COMMONS AMENDMENT (Hansard, 27 July 1967)

§ THE LORD CHANCELLOR

My Lords, this might be a convenient point at which to make some observations. As the House knows, this is a Private Member's Bill which has throughout been welcomed by the Government. But, for reasons which I will explain in a moment, I should like to make repeat observations on the Bill which were made by my right honourable friend the Solicitor General in another place on July 21. He said: I would like to refer to one matter which has arisen during the discussions on the Bill. The hon. Member for Crosby, and others, and some outside the House, have expressed a certain amount of apprehension about what will be the position of solicitors 1150 who have to advise their clients after the Bill becomes law. Where, for example, a solicitor is advising the husband, will he be under a duty to advise the wife, even though the wife may not herself be his client? It is not possible for the promoters of the Bill, or the Government, to say what view the courts may take of the duty of a solicitor in an individual' case should one ever arise, but it is evident that the courts would be bound to have regard to the facts of the case, as was pointed out by my hon. Friend in Committee. If a solicitor is consulted by the husband alone, it seems to me that it will be very difficult to argue that the solicitor owes any duty to the wife to inform her of her rights under the Bill, still less to protect them by the registration of a charge. If solicitors were consulted by both husband and wife it might come to be regarded as a duty to inform the wife of rights conferred on her by the Bill, but it by no means follows that he should go on to advise the wife to register a land charge if the solicitor had no reason to suppose that the marriage was anything but a happy one. This is borne out by the fact that solicitors at present do not appear to regard it as their duty to advise husbands and wives to take a conveyance of the matrimonial home in their joint names, although the advantages of doing so may be thought to be even more important than those attached to the registration of a class F land charge, not least because of the considerable saving in Estate Duty in the event of the husband dying first. It seems to me that in the case of the results of occupation conferred by the Bill a solicitor, like any other person, is entitled to take account of the practical realities of the situation with which he has to deal and should be under no obligation to advise a wife to register a charge when there is no reason to suppose that the marriage is likely to go, wrong."—[OFFICIAL REPORT, Commons, cols. 2736–37.] I have asked your Lordships to be good enough to allow me to quote those words in order that I may say that I agree with them. The object of this Bill, if I may remind the House, is to enable a wife if her husband deserts her, or to enable the court if it thinks fit, to secure to the wife the continued possession of the matrimonial home with the children and prevent a deserting husband from selling the house over her head.

Since the Bill was before your Lordships' House a difficulty has arisen because the Law Society have taken fright at an observation made in your Lordships' House by the noble and learned Lord, Lord Denning, when he said, as I understood, that he hoped that all wives, 1151 from the start of the marriage, would at once rush to register a charge in accordance with their rights under the Bill. Any observation made by that noble and learned Lord is always regarded with veneration, but I am bound to make it plain that that is not the intention of the Bill; nor should I think that it was at all a good idea.

It is not intended that houses of married couples who are living happily together should be subject to charges on the Land Register by the wives. Indeed, it would place the staff of the Land Registry in considerable difficulties if they in fact did so. I do not think, therefore, that solicitors need be in the least apprehensive that, where they are dealing with husbands and wives who are living happily together, it is their duty to advise a wife to rush off and register a charge. I have ventured to say so much in order to minimise the effect of the observation which the noble and learned Lord, Lord Denning, made without, it may be, having given much consideration to what might have been the consequences of what he was saying on the conduct of solicitors.