise he might have to do himself—to go and earn an income for both of them. Therefore those countries generally recognise that what either spouse makes during their marriage is partnership property.

With a few exceptions, it is only in England that after 15 or 20 years of married life, if, unfortunately, the marriage breaks up or the husband falls in love with a younger woman, it is found that everything they have accumulated during their partnership apart from the woman's clothes, belongs in law to the husband. That is roughly the position. It may be, and usually is, the case that where a man goes off with a younger woman, leaving his wife and children, the matrimonial home is in his name and is his sole legal property—although in real life, particularly if both are working, how they divide up the hire-purchase instalments and the mortgage instalments between them is entirely a matter for arrangement.

Any husband who went to a judge and said, "I would like you to turn my wife and children out of the matrimonial home so that I can live there with my mistress", would have very short shrift. Because the real sufferers in a divorce—and I think all those of us who have been concerned in a good many divorce cases would agree with this—however inevitable the divorce may be, are usually the children. To be able to go on living in the matrimonial home is at all events something, and no judge in such circumstances would make an order turning the wife out of the matrimonial home. But under English law the husband can do this without having to go to a judge at all. All he has to do is to sell the matrimonial home over his wife's head, and when the purchaser knocks at the door and tells the wife and children to get out, she has no answer to that at all.

Because this was the law, and because it was causing so much injustice, a good many years ago now the Court of Appeal—I must not say "invented"—held that a wife, in such circumstances, had an equity in the matrimonial home, which enabled them not to make an order in favour of the husband who had so sold it. It created difficulties because, of course, this equity had to be weighed against the position of a bona fide purchaser who might have bought the house for his own occupation and been relying on being able to occupy it. Therefore the sort of difficult question which tended to arise was whether a prospective purchaser, when he went to look over a house and found a woman there and saw no man's clothes about, ought to ask her how she was getting on with her husband or whether her husband had deserted her. Ultimately, in December, while expressing a good deal of reluctance, your Lordships' House held that there was no legal basis for this decision of the Court of Appeal that a deserted wife had an equity in the matrimonial home. So at the present moment, as indeed it will be through August and September, the legal position is that any husband can turn his wife and his children out of the matrimonial home simply by selling it over their heads.

Meanwhile the Royal Commission had considered this and they had proposed a remedy not unlike that of the Amendment—namely, that a wife should be able to go to the court and get an order which would prevent her husband from turning her out. But when, in consequence of the decision of your Lordships' House in December, I had to consider with the Law Commission whether this would be a sufficient remedy, I am bound to say that I came to the conclusion, as they did, that it would not be. In fairness to the Royal Commission I think I must point out that they had first of all to deal with the difficult question: "Should we retain the whole basis of our divorce law", which is that of the matrimonial offence, "or should we change over the whole basis to that of the breakdown of marriage?"

Then they had to consider, separately, each ground of divorce, both in England and in Scotland—nullity of marriage; judicial separation; restitution of conjugal rights, England; jactitation of marriage, England; marriage guidance and conciliation; damages and costs; maintenance in England; aliment in Scotland; the enforcement of maintenance orders made in the High Court; voluntary agreements for separation or maintenance, in England and Scotland separately; the court which should have jurisdiction over matrimonial causes, England and Scotland; the basis of matrimonial jurisdiction and the recognition of the jurisdiction of other countries; matrimonial proceedings in magistrates' courts; the law prohibiting marriage with certain relations by kindred or affinity; the legitimacy of children; the effect of divorce on a will; the reappearance of a spouse after a decree of presumption of death; dis- abilities consequent upon divorce in Scotland—and so forth. It is not surprising if, in that very wide ambit, the matrimonial home formed a rather small item in what they were considering; and if they had not time or opportunity to consider, in as much detail as we have since, the practical working of the relief proposed.

What is proposed by this Bill is extremely simple. It is that a wife should at all times have a charge upon the matrimonial home which would be good against a mere gift; that is to say, against her husband simply giving the house to his mistress; but that as against a bona fide purchaser she would have to register her charge on the Land Charges Register. This is very simple. It is fair as against any prospective purchaser who always looks, or gets his solicitor to look, at the Register to see whether or not there are any charges on it. The process of registration is extremely simple. All she has to do is to fill up a form, and if she is doing it in person, accompany it by a statutory declaration, and the total charges are one shilling. That is very simple.

It is said by the movers of this Amendment that this will complicate terrifically any transfers of land at all. If the husband wants to sell the house, he will, in effect, have to get the wife's consent, and all sorts of complications will have to be gone through. This is not so at all. If they are living amicably together, they may be going to sell one home and buy another, and all the wife has to do is to join in the transfer. If she has registered the charge, all she has to do is to send in a notice of cancellation accompanied by another fee of one shilling. The defect of this Amendment is that it gives the wife no charge—apart from the priority notice which I will deal with in a moment—until she has taken proceedings against her husband and has obtained an order against him; and the main point made by the noble and learned Lord, Lord Denning, when we considered this matter in Committee was that in nearly every case in real life it will be found that she will be too late. This is because if a woman sees that her marriage is in danger of breaking up, which she does not want it to do, the last thing in the world she wishes to do, or ought to be encouraged to do, is to start legal proceedings against her husband because that is more likely to be inimical to the continuance of marriage than anything else. Therefore she does not.

It is invariably the man who goes to his solicitor first. If a man is thinking of leaving his wife and going off with another woman, he will be told under the proposed Amendment, "All you have to do is sell the house straight away over your wife's head, then there is nothing that she can do." That is why the Bill departs to this extent from the recommendations of the Royal Commission. It was strongly felt that what was recommended by the Royal Commission, that a wife should have the right if she once went to the court and got an order, did not really give the wife sufficient protection; but the simple scheme which the Bill puts forward enables her to have a charge from the start and to register it when she thinks it right.

It is suggested in the Amendment that there would be no charge at all until she had been to the court and got an order, though it provides for the possibility of the wife's registering a priority notice in anticipation of her obtaining an order; the effect of the priority notice being that if she does in fact later obtain an order from the court, within six months, her charge will take priority from the date of the registration of the notice. This is a little odd, because this is not the present purpose of a priority notice at all. The priority notice is used at the moment where you have a charge. And the object of the notice is to enable you to obtain priority for your charge from the date that the charge was presented, as against another charge. Under the Amendment there would be nothing to prevent a wife from registering a priority notice, and then at the end of six months registering another priority notice, and doing so every six months. This would indeed clog the dealings in property, and do so very much more than would be the case under the Bill as it stands. This is due to the fact that the Amendment proposes to use priority notices for a wholly different purpose from that for which they were originally devised.

I submit that the Bill proceeds on the much simpler basis of giving the wife, by virtue of her position, an interest in the property which by registration is valid even as against purchasers for value. If the husband will not sell the property, if the parties are wholly at loggerheads and the husband refuses to join in a conveyance, she can in any case go to court, but in the ordinary way registration of a charge should cause no difficulty or embarrassment. For these reasons, I submit to your Lordships that the protection purported to be given by this Amendment would be not nearly sufficient protection.

There is also a technical point on the Amendment in that a wife who was contemplating applying to court for an order against her husband and wanted to get a priority notice or caution discharged, would have to have the husband's certificate in the case of registered land, and it would be very unlikely that the certificate would be in the possession of the husband. But this is merely a technical point. On these grounds I submit to your Lordships, on behalf of the Government, that this is an Amendment which would deprive the wife of almost the whole of the protection which she would otherwise have been afforded by this Bill.

3.52 p.m.

VISCOUNT DILHORNE

My Lords, I have listened with interest to what the noble and learned Lord the Lord Chancellor has said. I must say that I cannot agree with his conclusion, for reasons which I shall indicate. The noble and learned Lord began by making some observations with regard to the procedure of this House. I imagine that the inference from that was that my noble friends and I should not have tabled this Amendment, as the point raised by it is usually discussed in Committee. Of course, this is a Committee point and not one that would be raised in great detail on Second Reading. The Second Reading of a Bill serves a useful purpose but a quite different one from the detailed consideration in Committee and on Report.

When we came to consider this point in Committee it was at a late hour, but we had a useful discussion which threw up certain points. Then, it is true, we had a Division, but the numbers in the House were so small at that time that if two fewer had voted the matter would inevitably have come before the House on another occasion. That is another reason why I think we are fully justified in bringing this point again to the notice of the House. It is a narrow point, but an important one. I have always believed that just as the Committee stage can, so also the Report stage of a Bill can serve a very useful purpose if we are going to get our legislation in proper order.

The noble and learned Lord the Lord Chancellor spent some time in a general disquisition about the law of divorce and about community of goods and all that. I am not going to follow him into that discussion, because this point is much narrower than that. None of us in this House, I think, disputes or wishes to challenge the proposals in Clause 1 of the Bill. I certainly strongly support that the spouse should have the rights of occupation which are there given. But in Clause 2 we are dealing with the rights of a spouse in relation to the rights of third parties, and that is very important. I, for one, would want to see the wife get adequate protection. As my noble friend has said, it is a question of striking a balance between giving the wife adequate protection and avoiding impeding the easy transfer of property. It is a difficulty, I know, to decide where that line should be drawn. But if I did not think that the proposal we are putting before your Lordships gave adequate support and protection, I certainly should not commend it to your Lordships.

I know that I differ in opinion from the noble and learned Lord the Lord Chancellor, who thinks that the wife can get adequate protection only if she is in a position immediately after the marriage to go and register this charge, so that it will have priority over any subsequent disposition of or charge upon the property. I cannot think that that is necessary. The number of deserted wives who find that their former husbands have treated them so atrociously as to dispose of the matrimonial home to their mistresses or to someone else is surely very small. These cases when they occur are very distressing and sad, and I certainly think that that spouse deserves full protection. But is it necessary to go from that and argue, as was argued in the course of our earlier debates, that it ought to be a regular course for this charge to be registered immediately upon marriage? That does not look very hopeful as to what is going to happen about the marriage in future. I myself do not welcome the idea that after going to the church, and perhaps before going to the reception, a couple should go to the Land Registry Office and register a charge, and I cannot believe that it is necessary.

The Royal Commission on Marriage and Divorce considered this, and I should like to draw your Lordships' attention again, if I may, to the sentences they used about it. They said (paragraph 665): To give the deserted wife complete protection it would he necessary to give her a right, as against all the world, to stay on in the matrimonial home until ordered to leave by the court. The decisive objection to that course, in our opinion, is the unsatisfactory and insecure position in which it would place third parties. It would be necessary, for instance, for a would-be purchaser of a house, or for an intending mortagee, to make full inquiries into the matrimonial circumstances of the owner before the transaction could be safely completed. On the other hand, to give the wife a right merely against her husband personally would be equally unsatisfactory in as much as she would then have no protection against her husband's disposing of her husband's interest in the home to third parties. The Commission continue: We have adopted a middle course. The middle course they recommended was that the wife should get protection on desertion by going to the courts. I do not think that that goes quite far enough because, as the noble Baroness has pointed out, it might be too late. And we recognise that. Therefore, our Amendment goes a little further than the Royal Commission, but the reasons which the Royal Commission put forward cannot be lightly brushed aside by suggesting that there are a great many other matters to consider.

We are now told, I believe for the first time, that the Law Commission have been consulted about this and that they agree with the views put forward by the noble and learned Lord the Lord Chancellor. If the Law Commission have been consulted about this and have reason for dissenting from the considered opinions of the Royal Commission, it would certainly have been useful for this House to have been informed of the reasons of the Law Commission for that dissent, and to have an opportunity of considering them. But we have not been told, except through the mouth of the noble and learned Lord, and of course I agree that we should give weight both to the noble and learned Lord's views and to those of the Law Commission. But is it really necessary, for the protection of the few cases where deserted wives may run the risk of having the matrimonial home sold over their heads, to give this right to every spouse from the day of marriage? And if that is not necessary, where does one draw the line? I suggest that this Amendment gets its about right.

The noble and learned Lord the Lord Chancellor had some fun with the expression "priority notice" and said that it was not what a priority notice usually was. Does that matter? How this Amendment is intended to work is, I think, quite clear. Without going to the court for an order—and that is what the Royal Commission suggested—the spouse can at any time go and register a priority notice. That means that if she has reason to suppose that her position is getting in danger, there is no need for her to go to the court to get protection at the beginning.

The noble and learned Lord the Lord Chancellor says that women are reluctant to go to the courts. I am sure they are; and it would be a bad thing from the point of view of the marriage. But here this registering of a priority notice can be done without going to the court. And then, if within six months of that registration she gets an order of the court, the charge is effective not only for the six months' period preceeding that order, but also from then on. So she can get protection without going to the court. But the protection will lapse, if she wishes it to lapse, by her not going to the court at the end of six months. If she feels that the situation is not so acute that going to the court is necessary, she can then serve another priority notice and have it registered. I cannot see any real objection to that.

So it seems to me—and I do not speak with anything like the authority on these matters that my noble and learned friend Lord Wilberforce does—that by this machinery one can provide adequate protection for the wife without going to the full extent that the noble Lady wishes in this Bill; that is, to make such a charge applicable from the date of marriage in all cases, a suggestion which was emphatically rejected by the Royal Commission in this Report.

It is for those reasons that I support this Amendment. It is, I think, a narrow but an important point. I hope the noble Lady when she follows me, as I expect she will, will not suggest for one moment that my noble and learned friend and I and those who think with us on this matter are not just as keen as she is to see that the case of the deserted wife is fully covered.

BARONESS SUMMERSKILL

My Lords, I must agree with my noble and learned friend the Lord Chancellor—

VISCOUNT DILHORNE

Would the noble Lady forgive me? I should like to fulfil a promise. The noble and learned Lord, Lord Denning, asked me to say how sorry he was that he could not be here this afternoon owing to the fact that he was sitting judicially. There were great chances at one time, of course, that the rest of us could not be here this afternoon, but, fortunately for us, it did not work out that way. I want to add one point that I had forgotten. The noble and learned Lord the Lord Chancellor said that the Committee were assisted by the noble and learned Lord, Lord Denning, on the Committee stage. Indeed, we were. But I think it is the case that some of what the noble and learned Lord, Lord Denning, said misconceived the position; and that is another reason why we should bring it before the House again. The noble and learned Lord in the Committee stage said: This proposed Amendment will destroy that protection altogether, because she will not get protection unless she has already gone to the court and got an order before the husband sells to his mistress, or whoever it may be."—[OFFICIAL REPORT, Vol. 275 (No. 27), col. 646, 28/6/66.] That misconceives this Amendment, because under this Amendment she can get protection by registering the priority notice.

4.4 p.m.

BARONESS SUMMERSKILL

My Lords, I find it difficult to understand why the noble and learned Viscount and his friends have put down this Amendment to-day, because the principle involved in it is exactly the same as the one which we debated at length last week; and although I agree with the noble and learned Viscount that there may not then have been many Members in the House, nevertheless, the Amendment was defeated by a substantial majority. Incidentally, as my noble and learned friend the Lord Chancellor had said, most of the Members who voted on that occasion were from the Opposition Benches.

What is the object of this Amendment? It is to ensure that a deserted wife's rights of occupation of the home should become a charge on the husband's interest, not from the date of the marriage, nor from the date when the husband acquires his interest, as provided by Clause 2(1), but only from the date when the wife obtains an order conferring right of occupation. In other words, it means that the Amendment provides that the marriage must be in danger of breaking up before a wife can register a charge following an order of the court. In view of the fact that before the marriage is in: danger of breaking up there must have been many trivial quarrels and many major quarrels, surely the husband, unless he is mentally defective, must realise that perhaps the marriage will end and, therefore, he must take action.

Our argument, therefore, is that, although it may look well on paper that the woman has this right when the marriage is breaking up, common sense tells us that a husband will see that the marriage is going to break up and will make arrangements to dispose of the property. I am advised that he could hand it to his mistress, or hand it to a relative; indeed, he could just write a letter overnight saying: "This is yours." Therefore, what protection has a woman if you tell her, as the Amendment does, to wait until the marriage is nearing the end and then she can take action?

Those are the fundamental objections to this Amendment: the need to obtain an order of the court before it becomes possible to register a charge. Again, I want to point out that you are putting the woman in the position of having to decide whether the deterioration of her marriage has reached the point where one day she has to say to herself: "Was that row last night the final one? Should I go to the court this morning?" As I said on the last occasion, the lawyers agree that women hate going to the courts, and they go only in the last resort. We are asking the House to protect the woman before the trouble occurs. It will be undesirable that she should go to the court (I want to emphasise this point) because, after all, we all finally want a reunion.

I listened to my noble friends on this side of the House cheer when my noble and learned friend on the Woolsack said that it was not in the interests of the marriage to go to the court, because her husband would not like that kind of publicity. I want noble Lords to realise what will happen when she decides to go to court. She will tell her relations, of course, and the publicity will be of such character that the husband will not be anxious for a reconciliation.

To meet the objection that a wife might not apply to the court until it was too late to stop her husband from disposing of the property, this Amendment provides for the possibility of the wife's registering a priority notice in anticipation of her obtaining a court order, the effect of the priority notice being that if she does obtain an order from the court within the next six months her charge will take priority from the date of registration of the notice. I want to prove to the House that this proposal goes too far or not far enough. If, as is only too likely, a wife does not think of registering her priority notice until the state of the marriage is such that she has the possibility of an application to the court in mind, then, as I have said, it may well be too late for the notice to be effective against anyone who acquires the property from the husband.

I want to say to the House that the break-up of a marriage cannot be related to any specified time. Last week, noble Lords came to the House with an Amendment which, instead of six months, as in this Amendment, suggested one month, and I said that it was grossly unfair to ask a woman to have to decide in one month whether she and her children should leave the home or apply to the court. This time the period of one month has been changed to six months. Again I say that we cannot consider any calendar period when we are considering how long it takes for a marriage to break up. For the sake of the family, the decision of the wife must not be hurried. It is not in the interests of the children to make six months the period in which a mother must decide to separate from her husband. There can be quarrels and recriminations, ending in temporary forgiveness.

I would remind noble Lords—because always we are honoured by a number of Judges on these occasions—that the Judiciary itself has already shown itself aware of the unpredictability of human nature by refusing, other than in exceptional circumstances, to grant a divorce to a couple whose marriage has not lasted three years. The Judiciary are so much aware of all the imponderables in marriage that they have said that it would be wrong to grant a divorce before the couple have had time to adjust themselves to marriage; before they have had time to get over the initial quarrels and misunderstandings.

VISCOUNT DILHORNE

Would the noble Lady forgive me—

BARONESS SUMMERSKILL

In a moment. I should like to finish my sentence. The Judiciary themselves have decided that three years is an adequate time in which the couple can try to reconcile their problems.

VISCOUNT DILHORNE

Would the noble Lady forgive me? She should be aware that it was not a judicial decision that decided that point. It was decided by Act of Parliament, by this House and another place, with the Royal Assent. Therefore, observations about judicial decisions seem to be outside the point, and wrong.

BARONESS SUMMERSKILL

I am surprised at the noble and learned Viscount's interjection. Here we have a Bill going through Parliament which concerns the Judiciary, and what have we had? On the Second Reading last week, and again this week, a number of learned Judges have come here to make their contributions. Does the noble and learned Viscount tell me that when this other Act of Parliament went through, which had to be interpreted by the Judiciary, they were quiet and said nothing? I am not a lawyer, as I have told the noble and learned Viscount, but he must realise that when he gets up and makes these sweeping statements there are some of us with sufficient common sense to realise that there is no basis for them.

I should like to relate this Amendment of six months to the realities of life. A marriage has not been going well, and the wife registers a priority notice. It is July now. Very well. Let us say that she registers the notice at the beginning of July. This is a public warning to her husband, and it is not calculated to improve relations. The husband may therefore plan to outwit her, in order that she may not get the home—and this, I can assure your Lordships, presents no difficulties when the man is dealing with a mother with children. She gets her priority notice at the beginning of July. He suggests that the family should go to the seaside in August, and she is lulled into a false sense of security. In September she is busy with the children at school, and there is still the glow of the August holiday with her. Soon, Christmas is in the air, and the six months have elapsed. She must then, in that atmosphere, obtain an order of the court if she is to retain her home.

How many women would be prepared to upset the family at such a time, even though the wife might suspect that she was living in a fool's paradise? A woman in that situation hopes always that she may be able to restore harmony in the home. Yet the day after the six months has elapsed, let us say at Christmas, at the end of the year, and no court order has been sought by the wife, the husband is at liberty to sell the house over her head. He has only to bide his time. I would say that this Amendment fails to give the gentlest and most forgiving wives protection: it completely fails, just as the one-month period did last week. I then persuaded your Lordships to reject it. But I suspect that the learned Judges go away with their brilliant brains and never consult a simple mother and housewife. I suspect that if they did, if they invited some devoted mother with three or four children to come and talk it over with them, they would not have put this arid Amendment on the Order Paper. For it does not touch the lives of people and, if anything, seeks to destroy the home and gives the wife or the husband no opportunity for a real reconciliation. But noble Lords who want the Amendment insist that she should go to the court; they insist that she should tell the whole of her family and telephone her mother; and by the time that has been done there is no chance of a reconciliation.

I should like to put another point to the noble and learned Viscount. If, on the other hand, a more astute wife, less gentle, less forgiving, in order to protect herself registers a priority notice without any real intention of applying to the court, and re-registers a fresh notice every six months, it would put a clog on dealings with the property of just such a kind as the noble and learned Lord, Lord Wilberforce, said last week that he feared would be the result of the Bill. Have noble Lords realised that, from the administrative point of view, there is a major defect in the Amendment? I felt it was effrontery last week when I pointed out three defects, and the noble and learned Lord, Lord Wilberforce, had to come and say that they had put them right for me this time. Now I have to come and tell them that, administratively, there is such a defect that they are all defeating their object. By introducing this Amendment in this way they are completely tying a man's hands.

I hope they will not say to the House, "We will go away and bring it up again on Third Reading." If that is to be their attitude, we really must protest, for the Amendment, I would point out, makes no provision to enable the husband to obtain the cancellation of a priority notice before it expires. This is due to the fact that the Amendment proposes to use priority notices for a wholly different purpose from that for which they were originally devised, namely, to secure priority for a charge from the date of its creation, notwithstanding that it is not registered until later. The Amendment would use the system of priority notices to give priority to a charge before it is even brought into existence. I have, I hope, shown that the Amendment is inhuman; that it gives no protection to a wife; that it is technically defective and, indeed, gives no protection to the husband.

Now I would speak about the Bill. The Bill proceeds on the much simpler basis of giving the wife, by virtue of her position, an interest in the property which, by registration of the land charge, is valid even as against purchasers for value. It is unrealistic to suggest that the need to register the charge will impose heavier burdens on the wife than the system proposed by the Amendment. All that is involved—and the noble and learned Lord the Lord Chancellor mentioned this—in registration is the completion of a simple application form (with a statutory declaration, if the appli- cant is not represented by a solicitor) and the payment of a fee of one shilling. This can be contrasted with the cost of an application to the court as proposed in the Amendment. It can also be contrasted with the embarrassment which an application to the court would probably cause to the wife where the parties were not living at arm's length. Registration of the charge would not cause any difficulty or embarrassment at all; indeed, it might become common practice, as the noble and learned Lord, Lord Denning, urged on Second Reading, for the wife to register her charge as soon as the matrimonial home was acquired, and this should not cause any complication or difficulties in the event of a husband wishing to dispose of the property.

I emphasise this last point. If the parties are living in amity, if the wife is friendly with her husband, she will agree to release her charge in favour of any purchaser or mortgagee, and she can do this either by concurring in the sale or mortgage to release her charge or by lodging a notice of cancellation with the Land Registry and paying a fee of one shilling. If the wife refused to release her charge the husband would be able to apply to the court for an order under Clause 1 which would have the effect of bringing her rights to an end. I would say this to those noble Lords who have put their names to this Amendment. In their desire to avoid giving the wife rights to the home before the break-up of the marriage can be predicted, they have devised a scheme which not only will fail to give the wife adequate protection but may well also introduce into any dealings by the husband complications which cannot arise under the Bill. They agree with the principle of Clause 1, which gives a wife the right to occupy the matrimonial home as part of the status of marriage; but if this principle is right, effective means must be devised for its implementation, and these means are embodied in the Bill. No objection can reasonably be taken to the proposal to give the wife an automatic charge on the property, provided the interests of the third parties are suitably safeguarded. This is what Clause 2 does, for all that a would-be purchaser or mortgagee has to do is to make a search in order to see whether the wife has registered her charge.

Finally, may I just say this to the House: in almost every other country in the world—let us say less civilised than us, less affluent than us—the law protects the deserted wife. In most countries each partner may take out of the marriage what he or she brought into it, and property acquired during the partnership is shared equally. This rule applies in the Scandinavian countries, in West Germany, France, Spain, and in many of the States of the United States of America. I am not even asking for legislation such as obtains in those countries. This Bill does not confer joint ownership; it only establishes the right to a home for the deserted wife. Surely it should be inherent in marriage that a wife and mother should have the right to a home. Are the women of this country asking too much in seeking the protection enjoyed by women in less affluent societies?

4.25 p.m.

LORD DERWENT

My Lords, I apologise for addressing your Lordships for the third time on this point, but this is a matter which, by and large, will affect only laymen, and as I have taken part in this Bill and being, except for the noble Baroness whose Bill it is, the only layman who has so far intervened, I thought it proper to say something from the lay point of view. What has been said which is purely law I shall leave to the noble and learned Lord, Lord Wilberforce, to answer.

The only thing I would say in regard to the speech made by the noble and learned Lord who sits on the Woolsack—and indeed to the noble Baroness—is on this question of the Report stage and the Committee stage. The object of the Report stage is that if we have not got our Amendment right (and we all agree that at the Committee stage we had not got this Amendment quite right) we should be able to get it right at the Report stage. That is all I am going to say about that. I very much regret that the noble and learned Lord, Lord Doming, is not here to-day because we had a little argument about a point that I am going to raise, and I want to refer to something he said; but it will be in a pleasant manner and in answer to the argument he put up.

We have listened to three speeches from the noble Baroness and two from the noble and learned Lord, Lord Denning, and it is quite clear to me that we husbands are a pretty awful lot. We frequently desert our wives, and we evict them at the drop of a hat; and, I take it, at night, when there is snow on the ground. All right, my Lords: we know that there are husbands who do that, and they are adequately dealt with under Clause 1. We fully approve of Clause 1, so that all this further talk from the noble Baroness in two speeches, particularly on the Committee stage, about desertion and eviction, does not in fact come in to what we are talking about.

We husbands have another nasty habit, too: we are very apt to sell the matrimonial home, or give it away, over our wives' heads, without their knowing anything about it; and it is that, and nothing else, that we are talking about now. We know that there are these cases. We know there has been one case in particular, the Ainsworth case, which has caused all this trouble; and the noble and learned Lord, Lord Denning, told us that there have been other cases, though even he, I think, was forced to admit that the cases were not very many, and that there were even fewer cases of that kind in which the court was unable to give protection to the wife.

So we are dealing, as the noble and learned Lord, Lord Hodson, said last time, with a comparatively few future cases which mayor may not occur. On the other hand—and this is the point—we may be creating great inconvenience for hundreds of thousands of married couples when it comes to dealing with their property. I raised the point, and the noble and learned Lord, Lord Hodson, raised the point, last time in this Amendment we are concerned with comparatively poor people. If a rich man sells his house over his wife's head she, if she is wise, while these things are going on, trots off to the Ritz and stays there until her lawyers send in the bill. The rich are not going to suffer, whichever way we deal with this clause. We are dealing with the sort of people whose only asset is the matrimonial home. It may be their only capital asset on which they can raise money; and that is quite common, particularly among young married people. It is these people who will be put into difficulties if we do not amend this clause, particularly—and I repeat this—particularly as regards raising a mortgage or obtaining an overdraft from the bank.

The noble and learned Lord, Lord Denning, pooh-poohed this idea about it being difficult to raise mortgages. He said that it was really quite simple; that the only thing one had to do was to put the wife's name in the mortgage. I thought he was wrong, but I did not like to contradict him at the time. Yesterday I took the trouble to go and talk to one of our most important land and estate agents, who is also the director of a building society. He tells me that it certainly will not make it any easier if we do not amend this clause, and in many cases it will make it more difficult, because they are not very fond of including the wife in a mortgage if she has no property of her own, if the basis on which they grant the mortgage, apart from the building, is what the husband is earning. Because, from their point of view (I am talking purely from their point of view), if the husband, and he is the man who is earning the money, disappears—and that is not unknown—they may have to bring two actions if the wife is joined with the husband. A more important thing as regard mortgage which I had forgotten was pointed out to me; very often, always if possible, I think, the mortgage is raised before marriage, the husband taking it out in the engaged days. The girl cannot be joined with him at that time. If possible—they cannot always afford it—they like to have the house ready for coming back to after the honeymoon.

BARONESS SUMMERSKILL

My Lords, I think the noble Lord has been misinformed. The mortgage he is talking about that is taken out earlier has priority.

LORD DERWENT

It has been taken out earlier, but once they are married it has not got priority if the wife registers, and that is the question: whether from the word "Go" the mortgagees grant the mortgage. The way they look at it is this. They know they always run a risk with any married man if he is their only surety. The husband may lose his job. They take everything into consideration. If they do it from the word "Go" there is a slightly greater risk for them. But the much greater risk is when a loan is raised in a difficult time from a bank.

May I put it from the other point of view, under the clause as it stands if the Bill is unamended? I take the instance when the husband uses this clause against the wife, and I hope to hear the noble Baroness's comments on that. The picture I have in mind—it is not unusual—is where the house belongs to the wife, left to her by her father. The husband is the wage-earner. The wife may perhaps be, if the noble Baroness can imagine it, a somewhat bossy type, who holds the purse-strings and rather rules the roost. One day, like other women and men before her, she becomes rather extravagant, goes to the bank and says to the bank manager, "I want an overdraft", and he says, "What is the security?". She says, "My house".

He will now say, "Yes, that is all right; but you have to get your husband to sign this form saying that we take priority over his interest", which he would have under the clause as it stands. She goes home with the form in her hand and in at the front door, and says "Henry, come here". He meekly comes in and she says, "Sign there"; and at last the henpecked worm turns and says, "I want to read it". He reads it and says, "No". What will the noble Baroness's comments be on that day? The brutal husband! This is a serious problem, but it is only a serious problem for the poorer people who have no other assets that they can manipulate. I again say that I think it is going too far to say that matrimonial property can be tied up from the word "Go" for these people. It may make things very difficult for them.

Now we come to the question, finally as far as I am concerned, about the six months. The noble Baroness has suggested that we husbands are in a position suddenly to say, "I have got a mistress. Let's give my house away, or sell it". You can give it away quite quickly. If you are going to sell it, it takes a little longer. I cannot believe that any wife in her senses does not know that something is not going quite right, and that is the moment for the wife to go and have a priority registered, at that moment. If she will not do it then, she will not do it when she gets married. If, of course, as my noble and learned friend Lord Dilhorne said, it is the intention that they should all run round on the way to the wedding reception and sign, well and good. But that is not the idea. Very few wives, particularly of the poorer kind—the richer ones may do it because they would be advised by solicitors—are going to register until some trouble comes up or is in the offing. Then they go and register. At the end of six months things may be going better, they may be going absolutely all right; they maybe not quite all right. Then she can go and re-register. But there is a limited period in which handling the property is fully protected. I suggest that we are acting here for very few cases in which this sort of thing happens—selling over the wife's head without her knowing about it. To cover the very few cases which are likely to happen we are making things difficult, particularly in difficult times, for hundreds of thousands of other married couples, which I do not think we ought to do.

THE LORD CHANCELLOR

My Lords, the noble Lord said that the priority notice would give her protection. I do not know whether he appreciates that if the Amendment is passed she has no interest in the property, no charge and no protection at all unless and until, if she can afford it, she goes to the court and gets an order. If she gets an order, then the priority notice may have some effect; but she has no protection of any kind at all unless and until, if she can afford to do so, she goes to court and gets an order.

LORD DERWENT

For all practical purposes that gives her protection, because she is then in a position to go to the court, if the worst comes to the worst, and she then has protection from the original date. Unless the priority notice is put in she does not have protection from the original date. All we are arguing about here is dates. If she goes to the court, with this priority notice, she in fact gets protection which she would not have otherwise, even when she goes to the court. I think I am right.

THE LORD CHANCELLOR

The noble Lord said that all we are talking about is dates. No doubt he appreciates that under the Bill as it stands she gets protection without having to go to the court for an order.

LORD DERWENT

I entirely understand that—at the expense of many hundreds and thousands of other married couples.

4.38 p.m.

VISCOUNT BARRINGTON

My Lords, as a layman who is puzzled by several points which I thought I understood at Committee stage and to which I should like to hear the answer, may I put a few questions which I believe will make your Lordships' debate a little shorter? If there is one thing that is more painful than having to argue a subject of this kind four times, as the noble and learned Lord on the Woolsack has said, it must be to hear Back Bench speakers saying the same things over again, so I shall try to confine myself to what has been said to-day.

The point on dates seems to me the relevant point, because the whole matter turns—without the legal niceties, which are very important, but none of us except the lawyers are qualified to go into them—on whether this Amendment gives protection to a spouse or not. I use the word "spouse" because although I have understood up till now that this is not going to be a Party issue, the noble Baroness, I say with respect, did seem in danger of turning it into a sex war issue, in that she used the word "wife", whereas I was trying mentally and frantically to translate it into "husband". I am not a spouse, but I think that if I married the probability is that I should be a husband, and I like to think how it would affect me. It is because I do not believe it would provide me with proper protection against whatever harpy I might marry that these are the points on which I want to be reassured.

The noble and learned Lord, Lord Wilberforce, in his extremely clear statement, made two remarks—they are quotes, I think, from the Preamble, which I stupidly have not got. He said the Amendment was to protect deserted spouses, in effect, without damaging the property rights of those many thousands of married couples, spouses who are not threatened by a break-up of the marriage. I am not quite clear what is meant either by the words "deserted spouses" or by "threatened by the break-up of the marriage". If one is going to make this a question of statistics, does "deserted spouses" mean spouses who have been deserted, spouses who are conscious that they are going to be deserted, or spouses who are going to be deserted without being conscious of it? Putting myself in the last category, I have heard nothing that makes me happy about the position for them.

As to those who are not threatened by a break-up of the marriage, I speak as a layman because I think it is a point—I mentioned this before—on which a layman has as much right to express an opinion, and only an opinion, as the lawyers. How many married couples living now, or about to be born in the next 2,000 years, if this Act lasts so long, will be threatened by a break-up of the marriage? If a computer which was fed by Old Moore mated to a marriage bureau which had proper statistics, produced a child, that child might know the answer; but I cannot see how anybody else can know. Surely, on this question we are dealing with an uncertain number of people, and unless the Amendment provides protection in all cases, however many there are, I am not satisfied that it will be of any use.

The second point, and the only other point I want to raise, is the question which has been put extremely vividly and forcefully by the noble and learned Viscount, Lord Dilhorne, as to the inconvenience after a marriage ceremony and, as he said, before the reception, of rushing out to register a charge. I have not contemplated matrimony, but I have frequently contemplated death. I have always understood that it was the custom, and I think a not dishonourable custom, that a husband, before getting engaged or when the couple were engaged would make a will.

If I were an advocate in a court opposing that practice, and had considerable experience, I suppose that I could draw a hair-raising picture of a man proposing to a lady who, before telling her, "You have made me the happiest man alive", would leap up and dash into a taxi-cab, and race off, either to his solicitor or to find two witnesses to whom he was to leave no property in the will, and make a will. That is not what happens. But that would not, I think, be a valid argument against making a will when one is at the point of death, or is believed, rightly or wrongly, by doctors to be at the point of death: but it is a precaution. Nobody thinks that a young man is morbid if, at the age of 21, on getting married, he either makes a will or alters it; that is, in spite of the fact that the law, even in its unaltered form, gives a certain protection to spouses, I think of both sexes, as to what they receive in the event of death. That seems to me a comparable case; what the noble and learned Lord, Lord Denning, referred to as an ordinary thing to do.

Of course, not everybody would register a charge, just as not everybody makes a will. It would not be the kind of thing that a wife or a husband would sneak off to do. If they were detected in having done so, that would certainly cause a matrimonial row; and if either said openly, "Let me confess that I have done this, not because I think there is a danger of our marriage breaking up but because I thought it was a protection", I should think that that might also cause a row. I have not yet been convinced by any argument I have heard that anything substantially new has been raised, and, with the greatest respect, I must at present vote the same way as I did last time.

4.43 p.m.

LORD COHEN

My Lords, I shall detain your Lordships for but a short time. Indeed, I should not have found it necessary to speak if it had not been that, on the Second Reading, I said that I was unhappy, should the Bill go through as it is drafted, that it would become increasingly difficult to persuade banks and building societies to advance money for the purchase of matrimonial homes. Having listened to the debate, and having listened, in particular, to Lord Derwent, I am not entirely shaken in that fear. On the whole, however, I have come to the conclusion that the risk is not great; that it is not beyond the ingenuity of conveyancers—and I hasten to add that I am not one—to find a means by which, through joining the wife, the requisite facilities could be obtained: for instance, she could release any interest she might have. It would not raise the same difficulties as the noble Lord has mentioned.

On the other hand, I am convinced by the observations of the noble and learned Lord on the Woolsack that the risk of failing to attain the objective for which this Bill is designed, and which is welcomed by all your Lordships—that of protecting the deserted wife—might easily suffer a serious setback if this Amendment were carried. I therefore propose to vote against the Amendment. It may be that there are few women who fall within the category of the deserted wife, but if the Bill is not carried, they will continue to suffer under a real grievance. I hope that your Lordships will not make it more difficult to protect them by carrying this Amendment.

4.47 p.m.

LORD CONESFORD

My Lords, I shall detain the House for a few moments only. Unlike nearly every noble Lord who has spoken, I find this matter difficult. I may say that I was here on the last occasion but, not having heard the whole of the argument, I did not vote. I certainly was not prepared to vote against the noble Baroness without further consideration after hearing the noble and learned Lord, Lord Denning, and the noble and learned Lord on the Woolsack. On the other hand, I was not prepared to vote then in her favour, because I had not had the advantage of hearing the noble and learned Lord, Lord Wilberforce. Since then I have given the matter a little further consideration. I was greatly impressed on this occasion by the argument of the noble and learned Lord, Lord Wilberforce.

There are only two matters which I should like to mention. One or two noble Lords, including the noble and learned Lord on the Woolsack, drew attention to the rather extraordinary fact that occasionally we vote again on the Report stage on a matter that has already been decided on the Committee stage. There is nothing new about that. On this occasion it so happens that what is thought the more liberal view prevailed on the Committee stage; but it is possible on the Committee stage for some black reactionaries like myself and the right reverend Prelate the Bishop of Exeter to triumph even if we are subsequently beaten on the Report stage. The right reverend Prelate may remember an occasion when he and I took the same view on an Amendment on the Legitimacy Bill. On that occasion I carried that Amendment on the Committee stage. But in a much fuller House I lost on the Report stage. I did not feel that I had any great sense of grievance; nor did I complain. I accepted the fact that in a much fuller House the other view had prevailed. There is therefore nothing novel of any kind, and I do not think there is even in another place, if a different view is taken on the Report stage from that which prevailed on the Committee stage.

Nevertheless, I was, I confess, very much impressed by the arguments of the noble and learned Lord on the Woolsack, reinforced as they have been by the noble and learned Lord, Lord Cohen. On the other hand, I cannot think that the matter is nearly as simple as was indicated by the noble Lady who found the whole scheme of the Amendment wholly absurd. It happens to be rather more in her favour than the scheme proposed by the Royal Commission on Marriage and Divorce. If noble Lords will turn to the chapter concerned, they will find the most weighty reasons given why the Royal Commission came to a conclusion which is adverse to the noble Lady. I can only say that I still find the matter difficult and, if it is forced to a Division, I am afraid that I shall probably again abstain.

However, I should like to make one proposal. The Lord Chancellor said that his view against the Amendment and what was recommended by the Royal Commission had been reinforced by some consultation which he had had with the Law Commission. I think that I have that right. It would be of great assistance to Parliament if we could have some statement of the Law Commission's view on this matter and the reasons why they differ so emphatically from the considered conclusions of the Royal Commission. That is all I have to say. I think the matter is a great deal more difficult than has been represented, and I am left in the greatest confusion by the discussion.

4.52 p.m.

VISCOUNT DILHORNE

My Lords, with the leave of the House, my noble and learned friend Lord Wilberforce asked me to apologise for the fact that he could not be here at the end of this debate. I dare say the noble Lady will welcome that if there is, as I think there will be, a Division. May I, with the leave of the House, reply to some of the points which have been made? I am sorry the noble Lady thought that this Amendment should not have been moved at all. It is a difficult point and an important one; it is also a narrow one; but to suggest that it was wrong to raise it and that we were putting it forward as a wrecking Amendment is, in my view, quite unjustified and wholly wrong. I was also sorry that she had apparently failed to appreciate almost completely what this Amendment sought to provide. It goes further than the Royal Commission's recommendations. There, it is true, the protection can only arise when an order is obtained, but here by the giving of the priority notice the woman can safeguard her position.

THE LORD CHANCELLOR

My Lords, the noble and learned Viscount says that, but is it not the fact that unless and until she obtains an order she has no protection, though the priority notice, if and when she can afford to go to the court and get an order, can ante-date it?

VISCOUNT DILHORNE

I said safeguard her position, and I use those words advisedly. She gives her priority notice and then when she goes to court she gets the order and the order dates back to the date of the priority notice. So her position is safeguarded from that date and will take priority over any charge placed on it after that date. It is true that it will not become effecive until she gets the order, but then she has got to get an order under Clause 1; we are here dealing with Clause 2. The noble Lady, who makes such a fuss about going to the court to get an order, in her Bill under Clause 1, in relation to the right of occupation, has the clearest pro-

CONTENTS
Ailsa, M. Dudley, L. Ironside, L.
Ampthill, L. Effingham, E. Kemsley. V.
Atholl, D. Erroll of Hale, L. Massereene and Ferrard, V.
Bessborough, E. Ferrers, E. Merrivale, L.
Boston, L. Fortescue, E. Redmayne, L.
Buccleuch and Queensbury, D. Fraser of Lonsdale, L. St. Helens, L.
Clwyd, L. Fraser of North Cape, L. St. Oswald, L.
Colville of Culross, V. [Teller.] Grenfell, L. Soulbury, V.
Croft, L. Hayter, L. Stonehaven, V.
Derwent, L. [Teller.] Hereford, V. Strathcarron, L.
Dilhorne, V. Horsbrugh, Bs. Strathclyde, L.

vision for going to the court to get an order.

The difference really, as I see it—and I am sorry to differ from the noble and learned Lord the Lord Chancellor and from my noble and learned friend Lord Cohen—is this. Is it really necessary to go so far as to give this general right, subject to no limitation, to every married spouse to provide a protection, for the few sad cases of the deserted wives who may be deprived of the matrimonial home? I do not believe it is, if you can devise a satisfactory alternative procedure, and that I think we have done. It is a narrow point. It may well be that even if the noble Lady gets the Bill in its unamended form, a lot of women will not make use of the power until they think their marriage is threatened. Under our Amendment they will not make use of the power to file a priority notice until they think their marriage is threatened. It may be that in practice this will work out in somewhat the same way, but the difference, as I see it, will be that, if the Bill is carried unamended, it will lead to many inquiries being made by the third parties, and will involve additional investigations and expenses.

I thought the first speech of my noble and learned friend Lord Cohen, when he spoke about the difficulties the banks would have, and so on, was a little more convincing than the speech which he has made to-day which has apparently convinced him that he was wrong. Having said that, I think the best thing is not to debate the matter further, but to proceed to a Division and to see what the opinion of the House is on the issue which I now hope has been made clear.

4.59 p.m.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 54.

Swinton, E. Vivian, L.
Teynham, L. Wakefleld of Kendal, L.
NOT-CONTENTS
Addison, V. Exeter, L. Bp. Pargiter, L.
Archibald, L. [Teller.] Faringdon, L. Plummer, Bs.
Auckland, L. Gardiner, L. (L. Chancellor.) Rhodes, L.
Barrington, V. Gridley, L. Rowley, L.
Beswick, L. Hanworth, V. St. Davids, V.
Boothby, L. Hughes, L. Shackleton, L.
Brockway, L. Kirkwood, L. Shepherd, L.
Burton of Coventry, Bs. Latham, L. Sinha, L.
Campbell of Eskan, L. Leatherland, L. Sorensen, L.
Champion, L. Lilford, L. Stonham, L.
Chichester, L. Bp. Lindgren, L. Strang, L.
Citrine, L. Listowel, E. Strange, L.
Cohen, L. Longford, E. (L. Privy Seal.) Strange of Knokin, Bs.
Crook, L. Maelor, L. Summerskill, Bs. [Teller.]
Darwen, L. Mitchison, L. Swanborough, Bs.
Douglas of Barloch, L. Morrison, L. Taylor, L.
Elliot of Harwood, Bs. Moyle, L. Wade, L.
Emmet of Amberley, Bs. Moyne, L. Williamson, L.

Resolved in the negative, and Amendment disagreed to accordingly.