§ 6.28 p.m.
§ Lord Simon of Glaisdale
My Lords, I beg to move the Second Reading of this Bill. It falls into two parts. The first Part amends the Matrimonial Homes Act 1967—and that is Clauses 1 to 6 and all three schedules. It springs from a recommendation of the Law Commission. 57 Part II seeks to improve the machinery of the divorce court in dealing with matrimonial property after a divorce and stems from a more recent paper of the Law Commission.
The first point goes back a very long way. The main principles were stated in a Law Commission paper when my noble and learned friend Lord Scarman was chairman in 1972. There were then very wide and very detailed consultations, and in 1978 the Law Commission produced a third report on matrimonial property to which they exhibited three Bills with detailed commentaries on each. The first dealt with co-ownership of the matrimonial home; the second with rights of occupation—and that is substantially the first Part of this Bill—and the third with the contents, the chattels. Your Lordships debated that paper in the summer of 1979 and my noble and learned friend on the Woolsack then indicated that he himself hoped on behalf of the Government to introduce a Bill dealing with rights of occupation. I think that Bill had very general approbation; so, for that matter, did that on co-ownership, although my noble and learned friend felt that he ought to put the case against it, acting as advocatus diaboli. The third Bill had more doubt expressed about it.
The present Bill, dealing with rights of occupation, was squeezed out in the Session when my noble and learned friend wished to deal with it. When it did not appear in the gracious Speech at the beginning of this Session, I asked the Minister in the debate on the Address whether it was included among the other measures which would be laid before the Houses. It appeared that it had been squeezed out yet again, although the noble Lord, Lord Belstead (speaking on that occasion for the Government), said that the Government would favour its adoption by a private Member of your Lordships' House. He suggested that such a Bill should be combined with the one dealing with the adjustment of property after divorce—in other words, what is now Part II of this Bill. I was very glad to undertake that.
The problem that was dealt with in 1967 applies equally to a husband or wife, or the other way round. However, for convenience, I shall take the position of a deserted wife because that is the more common one. If a wife were deserted by her husband and he was the legal owner of the property, the dwelling-house, he could sell it over her head and a bona-fide purchaser for value would be able to obtain an order for possession depriving the wife and children of the matrimonial home. The courts endeavoured to deal with that—principally my noble and learned friend the Master of the Rolls (whom your Lordships will be so glad to see here this evening). But judicial lawmaking has its limitations and it was obvious that it became necessary to deal with the matter by legislation.
The late Lady Summerskill, with the help of the Government—I think my noble and learned friend Lord Gardiner was then Lord Chancellor—introduced the 1967 Act. That enabled the wife to stand in the shoes of her husband. If she were in occupation and he was the legal owner, she could register a land charge, a Class F land charge, which would then give notice to a purchaser that she had an interest in the property, standing, as I said, in the shoes of her husband. Not surprisingly, after 12 or 13 years some 58 minor technical defects have been found in that measure. Part I of this Bill seeks to remedy them.
I said that the 1967 Act enabled the wife to stand in the shoes of her husband. What it did not do was to cover the case where the husband was not the legal owner but the beneficial owner. There were trustees and he was entitled to possession as a beneficiary. The Act did not enable the wife to stand in the shoes of the trustees, who were thus enabled, if they wished, to sell the house over her head to a bona-fide purchaser for value. Clause 1 of this Bill seeks to deal with that situation, in effect enabling the wife to stand in the shoes of trustees where the husband is the beneficial and not the legal owner.
I am dealing with the principles behind the clauses because this is, I fear, a highly technical Bill and because the Law Commission had a lucid and detailed commentary in their 1978 paper on each of the clauses. I hope that course will be convenient to your Lordships.
The second case was if the husband had mortgaged the property and stopped paying the mortgage payments. A mortgagee in those circumstances is normally entitled to gain possession. The 1967 Act recognised that problem and enabled the wife, standing in the shoes of her husband again, to offer to pay off arrears of mortgage payments and to offer to continue to pay the mortgage payments as they fell due. But what it did not do was to provide machinery whereby the wife was notified when the mortgagee took proceedings for possession. Clause 2 provides for that case, again enabling the wife to stand in the husband's shoes.
Clause 3 is a declaratory clause. It gives statutory expression to the views of the Law Commission on one of their other papers relating to polygamous marriages—that the 1967 Act covered polygamous marriages, as indeed it obviously should. Your Lordships implemented that report in the Polygamous Marriages Act so that all that is necessary to do in this Bill is to make the declaratory provision in Clause 3 to put the matter beyond doubt. Clause 4 is concerned with the mechanics of registering a Class F land charge in respect of the registered land. I shall not trouble your Lordships with the technicalities of it. It should enable the procedure to be carried out both more effectively and cheaply.
Clause 5 makes a few corrections to the Act of 1967 in order to take account of subsequent legislation. It does the same for the Domestic Violence and Matrimonial Proceedings Act 1976. I think probably that it was an oversight that that was not dealt with in 1976. Clause 6, together with the second schedule, revises the power of the divorce court under Section 7 of the 1967 Act to order the transfer of a tenancy from one spouse (who will generally be the husband) to the other (who will generally be the wife). This is a very important power where the husband is a statutory tenant or is under a protected tenancy—that is to say, a tenancy that is still contractual but has the potentiality of becoming a statutory tenancy with all the security of the Rent Restrictions Act. It not only improves the machinery but it extends the power to make the transfer under that section to a case of a judicial separation as well as after a divorce or a decree of nullity. It also enlarges the time within which an application can be made, so as to bring it into line as 59 to both the extension of time and the limitation by rules of court to what applies to the divorce court's powers in relation to property. That is Part I of the Bill.
Part II springs from a more recent Law Commission paper just over a year ago. The divorce court has very wide powers after a divorce to make transfers and various changes in property rights and possessory powers. I need not expatiate on that because these powers were explained very clearly only a short time ago by my noble and learned friend Lord Denning in a case called Hanlon v. The Law Society and by Lord Justice Donaldson in that case, both of them taking exactly the same view. Those views were endorsed in your Lordships' House when that decision was appealed.
But what the divorce court cannot do, at any rate directly, is to order a sale of the matrimonial home. That may often be necessary in order to do justice between the spouses financially. The court can, and does, do it indirectly through a summons being taken out at the same time under the Married Women's Property Act or by making an order for a lump sum payment which necessarily in practice involves the sale of the matrimonial home. But the Law Commission, after investigation and consultation, decided it would be much more expeditious, much less costly and altogether more simple if the divorce court were given powers of sale under Section 24 of the Matrimonial Causes Act 1973. My Lords, I fear this is not a very exciting Bill but I commend it to your Lordships as a useful Bill, and I hope that your Lordships will give it a Second Reading. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Simon of Glaisdale.)
§ 6.44 p.m.
§ Lord Scarman
My Lords, I rise to support the Second Reading of this Bill and I should like, at the very outset of the few words I have to address to the House, to congratulate my noble and learned friend Lord Simon on his initiative in taking up the burden, which might otherwise have been borne by Her Majesty's Government, of promoting this Bill. I should like also to congratulate him, and indeed to thank him for the admirable clarity with which he has introduced this Bill. I detected a note of apology towards the end. He seemed to think that the Bill might not be of riveting fascination to the House. But how wrong he is. This Bill, certainly when expounded by my noble and learned friend, is, or ought to be, of riveting fascination to the House,
It is an amending Bill. It contains no new principle. It seeks by its various amendments only to strengthen the existing law, which protects the various rights of the spouse without property in the matrimonial property of the family. Part I is concerned with the matrimonial home. Part II is concerned with property of whatever sort which can be fairly described as "family property ".
The parent Act of Part I of this Bill was, as my noble and learned friend has told the House, the Matrimonial Homes Act 1967. We should all be exceedingly grateful to Lady Summerskill, to whose energy, initiative 60 and indeed legal intelligence we owe this Bill. I was at that time chairman of the Law Commission and, as such, I willingly accept the responsibility for those errors and flaws in the drafting which have made it necessary to bring this Bill before the House. Those flaws were the flaws of the technicians. The principle of that Act—now of course strengthened and carried a little further by this Act—was conceived, declared and fulfilled by the energy, intelligence and imagination of Lady Summerskill and, as chairman of the Law Commission at that time, I welcome this opportunity of paying that personal tribute to her memory.
My noble and learned friend has explained the provisions of the Bill and I wish only to concentrate the House's attention on one or two of the strengthenings of the law which this Bill, if enacted, will affect. I direct attention, if I may, to Clause 2. This deals with the right of the spouse who has statutory rights of occupation when faced with an action brought against her husband by the mortgagee because for some reason or another he has failed to comply with the obligations under the mortgage. There is a very valuable section in our law—Section 36 of the Administration of Justice Act 1970—which gives a mortgagor of a matrimonial home certain rights when faced with an action for possession brought against him by his mortgagee. It does it by imposing a wide-ranging discretion on the court to temper the wind to the penniless lamb and to delay eviction or an eviction order.
One of the technical weaknesses of the parent Act was that the wife, with her statutory rights of occupation, might have no notice of the proceedings brought by the mortgagee which, if successful on his part, would lead to her eviction just as surely as it would lead to eviction by a judgment against her husband. Clause 2 ensures that a mortgagee, seeking a remedy in respect of mortgaged premises which are a dwelling-house, has to give notice to the wife. There are detailed provisions to that effect with which at this stage I will not weary the House. But it is a useful indication of how valuable this Bill will be in strengthening the parent Act.
Some of your Lordships may have observed with a certain amount of disquiet, under the heading Arrangement of Clauses, Clause 3—Polygamous marriages. This is not an ingenious attempt sub almost total silentio to introduce polygamous marriages into our society. They are already there. They have been there for some time. They are already recognised, both actual and potential. All that this Bill would do as my noble and learned friend has said, is to ensure that partners to marriages which are polygamous because of the country in which those marriages were originally celebrated, will have the same rights as those who have married in this country. I do not think your Lordships need fear any danger of several ladies of the harem squabbling over a house in Purley. So much for Part I—rights of occupation.
Part II would remedy an omission from the legislation—again, Law Commission legislation of immense importance—which is now consolidated in the Matrimonial Causes Act 1973. Plainly, there should be a power of sale in respect of matrimonial property when the assets of the broken-down family are being distributed, and that is all that Part II does. So much 61 for the substance of this extremely useful amending measure.
There is one further virtue in this Bill which I should like to mention. It is an amending Bill and it is so drafted that, if it be passed into law, all its effective provisions by means of textual amendment will take their appropriate place in the statute law already dealing with the subject. When that happens, the shell of this Act, as it then will be, will disappear, will be sloughed off, and its effective provisions will be slotted into the existing statute law dealing with this subject. That makes a somewhat unattractive Bill when examined at this stage, but so far as the general public is concerned it makes for a very much more easily understood and more accessible body of law for those interested. Both for that technical drafting reason, as well as for the reasons of substance, I hope that the House will give this Bill a Second Reading.
§ 6.53 p.m.
§ Lord Gardiner
My Lords, I rise very briefly to support the Second Reading of this Bill. For about the first seven years of the life of the Law Commission their reports, with draft Bills attached, were accepted and implemented within about 12 to 18 months of being published. We have now for several reasons, I think, fallen into arrears. There are now some 10 to 12, I believe, which have not been so implemented because they have not been put before Parliament. This has not, I know, been due in any way to the fault of the noble and learned Lord the Lord Chancellor, who has always been a very good friend of the Law Commission, or of his predecessor. It has been due, partly, to difficulties of parliamentary time; this Government, like Labour Governments, too, always try to crowd too much legislation into one Session. It has been partly also due, I think, to the fact that there are some Government departments which do not now act as they were wont to do.
As your Lordships know, when the Law Commission undertake the examination of a subject they get out a working paper consisting of Part I—that is what the law in this field now is; Part II—these seem to be the defects; and Part III—these are very provisional conclusions as to the alterations which ought to be made. There then, for months, takes place a long stage of consultation with everybody interested in the Bill or likely to be affected by it. It is only after all that has been done that they finally produce their report with the draft Bill attached. There is in some Government departments a habit growing up, I am afraid, of making no reply at all when they are sent the working paper, offering no comments, and then, for the first time, when the report is published, starting to raise difficulties or objections.
But whatever the reasons, we are falling rather behind, and therefore we owe a special debt to any noble Lord who is prepared to undertake the very onerous task of introducing a Bill as a Private Member's Bill. In this field, there is no Member of your Lordships' House with greater experience or more knowledge than the noble and learned Lord, Lord Simon of Glaisdale. Therefore I want to express my thanks to him for having undertaken that task and to wish the Bill God-speed.
§ 6.56 p.m.
§ Lord Boston of Faversham
My Lords, like my noble and learned friend Lord Gardiner, I rise very briefly tonight to speak on the Second Reading of this Bill—briefly, because of the extent of the business which is before your Lordships tonight. We are again indebted to the noble and learned Lord, Lord Simon of Glaisdale, for this further initiative in family law, and I should like to join the noble and learned Lord, Lord Scarman, in commending the precision with which the noble and learned Lord, Lord Simon, has explained this otherwise complex measure.
On at least three occasions in the past two years he has brought before your Lordships matters in this sphere which have been through the Law Commission. There was the debate on 18th July 1979 on the whole of the Law Commission's Report No. 86, of which this Bill formed a part, on family property, matrimonial homes, co-ownership and occupation rights and household goods. There was the Bill which he introduced last Session on co-ownership, when we had that excellent Second Reading debate on 12th February last year—and, if I may say so, I very much hope that there will be an early opportunity for the noble and learned Lord to reintroduce that Bill here—and now we have this Bill on occupation rights and orders for the sale of property. We are, indeed, fortunate—and I do not think that this is something which we should just pass over and take for granted—that he has taken upon himself the sizeable task of championing these excellent Law Commission proposals. We are also fortunate in benefiting from his vast, unrivalled knowledge and experience in this whole sphere of family law.
Part I of this Bill covers what was probably the least controversial proposal in the Law Commission's Report No. 86 on family property, in what was called Book 2 of that report, dealing with occupation rights. In our earlier debate in July 1979, these proposals which we are discussing tonight received universal acclaim, and the noble and learned Lord the Lord Chancellor looked forward to the Bill's enactment. Part II of the Bill also contains useful reforms on orders for sale, as we have heard.
Both Parts of the Bill put forward reforms which have been called largely technical, but I do not think that that should be allowed to disguise the fact—and here I join with other noble Lords who have spoken tonight—that these proposals would also amount to significant advances in family law, in the position of women, and in bringing fairness and justice as between husband and wife. I should also like to join in the tributes which have been paid to my late noble friend Lady Summerskill. I should like to give a very warm welcome to these proposals. I very much hope that your Lordships will give the Bill a Second Reading and that, if it does reach another place, it will receive speedy approval there, too.
§ 7 p.m.
§ The Lord Chancellor
My Lords, the best service that I can perform for this Bill is to say relatively little about it. I think it is a valuable and important contribution to family law. Speaking for the Government, I should like to express our thanks to my noble and learned friend Lord Simon of Glaisdale for having undertaken the not inconsiderable burden of expounding 63 its provisions and for undertaking the equally not inconsiderable burden of trying to pilot a Bill which is not insubstantial in length, going into 14 pages, through this House of Parliament. I hope he finds a suitable sponsor in another place.
Cur view is that this should become the law with as little discussion as possible. The noble and learned Lord, Lord Gardiner, who has experience of these things, spoke of the terrible troubles that unfortunate Lord Chancellors get into in trying to keep going the flow of law-reforming legislation in the spate of controversial discussion in which Governments habitually find themselves engaged; and also, if I may say so, as I said in rather more academic surroundings last week, because of the rather curiously compartmentalised processes through which legislation has to pass in order to get into the Government programme as part of sponsored legislation.
I have failed to get a place in the Government programme but I have Government approval for the policy. It is for that reason that I should like to thank my noble and learned friend Lord Simon of Glaisdale for having undertaken a task that I myself, with more means at my disposal, would gladly have undertaken. Also I think that the House should express gratitude to the noble and learned Lord, Lord Scarman, who was chairman of the Law Commission whose work we are in part carrying out.
The present report of the Law Commission reiterates to some extent the tale of woe adumbrated by the noble and learned Lord, Lord Gardiner. I can only say, and I hope the House will believe, that I shall do my best to further its purposes. I am sure that my noble and learned friend Lord Simon of Glaisdale was wise to choose this particular item. It puts into effect Book 2 of Law Commission Report No. 86 which, as I think the noble Lord, Lord Boston of Faversham, said, is the least controversial of the three and therefore the easiest to insert into a parliamentary programme. I do not think that it ought to cause any controversy. It also puts into effect the more technical amendments contained in Law Commission Report No. 99. These insert textual amendments into the matrimonial law which, when we come to look at the statute as it will be operated, will form a continuous whole. My noble and learned friend has done a very real public service, and I should like to thank him publicly for having undertaken this task. Had he not done so, I should not have been able, this Session, to make it a Government Bill. As it is, I hope that it will go through the House more or less as it stands. After all, the drafting has been done by an expert and there should be no controversy about it. And I hope that on this occasion the other place will take a respite from its labours and let the Bill go through more or less on the nod. I am very happy to give a welcome to the Bill.
§ Lord Simon of Glaisdale
My Lords, I think that little more remains for me to do than to thank your Lordships for the very friendly and generous reception which your Lordships have given to the Bill. I was very glad that my noble and learned friend Lord Scarman and the noble Lord, Lord Boston of Faversham, mentioned the late Lady Summerskill 64 whom, on a measure like this, one should always bear in memory with affection and admiration. I think we should want also to bear in mind the late Mr. Justice Cooke who was chairman of the Law Commission at the time of the third report which drafted Part I of this Bill. In paying those tributes I ought to mention that in introducing the Bill to your Lordships I ought to have said how much help I had had from the department of my noble and learned friend on the Woolsack. I certainly could not have managed it without that help, and I am very grateful.
In speaking of the slotting in of this measure, I think my noble and learned friend Lord Scarman implied—if he did not, I should like to express it—the desirability of an early measure of consolidation. As drafted by the Law Commission, the Bill had a consolidation schedule which for a number of reasons has been dropped—I think desirably. However, I hope that my noble and learned friend on the Woolsack will think it proper now to refer this topic for consolidation. It ought to be a comparatively simple measure of consolidation.
As for my noble and learned friend Lord Gardiner, I venture to agree with him that we have a duty to implement the recommendation of the Law Commission. Considering the value of their work it is not an expensive institution, but we are wasting them unless we rapidly take up their recommendations, which have been made only after the most thorough investigation and consultation, as the noble and learned Lord described. Unless we take steps to implement their recommendations we are wasting them. Having said that, I finish as I began by thanking your Lordships for receiving the Bill in the way that your Lordships have.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.