HL Deb 28 June 1966 vol 275 cc627-57

6.40 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Baroness Summerskill.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD GRENFELL in the Chair.]

Clause 1: Protection against eviction, etc., from matrimonial home of spouse not entitled by virtue of estate, etc., to occupy it.

1.— (b) may require a spouse occupying the dwelling house or any part thereof by virtue of this section to make periodical payments to the other in respect of the occupation;

BARONESS SUMMERSKILL moved, in subsection 3(b), to leave out "require" and insert "order". The noble Baroness said: The Committee will recall that I explained these clauses in some detail, and that Clause 1(3)(b) enables the court, on an application with regard to a spouse's rights of occupation, to require the spouse occupying the matrimonial home, or any part of it, by virtue of Clause 1 to make periodical payments to the other in respect of the occupation. The noble and learned Lord, Lord Wilberforce, whom I am glad to see here this afternoon, said on the Second Reading that he felt some doubt as to the nature of the payments which might be required to be made. He asked whether they would be recoverable as a civil debt or whether they were a condition which, if not complied with, would terminate the right to stay in the house.

It is possible, I agree, that the word "require" might be misconstrued, and the object of Clause 1(3)(b) is to give the court power to order the occupying spouse to make periodical payments. I apologise if that was not quite clear. It was to get that power so that if the payments are not kept up the other spouse may enforce payment of the arrears by issuing execution or employing any of the other recognised means of recovering money under a judgment.

If the court simply wishes to make the payment of an occupation rent a condition of the occupying spouse remaining in the premises, it can do so in the exercise of its general power under Clause 1(2) to restrict, terminate or regulate the rights of occupation. If the court imposes such a condition without making an order for payment of the occupation rent, any arrears which accumulate will not be enforceable as a judgment debt, but the owner spouse will be able to take steps to evict the occupying spouse. Therefore the Amendment seeks to make the position clear by substituting "order" for "require" in Clause 1(3)(b), and I hope the Committee will accept this rather minor Amendment which will nevertheless possibly have some major effect when the clause comes to be operated. I beg to move.

Amendment moved— Page 2, line 9, leave out ("require") and insert ("order").—(Baroness Summerskill.)

LORD WILBERFORCE

I am grateful that the noble Baroness referred to the observations which I made on the Second Reading and which have led to this Amendment. I welcome it because it seems to be an improvement, although I must say that I feel the draftsman of this clause has been somewhat economical in the way in which the objects I suggested are to be achieved by changing one word into another. I should have liked to see something rather more explicit which would have made it clear what the effect of any such requirement order might be. But the noble Baroness has given us an explanation and I am far from disputing it. Therefore, so far as I am concerned, I gratefully accept the Amendment as meeting, at any rate to a large extent, the point which I made on the Second Reading of the Bill.

On Question, Amendment agreed to.

BARONESS SUMMERSKILL moved to add to subsection (5): Where a spouse entitled under this section to occupy a dwelling house or any part thereof makes any payment in or towards satisfaction of any liability of the other spouse in respect of mortgage payments affecting the dwelling house, the person to whom the payment is made may treat it as having been made by that other spouse, but the fact that that person has treated any such payment as having been so made shall not affect any claim of the first-mentioned spouse against the other to an interest in the dwelling house by virtue of the payment.

The noble Baroness said: The object of this Amendment is to meet a point raised by the Building Societies Association. I would say at this stage that I think certain noble Lords felt that the building societies would be aggrieved, but I can assure them that this is the only point which has been raised. Therefore I hasten to meet this criticism, and in doing so I hope I shall have the support of the Committee.

When a mortgagee has notice of a subsequent incumbent he is obliged, on redemption of the mortgage, to hand over the title deeds to the subsequent incumbent. If the wife of a mortgagor pays off the mortgage debt out of her own pocket she acquires an interest in the property to the extent of the payment she has made. If, therefore, the mortgagee knows of the position, he will be obliged to hand over the title deeds to the wife. However, it may be difficult for him to make certain that the wife has paid the money out of her own pocket. Her husband might dispute this and say, for example, that she had paid it out of housekeeping money which he has given her. At the present time a mortgagee may avoid this difficulty by refusing to accept any payment from the wife. A mortgagee is not obliged to allow a mortgage to be discharged by someone who has no interest in the property. If, therefore, the wife tenders the money, he can decline to accept it unless she takes proceedings, for example under Section 17 of the Married Women's Property Act 1882, in order to determine her interest in the property. If her husband has disappeared and it is impracticable for her to take such proceedings, the mortgagee may insist upon an indemnity insurance being taken out before he accepts the money and hands over the title deeds to her.

Under Clause 1(5) of the Bill a mortgagee will have no right to refuse to accept mortgage payments tendered by the wife. The subsection provides that any payment or tender of mortgage money by the spouse entitled under Clause 1 to occupy the premises shall be as good as if made by the other spouse. Consequently the mortgagee will have no more right to refuse the money from an occupying wife than he would have if it were offered by the owner husband. But although he will be obliged to accept the money, he will not know whether it has been paid by the wife on her husband's behalf, thus reducing his liability, or on her own behalf, thus giving her an interest in the mortgaged property. Indeed, she may not tell him in what capacity she is making the payment; and even if she does he will have no means of knowing whether the husband accepts her statement.

He will therefore be in a dilemma if, when the final payment is made, she claims the title deeds on the footing that she has redeemed the mortgage on her own account. In order to rescue the mortgagee from this dilemma the Amendment provides that he shall be entitled to treat any payment made by the occupying spouse as having been made by the owner spouse. If he does so, it will not affect the position as between the spouses themselves. The occupying spouse will still be able to take proceedings against the other spouse under Section 17 of the Married Women's Property Act 1882, or otherwise, to establish any claim which she may have to an interest in the property by virtue of any payment she has made.

The Amendment simply provides that the mortgagee may treat the payment by the occupyingspouse as having been made by the other spouse. The mortgagee will not be obliged to do so, and if the occupying spouse were prepared to take proceedings to get her claim established, or to take out an indemnity insurance before the title deeds were taken over, the mortgagee might well be prepared to hand them to her. I hope the Committee will agree that this is an equitable approach to the complaint made by the Building Societies Association. I beg to move.

Amendment moved— Page 2, line 30, at end insert the said words.—(Baroness Summerskill.)

LORD MESTON

I am very exercised in my mind about the position of mortgagees, and especially that of building societies. I must declare an interest; I am a director of a building society myself, although I may not have that appearance. At the outset, I have great sympathy with the deserted wife—that is to say, the wife who has been left by her husband in a home and probably has children to look after as well as herself; and there is the even worse position where the wife has been obliged to leave the home on account of her husband's behaviour and has probably had to take the children with her. But we live in an imperfect world, and in this imperfect world we find it necessary to be practical rather than always to rely upon man's sympathy.

May I read what the noble Baroness, Lady Summerskill, said on the Second Reading of the Bill?

The general rule with regard to the priority of equitable interests is that an earlier interest prevails over a laterone. If a house is already owned by a husband subject to a mortgage at the date of the marriage or at the date of the commencement of this Act, the mortgage will have priority over the charge for the wife's right of occupation. The charge created by Clause 2 will be binding on third parties who acquire an interest in the house, but a purchaser for valuable consideration will be bound only if the charge is registered as a land charge."—[OFFICIAL REPORT, Vol. 275 (No. 20), col. 24; 14/6/66.] That may be satisfactory so far as it goes, but how far does it go? As your Lordships know, a building society lends to the individual whose name appears on the title deeds. If the loan is made to a married man in whose name are the title deeds, then indeed there is no initial difficulty. On the other hand, if the title deeds are in the name of a woman it is sometimes desirable to obtain a male guarantor. In the case of the title deeds being in the name of a married woman, needless to say the guarantor is usually the husband. It is quite impossible for a building society to lend money to an individual on the basis of whether he or she is on good or bad terms with his or her spouse. There is no machinery for doing that.

I am going to ask in plain language that this Bill be so drafted that the situation of a building society is left absolutely untouched: that is to say, so that it can exercise its proper functions in the ordinary way as it does at present, without any interference from the provisions of this Bill. I am not being the slightest bit offensive to the noble Baroness, because she has explained the position very nicely and very clearly, but I think it utterly wrong that a building society should be concerned with the question of whether or not the husband and wife have been slapping each other's faces and have left the house. It has nothing to do with the subject at all. No building society, no business, could be carried on on that basis.

THE LORD CHANCELLOR

If I can help the Committee at all on this point, I should like to do so. I can assure the noble Lord, Lord Meston, that the Bill will not in fact affect the position of building societies at all, provided that this Amendment is made. He will no doubt agree that the Building Societies Association has agood deal of experience of mortgages. They were apprehensive that without this Amendment their position might be prejudiced. They are satisfied that with this Amendment it will not be. The sole object of the Amendment is to meet the point which had been raised by the Building Societies Association and which this Amendment does meet. As the noble Lord will see, all it does is to give them a power, and provided they have that power they are satisfied.

LORD MESTON

I am grateful to the noble and learned Lord, the Lord Chancellor, for what he has said. May I still, with due respect to him, consider the matter again in my mind?

On Question, Amendment agreed to.

Clause 1, as amended, 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 1 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.

(5) Where a spouse's rights of occupation under section 1 above are a charge on the estate or interest of the other spouse, and the other spouse—

  1. (a) is adjudged bankrupt or makes a conveyance or assignment of his or her property to trustees for the benefit of his or her creditors generally; or
  2. (b) dies and his or her estate is insolvent;
then, notwithstanding any order under section 1 above, those rights shall determine, and any such order relating thereto shall cease to have effect.

6.56 p.m.

LORD WILBERFORCE moved, in subsection (1), to leave out all words after "one spouse" and insert: obtains an order under section 1 of this Act, then any right of occupation conferred by that order shall be a charge on the estate or interest of the other spouse having priority as from the date of registration of the order: Provided that if within one month prior to the date of any such order a priority notice shall have been registered in accordance with this Act the charge hereby created shall have priority as from the date of registration of such notice.

The noble and learned Lord said: My noble and learned friends whose names appear on this Amendment have asked me to move it, and I am very pleased to do so. The purpose of the Amendment is to remedy certain doubts that were felt on the Second Reading of this Bill by, I think, a number of your Lordships as to the wisdom of extending the rights of spouses in relation to matrimonial property so widely as this Bill does. Your Lordships may take occasion to look back at the Explanatory Memorandum to this Bill, which appears at the beginning, and you will see there that the occasion for it was the decision of the House of Lords in the Ainsworth case, which it was thought brought prejudice to the position of deserted wives. Also it is said there in the first paragraph that: the Bill gives substantial effect to the recommendations …of the Royal Commission on Marriage and Divorce. But, as I ventured to suggest on Second Reading, this Bill and in particular Clause 2(1), goes a long way further than merely protecting the rights of a deserted spouse; it goes a long way further than restoring the law as some thought or wished it to be before the Ainsworth case, and goes a long way beyond the recommendations of the Royal Commission on Marriage and Divorce.

The particular point to which this Amendment is directed is the provision in Clause 2(1) which says that the right of spouse who does not own the property is to be an equitable interest dating from, among other things, the date of the marriage, or if the property is acquired afterwards the date of acquisition. That has two possible damaging effects on the general law as regards property belonging to one spouse. In the first' place, it introduces complications into the title to that property and into dealings with that property; that is to say, it complicates the dealings with all matrimonial homes all over the country, irrespective of whether or not the situation of desertion has arisen.

As the clause now stands, the effect is that any wife, or any husband if the property belongs to the wife, is in a position to register a charge against the property of the other spouse immediately on marriage. That this is not merely a theoretical possibility was shown on Second Reading, when certain speakers, my noble and learned friend Lord Denning among others, suggested that that was desirable, and indeed expressed the wish that it would become the general custom of the country. So we are not dealing here with a possible theoretical right; we are dealing with a right which it is intended shall arise and be exercised as regards all matrimonial homes as from the date of the marriage.

The possibility of a spouse so registering his or her claim against the property at that stage immediately gives rise to the possibility, or really the necessity, of expense and the employment of lawyers over the machinery and technicalities of registration. Toregister a charge is not an easy matter. You have to get a form to do so. You either have to employ a solicitor or you have to execute a statutory declaration. And, of course, if charges are going to be put on every property, there will be a lot of work at the Land Registry. Then, once the charge is on the register, and suppose it is a wife who has put the charge on, before any dealings in the property can take place it is necessary for the wife's charge to be cleared off.

I venture to think that no building society would dream of lending money on the security of a house unless a charge registered against it under this Bill were cleared off before the charge was made. Again, if the charge is to be cleared off that means delay, it means expense, and it means the employment of lawyers. So that anybody thinking of moving house, or selling his house in order to acquire another, or thinking of raising fresh money on his house, will be put in the position of having to get rid of a charge registered against the house under this Bill.

Secondly, the Bill, as it stands in effect gives a general right of veto to one spouse on all dealings by the other spouse, because once a charge is on the register it gets priority over anything else, and therefore no dealing can take place unless the owner of the charge gives his or her consent. So that the owner of a house, who up till now has an absolute right in his property, is from now on, according to this Bill, to be fettered in the disposition of his property. In our view, that is a major step in social policy which, we venture to suggest, should not have been brought in in connection with this Bill.

The whole question of the property rights of spouses generally over the home, over furniture, was most carefully considered by the Royal Commission on Marriage and Divorce under two headings. They considered whether there should be community of property, and they considered the question of the deserted spouse's rights. As regards community, there was a great division of opinion. Some thought there should be, some thought there should not be; some thought it should extend to the house, some thought it should extend to furniture, and some thought it should extend to combinations of the two. But certainly there was no agreement there. That is a matter on which, so far, there is no consensus of opinion; and certainly no such consensus has justified a step to-wards community being taken in this Bill.

So far as this Bill is concerned, it does not go so far as to reintroduce community of property, though again I think some thought that this was a welcome step in that direction. In a way, this is worse, because under any system of community of property at least one spouse has the right of management of the community property, so that dealings in it can be made. But under this Bill one spouse has not the right to deal with his property without the consent of the other if there is a charge on it. It is, in effect, a wrangler's charter.

As regards the extent of the deserted spouse's right of occupancy, as I pointed out on Second Reading, the Royal Commission on Marriage and Divorce carefully considered exactly when that should arise, and suggested in paragraph 669 of their Report that it should arise from desertion and not before. Therefore, one is entitled to ask, what is the justification in this Bill for going beyond that suggestion?

The Amendment which we are suggesting is not in any way an anti-spouse, an anti-feminist move—not in any way at all. The reason for it is that it is just as much in the interests of wives, of spouses, that dealings in property should be easy, should be cheap, should not be limited by technicalities, as it is that they should be secured in the possession of their rights. There are many people who are interested, in a perfectly normal way, in having made available easy mortgages, easy and cheap dealings in property; and it is in order to facilitate that objective, which is just as good an objective as to protect deserted wives, that this Amendment is put forward.

I need not, I think, spend much time in explaining the Amendment; I hope it explains itself. It goes somewhat further than the Royal Commission suggested, and is, perhaps we might suggest, rather better than what the Royal Commission suggested. We quite recognise that if one were to wait until one spouse, the deserted spouse got an order from the court against the deserting spouse, that might be too late. The husband (if he is the deserter) may by then have gone off and sold the property over his wife's head, or placed a mortgage on it. So, therefore, we suggest this mechanism which is reflected in the proviso: that a spouse who can see trouble coming can go straight away and put a charge on the register, and that gives a priority as from the date the charge is put on. Then, of course, if an order is obtained under Clause 1 of the Bill, the charge is carried forward. If an order is not obtained, then the charge lapses.

One can discuss the details of that mechanism. Some may think that one month is not long enough. It is easy to extend it to two or three months, if that is desired. We think that one month is enough because, as was pointed out on Second Reading, it is intended that these applications should come before the county court and that they should be dealt with rapidly. But if anyone thinks that one month is too short, it is easy to adjust it by extending it. Furthermore, this Amendment deals only with Clause 2 of the Bill, and if it were to be agreed to it would be necessary no doubt to carry out some consequential Amendments of a technical character to subsequent clauses. We assure those who advise and assist the noble Baroness that they will have no difficulty in dealing with them. The mechanism of the priority notice is, I should say, nothing new. It is a well tried and recognised mechanism in this sphere of land registration, and it has the practical advantage of enabling steps to be taken in advance before the actual order of the court is obtained.

That is the Amendment which is suggested. We hope that it does rather better than the Royal Commission, that it avoids the difficulties which otherwise we feel will result from the wide terms in which Clause 2(1) of the Bill is at present couched. So I have pleasure in moving it. Perhaps I may just say that if, by any chance, I am called away before the discussion is concluded, I know that the noble Baroness will acquit me of discourtesy. But at any rate two of my supporters are here to sustain the burden of the debate.

Amendment moved— Page 3, line 5, leave out from ("spouse") to end of line 14 and insert the said words and proviso.—(Lord Wilberforce.)

7.8 p.m.

BARONESS SUMMERSKILL

I should like to congratulate the noble Lord on making the best of a weak case. I want to appeal to the Committee, on grounds which I hope they will agree are absolutely fair. In my opinion, the scheme embodied in the Amendment which the noble Lord has just expounded would not afford a deserted wife sufficient protection from eviction, which, after all, is what we are seeking to do. It is what the Royal Commission sought to do; they are seeking to afford a wife protection against eviction.

I want to prove to the Committee that the noble Lord's case is such that a wife would be absolutely vulnerable if her marriage were threatened. She can already apply to the courts under Section 17 of the Married Women's Property Act, 1882, for an order restraining her husband from parting with his interest in the matrimonial home. But it is most uncommon for this step tobe taken, except in the course of divorce proceedings. Wives are usually reluctant to go to court and, so it seems, to have to publicise difficulties about which women are most sensitive, unless compelled by necessity to do so. I want to emphasise that the wife will be reluctant to reveal that there is domestic disharmony unless absolutely forced to do so. Furthermore, a wife would not want to incur trouble and expense in taking proceedings unless actually threatened with eviction.

Experience tends to show—and I am supported in this by many of my friends in the legal world—that if protection could be obtained only by going to the court, many wives would fail to take proceedings before their husbands had sold or mortgaged the matrimonial home. Therefore, this proposal will, in effect, shut the door only after the steed has escaped. That analogy has been made before, but in this case it is a sound one.

The noble Lord said words to the effect that when the husband and wife quarrel she will then take action. Is a man so simple that he is going to wait for the last quarrel before he sees the estate agent and asks him about getting rid of his house? It is true that the Amendment would enable her to register a priority notice while she was seeking an order, but this would be of no avail to her unless she registered the notice before her husband parted with his interest and she obtained an order within a month after registering the notice. It is unlikely that she would register a priority notice until she decided to take proceedings, and by that time it would be too late. Even if the husband gave away his interest, if he said to his mistress, or to a relation, "You can have this house", I am advised that the transferee would obtain a good title against the wife unless she had obtained an order or registered a priority notice before the transfer was completed. So it would be possible for a husband one night to write to a relation or to his mistress and say, "The house is yours". What on earth then is the good of the wife, in the following weeks, trying to register her charge? Surely the Bill, as it stands, gives the wife much more certain protection.

First of all, there is no need for her to take court proceedings. She need not even register her charge to make it binding on a person who acquired the husband's interest otherwise than for value. In other words, if the husband did as I have suggested and said to his mistress or friend, "You can have the house", that would not be valid. She has not got to register her charge in those circumstances. It will, for example, be binding on anybody to whom the husband gives away his interests after the date specified in Clause 2(1). That subsection, to which the noble and learned Lord, Lord Wilberforce, and his friends object, gives certain dates and it is after the last of those dates that this could operate. If the wife registers her charge it will be binding on a purchaser for value who acquires the husband's interest after the date of registration.

Furthermore, we were told about the cost of registering her charge, and I am very glad that Lord Wilberforce has changed his mind to-day. Registration is much simpler and cheaper than taking court proceedings. Application for registration is made on sending or delivering the prescribed form to the Land Charges Department of the Land Registry. The application need not be made by a solicitor if supported by a statutory declaration. If after the wife has registered her charge the husband wishes to sell or mortgage the property while the parties are still living in amity, surely the wife will agree to release her charge so as not to impede the transaction. The average wife is not an ogre; she is not watching her husband the whole time to catch him out. Most marriages are happy. The wife has a vested interest in the home;not a material one, but her whole happiness is bound up in the home. Surely the love of her children, her home, and security are the most potent forces in a woman's life. Surely those noble Lords who are happily married have realised that. I have never met a happily married wife who would refuse to help her husband in circumstances of this kind.

Therefore, when noble Lords say to me that if she put a charge on this property she would not be prepared to help her husband if he wanted a mortgage, I say these are not the realities of life. Provided the couple are living in happiness, she will be only too prepared to help him. To do this she would simply arrange for one of the solicitors involved in the transaction to lodge an application for cancellation of the registration. If she did not agree, if there was some trouble, then the husband could apply to the court for an order under Clause 1 restricting or terminating her rights if he felt that her opposition was not justified.

I am sorry the noble Lord has gone, but I see that the noble and learned Viscount, Lord Dilhorne, is here. I must draw his attention to this, and I can assure him that I would not dare stand in front of noble and learned Lords if I had not had the very best legal advice. Apart from being objectionable in principle, the Amendment is technically defective and I hope your Lordships will not support it in the following respects.

VISCOUNT DILHORNE

The noble Lady heard my noble friend Lord Wilberforce say that he realised that the Amendment would be required to be made and that there would be consequential Amendments, but the Amendment is sufficiently well drafted surely to show its object.

BARONESS SUMMERSKILL

I am not a lawyer. I am a simple woman.

THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION)

Not so simple!

BARONESS SUMMERSKILL

I must confess to the House that I was shocked to find an Amendment, in the names of a former Speaker of the House and three Judges, which contains three important technical defects. Therefore, it surely falls as an Amendment. May I therefore dare to instruct their Lordships in the technicalities of the law? First of all, it makes the priority of the wife's charge take effect from the date of registration of an order conferring any right of occupation. Registration of the order should, however, be relevant only in the case of a disposition to a purchaser for value. As against any other person, the order should take priority from the date it was made.

The second technical defect: a priority notice is a method of securing priority for a charge as from the date of its creation, notwithstanding that it is not registered until later. Its purpose is to prevent priority being lost to another charge which is registered in the meantime. The priority notice mentioned in the Amendment would be used for quite a different purpose. Its object would be to secure priority as from the date of registration of the notice of an order which might not at that time have been made, applied for, and indeed which might never in fact be made.

VISCOUNT DILHORNE

What is wrong with that? The noble Lady is getting into rather deep technical waters.

BARONESS SUMMERSKILL

Well, the very best legal advice—and the noble Viscount knows I have had it—has told me that the Amendment is very wrongly drafted, and indeed the priority notice is being used in an entirely wrong sense.

VISCOUNT DILHORNE

No.

BARONESS SUMMERSKILL

The noble Lord challenges me, and I have to rub it in. The third technical defect is that a priority notice is appropriate only where it relates to unregistered land. Where the title to the land is registered, priority is secured by the entry of a caution or inhibition. That seems, even to my non-legal mind, to be absolutely elementary. So I hope the Committee will support me.

May I just interpret this now in simple words? As the Committee will realise, I have had to stick to the technicalities of the law and, indeed, the non-technicalities of the law, because they must obviously be very carefully considered. But what am I trying to do? A marriage is not going well, and various unpleasant incidents culminate in what the noble and learned Viscount, Lord Dilhorne, described to me in the Tea Room as a "blow-up". The wife decides, finally, that the position is intolerable—and I do not have to tell your Lordships that a woman does not allow her home to be upset until she has endured so much that she cannot stand it any longer—and for the sake of the children and her own peace of mind she says that there must be some change.

The wife registers a priority notice, which I understand lapses—this is according to the new Amendment—if she does not take action and obtain an order within one month. This surely provides a clear warning to a husband that she is prepared to take action to protect herself and her family. No doubt in her distress she will then telephone her mother, her father and her friends, and most husbands will not be placated by that kind of publicity. Then, in consequence, the husband may decide to endeavour to soothe his wife for a month until the priority notice lapses, and then make private arrangements to dispose of the house. This is the effect of the Amendment which we have had described to us. I can think of no proposition like the one embodied in the noble and learned Viscount's Amendment more calculated to destroy the chances of a reunion, and that is what we hope for.

All I am proposing to do is to modify a convention. The passage of the Married Women's Property Act 1882 was not easy, although it simply permitted a wife to retain her own property. Yet there were objections similar to those which we have heard on this Bill. It was argued, just as we have heard on this Bill, that it would cause disharmony in the home if a woman were given these rights, and that the husband should have complete freedom to raise money on a house belonging to his wife. On marriage a husband promises to share all his worldly goods, but this solemn promise in church has no legal sanction whatsoever. I am asking that it should be inherent in marriage that a wife should have the right to a roof for herself and her children.

Are women asking too much in seeking that it should be inherent in marriage that a wife has some rights and that a mother has some rights? By this Bill she is not even asking to own the house; she is asking to have a roof over her head under which to live with her children. In other countries wives have an equal right to the ownership of the matrimonial home, but this measure does not go as far as that. The fear that the provisions of this Bill will interfere with a man's business are not in keeping with the realities of life. If a man and wife are living happily, the wife is only too willing to help her husband in his business in every way in her power.

Finally, I would say this. If the marriage was heading for the rocks it would not be surprising if a wife was reluctant to withdraw her charge. To do so would, in fact, be a rejection of the protection which the Royal Commission sought to provide for her, and which I hope this House will agree the wife and mother should have.

LORD DERWENT

May I say one word on this Amendment and on the clause as it stands, because I raised this matter on the Second Reading? The noble Baroness has talked a good deal about this clause in connection with eviction, but of course it is Clause 1 which deals with eviction, and I think it was agreed last time that cases of eviction are not very numerous, though when they occur they are very serious.

But what is Clause 2, as it stands, doing? It is, in fact, a method of stopping either spouse from dealing in any way with the matrimonial home without the agreement of the other. As is so often the case when Bills go too far, this is going to affect very adversely those who are either poor or of small means. For the rich, of course, it will have no effect whatsoever. If a man for his business, or a woman for her business, wants to raise money, either by mortgage or by a loan from the bank, there is probably no difficulty in raising money if they have a certain amount of means of their own of any kind other than the matrimonial home. So I do not think that this clause will affect any wife who may be deserted, if the persons concerned are pretty well off. As we all know, the solicitors of the two parties get together and come to some financial arrangement; and, anyhow, the hardship on such a wife is not so great as in the case of somebody with small means.

But what is the bank going to say when the only negotiable asset is the matrimonial home, whoever it belongs to, and where, perhaps, there is a one-man business, or a one-woman business, being carried on in the building, when the spouse who owns it goes to the bank for an overdraft to tide over a difficult period? Having looked at the reasons for wanting the overdraft, the bank will say, "Yes, but the only security you have is the matrimonial home and we cannot lend money unless we take priority over the other spouse's equitable interest". If the husband and wife are parting or are not getting on too well, the spouse who has to be asked to give his or her permission may well refuse. He or she may even indulge in a little marital blackmail and say "Yes, I will forgo that, provided you give me this, that or the other".

In the case of a newly-married couple wanting a mortgage on a house, will a building society, or anyone else, give a mortgage on the only property which is negotiable if it is not satisfied that it is going to take priority over the other spouse's interest? Of course not. Why should it? If a newly-married husband and wife register themselves separately, and the company giving the mortgage says, "I am sorry but you own the house. Your spouse's interest must be overcome", the couple are going to say, "Yes, but what is the point of this clause? It will not be operating".

I am not going to argue about whether this Amendment is correctly drafted. I will leave that to my noble and learned friends. But it will overcome one of the difficulties. For a comparatively small number of cases which may arise, which can, in fact, be largely protected by this Amendment—and, of course, eviction is protected under Clause 1—we are asked to upset the possibility of either spouse being able, in any circumstances, to deal with the matrimonial home without the permission of the other spouse. That does not seem to me sensible. It seems to me tousing a steam-hammer to crack a nut. I do not know what my noble and learned friends are going to do. I do not know if they are going to divide, but I should like to see them press this Amendment. If it needs alteration in its drafting, that can be done at the Report stage. But if they decide to divide, I will certainly go into the Lobby with them.

7.31 p.m.

LORD DENNING

This Amendment is certainly well supported, and it also follows the recommendation of the Royal Commission. But I venture to suggest that if it were accepted it would, in fact, take away a great deal of the protection which it seeks to afford to the deserted wife. It is all very well to say that Clause 1 protects her from eviction. Yes, it does—from eviction by her own husband. In the courts, we have always protected her against that: there is no question about it. The whole trouble has arisen because, under a recent decision of the House of Lords, the husband who owns a house and has it in his name, or who has the tenancy in his name, can immediately sell it to any purchaser. He can sell it to his new mistress, to his brother or to a friend; or he can even hand it over. And even though he knows all about the situation, that person can, under this recent decision, turn the wife out; and she has no answer whatsoever.

The mischief which this Bill seeks to remedy is to protect her from that purchaser, that person to whom the husband sells it. 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. From long experience in the courts I can say that the wife does not go off to a solicitor at once. She stays at home waiting and hoping that her husband will return, or perhaps not knowing where he is.

What is he doing, meanwhile? If he is unscrupulous, he will sell it to a purchaser. She waits; and then, if this Amendment is right, she has to go to a lawyer. Then, as it is usually the poor widows, who have no money, who are involved, she has to get legalaid, and the lawyer has to apply to the court. After weeks, or it may be months, she gets an order, and for the first time she can then get a charge registered against the property. Meanwhile, of course, during all those months that have elapsed, any unscrupulous husband will have sold the property, will have transferred it to his new mistress or his relative, and indeed will not be bound at all. If this Amendment is accepted it will take away the whole object of the Bill, which is to protect the wife against the unscrupulous husband who sells the house over her head.

The only remaining thing I would say is that the fears about a young couple not being able to raise money are not supported in the least. It is mere speculation. One knows that building societies who advance money often like to have the names of both parties on it—one as a guarantor, if need be. As the building societies do not request it, I do not suggest that it would affect the loans one particle if the Bill as orginally drafted stands. As to all the conveyancing troubles—the cost of charges, the release and so on—I may say that many conveyancing points like these will have to be taken up, but in truth they are minor ones when one comes to consider them against the human problem which I think most of your Lordships would like to solve—namely, to protect the deserted wife against the husband who unscrupulously sells the matrimonial home. If the Bill remains in its present form, and the Amendment is not accepted, the wife will be protected.

VISCOUNT DILHORNE

Listening to my noble and learned friend Lord Denning, one might think it was a very common practice for husbands to sell the matrimonial home over the wife's head. The noble and learned Lord has had experience of a number of cases where husbands have behaved in that way, but I suggest to him that the number of such cases is, in fact, very small indeed; and particularly small when contrasted with the number of marriages which do not end up in separations or divorce. And even where there is a divorce or separation, the number of cases in which this kind of conduct has been perpetrated by the husband would be, I should have thought, a very small proportion of the whole.

Just because of that small number of cases the noble and learned Lord, Lord Denning, thinks it is necessary that, immediately after the marriage, the wife should run round to the Land Registrar's office and put a charge upon the register. I must say that that seems to me a very odd consequence. On Second Reading, my noble and learned friend said: I would recommend strongly that in future all wives, whenever their matrimonial home is bought in the husband's name, immediately, without waiting for any trouble to arise, should go and register their right in case in the future something should go wrong with the marriage."—[OFFICIAL REPORT, VOL 275 (No. 20), col. 45; 14/6/66.] What a picture that presents to my mind! Immediately after the wedding, before the reception, a call should be made at the Land Registrar's office and a charge immediately put on the register in case, in years to come, something may go wrong. I do not take that view; and, with great respect to my noble and learned friend, I think it is an exaggeration to suggest that the passage of this Amendment will deprive the deserted wife of protection.

I am with the noble Lady in saying that, where it is threatened, I want to see protection given to a woman to prevent her from being evicted from the house or denied the opportunity of getting back to it. As my noble and learned friend says, that protection can be given between the spouses, and the question comes with regard to third parties. The issue here between what is in the Bill and what is in the Amendment really is not what the noble Lady sought to suggest—nor, indeed, what my noble and learned friend sought to suggest. The scheme as devised by my noble and learned friend Lord Wilberforce does mean that the wife can get protection without first obtaining an order of the court. My noble and learned friend Lord Denning misunderstood it when he said that it would always be necessary to get an order of the court first. The whole purpose of this priority notice is that the charge can become effective for a time without its ever being brought before a court.

Now I myself do not mind whether it is a priority notice which stays in force one, two or three months; but this priority notice would lapse unless, within that period, there is an order of the count—and I myself think that that is right. I do not see why the threatened wife should be debarred from protection, if she is given those rights, despite the advice given by the noble Baroness, Lady Summerskill, and her supporter, the noble and learned Lord, Lord Denning. I think, in fact, few wives will go from the wedding to the Land Registry Office, the Land Charges Office, or whatever it is, to register the charge. I think in few wives will exercise that right at all. But the trouble is that, once that right is exercised, the charge is there, and will stay there.

I cannot speak with any great authority, and I do not intend to speak at any great length, about this, but I rest on the Royal Commission, which I have no doubt at all went into this matter with a very great deal of care. They said here—and I should like to remind your Lordships of their words: To give the deserted wife complete protection it would be 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. That is what the noble Baroness seeks. The Report went on to say: 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 mortgagee 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 the husband personally would be equally unsatisfactory. I agree with that. Then they recommend a middle course. Our Amendment goes a little further than the middle course in seeking to provide protection.

It is a narrow issue but I believe that the noble Lady, as my noble friend, Lord Derwent said, is using a sledge-hammer to crack a nut by seeking to have this right imposed either from the moment of marriage or from the acquisition of the house or the passage of the Act, whichever is the latest. If it is on the acquisition of the house that the right bites, then, in the case of a married couple who are buying a new house, presumably this charge in favour of the spouse must rank before any mortgage which is entered into in relation to that new house. That seems to me to be a real difficulty. The hour is getting late. So far as I am concerned I do not wish to withdraw this Amendment: I should prefer to divide the Committee. But I hope that we may reach a conclusion on it fairly soon.

LORD HODSON

I will not detain the Committee very long, but as one of the wicked men who was a member of that section of your Lordships' House which came to the decision which my noble and learned friend Lord Denning dislikes so much, Ainsworth v. National Provincial Bank, I should like to underline two points, both of which I think have already been made. One is that this legislation that we are engaged on now is concerned with poor people, and one does not want to get lost with the idea that the poor wife is the only person we have to consider. We are dealing with poor people. The noble Lord, Lord Derwent, made the point that it is poor people who go to building societies and raise money with a charge on the house. They have no other security to give. It is going to be more difficult to raise money on houses if wives charge them prematurely.

This Amendment is intended only to delay the registration of a charge, which was recommended by, at any rate, some noble Lords in the Ainsworth case. I only ask noble Lords to remember that. Further, I would emphasise this—and I think this point has already been made. There are far more poor people seeking to borrow money on houses or to deal in houses that are charged than there are deserted wives. In the Ainsworth case, all the reported cases about deserted wives who sought to resist eviction or to protect their property or house against their husbands were trotted out before us. There were not many of them. My noble and learned friend Lord Denning moves us to tears every time he mentions a deserted wife, the poor woman he has been protecting in the Court of Appeal for years. But there are not many of them. Then he comes to this House and, in sepulchral tones, says, "When the House of Lords got the case of a bank, what did they do then? They protected the bank."

But let us not get our feet off the ground. We are not dealing with thousands and thousands of deserted wives. We are dealing with thousands and thousands of poor people who want to raise money on their houses or want to dispose of their houses, when perhaps a man has to move because his job has moved. I ask the Committee to support the Amendment.

VISCOUNT BARRINGTON

I am well aware that I am sticking my neck out in saying anything on this subject. I will try to confine this speech to asking two questions. I am not a spouse, I am not a lawyer and I am not yet a wife or mother; but I will confess that nothing that has been said in the extremely formidable presentation of Lord Wilber-force's case has resolved a doubt I have had about this Amendment from the beginning. I think the expression was used by the noble and learned Viscount, Lord Dilhorne, "using a sledge-hammer to crack a nut". I am not sure that that was not a pardonable exaggeration. But even if we used a croquet mallet, that is better than to use a coffee spoon and not to crack the nut.

What I want to know is whether this Amendment provides the protection it sets out to provide? The point has been made that there are very few such cases. Of that I have no experience. I know that during the Second Reading debate, which I was unable to attend but which I read, it was said by the noble and learned Lord, Lord Wilberforce, that these cases were rare. It was said by the noble and learned Lord, Lord Denning, that they were not so rare. But there is one point on which I feel I have as much experience as any other noble Lord has. It is of how many of these cases there will be in the future. Perhaps I should have said that I have as little experience as any other noble Lord of this, because, of course, none of us knows how many there will be. If one is to make a protection, then surely one has to make a protection which will work in a number of cases.

One can make a comparison with an insurance policy where one has a great problem. For example, if I insure against a broken leg I may insure from the first moment I can. There is then the hideous possibility that I shall have to pay large sums of money in premiums all my life and get nothing out of it because at the age of 95 I shall not have broken my leg. That is unfortunate. But the other possibility is to wait until I am slipping down a slope in the Alps, hoping I can get some information about getting a policy. That is leaving it too late. That is an extreme example. One must fall somewhere between the two extremes.

My own feeling is that, although I am prepared to be moved to tears by the rights of mortgagees and the rights of all property owners, I am old-fashioned enough—and I do not want to shock the noble Lady by saying this—to believe that matrimony is a Divine state and a mortgage is not. If there is a choice between protecting a wife's rights to her home and protecting the property of a bank, or even of a private person, or their rights to exercise property by "fettering"—that is the word which was used—then one of the disadvantages of matrimony (and I speak as a non-spouse) is that surely matrimony does fetter you. One cannot have all the freedom in matrimony that one has without it. If one of the objects of matrimony is to preserve the rights of each spouse one cannot tell when this trouble will come.

The noble and learned Lord, Lord Wilberforce, put it clearly during the Second Reading debate when he said, I think, that the purpose was to protect a limited class of people who are spouses deserted by the other spouse and left in precarious circumstances in a matrimonial home. I may be wrong; but I believe that was the expression he used. Of all those words a lawyer has infinitely more knowledge than I have of what is meant—except one, the word "precarious"; because I do not see how he can tell when a marriage is going to slip up. I would support what the noble Baroness has said: that these things are not always seen beforehand. A man who is a good man does not desert his wife and turn her out of the house. However, we are dealing with people who are not good husbands—or wives. I will not labour that point. So far, I have not been convinced that this Amendment does what it sets out to do.

LORD STRANGE

I should like to contribute an actual experience of this happening in real life. I do not say that I promise to be short; but I will say what I have to as quickly as I can. About seven years ago I came in contact with a man over the purchase of a house. I did not buy it, but I took a strong dislike to the man, for no particular reason—though I think the reason was that he wore a diamond ring when he was gardening, which I did not like. But this man rather haunted me, as he always wanted to sell me this house. I saw him at intervals; and I disliked him more because he would call me George, and my name is John. He had a faded wife, who must have been pretty some time back, and who had growing-up children. She was up in the forties. I suddenly heard that she had been found drinking in the local "pubs" and had taken to drink, and had a boy friend. I did not think she was the sort of woman who would have done that. She struck me as being a very respectable type of woman. The next thing I heard, through our local police, was that this man, the diamond ring man, had called them up in the middle of the night and said that his wife was trying to murder him. The police came and found this rather pathetic, faded woman beaten up black and blue all over, lying crying in a corner, rather drunk. All they could find on the man was a scratch on one hand which could have been self-inflicted.

The next piece of the story was that he went to our local pier and jumped off the edge of it at low tide. He stood with the water half-way up to his waist till somebody pulled him out. He said he was trying to commit suicide because his wife had treated him so badly. She had run away with another man and had treated him badly—she was living with another man in the village. Next he put himself in a mental asylum, and said that his wife had made him mad. Finally he managed to get a divorce against his wife, and she was turned out of the house without any money or any protection. If this Amendment were carried, and she had gone (and he had known that she had gone) to put in her claim for the house, I should not like to think what he would have done to her.

7.54 p.m.

LORD ILFORD

I shall not detain your Lordships for more than a moment. I can see the difficulty about registering a charge before anything has begun to go wrong with the marriage, but I think it is a difficulty which can be overcome simply. I am not very familiar with the procedure for registering priority notices—I do not think I was ever concerned in my life with a priority notice—but I imagine it is a relatively simple business, and I should have thought that the case of the noble Baroness would have been very well met if a priority notice was required to be given within, say, six months, or even twelve months. That would give the wife an opportunity of registering her priority notice and protecting her right at a time when she began to feel that the marriage was likely to go wrong. I propose to vote for the Amendment and to move an Amendment at the Report stage

providing for a longer period within which the priority notice could be registered.

THE LORD CHANCELLOR (LORD GARDINER)

I suppose the Committee will expect the Government to express some view about this Amendment. I hope my noble friend Lady Summerskill will stick to her guns, because if this Amendment is passed it will deprive the wife of a large part of the benefit which this Bill is intended to give to her. The noble and learned Viscount, Lord Dilhorne, has said that the Royal Commission anticipated that it would be necessary for would-be purchasers of houses to make inquiries into the matrimonial circumstances of the owner. It was precisely to avoid that that the contents of the present Bill which, after all, are really very simple, were devised. The wife has a charge from the start against everybody except a bona-fide purchaser for value, and she can obtain protection against him if she registers her charge before there is any such sale.

But if this Amendment is accepted, then, as the noble and learned Lord, Lord Denning, has said, if a man is going to leave his wife and children and go off with another woman, and he goes to a lawyer to ask what is his legal position, he will be told, "Well, give it to your mistress at once, or sell it at once". The main object in many circumstances which this Bill was intended to have will have been lost, for reasons which the noble and learned Lord, with all his experience, has so aptly described, very much better than I could have done. I hope, therefore, that the Committee will reject this Amendment.

7.58 p.m.

On Question, whether the Amendment shall be agreed to?

Their Lordships divided:

Contents 10; Not-contents, 21.

CONTENTS
Derwent, L. [Teller.] Hodson, L. Merthyr, L.
Dilhorne, V. Ilford, L. Sandford, L.
Ferrers, E. Massereene and Ferrard, V. [Teller.] Wakefield of Kendal, L.
Grenfell, L.
NOT-CONTENTS
Auckland, L. Henderson, L. Shepherd, L.
Barrington, V. Iddesleigh, E. Somers, L.
Champion, L. Morris of Borth-y-Gest, L. Stow Hill, L.
Denning, L. [Teller.] Phillips, Bs. Strange, L.
Emmet of Amberley, Bs. Plummer, Bs. Strange of Knokin, Bs.
Falkland, V. St. Just, L. Summerskill, Bs. [Teller.]
Gardiner, L. (L. Chancellor.) Sandys, L. Wootton of Abinger, Bs.

On Question, Amendment agreed to.

BARONESS SUMMERSKILL

This is merely a drafting Amendment. As it stands, Clause 2(5) provides inter alia that a spouse's rights of occupation under Clause 1 shall cease to have effect where the other spouse makes a conveyance or assignment of his property to trustees for the benefit of his creditors generally. The conveyance or assignment may not, however, include the other spouse's interest in the matrimonial home. It may include, for instance, only his business assets or personal property. There is no reason why the rights of occupation under Clause 1 should come to an end in such circumstances. They should do so only where the matrimonial home is included in the assignment. The Amendment accordingly confines the operation of the provisions to cases where property conveyed or assigned includes the other spouse's interest in the matrimonial home. I beg to move.

Amendment moved-— Page 4, line 5, after ("property") insert ("(including that estate or interest)").—(Baroness Summerskill.)

BARONESS SUMMERSKILL moved, in subsection (5), to leave out all words after "notwithstanding" and to insert instead: that it is registered in accordance with the following provisions of this section, the charge shall be void against the trustee in bankruptcy, the trustees under the conveyance or assignment or the personal representatives of the deceased spouse, as the case may be.

The noble Baroness said: This Amendment gives effect to the suggestion made on Second Reading by the noble Lord, Lord Wilberforce—an excellent suggestion, and I am sorry that he is not here to hear my congratulations. He said that a spouse's rights of occupation should not come to a complete end on the other spouse's insolvency, if the termination of her rights is not necessary in order that the creditors may be satisfied. Clause 2(5) provides that, notwithstanding any order under Clause 1, a spouse's rights of occupation shall cease to have effect where the other spouse is adjudged bankrupt or makes a conveyance or assignment of his or her property to trustees for the benefit of his or her creditors generally; or (b) dies and his or her estate is insolvent. The object of that provision is to ensure that a wife, for example, cannot continue to reside in her husband's house at the expense of the creditors, if he becomes insolvent. As the noble Lord, Lord Wilberforce, pointed out, however, it may not be necessary to have recourse to selling the house in order to satisfy the creditors. The wife's rights ought only to determine where the trustee or personal representative wants to sell the property with vacant possession. If they have no need to do so and the husband's estate is wound up without the property being sold, the wife's rights ought to remain unimpaired.

The Amendment accordingly provides that, in the circumstances set out in paragraphs (a) and (b), the charge in respect of the occupying spouse's rights of occupation shall be void only against the trustee in bankruptcy, the trustees under conveyance or assignment or the personal representative of the other spouse, as the case may be. The Amendment does not provide that the charge is to be void against the trustee notwithstanding any order under Clause 1. These words are unnecessary, even in Clause 2(5) as it stands, because, by virtue of Clause 2(3), an order under Clause 1 has effect against persons deriving title under the rights of the wife only when they are affected by the other spouse's charge. Again I apologise to your Lordships for being so technical, but I am sure that your Lordships realise that in a technical Bill of this kind, I must explain these technicalities in words which are understood by the legal profession. I beg to move.

Amendment moved— Page 4, line 8, leave out from ("notwithstanding") to end of line 10 and insert the said new words.—(Baroness Summerskill.)

Clause 2, as amended, agreed to.

Remaining clauses and Schedule agreed to.

House resumed. Bill reported with Amendments.