§ 7.52 p.m.
§ Lord SIMON of GLAISDALE
My Lords, I beg to move that this Bill be now read a second time. May I say two things before coming to the substance of this Bill? The first is to apologise to your Lordships that it comes on so late. I am satisfied that it was due to a genuine misunderstanding, and I can only say 113 that when the noble Lord the Chief Whip found that there had been a misunderstanding he behaved with unexceptionable generosity. The second thing I wanted to say as a preliminary matter is that, in moving the Second Reading of a Bill of this sort, your Lordships would, I am sure, wish me to pay a tribute to the late Lady Summerskill, who did so much work in this field of the law and social policy.
My Lords, the background of this Bill is that the present law is unjust to married women. That was the unequivocal conclusion of the Law Commission, and was, I think, the universal consensus when your Lordships debated this matter on 18th July last. In view of that, I do not propose to go over again the ground that was then covered. I would merely add that the noble Lord, Lord Mishcon, who spoke then from the Front Opposition Bench but made it clear that he was speaking in a personal capacity—and, of course, he has great knowledge of these matters—said that the law was not only unjust but highly technical and uncertain in its application (that is, the present law). It is for that reason that one of the first tasks of the Law Commission in 1965 was to undertake an examination of this branch of the law. The Law Commission was at that time under the chairmanship of my noble and learned friend Lord Scarman, and your Lordships have the advantage on this occasion of his presence and, as we all hope, his contribution.
The Law Commission, having taken up the scrutiny of our system, then went into all the other systems whereby, under matrimonial law, married women's property is governed, and they had very wide consultations with the Law Society, with the Bar Council and with a body whose name is actually "The Institute of Conveyancers", although they are always known in the law as "the forty thieves". It was only after those wide consultations that the commission put out a working paper, on which they invited further comment. So far as this Bill is concerned, the working paper said:The present rule determining the interests of a husband and wife in the matrimonial home are in need of reform by the introduction of a principle of co-ownership under which, in the absence of agreement to the contrary, a matrimonial home would be shared equally between husband and wife".My Lords, it is that principle which has 114 survived all the discussions and which is vindicated in this Bill.
In their Third Report on Matrimonial Property, the Law Commission, then under the chairmanship of the late Mr. Justice Cooke, produced three draft Bills with detailed arguments governing their provisions. One was the present Bill, covering the co-ownership of the matrimonial home; one was on rights of occupation of the matrimonial home; and one governed household goods. When the matter was debated last July, so far as the household goods draft Bill was concerned some misgivings were expressed. My noble and learned friend on the Woolsack expressed some misgivings, and so did the noble Lord, Lord Mishcon, though not the same misgivings in each case. So at the moment that Bill does not concern your Lordships. As to the occupancy Bill, my noble and learned friend on the Woolsack indicated that the Government would legislate in respect of that Bill, and that he hoped it could be done this Session. Although it does not immediately arise out of the Bill before your Lordships, I know your Lordships would like to hear what prospects there are of that in view of what I know to be a congestion of business.
The co-ownership draft Bill received general approbation, although the noble Lord, Lord Mishcon, it is fair to say, expressed some concern about its complexity—and I shall return to that point in a moment. My noble and learned friend on the Woolsack was quite categorical—and I understood it well—that the Government could not find time for the legislation of a Bill of this length and complexity, although he said it was open to any Private Member of either House to introduce a Bill—as he put it, "to put the Government on the spot". My Lords, it is certainly no part of my purpose to put the Government on the spot; but very wide expectations have been aroused by the proposal and if no action were taken it seems to me that it would be regarded as an act of parliamentary perfidy. Certainly, it would be deplorable if we said that we recognised an injustice, that we recognised here something that needs a remedy, but that we would go right back to 1965 and try to devise a new scheme. This scheme has been before the public now for 15 years. It 115 has been discussed, it has been canvassed and it has survived.
May I say just one word on the question of complexity. The legislation here is in a highly technical field of the law. It is necessarily technical because so often many different people have concurrent interest in land, which, of course, includes buildings. There is the freeholder, on one hand, and the leaseholder, on the other; there is the legal owner and the equitable owner; there is the mortgagee, there is the partner and a great many others; so that it really is impossible to legislate very simply and untechnically. Before the 1920s, it was generally recognised that our property law was extremely difficult, highly technical and extremely expensive to operate. In the 1920s, six important consolidating statutes were finally enacted and, in 1972, yet another in the Land Charges Act.
I have added up the number of sections in those measures and there are 642 sections and 23 schedules, some of them very lengthy and very difficult to understand. In view of that, your Lordships may well think that the draftsmen—they were two of the most distinguished draftsmen of my time in the law—have done a brilliant job in dealing with this matter in 34 clauses and three schedules, of which one is an index. My noble friend Lord Renton was chairman of the Committee on Preparation of Legislation and he wrote to me paying his tribute to the drafting of this measure.
My Lords, having said that, your Lordships will, I think, not wish me at this hour to deal with technicalities or try to anticipate Committee points. It has been generally agreed that the matrimonial home is a special case. That was the view of the Law Commission. The noble Lord, Lord McGregor of Durris, made the point cogently last July and the noble Lord, Lord Mishcon, went on to say that it was an anomaly that the law treats the matrimonial home like any other piece of property. It deserves special treatment because it is, in general, the principal, if not the sole, asset of the family. It is the special sphere of activity of the wife. And, in every system of law that I know—certainly, every Commonwealth system—the matrimonial home is treated as a special case.
116 As to the principles behind the Bill, I am going to give examples and take the case as if the wife were the acquiring spouse and the husband the owner spouse; but I do that merely for convenience because the law, with humanity, says that "man" embraces "woman". The first principle is that the parties are free to make their own arrangements. It is only in default of their own arrangements that the principle of co-ownership arises. That principle of co-ownership, your Lordships may well think, is a proper reflection of the concept of partnership in marriage. There used to be a fine saying of the old Court of Chancery that equality is equity—and that is what is vindicated in the principle of co-ownership.
It has received wide professional assent. The Law Commission commissioned a social survey which is significant. The question which was asked by, I think, the Office of Population Censuses and Surveys was:Some people say that the home should legally be jointly owned by the husband and wife, irrespective of who paid for it. Do you agree or disagree with that?Of those who took part in the survey, 91 per cent of the husbands and 94 per cent of the wives, agreed. In fact there was a majority, although small only, who actually practised the principal of co-ownership of their matrimonial home. In view of that, I venture to suggest that the Law Commission's proposals have very wide popular support, as well.
I am not going to trouble your Lordships with the way the Bill achieves the co-ownership except merely to say this in view of the questions that I have been asked about it: that it applies to council lettings, too. But in view of some apprehensions that have been expressed, I want to indicate the principal exceptions from the co-ownership. First of all, either spouse may unilaterally exclude the co-ownership under Clause 8. The normal case, I suppose, where that would be done is where there is some great historic mansion which has come down in a family who have over generations lavished care and love upon it. And in that case, not only may either spouse unilaterally exclude it, but they can do so up to one year after the Royal Assent has been given to this measure. That is Clause 32—what the 117 Law Commission calls one year's breathing space.
The second main exception is that a donor may exclude co-ownership. If, for example, a father gives a matrimonial home to one of the spouses, he may give it exclusively to one, to the exclusion of the other. The third important exclusion arises under Clauses 11 and 12. The husband and wife jointly may make a declaration, express or implied, in favour of some other kind of ownership than the statutory joint ownership under the Bill.
The last major one that perhaps I should mention arises under Clause 13, where the Bill excludes co-ownership, where it is necessary to avoid severence. The normal case, the most usual case I suppose, would be a farmhouse. A farmhouse would normally be a necessary appurtenance to the farming land round it, and it would be deleterious to make the farmhouse then the subject of a joint statutory tenancy of husband and wife. But in the rare cases where the farmhouse is severable, and it would be a question of fact, then it falls within the Bill.
That is all I wanted to say on Part I, Chapter II. Part I, Chapter III, deals with the incidents of co-ownership, of which the first and very important one is the right of control. The matrimonial home cannot be sold, mortgaged or otherwise disposed of without the consent of the wife or husband, whoever is the acquiring spouse. The machinery devised is under Clause 20. The wife can make herself a trustee where it is appropriate, so that she would have to join in any such dealing with the property; or, alternatively, by Clause 23 she can register her interest so that anybody dealing with the matrimonial home will know that she is interested in it.
The second and very important right that is given under this part of the Bill is to give the wife a right in the replacement home. If the matrimonial home is sold, the wife or maybe the husband, can insist on the purchase money, or a proper part of it, being dedicated to the replacement home. Those are the main provisions.
I venture respectfully to ask: What is the Government's attitude? I know from what my noble and learned friend on the Woolsack said last time that there is no hope of Government time this session, 118 and it may well be that in those circumstances he does not want to dissipate the time and energies of civil servants and draftsmen to help this Bill through; but I venture to ask whether he should make that plain?
I invite the support of all your Lordships who view the family as a fundamental institution of society; all your Lordships who treat marriage as a true partnership of equals performing different functions; all your Lordships who regard private property as a valuable institution in providing an area where freedom of choice can be exercised and indeed in advancing the status of the person enjoying it; and, finally, all of your Lordships who are truly interested in the promotion of justice, as I know is the common feeling throughout your Lordships' House. I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Simon of Glaisdale.)
§ 8.15 p.m.
§ Lord BOSTON of FAVERSHAM
My Lords, this Bill, if it becomes an Act, will represent a significant advance in family law. I believe that it is a particularly happy and appropriate fact that this reform would come under the heading of family law—and I emphasise the word "family". The term "family law" is not always altogether apt when one considers some matters that it covers, though I would not want to seek to change it. So often it is necessarily more concerned with the break up of the family than with its promotion, even though the aim there is partly too to protect the family from, for instance, the effects of divorce.
These proposals I believe not only amount to an advance in the rights of marital partners and in marital justice, they also actually enhance and help to cement the state of matrimony, marriage itself, and, through that, help to promote and safeguard the family and family life—one of the fundamental bastions of civilised society.
Before going on to the provisions of the Bill itself, I feel that it is not inappropriate on an occasion like this to mention in passing the process for law reform that we have established and have been developing over these past 10 or 15 years, and to 119 which the noble and learned Lord, Lord Simon of Glaisdale, has alluded in his speech. I do not think that it does any harm once in a while to draw to the attention of people generally the way that the system is working. This very Bill—itself a product of the process—demonstrates how splendidly the system is working for, through the Law Commission, under the Law Commission's Act introduced under the Lord Chancellorship of my noble and learned friend Lord Gardiner (whom, I am pleased to see, is also taking part in the debate tonight) we have a continuing, systematic and thorough review of aspects of the law leading to concrete proposals for law reform.
Quite apart from the great value of the Commission itself—and, if I may say so, a well-deserved tribute has been paid to the noble and learned Lord, Lord Scarman, for his connections with it—one of the great blessings of the law reform system and of the part which your Lordships' House plays in it is the continuity that is provided in this sphere by successive Lord Chancellors. It is of great benefit—but especially on matters of this kind—that this continuity is carried on under successive governments of whatever party. In this particular case, we have a Bill which was contained in a report of the Law Commission, as your Lordships have heard, presented to my noble and learned friend Lord Elwyn-Jones, and I have no doubt that had that Government remained in office, he would certainly have wished to see this Bill make progress. The noble and learned Lord the present Lord Chancellor has already indicated his general personal support for the report when it was debated on 18th July last year.
In warmly congratulating the Law Commission members for all their immence hard work, both on the massive report itself and on the draft of this Bill contained in it, I should also like to offer very warm thanks indeed to the noble and learned Lord, Lord Simon of Glaisdale for the service that he has performed both in introducing the debate on the report last year, and in introducing this Bill, if I may say so with respect, and for doing so with such clarity and precision. He speaks with great experience and expertise on these matters, having spent some nine 120 years as president of what was to become the Family Division of the High Court.
The basic proposal in the Bill, that the matrimonial home should be jointly and equally owned by husband and wife, is a very simple one. It would not only amount to a social advance and an advance in family law, for the reason I have already suggested; it would also amount to simple justice for the married couple. As the Law Commission's Report itself notes,… the home is the residence of a family as well as being, in many cases, its major capital asset. Husband and wife each contribute to the home in their different ways—the wife's contributions are no less real because they may not be financial—and the home is essential to the well-being of the family as a whole. In our view these factors make the matrimonial home a unique item of property, and one to which a unique law of co-ownership should apply".This certainly seems to accord with modern views and tendencies, and increasingly the tendency has been for married couples to put the matrimonial home into their joint names.
We also have the guidance given by the survey, mentioned by the noble and learned Lord, Lord Simon of Glaisdale; and indeed the report itself noted that:…a majority of home-owning couples provide voluntarily for the co-ownership of their homes".The principles in this Bill are also in line with the way in which our divorce laws have been moving over recent years, especially the way in which the courts recognise the contributions made by both spouses to the matrimonial home. No doubt this Bill will be seen by many, as the noble and learned Lord, Lord Simon, has mentioned, as advancing particularly the rights of the wife. It certainly does do that, for in most cases in which the home is in one name only that one will be the husband and the wife will be the non-owner. But I believe that it brings justice to both partners and gives legal effect to the tendency which is already taking place.
Although the Bill's main aim is a simple one, the detailed proposals, as the Law Commission's report itself notes, and indeed as the noble and learned Lord in moving the Second Reading has mentioned, are complex, even though I would with respect agree with him that it is brilliantly drafted. I know that my noble friend Lord Mishcon has some strong reservations about the Bill. He certainly 121 has wide experience as a practitioner in this sphere of our law, and expressed some of these reservations in the debate on the report. Another of my noble friends, Lord McGregor of Durris, also speaks with great authority on these matters, and I am pleased that he, too, together with other noble Lords with very relevant experience, will be taking part.
I should now like to turn to some of the more detailed provisions of the Bill. It sets out, as your Lordships have heard, circumstances in which statutory co-ownership would not apply, and the report itself refers to what it calls "major exceptions and minor ones". I wholly agree, with respect, that it is absolutely right that the spouses should be free to exclude statutory co-ownership if they wish, provided it is clear what is the other form of ownership that they want. I also agree that someone who gives, by will or otherwise, a home to someone should be free to exclude co-ownership.
I agree, too, though perhaps a little less readily, that a spouse who owns a home at the time of the marriage should be able to exclude it from co-ownership, provided that he or she makes a declaration to that effect before the marriage takes place. But I am not so sure about some of the supplementary provisions associated with that provision, and it might be better to mention them now than suddenly to spring a surprise in Committee, because it is a somewhat basic point.
The report recommended and the Bill provides that the declaration by the spouse excluding co-ownership has to be made and attested by a witness before a marriage so as to be effective; otherwise co-ownership will apply. There is no requirement that once marriage takes place the other spouse shall be told about the declaration. Indeed, the Law Commission itself rejected that idea and explained its reasons for doing so. However, the report notes on page 33 that one member of the Commission, Mr. Norman Marsh, considered… that it would be potentially harmful to good matrimonial relations to allow one spouse by his own secret reservation to spring a surprise, perhaps after years of marriage, on the other spouse as to the ownership of the matrimonial home. He thinks therefore that a declaration should not have effect unless it has been communicated to the other spouse before marriage (which he emphasises does not necessarily mean that the other spouse consents). For similar 122 reasons, he would require a declaration made by a spouse during a transitional period … to be brought to the notice of the other spouse before the end of that period in order to be effective to prevent property from passing into statutory co-ownership".I am bound to say that I find Mr. Marsh's views attractive. Not to tell the other spouse whether or not the matrimonial home is jointly owned in those circumstances would seem to be storing up powerful potential sources of friction and discord between them, which it would be far better to avoid. I can quite see that there are arguments on both sides, and indeed these have been referred to in the Law Commission's report. I can also see that it might not be altogether easy to specify, and indeed prove, the circumstances in which the non-owning spouse could be told about the exclusion. For instance, it would certainly be a trifle unseemly to insert a new passage into the marriage service and to say,With all my worldly goods I thee endow, except that I have signed a declaration excluding thee from ownership of our most valued possession—the matrimonial home",though it should surely be possible to provide for some form of acknowledgment, perhaps signed by both spouses, and lodged somewhere appropriate. Indeed, the full Commission has shown itself elsewhere in its report to be sensitive to the need to preserve and promote marital harmony. In fact, that is really the prime purpose of these proposals as a whole.
There are other implications arising from this failure to provide a non-owning spouse with the right to know the facts about the matrimonial home ownership. For instance, in the case where a donor has given a home and excluded co-ownership, the non-owning spouse has no means of knowing necessarily as of right whether or not he or she owns it jointly. It is true that the report points out that a husband or wife may apply to court under Section 17 of the Married Women's Property Act 1882 to seek to resolve a problem. But surely it is better, wherever possible, to avoid the need to go to court. It is also important to ensure as much certainty as possible, which is something else that the Commission plainly seeks. Surely Mr. Marsh's suggestion would help to achieve both aims—certainty and, where possible, avoiding going to court—and, indeed, promote harmony between the couples.
123 I do not want to exaggerate this problem too much. Most couples will either accept statutory co-ownership or will agree on an alternative, and in many cases in which co-ownership has been excluded under one of the exceptions in the Bill, the non-owning spouse will have been told about the exclusion by the owning spouse. But there are likely to be some who do not know either the ownership position or what their rights are, and who might face difficulties. So I should like to feel that perhaps at a later stage in the passage of this Bill, if it receives a Second Reading, we could either avoid the possibility of these difficulties by the simple provision suggested, so that she is told when exclusion applies, or be assured that there is no cause for concern here.
There are other comparatively minor worries about some of the Bill's detailed provisions, but no doubt those can best be raised in Committee if the House approves the Bill tonight. Certainly, I would not wish it to be thought that, because one may have criticisms on particular points of detail, one regards these as detracting in any way from the value of the main aims of the Bill. Anyway, many of the detailed provisions themselves contain valuable reforms, too, such as the admirable innovation giving spouses rights when the matrimonial home is replaced by a new one. As the report itself says at paragraph 1.255:…each spouse ought in our view to have a right to ensure that the other spouse's share of the proceeds of sale of a former home are used in the acquisition of a replacement home"—an excellent reform indeed. I agree, too, that it is right to allow, as the Bill provides, for a transitional period of one year before it is brought into effect so that its provisions can become known and so that married couples may decide whether or not they want statutory co-ownership to apply to their matrimonial home.
There is only one other matter which that point leads on to which I should like very briefly to mention now, and that is the question of publicity during the transitional period. The Law Commission's report itself points to the need for this in paragraph 1.215, where it says of the Bill's provisions:…we hope publicity will ensure that not only its existence but also its import is widely known".124 I think it is important to do that. I am wondering what thought has been given to the form which this very necessary publicity might take. It would be helpful—not necessarily, of course, today, but perhaps later in the passage of the Bill—if we could be given some indication about that. In my submission, this Bill marks a major step in the modernisation of our matrimonial law, and I very much hope that your Lordships will tonight give it a Second Reading.
§ 8.32 p.m.
§ Baroness SEEAR
My Lords, first, I should like to associate myself most sincerely with the tribute which the noble and learned Lord, Lord Simon of Glaisdale, paid to the late Lady Summerskill. Any of us who have been associated in any way with work in connection with change in the position of women know how active she was in all spheres, how much all of us owe to the work that she did and how she was particularly interested in the subject of the Bill which tonight is before your Lordships' House. It is very sad indeed that she cannot be here to see this Bill go though your Lordships' House.
I intend to speak extremely briefly, partly because of the lateness of the hour but even more because the legal complexities of this Bill are quite beyond me to deal with in any competent fashion. I should like, however, to give from these Benches the strongest possible support to the Bill that the noble and learned Lord has introduced. It is belated recognition of the true status of the wife in marriage.
It is a curious quirk that we have already ensured the rights to the divorced woman but that we have delayed until now giving appropriate rights to the wife in the successful, happy and continuing marriage. Until now there has been a hangover from the ancient view that the wife is, to all intents and purposes, a dependant rather than a partner in the marriage. It is the position of partnership which this Bill recognises and enshrines in legislation that will be extremely acceptable and very much welcomed by women and, I believe, by a great many men up and down the country. As has been said, it does little more than justice to the wife by giving common ownership in the home.
125 The noble Lord, Lord Vernon, said that it recognises the fact that a wife makes a contribution to the home by her work in the home. But the fact of the matter is, particularly with the younger generation of wives, that very often they make a substantial economic and financial contribution to the home as well as the contribution which they make by the care and the maintenance of their home. It is very common indeed for young women today, both before and in the early years of marriage, to work extremely hard and earn a substantial amount of money in order that they can help with the paying off of the mortgage and in order that they can provide the equipment which makes it a real and satisfactory home, not just a barely adequate place in which to live.
So this Bill recognises not only the traditional contribution which the wife makes to the home but the modern contribution which is also a financial and a straight economic contribution. In a number of cases it may well be only because of the work of the wife and her continuing to work in the early years of marriage that it is possible for a couple to acquire a mortgage and have a home that they themselves own.
I recognise, as has been said, that it is now common for both parties to be named in the ownership of the home and that this has become a much more common practice than it was in the past. However, there are still a number of cases where this does not happen, and when the Bill is passed it will make it law that it shall happen.
I support the criticism which has been made about the possible secret exclusion. It seems to me to be an extraordinary thought to be embodied in the Bill. If we are thinking in terms of partnership and recognising that the wife makes a real contribution, economic and otherwise, to the home it is extraordinary that it should be said in another clause that it will be possible for the husband or, indeed, the wife secretly to sign away the right of the other without the other having any right to know that this has happened. This is implied by saying that it is done secretly. It seems to me extraordinary that it should have crept into the Bill, and if it is proposed when the Bill reaches Committee stage that it should be removed, 126 that removal will certainly have support from these Benches.
With those very brief words, I should like to give our strongest support to this Bill.
§ 8.37 p.m.
My Lords, I should also like to congratulate the noble and learned Lord for introducing this Bill. I think that the Sectional committee of the Married Women's Association will be very pleased when they hear the results of tonight's debate. From these Benches I should like to pay a tribute to the noble Baroness, Lady Summerskill. She was a very gallant fighter for all that she espoused and her death will be much regretted. Fortunately, she had seen the preliminary debate in this House, and I gather from her daughter that she had taken an interest in many things right up to the last moment.
I wish the noble and learned Lord success with his Bill. He may remember that when I was in the House of Commons I introduced an Attachment of Earnings Bill. He was a Minister at the time and he was most helpful. But something happened then which I gather cannot happen in this House. Six Members of Parliament—three Conservatives and three Labour—sat outside the committee room so that I should not get my quorum. So the Bill fell. I wish his Bill better success than that, for he was absolutely marvellous at the time.
I understand that in 1976 New Zealand introduced a Bill on the same lines. It provided not only for joint ownership of the matrimonial home but also enjoined joint ownership of its contents; so we have something to go on. I understand that it is working very well, which leads me to believe that we may have success in this House. I wrote to the noble and learned Lord about the question of council houses because, so far as I know, very few councils put the joint names on their rent cards. Plymouth does. I have checked with quite a number of councils. The noble and learned Lord said that he would look into the matter. If the Bill is passed, perhaps the Home Office might consider sending a circular to local authorities pressing them to undertake this.
127 I should like to put one or two points. If a husband goes bankrupt, can the woman retain her goods and chattels in the house, as she can if he goes bankrupt now? It is going to be very difficult for her if she cannot do so. And what about hire purchase agreements? If her partner fails, does she lose her goods that she has been trying to buy?
The last point I should like to mention is the question of wills. If everything is joint, I suppose the husband and wife will have to discuss what they are going to put in their wills, because it would be rather awkward if one of them left a certain amount of things to one relation and the other left them to another relation, which I presume might happen if there was joint ownership of the contents.
§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)
My Lords, I hesitate to interrupt my noble friend, but I rather think I am right in saying that the co-ownership visualised by the Bill is a joint tenancy and not a tenancy in common, with the result that there will not be a right of testation in either party but that the survivor will take all.
My Lords, I thank the noble and learned Lord very much for that information, and I hope it works out satisfactorily for the survivor. With those few words, I should like to wish the noble and learned Lord, Lord Simon of Glaisdale, success with his Bill.
§ 8.41 p.m.
§ Lord SCARMAN
My Lords, I also should like to add my words of congratulation to my noble and learned friend Lord Simon of Glaisdale for introducing this Bill. In a sense it is a great occasion of law reform tonight. We have had the noble and learned Lord, Lord Simon of Glaisdale, introducing this Bill with his unrivalled knowledge and experience of family law, and doing it in the presence of the noble and learned Lord, Lord Gardiner, the Lord Chancellor who set up the Law Commission, upon the basis of whose report we are able to discuss tonight this extremely important last stage in the commission's programme 128 of law reform in the sphere of family law.
My Lords, I do not wish—indeed there is no need—to detain you long tonight since I sense the feeling of the House moving strongly in favour of this Bill. Tonight of course is not the appropriate moment to discuss the technicalities of the Bill but let me say first of all one or two things about the complexities of the Bill.
To a layman, reading this Bill is a difficult and unattractive task but clearly this House is not going to allow itself to be distracted by the necessary complexities of the Bill from an understanding of and support for the very simple principle which it embodies. That simple principle is this, that in married life the husband and wife should, unless they choose to organise their affairs in a different way, both of them own the matrimonial home. Of course the Bill operates as much in favour of a husband as it does of a wife, but let us not be deluded by that necessary feature of the Bill into thinking that this Bill is necessary for the protection of husbands. It certainly is not. This Bill is necessary as the law's safety net for the most vulnerable woman in our society, the devoted married woman while the marriage relationship is a living relationship and she has her family duties hard upon her. She is exceedingly vulnerable.
If of course, as so many women are, she is fortunate in her husband and her children there is no risk. There is of course no need for her protection by the law but if, like the girl on the flying trapeze, she takes a leap towards her partner and fails to get the appropriate support and grip as she flies through the air, then as she falls to the hard ground she needs the safety net of co-ownership for her support. At the moment our law does not provide that at all. She falls on the hard ground of legal ownership, separate property and nothing for her unless she has been well enough advised at the beginning of her matrimonial life to ensure that she agrees with her husband or fiancé joint ownership of the matrimonial home. So what this Bill is doing is providing a legal background of joint ownership of the matrimonial home if they have not agreed something else. This is a major reform which will be immensely important for the most vulnerable of all women in our society. It changes the background of 129 the law so that if things go wrong, if there is no agreement to the contrary, she can fall back on a law which recognises her as much as him as the owner of the home.
I have heard two general criticisms of the Bill and I will endeavour to deal with them extremely shortly, The first is its complexity. The complexities are due, as my noble and learned friend Lord Simon of Glaisdale said, to having to fit this safety net of the law into the existing fabric of the law and at the same time it is no good, as a matter of justice, protecting wife or husband if at the same time we do not ensure that purchasers, mortgagees, creditors and others also retain the protection of the law in dealing with the spouses. This Bill, which as my noble and learned friend has said is the work of two of the most distinguished Parliamentary draftsmen who have graced their very difficult profession, has made use of an age-old legal concept and that is the technical brilliance of the Bill. It has fastened on the concept of a trust and, put very generally, the two spouses become the legal owners as trustees of the matrimonial home and they are also in equity the beneficial joint owners. If they are the trustees then both of them, husband and wife, have their names on the legal title to the home; everyone who deals with them, whether he be a purchaser or someone about to lend money on the house, will have notice under the machinery of the law that they are there.
But suppose that does not happen and that although co-ownership has occurred by operation of the law the wife's name has not come on to the property, then this Bill cunningly produces the necessary result. She can get a land charge registered if it is unregistered land and that is notice to the world of her interest. If it is registered land she can enter a restriction in the registry and that is notice to the world.
I mention those two details only just to give your Lordships an illustration of the skill with which this Bill has been fitted into the law of trusts, the common law of legal ownership, the equitable law or the equitable rights of beneficial ownership. All this has been done so that not only the wife is protected but also the husband and also all those who deal with them. No wonder the Bill is complex. But complexity is a price worth 130 paying if the end result is justice, and that is what I think is the end result of this Bill. Therefore, I say to the House be not afeared of its complexities. They are necessary because you are dealing with a necessarily complex part of the law, and we are fitting in simple justice for man and wife into what has been a complicated part of the law for centuries, and is bound always to remain as such.
The other main criticism I have heard of the Bill is that it is unnecessary. Of course, it is unnecessary if men and women will always take legal advice when they are engaged in marriage, go to a solicitor and get joint ownership worked out and an agreement regulating their family property. But the importance of this Bill, as I have already indicated, is that it takes care of the feckless, the inadequate, the uneducated, the ignorant, the helpless woman; one can apply all those adjectives to art absolutely darling person of great virtue who needs help and protection, if you like, against her own inexperience in the wiles of the world. It is, therefore, not unnecessary, for the reason which I have developed.
The noble Lord, Lord Boston of Faversham, mentioned Mr. Norman Marsh's reservation, and the noble Baroness, Lady Seear, also talked of the secret exclusion. That is not an easy problem. I do not want to go into a committee point at this stage, but let me indicate why the majority of the Law Commission after a considerable amount of hesitation felt they could not go along with Norman Marsh. If I may just digress for a moment, I know your Lordships will allow me to say this: Norman Marsh is one of the founding fathers of the Law Commission. He is the Law Commissioner, recently retired, with the greatest period of service, having been appointed by the noble and learned Lord, Lord Gardiner, in 1965, and having remained a Law Commissioner until only last year, when he retired. His views are indeed entitled to immense respect—a fine creative and humane lawyer.
The reason why his views on this point were not accepted—and I am by no means saying he was wrong, because he indicated the other point of view—was this, that a man or a woman may wish for very good family reasons—the historic mansion is one, but there are others—to make sure at an early stage, before he or she has any 131 idea of marriage, that the house in which he or she will probably live when he or she gets married is to be outside statutory co-ownership. Therefore the declaration is made as a declaration to the world. It might be possible to register it in some way; that would require machinery and money. But it has to be an attested declaration and does not have to be a declaration with a specific fiancée in mind. It can be made at a time when marriage has not even loomed over the horizon but it is a contingency which the family wish to make provision for. That is the reason, and of course it is an attested declaration, and it is a declaration in writing. The argument can go one way or the other. But I thought your Lordships should know that there are substantial reasons why the majority of the Law Commission did not agree with their very respected colleague Mr. Norman Marsh in this respect.
Finally, I think your Lordships should know that this Bill of course derives from the Third Report of the Law Commission on family property. That is a very massive, very well written and interesting document indeed, presented to Parliament in 1978, the final instalment of the Law Commision's work in this field for the time being. It contained recommendations for three Bills, the one under discussion in your Lordships' House at this moment, the Matrimonial Home (Occupation Rights) Bill, to which my noble and learned friend Lord Simon briefly referred, and the Household Goods Bill, all of them measures intended to protect and to afford justice to the married woman while she is married. Before this report was submitted, Parliament had substantially enacted all the various measures put forward by the Law Commission to protect men and women, their property, and indeed their very lives in the event of a matrimonial breakdown. Justice by and large has already been done to the woman whose marriage had collapsed, but justice had not been done to the married woman. I respectfully agree with those who have said this evening that justice to the married woman is as important—socially it may be more important—as it is to the woman who has had to face the catastrophe of an irretrievable breakdown of marriage.
132 My Lords, a complicated Bill, yes; an unattractive Bill because of its complexity, no: it is cowardice to suggest that. A simple Bill in principle and purpose, yes. One that is intended to do justice to the most vulnerable and valuable section of the whole of our society, founded as it is on family life, most assuredly. My Lords, it is with pride that I come here this evening to support my noble and learned friend Lord Simon of Glaisdale.
§ 8.59 p.m.
§ Baroness LOCKWOOD
My Lords, I, too, should like to pay tribute to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this Bill and also for initiating the debate on the subject last July. I should also like to thank him for the way he outlined the main provisions of the Bill tonight. Those of us who are laymen and laywomen in this field would, I think, find that very helpful, both in clarifying some of the points that we were doubtful about and also in confirming some of the interpretations that we may have put on the Bill.
I should also like to join with the noble Lord and the noble Baronesses who have paid tribute to the late Lady Summerskill for the early pioneering work that she did in this area. I think that perhaps we would not have had the report from the Law Commission had it not been for the work that she and some of the women of her generation did many years ago.
As I see it, there are two basic reasons why one should support the Bill. The first, as the noble and learned Lord, Lord Simon, has said, is that the present situation is unjust and the Bill would therefore bring the law as regards married women into line with the situation as regards those women who have suffered divorce. In other words, at present where the marriage has broken down the rights of both partners are provided for, but where the marriage still subsists the rights, by and large, of the wife are not provided for. In that sense it is a just Bill.
Secondly, I think that we should support the Bill because it brings the law into line with the present social circumstances. Here I would digress from the comment of the noble and learned Lord, Lord Scarman, and also from some of the 133 remarks in the report of the Law Commission. I think that I am right in saying that the noble and learned Lord talked about marriage as being a true partnership of equals performing different functions. More and more in present day society there is no longer this clear distinction between the functions of the husband and the wife.
As the noble Baroness, Lady Seear, has remarked, more women are making quite a substantial contribution to the economy of the household. They are making their contribution to the mortgage repayments of the house and they are beginning to share with their husbands the responsibility for the breadwinning function. Likewise, more husbands are beginning to share the responsibility for the family and for the care of the family. Therefore, we are moving into a situation where there is much more equality between the partners in marriage, both from the point of view of earning and from the point of view of homemaking.
While I accept what the noble and learned Lord, Lord Scarman, has said—namely, that this is certainly not a Bill to provide rights for husbands—I think that we must recognise that these changes are taking place and that there will be circumstances where the wife will be the major breadwinner, and the wife will be the provider of the matrimonial home. It is important that the law in relation to the matrimonial home should recognise that change. Moreover, it would coincide with changes in other areas—in relation, for instance, to the status of the head of household. In many of our practices, indeed I think I am right in saying in relation to the Census, we are again moving away from the automatic assumption that it is the man, the husband, who is the head of household. It would fit in with the changes that are proposed in the Social Security Bill which is now being debated in the other place and which will no doubt shortly come before this House. That Bill will implement the recommendations of the EEC Directive on Equality in Social Security where again we are beginning to recognise the fact that the two partners are individuals, and not necessarily one dependent upon the other.
Thirdly, it would be in line with what I hope will be changes in the taxation area. 134 Indeed, I would hope that if the Bill goes through it would give a new impetus to the move to change Section 37 of the Corporation and Taxes Act. That section assumes, or deems to assume, that the taxable income of a wife belongs to the husband. It would be nonsense if we were to pass a Bill which gives the partners equal rights in the matrimonial home and to keep on our statute book at the same time a section of an Act which gives the husband the right to control the finances of his wife. Therefore, for all those reasons, I would very much support the Bill.
Some of the advantages of the Bill, indeed many of them, have been outlined by the noble and learned Lord, Lord Scarman. However, I should like to draw attention to one other aspect of this Bill and to one advantage that it would bring to women in particular. There is a practice which is still very prevalent when one is seeking either a mortgage or credit, to ask for security and, of course, to take either the tenancy of a house or the ownership of a house as security for providing credit. If the house is in the name of the husband alone, then that provision of credit is not available to women.
There was a rather interesting article in the Guardian a few days ago under the title, "His and what's hers". It referred to a marriage which had lasted for 20 years where the wife wanted to raise a loan. When she was asked by the bank manager if she could produce evidence to the effect that she was a half owner of the matrimonial home, she had to admit that she was not. The solicitor, in advising the wife, suggested that she would only be able to get her half share of the matrimonial home if the marriage broke up, and, as there was no intention of the marriage breaking up, other means had to be sought. The suggestion of the solicitor then was that the husband should take out a mortgage on the home—it was not mortgaged—in the name of his wife, so that the wife would get the money, and should arrange for her to make the repayments. All that complicated procedure simply because it was not accepted that a house that was shared by the husband and wife could provide security for the wife, due to the fact that the house was not in her name. Many such circumstances as that would be eradicated if the home was 135 automatically in the name of both partners to the marriage.
The noble Baroness, Lady Vickers, made reference to tenancies. I am very glad to have it confirmed that tenancies are included in the provisions of the Bill, because again the whole situation of tenancies in the name of the husband alone creates problems for women in the ways I have described. It is rather ironical that the subject of the sale of council houses, which was very controversial in another place, has highlighted this very problem.
I understand that there have been cases where a wife, having found herself resident in the council house, her husband having just died, sought to purchase the house under the provisions for the purchase of council houses, only to be told that, because she was not a joint tenant, the years during which she had lived in the house with her husband did not count towards the favourable conditions that were available for the sale of council houses to sitting tenants. I am glad to say that the Department of the Environment has now issued a circular to local authorities advising them to take into consideration the occupancy of the house by both spouses, irrespective of whether or not they were joint tenants. Again, that kind of difficulty—and one cannot anticipate the kind of difficulties that will occur in the future—would not occur if the provisions in the Bill were enshrined in our laws.
The further point which is a great advantage and which would be very beneficial, largely to the wife, is in relation to financial transactions based on the house. Many a family has found itself in difficulty when a husband has either raised a loan on the house or has taken steps to sell the house without the other partner knowing. Again, that situation would be covered by the Bill. Therefore, there is a great advantage in having a Bill of this kind on our statute book.
There are some areas of reservation. The noble Lord, Lord Boston of Faversham, has raised one of the problems in relation to the secrecy which could occur before marriage, when one partner decides to seek an exclusion from the provisions of the Bill without informing the other 136 partner. These are difficulties which should be looked at very carefully when we come to the Committee stage. Nevertheless, I do not think that they would invalidate the basic principles of the Bill.
When the subject was debated in July last year, the noble and learned Lord the Lord Chancellor raised a reservation in relation to taxation problems. I believe I am right when I say that he suggested that perhaps the implications in relation to taxation had not been looked at as carefully as they might have been. I have two reservations as regards taxation. I think that it is possible that there could be problems in relation to capital transfer tax, which again could be looked at carefully in Committee, where any problems could be resolved.
I also think that there could be problems in relation to privacy within the taxation system. At the present time our taxation system provides for privacy for the husband, but it does not provide for privacy for the wife. It seems to me that if we move into the area of joint ownership, then the whole question of privacy in taxation matters could be raised. But again I would suggest that if the same principles are applied to both spouses there should be no ill-effect. Therefore, I would join with noble Lords and noble Baronesses who have given their support to this Bill and have remarked that it really would prove to be a tremendous advance in relation to matrimonial affairs and matrimonial property affairs.
§ 9.15 p.m.
§ Baroness FAITHFULL
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has moved the Second Reading of this Bill with clarity and conviction, for which we are deeply grateful. He and the noble and learned Lord, Lord Scarman, have dealt with the general legal points of this Bill. Therefore, it would be presumptuous of me to deal with points of law. I shall therefore deal with two points of a social and practical nature concerning the daily lives of some people.
The first point has been covered by the noble Baroness, Lady Lockwood, and it concerns the changing role of women in our society coupled with the unchanging needs of children. In time past, the woman in a marriage was, I would 137 suggest, the Duchess of Plaza Toro. She led from behind and in the background, but she had no rights. In this day and age the relationship in marriage is so much more a relationship of equal open partnership, equal work, equal earnings, and shared responsibilities where home and children are concerned.
This Bill, so carefully reasoned by the Law Commission in their report, and so well drafted, brings the law concerning the matrimonial homes into line with the spirit of modern life; and so it is surely right that there should be co-ownership of the matrimonial home. However, despite the new approach of married couples, there are nevertheless many couples still in this country who do not subscribe to the growing attitude of partnership in marriage, They do not subscribe to the dictum:All my goods I share with thee".And it must be remembered that many of those buying their council houses, as has been remarked by the noble Baroness, Lady Vickers, are used to having the tenancy put in the name of the husband, and therefore when it comes to buying the council house it seems the natural and normal thing to leave the purchase in the name of the husband.
In my work as a social worker I have had difficult instances of a woman ill-treated by her husband, or her husband's ill-treatment of the child or children and she feeling the need to leave the matrimonial home for the sake of the safety of herself and the children. She can, of course, seek an injunction to stay in the home and her husband to move out, but because she is unused to having co-partnership and co-ownership of the matrimonial home she does not know this; and if she knew it she might seek the injunction earlier. If she did, this would save the women and children seeking shelter at such hostels as are run by the splendid Erin Pizzey, who appeared before the noble and learned Lord on the Woolsack when she was occupying a house not her own because of the plight of women who felt that they must leave their homes because there was not in their view co-partnership and co-ownership of the matrimonial home. Many other reasons have been enumerated by other noble Lords, and I shall not detain the House, except to say that I support this Bill.
§ 9.19 p.m.
§ Lord GARDINER
My Lords, because of the hour I rise but briefly to support the Second Reading of this Bill and to thank the noble and learned Lord, Lord Simon of Glaisdale, not only for having introduced its contents to us but for reminding us of its history. It is manifest, I think, that in general the Bill has the support of the House, and I have no personal criticisms to raise. I am a little concerned about the future. My one regret tonight is that the late Lady Summerskill, who all her life was such a splendid fighter against the many hardships from which women have suffered, did not live quite long enough to see the Second Reading of the Bill.
I remember a day when the noble and learned Lord, Lord Denning,—I must not say "invented"—promulgated the doctrine of the deserted wife's equity in the matrimonial home. I felt difficulty in perceiving on what law it was based and I felt that if, sooner or later, it reached your Lordships' House, the decision would probably be overruled. But when that did happen, the noble and learned Lords of Appeal made it clear that they considered there should be some such provision and expressed a solemn hope that the then Government would deal with the matter as one of some urgency.
It was then that Lady Summerskill at once introduced a Matrimonial Homes Bill. It was, I am afraid, drafted in a way which made it impossible really to put it forward at all, but in view of what had been said by your Lordships' House I asked the Law Commission to rally round and help Lady Summerskill to redraft the Bill and get it right, and we had no real difficulty with it in this House. However, when it went to the other place there was one honourable Member, whose anti-feminist views are well-known, who said, "Object". That happened for several weeks and I had to say to Lady Summerskill, "I am very sorry, but I am afraid we have had it, at least for this Session, and there is nothing I can do". That went on for 10 weeks. On the eleventh weeks there was silence—the honourable Member had the 'flu—and so the Bill went through.
The moral of that story, if I may so suggest to the noble and learned Lord, Lord Simon of Glaisdale, is that we must 139 never despair. At the same time, I join with him in saying that we should be grateful if it were possible for the noble and learned Lord the Lord Chancellor to intimate in his reply what he thinks the prospects of the Bill may be—whether we may face a Government Whip saying, "Object". It is, as we all know, a very difficult Session. There are a number of outstanding reports of the Law Commission, and we all realise that for any Lord Chancellor this Session has obviously been an extremely difficult one; but if he could give us cause for any real hope we should be grateful. Even if not, if the Bill reaches Third Reading in this House this Session, it could be reintroduced at the earliest possible moment in the next Session, when it would have a very easy passage. Subject to those observations, I strongly support the Second Reading of the Bill.
§ 9.23 p.m.
My Lords, I know I shall have a certain amount of difficulty in containing my enthusiasm for the Bill but I can only promise your Lordships that I shall do my very best. My enthusiasm springs from two sources. One is what I will call aesthetic, and the other is the socio-legal effects that I see may well result from the Bill should it become law.
The aesthetic reason is simply that the Bill is superbly drafted. It has the rare qualities in a modern Bill of clarity, precision and brevity. When one bears in mind that the Bill concerns a branch of the law of hideous complexity, it becomes clear that quite exceptional skill, scholarship and erudition has been brought to bear in its drafting. This is particularly so when one reads the Bill in conjunction with the explanatory notes to the draft Bill in the Law Commission report. A point in pure drafting style which I welcome enthusiastically is the felicitous and logical device of drafting the scope, construction and definitions of the chapters to the Bill at the beginning of those chapters. Surely this device contributes much to the clarity of any Bill. Indeed, I had begun to despair of ever seeing great examples of the draftsmen's art, such as the Sale of Goods Act and the Partnership Act, until I had considered this Bill and the report relating to it.
140 My second reason for enthusiasm—namely, the probable socio-legal effects of the Bill, which I as an amatuer believe will flow from it—stems from two sources. First, what some might believe to be only a pious promise; namely,with all my worldly goods I thee endowwill, in part, be made flesh in law. From a layman's point of view I believe this to be immensely important not only in correcting juristic absurdity, but because I feel sure that it will have a binding effect on the sanctity of marriage. The influence of the law will encourage the young to think harder and longer before contemplating marriage if the property element of the sacrament of marriage is ratified, even in part, in law. Indeed, it might even encourage them rather more to seek a marriage partner rather than a mere bed partner. I also believe that if a spouse is given, even in part, security in the matrimonial home, he or she will be less likely to dive for financial cover under the skirts of the divorce laws. The Bill will have a unifying, not a divisive, effect on society's most fundamental institution.
Secondly, the Bill reflects the concept of a community of goods acquired and maintained by the partners in a marriage. I believe that this concept is more relevant today than it has ever been because of the dramatic change in the nature of the contribution to that community of goods since the last war. This change in the nature of the contribution has arisen largely for economic reasons, but has had the effect of entrenching in the hearts and the minds of the younger married people the reality of the community of goods.
This is far easier to illustrate than to define. Before the war a solicitor's clerk, say, earning £5 per week, would never dream of attempting to put matters right himself when his matrimonial home fell into disrepair. It was a case of "each man to his trade" and he could afford to hire help. Your Lordships may even recall Hilaire Belloc's Lord Finchley:Lord Finchley tried to mend the electric lightHimself; it struck him dead and serve him rightIt is the duty of the wealthy manTo give employment to the artisan".The reality today is that almost without exception every young man, apart from the well-to-do, is not only a breadwinner, but is a carpenter, glazier, electrician, house painter and decorator, plumber, heating 141 engineer and motor mechanic. This is evidenced in the dramatic growth of an industry, created only since the war, which has spawned an ugly phrase and its even uglier acronym.
The man's contribution has changed in scope and nature, just as has the woman's. This is only one illustration of a fundamental change in attitude towards what is in reality often the only, and certainly the largest, asset in most people's lives, and which I believe requires the ratification of the law.
This brings me to the point made by my noble and learned friend the Lord Chancellor during a debate in your Lordships' House on 18th July last year. He said, if I may, with your Lordships' leave, quote him:the law of property which exists during the continuance of a marriage has a distinct bearing upon the law which applies at the breakdown of a marriage".—[Official Report, 18/7/79; col. 1458.]Your Lordships will be mightily relieved to learn that I am not going to develop this theme, as I am not competent to do so. However, I wish to say only two things. One is that what the Lord Chancellor said is manifestly so, and the other is that if one believes in the modern reality of the community of goods, then any division between the spouses of that community of goods on the breakdown of marriage in equity takes on an even greater importance, and indeed poignancy, than ever it did before.
My Lords, I would believe it to be a very great mistake to make Committee points at this stage of the Bill. However, I would very quickly, and with respect, ask for guidance with regard to Clause 2(5). I may be quite wrong, but this clause appears to me to provide a further means of excluding statutory co-ownership, which was not the intention of the Law Commissioners. Furthermore, I believe that this clause provides the means for one spouse to exclude statutory co-ownership exclusively without the knowledge or say-so of his or her spouse. With that, my Lords, I welcome this Bill with more enthusiasm than I do with knowledge or skill, and wish it godspeed.
§ 9.31 p.m.
§ Lord MIDDLETON
My Lords, it is very late, and what I have to say will be brief. It is on a narrow point, and it 142 springs to some extent from the general purpose of the other Bill to which your Lordships have today given a Second Reading. The aim of that Bill was the preservation of the national heritage, so much of which exists in the form of houses of historic and architectural interest, and their contents, still owned by individuals. That so many of these houses and their collections of works of art are still in private hands is due to the system of inheritance which has operated in this country through the centuries. It has, too, usually been recognised as equitable that a family home of this kind, and its contents, would pass by descent, and not, at any rate permanently, to a widow or estranged wife unless there was no other money or property that could be made over to provide for her.
Many families have considered it a duty to preserve these houses and their collections. But, leaving aside all matters of sentiment, it is greatly to the advantage of ratepayers and taxpayers that they should not, as is so often the case in other European countries, be saddled with the burden of maintaining a large portion of the national heritage in addition to that already in museums. There are good practical reasons for encouraging individuals to remain in possession, and practical assistance, mainly through fiscal measures, has therefore been given by successive Governments irrespective of politics. Whereas the exceptions in the Bill should be adequate to support this policy in the ordinary run of cases, I am not sure that account has been taken of such a case as I shall describe in a moment—and I listened with great care to what the noble and learned Lord, Lord Simon of Glaisdale, said just now as to how an historic house could be excluded from co-ownership. If I have misunderstood him, I know he will tell me so.
My Lords, this is the case, A married man may, after the transitional period provided for in Clause 8, inherit an historic house, possibly with a collection of works of art. Under the Bill, when the donor makes no direction excluding statutory co-ownership, the new owner (be it husband or wife) is unable to do so because he did not have an interest in the house before or on the marriage. On a possible divorce, the house would have to be sold to realise the wife's half-share. I suppose that in practice it would in some 143 cases be the contents, the works of art, or some of them, which would be sold, and here I can see tax difficulties. This might be unfortunate for the family, but we are not concerned with sentiment so much as with practical results. If cases could occur where, by reason of a co-ownership rule, there was a sale of an historic house or its contents, or of both, this might be to the disadvantage of the public and might conflict with the general aim of recent Governments to preserve these things if possible intact and if possible in situ.
In the case I have described, it would, as the noble and learned Lord, Lord Simon of Glaisdale, said, be open to the spouses by agreement to bring themselves within the exceptions provided for by Clause 11; but it seems to be distasteful to require a happily married couple cold-bloodedly to contemplate their own divorce and to reach an agreement which might take effect in the event of their separation. Indeed, the Law Commission's Third Report on Family Property, on which this bill is based, stated in paragraph 1.22:It would be wrong to create a situation in which the donor could fulfil his desire only by putting pressure on the donee to make a declaration which, left to himself, he might not wish to make and which might well cause misunderstanding between him and his spouse".This passage illustrates the same concern with the relationship between husband and wife that I have expressed.
I have referred only to a very narrow range of cases and, if my anxiety is unfounded, I am sure that the noble and learned Lord will tell me so. In any case I shall be most interested to learn how the Bill would operate in the circumstances which I have outlined.
§ 9.38 p.m.
§ Lord MCGREGOR of DURRIS
My Lords, I think that the first occasion on which married women's property was discussed in your Lordships' House was in 1856 when Lord Brougham presented a petition signed by a group of "literary ladies", as they were then described, which included Mrs. Gaskell, Eliza Fox, Elizabeth Barrett Browning and some 3,000 other signatories; and it was reported that Parliament received the petitionvery respectfully … without a sneer or a smile".144 Reform of this law was taken up by Lord Brougham's Law Amendment Society and thus began a campaign, the first achievement of which was the seminal Married Women's Property Act 1882. I hope that the noble and learned Lord who sits on the Woolsack will be able to encourage the supporters of the Bill introduced by the noble and learned Lord, Lord Simon of Glaisdale, to believe that his measure will become the last major achievement of a campaign which runs back to the 1850s and has, since then, received the steady support of a responsible and informed public opinion.
Change has not been rapid perhaps because, as Dicey observed in discussing the 1882 Act:… changes in the law … affecting family life always offends the natural conservatism of ordinary citizens".This conservatism has been given full weight, I think, for a century or more and I feel that the supporters of the Bill may ask the noble and learned Lord who sits on the Woolsack to count this long history in his assessment of the public support for the Bill to which he referred when replying to the debate last July.
I do not intend to weary your Lordships with further observations which the many contributions to this debate have rendered unnecessary. I conclude by echoing the comment of the noble and learned Lord, Lord Scarman, in hoping that this will, indeed, be an historic occasion in the history of the relations between husband and wife.
§ 9.40 p.m.
§ The LORD CHANCELLOR
My Lords, I do not want to detain the House for very long at this late hour. We have been reminded—and first of all by my noble and learned friend on the Cross-Benches who proposed the Second Reading of this Bill in his excellent and lucid speech—that this is the second time that I have found myself winding up a debate on this very topic—the first being on 18th July. Both debates have been interesting to me and both enjoyable. But neither has been wholly satisfactory from my point of view. On 18th July those speakers we attracted were very good, interesting and very worthwhile speakers; but we failed to attract a very big House. I felt and I believe—although perhaps I ought not to say so without consulting him— 145 that my noble and learned friend on the Cross-Benches might very well have had the same feeling about our debate, that although we enjoyed it and I hope enjoyed one another's speeches, we had not had a representative view of what Parliament was likely to think if this Bill were brought before it. I certainly felt so and I think he may have done so. At all events, I am very glad that he did bring this debate in this form about six months after we had our first debate. It obviously makes my task in replying to the debate more difficult, because I have said a great deal of what I wanted to say about it, and I do not propose to say it again.
This debate has been slightly unsatisfactory from my point of view because we have heard from speakers nothing but a chorus of praise for the principles of the Bill, for its draftsmanship, for all its social and economic effects, and for the philosophy of marriage which it reflects. I am bound to tell the House that those who have been absent from the debate—and they are a very large majority—are not necessarily so favourable to the Bill as those who have attended and have spoken in the debate. I will begin to tell the House in a moment why I think that might be the case. But I think that it would be a mistake for both my noble and learned friends—if they will allow me each to call them by that affectionate description—on the Cross-Benches, or for the noble and learned Lord, Lord Gardiner, to suppose that this Bill will not run into opposition when it comes before another place. I do not know who it was to whom the noble and learned Lord, Lord Gardiner, was referring. Perhaps I had better not try to find out! But there are such people there still.
The first thing that I have to say is that the Bill in its present form is opposed rather strongly by the Law Society. The name of the noble Lord, Lord Mishcon, was originally upon the list of speakers. He has not spoken. I rather fancy that he would have repeated—and he very likely would have repeated—the deprecatory comments which he made, speaking very largely for the Law Society, in the July debate. It would be a great mistake to suppose that this Bill will not in fact run into quite serious opposition from another place if it is discussed there.
146 I am also bound to disappoint my noble and learned friend in saying that the Government cannot find time this Session for this Bill. I told him that in July, so I hope he will be able to bear his disappointment with fortitude this evening, if I simply say that again. The other thing I want to say, which not only disappoints him but disappoints me, is that the Occupation Bill, which I categorically said I hoped to see on the statute book this Session, certainly will not get there now. I regret having to say that, but I made a special inquiry when he referred to it in his speech, and the prospects are not good in this Session for the Occupation Bill, which I had hoped would go forward.
The other thing which I must say a little candidly to the House is that my own misgivings about some of the things in the Bill have grown in the last six months, and I should like to say frankly why this is so. It has been stressed, and rightly, throughout this debate that what we are talking about is the ownership of the matrimonial home during a happy marriage. In fact the divorce laws when a marriage breaks down lead to a result which is not altogether different—but not altogether the same—from what is proposed in this Bill.
To begin with, it is usual on a divorce—and that is a situation which I cannot rule out as a possibility—that the possession of the house, if not sold, normally goes to the wife and children. The ownership is usually shared and the house is sold and the proceeds divided, subject to the wife's occupation. So I would, if I may, differ slightly from my noble and learned friend Lord Scarman, who spoke as if the happy wife during marriage was sure of her occupation of the house, but if the marriage broke down, or if for any reason her husband let her down, she was cast from what he described as the trapeze on to the hard ground beneath. This is, I think, an inaccurate statement of what in fact is likely to happen to her on divorce.
I am bound to say that I have had some second thoughts about whether the Bill is as favourable to women or to wives, or indeed is as wise in its general provision, as speakers have said. I want to be perfectly frank about this. I am basically favourable to the idea of co-ownership. I say in passing that in, I think, more than half of the cases of marriage in this 147 country, the house is in the name of both husband and wife, and co-ownership is therefore a fact, and a growing fact, about society.
However, one is not concerned—and here I agree with my noble and learned friend Lord Scarman—with the case when the parties make their wishes known, because they have thought the matter out and want it that way. Nor is one concerned in this Bill with the case where one of the parties has decided against the Bill altogether and has proceeded to contract out through one of the exceptions. What one is concerned with, as my noble and learned friend quite candidly said, is the case where nobody does anything about it; that is to say, where nobody says, "I want this to be co-owned", or, "I want it not to be co-owned", or, "I want to give it to my wife" or, "I want to give it to my husband". It is some of the consequences of that—touched on, I think, not absolutely accurately, but still touched on, by the noble Lord, Lord Middleton, in one of the later speeches of the debate—that I want to try to explore a little.
What the Bill does, if nobody does anything, is to make what is called a joint tenancy, which, as I ventured to say to my noble friend Lady Vickers in the course of her speech, means that the survivor takes all. If the husband dies before the wife, the wife gets the lot; and if the wife dies before the husband, the husband gets the lot.
Let us just see how that will work itself out in practice. I suppose it would be likely to be all right if one owned an historic mansion. I say that to my noble friend Lord Middleton, because I suppose that the family solicitor would advise either the father of the heir or the heir himself to do something about it. But supposing that he did not—and it does not for this purpose matter very much whether one is talking about Hatfield House or No. 249A Anerley Road, Crystal Palace—the position is the same. The house is in the possession of the one family and has been for some time, perhaps for two or three generations. The owner—let us call him Mr. Hogg of 249A Anerley Road—marries Miss Smith and she thereupon becomes joint tenant because neither has objected to the operation 148 of the general law. On the other hand, Mr. Hogg does want the house to stay in his family; it is a family house. Mr. Hogg unfortunately dies. Mrs. Hogg, who was formerly Miss Smith, takes the lot, marries again outside the family and then dies. The first family loses the house. The second husband gets it if nobody does anything about it. Is that justice? For this purpose it does not matter whether you are a woman or a man; the story can be told the other way round.
Let us take another situation. Supposing the first marriage has children and that it has ended in divorce or death. The first marriage has children and nobody does anything about it. But there is a second marriage, and the second marriage results in children, too. As a result of the joint tenancy, the survivor of the first marriage gets the lot. And if he or she does nothing about it the survivor of the second marriage gets the lot and the children of the first marriage are altogether dispossessed. Is that social justice? I do not know; but I must tell the House that that is the basis of my growing doubts about the matter. I am being absolutely candid and frank about it.
When I spoke in July, I was a relatively young Lord Chancellor in his second term. I had a recollection of my first four years and I was tremendously predisposed both to the Law Commission as an institution—I have paid my tributes to it again and again and again—and also to the state of the law, as it then was, in general being what I had thought it to be during my practice at the Bar. I touched on this in my speech in July, but the situation has very greatly developed since then.
I am being literally pelted with constituency letters from the other place. There is something called the Campaign for Justice in Divorce which has prompted many of them, but they come from just as many women as they do from men. The two camps are not divided into the war between the sexes. They are divided into the first wife and her children in the one camp, and the second wife, after divorce, or the third wife, after two divorces, in the other camp. The have all got a case. But the overwhelmingly large numbers of letters which I am receiving now come from second wives and husbands who have contracted a 149 second marriage and who have got two families with two sets of children to keep when, frankly, there is not enough to go round.
I am answering these letters at the moment in a negative sense. I point to Section 25 of the Matrimonial Causes Act 1973 and I ask the Member of Parliament concerned, "What is wrong with that? Please suggest the way in which this is an unjust law". I do not get very many intelligible replies, as might be expected, because they do not like a Lord Chancellor who replies to a letter by asking a question instead of giving an answer. But the overwhelming burden of the correspondence that I am receiving is from second wives and husbands who have contracted second marriages, saying that the law has gone too far in the direction of the first wife. This may be wholly untrue. Tomorrow, or the next day, I hope to meet the Family Law Association who, by a strange quirk of fortune (perhaps it is an ironic joke) always have their annual dinner on Saint Valentine's Day, and I am going to ask them this question.
All I am saying is that we should not assume that by giving half the property to the first wife we are necessarily corresponding with social life as it exists today. There has not been a speech that I have listened to, from the noble Baroness, Lady Lockwood, to my noble friend Lord Morris, which has not basically assumed that we are dealing with a Christian marriage, that is to say the lifelong union between one man and one woman. But that is not the life of the second half of the 20th century. We are dealing with a situation in which divorce is first of all about forming a second marriage; secondly, it is about the custody of and access to children; and thirdly, it is about money and property.
The second wife has a pretty rough time. She has her legal rights. You can say to her "Well, you knew what you were taking on when you married this man. You knew he had been married before. You knew he had four children". But she finds when she gets past the honeymoon that the first wife is constantly making applications to the Court for the payment of maintenance, perhaps for the sale of what had been the matrimonial home and half the assets. She finds 150 that she has to work for a living although she is bearing a series of children on the second marriage to the same man and she feels very hardly treated by the law. There has not been a word in this debate about that social situation, of which there are hundreds of thousands of cases going on at the present time.
I must tell the House that I am receiving a deputation of MPs led by Mr. Leo Abse—known to most of us who have been in the House of Commons for some years—and there are so many MPs who want to join it that my room will not hold them. I said "You must limit your numbers or I shall not be able to sit down in my own chair" and they are all making the sort of case that I am making now. I do ask my noble and learned friends on the Cross Benches, when they are dealing with the ownership of property creating this joint tenancy, to bear in mind whether on the whole they are ultimately going to face a situation, if the marriage subsequently breaks down, which takes us still further along the road of this form of social disruption. I have these disquietudes.
Having said that, I believe that husband and wife are wise to own the matrimonial home in common. More do now than do not and I think that is a very strong pointer, but no trouble is likely to arise until their marriage breaks down and then there are other mouths to feed and other women to think about. All I say is, do not assume that because this has had an easy ride in this debate it will necessarily get an easy ride when it goes down to another place, because I do not think it will. I am only too glad that this should be aired.
The Law Commission, the creation of the noble and learned Lord, Lord Gardiner, is one of the best things invented in the field of law reform this century, or perhaps in any century. It used to be said that it took three Lord Chancellors to achieve a law reform. I think the thing has now been short-circuited by one, but even so the inertia of the system is something which absolutely terrifies me at times, and I do not think I am less likely to be terrified when I see the results of this being debated in another place. I am glad it has come before Parliament. I hope it goes down to the House of Commons, but I cannot promise it an easy ride when it gets there, and I cannot promise 151 Government assistance, at any rate this Session.
Having said that, I hope my noble and learned friend, whose friendship I value so much, and my noble and learned friend Lord Scarman and other noble Lords who have spoken so warmly in favour of the Bill, will not take exception to what I have said. I said in July what I thought about the proposal, as it then was, and I broadly think the same now, but my misgivings have increased rather then diminished in the interval. I thought it fair to put them before the House in a perfectly frank and friendly manner. I hope this Bill goes through; I hope it will be considered in the other place, and in the light of all the opinions expressed I hope a wise decision will be come to. I feel it my duty to be the trustee for wise legislation, not to enforce my will on other people. Social life is changing too fast for Lord Chancellors to think they know everything, and I do not think I know everything. I know I do not.
§ 10.2 p.m.
§ Lord SIMON of GLAISDALE
My Lords, I am extremely grateful for the speeches that have been made, apart from the last by my noble and learned friend on the Woolsack. I am very grateful to those who have fleshed out the bare bones of this Bill, legally and sociologically, and I am very grateful for the unanimous support, until it came to my noble and learned friend's speech. I am bound to say that, if one can trust a social survey, it is the speeches which have been made other than the Government speech which reflect opinion in this country.
The noble and learned Lord mentioned opposition by the Law Society. The Law Society in their evidence to the Law Commission accepted the principle of co-ownership, but produced a scheme so fantastically complicated that the Law Commission rightly disregarded it and adopted this one as far simpler—as it is. My noble and learned friend on the Woolsack said that he could not promise Government assistance. I rather expected that, and I take it that that means that if the Bill goes on, this Session at any rate, I cannot look for the assistance of the Law Commission even, or the draftsmen, or officials. Would my noble and learned 152 friend say whether I have misunderstood him?
§ The LORD CHANCELLOR
My Lords, I am not sure that I have gone as far as that. I cannot speak for the Law Commission at the moment. It had not occurred to me that my noble and learned friend would want the assistance of the Law Commission. I think I can say that he will not get a Government draftsman other than a Law Commission draftsman. We will see how we get along in Committee. I do not want to withdraw help from him, because, as he knows, I am broadly favourable to what he is trying to do. But I think I can say that he will not get a Government draftsman, as they are already fully engaged. What would happen with the Law Commission, I should like to consider at greater length, and I will let him know.
§ Lord SIMON of GLAISDALE
My Lords, I am bound to say that the Law Commission is extremely unlikely to give any help in those circumstances. At any rate, I understand the position that I am now in. My noble and learned friend on the Woolsack queried whether the Bill was really favourable to married women. He made a considerable play about the divorce law. Of course, the Bill is not about the divorce law at all. On the contrary, my noble and learned friend Lord Scarman was absolutely right when he said—and the point was made by the Law Commission on page 4 of the report—that, in order to get reasonable treatment on property, one must be either a widow or a divorced woman, and that the woman who stands by her marriage, unless the husband has himself put the house in joint names, has no right at all.
The other point is that, as the Law Commission pointed out, to rely on the Inheritance Act and the Divorce Property Acts may be completely useless, because the matrimonial assets may have been dissipated before the husband dies or before the marriage terminates in divorce. I agreed with a great deal of what the noble and learned Lord said, but it is as though he stood up and said, "I am passionately devoted to cheese and therefore I shall oppose anything that is put forward to prevent the quarrying of chalk".
§ The LORD CHANCELLOR
My Lords, if my noble and learned friend will forgive me, I must say that I think that he is being a little unfair to me. Everyone in this House has spoken in favour of the Bill. I thought it my duty to put some of the arguments which might be presented against it. He must not assume that I am resiling from what I said, which was relatively favourable, in July. I do not want it to be said that I have come out against the Bill. I only wanted to put a case which I want my noble and learned friend to answer as we go along in the course of the Bill—either now or in the Committee stage. He must not accuse me of putting a series of false points and of being antagonistic to him at all. However, those points need to be answered.
§ Lord SIMON of GLAISDALE
My Lords, I am grateful to my noble and learned friend. I have no objection to his saying what there is against the Bill, but one does not controvert the contents of the Bill by attacking the present law on divorce and the way it operates, because the Bill has nothing to do with divorce, except that it puts the woman who stands by her marriage in as favourable a position as a woman who has recourse to the divorce court.
Apart from that, my noble and learned friend asked whether the Bill was really so favourable to married women. The best test of that is that the married women themselves think that it is. The married women's organisations are 100 per cent. in favour, and all the noble Baronesses who have spoken today attest that that is the general view of women. Who is more likely to be right about that? The Law Commission took the same view.
I shall not deal with the other points raised in the debate, except for three. The noble Lord, Lord Boston of Faversham, the noble Baroness, Lady Lockwood, and the noble Baroness, Lady Seear, asked about the position of Mr. Marsh's dissent. My noble and learned friend Lord Scarman dealt with that matter and gave the other side of the argument. I can only say that it seems to me to be the sort of point that can be decided in Committee. It is a contestable point. I myself tend to favour Mr. Marsh's 154 point of view. At any rate I have an open mind on the matter.
The noble Baronesses, Lady Vickers, Lady Lockwood and Lady Faithfull, asked about council lettings. Under the Bill it matters not at all that a council insists on putting the tenancy in the name of the husband, because the machinery of the Bill operates in such a way that if that is done, the husband holds as trustee for himself and his wife as joint tenants. So whatever the council does, it cannot prevent the Bill from operating.
The noble Baroness, Lady Vickers, mentioned the New Zealand legislation, which is very important. New Zealand has led the way in this field. They were 30 years ahead of us in family provision and they have been ahead of us in the field with which your Lordships are dealing this evening. They have found that this sort of measure is advantageous to married women and is workable. So I think that that was an important point which was made.
The only other point which I should like to consider further is that made by the noble Lord, Lord Middleton. I read Clauses 8 and 9 combined with Clause 32 as meeting his point. But, as I agree with his premises, I should like to consider the matter further and, if he will allow me, write to him about it. The other points were rather more Committee points. I conclude as I started by expressing gratitude to your Lordships both for the support in the speeches and for the way in which the speeches made up for the deficiencies in my own.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.