§ 4.57 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 13th November be approved.
§ Your Lordships will appreciate that the main purpose of the order is to bring the rights of occupation in respect of the matrimonial home in Northern Ireland broadly into line with those in England and Wales under the Matrimonial Homes Act 1983. The order also follows both England and Wales and Scotland in giving cohabiting couples protection from domestic violence. In addition, the opportunity is taken to abolish the action for breach of promise of marriage and to restate the law relating to the prohibited degrees of relationship in marriage.
§ I shall turn first to occupation rights in the matrimonial home where one spouse—who normally tends to be the wife—is not entitled to occupy the matrimonial home in her own right but does so by virtue of the other spouse's right to occupy it. In this situation the non-entitled wife has little protection if her husband puts her out of the home or sells it over her head. This is most likely to happen when the marriage is breaking 1139 down. The husband might first exclude his wife from the matrimonial home or simply sell it behind her back; or he might desert the wife leaving her in the matrimonial home. Were he then to mortgage the property and subsequently default on the mortgage the mortgagee could enforce his security by taking possession proceedings against the wife which would result in the wife losing the matrimonial home.
§ Part II of the order is designed to remedy this state of aifairs. It applies equally to both non-entitled husbands and wives. But, as I have indicated, in practice it is usually the wife whose occupation rights are dependent upon the husband and it is she who is generally in the weaker position.
§ If we turn to the detail of the order, Article 4 gives the non-entitled wife the right not to be excluded or, indeed, evicted from the matrimonial home by the husband without a court order or, if not in occupation, the right with the leave of the court to re-enter the matrimonial home. These are the new statutory rights of occupation.
§ Articles 5 and 6 contain the provisions which protect the non-entitled spouse from sales or mortgages over her head. In such circumstances the rights of occupation operate as a charge known as a matrimonial charge. To be effective and binding against a purchaser (which is defined in Article 3 to include a mortgagee) a matrimonial charge must be registered in the Land Registry of Deeds in accordance with Article 6 at the appropriate time. The charge must be so registered before the purchaser enters into a contract to purchase an estate affected by the charge or before the mortgagee takes a deposit of title documents as security for a loan.
§ Turning to the other provisions of the order, Part III follows the recommendations contained in Law Commission Report No. 26 on Breach of Promise of Marriage, which was implemented in England and Wales by the Law Reform (Miscellaneous Provisions) Act 1970. Article 15 abolishes the action for damages for breach of promise of marriage (which is no longer used in practice in Northern Ireland). Article 16 provides for property disputes between the parties to a terminated engagement to marry by applying the same law and procedure as in property disputes between spouses. Article 17 amends the rules of law which relate to gifts between the parties to a terminated engagement.
§ Part III also restates the law relating to the prohibited degrees of relationship in marriage in Northern Ireland. Article 18 sets out the prohibited degrees in a table which corresponds to Schedue 1 to the Marriage Act 1949 in England and Wales.
§ Part IV of the order contains an important provision whose effect is to extend to cohabiting couples and their children the legislative protection against domestic violence which is currently available to spouses. Article 20 empowers courts of summary jurisdiction to make personal protection orders and exclusion orders in respect of couples who are living or have lived together in the same household as if they were husband and wife. Protection against domestic violence in respect of such cohabiting couples is 1140 already available in the rest of the United Kingdom under the Domestic Violence and Matrimonial Proceedings Act 1976 and the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
§ The order before us this afternoon has been well received generally among those who were consulted, including the Northern Ireland Assembly. It has been welcomed as a useful advance in the field of family law in Northern Ireland. I beg to move.
§ Moved, That the draft order laid before the House on 13th November be approved.—(Lord Lyell.)
§ 5.3 p.m.
§ Lord Prys-Davies
My Lords, the draft order relies heavily on the relevant England and Wales legislation. That is not surprising. Under direct rule there must be a tendency for legislation in Northern Ireland to be brought into line with that in the remainder of the United Kingdom. But what is unsatisfactory is that time after time we have to rely on orders instead of legislation which can be debated and which can be amended. We constantly make that criticism of the procedure.
Moreover, the draft order confronts some of the basic social problems of Northern Ireland within the family sector, which are similar to those of England, Wales and Scotland. In Northern Ireland, as in England and Wales, people expect the law to respond to the husband's responsibility to ensure accommodation for his wife. In Northern Ireland, as in England and Wales, people expect the law to make an effective response to domestic violence upon a cohabitee.
The noble Lord the Minister has outlined the main provisions of the draft order, and we are grateful to him for his comprehensive explanation. As the Minister has told the House, we know that the provisions are welcomed by a wide sector of opinion in Northern Ireland, including the Church of Ireland Social Family Welfare Association, the Equal Opportunities Commission for Northern Ireland, the Women's Law and Research Group, and the Assembly.
However, I should like to address a few questions to the Minister, and I apologise that I have not given him notice of them because I was unable to construct my speech until earlier today. We have been told that the draft order gives to the non-entitled spouse—that is to say, the spouse who has no rights of ownership in the dwelling house—the right, provided that the dwelling house is freehold or leasehold, as defined in the order (and I shall return to the definition of leasehold later on), not to be evicted or excluded from it, or the right, with the leave of the court, to return and live in the house. Then the order goes on to provide for this right to be registered as a charge which will be binding on a purchaser or a future mortgagee.
Concern has been expressed in some quarters in Northern Ireland and voiced by experienced lawyers in the Province that a charge will not be binding on a trustee in bankruptcy; in other words, that a trustee in bankruptcy would be able to obtain vacant possession of the house and sell it free from the burden of the charge. That, of course, would be the position. It would not be binding on the trustee in bankruptcy. But it is feared by experienced lawyers in the Province 1141 the spouse who owns the matrimonial home may abuse the law and have himself or herself adjudicated a bankrupt in order to frustrate his or her spouse's right of occupation.
In England and Wales this abuse has not happened or, if it has happened, it is not a common happening. That may be reassuring for the people of Northern Ireland. But I hope that the Minister will give an assurance to the House that the Government would consider introducing amending legislation if experience should demonstrate that this provision is being abused and exploited in the Province.
I think it is right that I should also record another concern expressed by some experienced lawyers in Northern Ireland. They fear that complication will arise in connection with the procedures in identifying the matrimonial property which is to be the subject of the charge. Against the background of the dual system of registration of encumbrances which operates in Northern Ireland, they fear that very much. But we have a dual system in England and Wales and in theory and practice it works very well. I am in no position to comment on the nature of the dual system in Northern Ireland, but it occurs to me that, if difficulties do arise, they will arise from the features of one or both systems and not from the fact that there exists a dual system. I thought that I ought to mention this concern in order to place it on the record.
There is another point which I wish to make in relation to the matrimonial charge. According to Article 6(2), the charge may be registered against freehold property or against leasehold property "for a term exceeding 21 years". In the circumstances of this article, what is meant by the phrase "a term exceeding 21 years"? Is the order referring to a term which was originally for a period exceeding 21 years, or does it refer to a term which has an unexpired period of 21 years at the time when the charge is registered? The distinction is obviously an important one, but nowhere in the draft order, unless I have missed the appropriate provision, is this defined. Therefore I would be grateful if the Minister could clarify the position.
The last point I wish to make in respect of the matrimonial charge relates to Article 9, which provides, inter alia, that the charge may be cancelled where the spouse is dead. Will the Minister confirm that the charge will remain in force until the personal representative of the deceased owner of the property produces a death certificate and applies to the court for the charge to be vacated?—in other words, the charge will not be vacated automatically on the death of the owner of the matrimonial property but only in response to an application to the court.
I turn now briefly to the proposed extension of the powers of the magistrates' court to make protection or exclusion orders in favour of a cohabitee who applies to the court for such an order. I understand that the Domestic Proceedings (Northern Ireland) Order 1980 attracted considerable criticism at the time for excluding cohabitees from the scope of the protection provisions. This was a very serious limitation, in view of the fact that Northern Ireland had no equivalent of the Domestic Violence and Matrimonial Proceedings Act 1976, which covered cohabitees. So an effort to 1142 extend the scope of the 1980 order is therefore a worthwhile policy, which we support. But who is a cohabitee for the purposes of the order? According to the order, they are:A man and a woman who are or have been living with each other in the same household as if they were husband and wife".So, applying this provision, how does one identify a cohabitee within the meaning of the order? Should there have been a minimum period of cohabitation? Should such a minimum period, if agreed, be reduced if there is a child of the union? In other words, should the lawmaker give more guidance to the courts as to how cohabitation should be defined and established for the purposes of the order?
I should also be grateful if the Minister could tell the House whether a man cohabitee can be excluded under the terms of this order from molesting his former cohabitee who is in a refuge. It is not clear to me from reading the Bill whether an order could be made in those circumstances.
Also, can the Minister assure the House that the orders to be made by the courts under this legislation will be adequately enforced? It would be helpful if the Minister could tell the House whether any difficulties have been experienced in enforcing the orders made under the Domestic Proceedings Order 1980.
Finally, I refer to Part III of the order, which abolishes the old action for damages for breach of promise to marry. We support this order. We do not believe that lovers' quarrels should be brought before the courts. I have not done justice to the full scope of the draft order which is before your Lordships, but I hope I have said enough to show that we on these Benches support the spirit of the proposed legislation.
§ Lord Hampton
My Lords, I, too, am grateful to the Minister for his introduction of this order which, it is said, is to bring the rights of occupation in respect of the matrimonial home in Northern Ireland into line with those of England and Wales under the Matrimonial Homes Act 1983 and to introduce a number of miscellaneous provisions.
We are told that the Northern Ireland Assembly fully scrutinised the order and made 14 recommendations, of which 13 were accepted. As a non-lawyer, I therefore feel particularly reluctant to challenge the order in detail. I have listened to the noble Lord, Lord Prys-Davies, with respect. He said he had not done full justice to it; but I am going to be a great deal briefer. I would just record that it seems to be sadly significant that so much thought needs to be given to difficulties in marriage and its frequent breakdown. It seems hardly expected that two partners in marriage or cohabitees will live and remain living together contentedly without the need for litigation. I find particularly sad all the detail about the engagement presents and the need to specify that the ring is not normally recoverable. I am intrigued that a list of prohibited relationships for marriage has to be published here.
I have just one question to ask the Minister. I should like to know whether an answer can now be given as to whether proportionately more or fewer marriages break down in the Province as compared with the mainland.
§ 5.16 p.m.
§ Lord Lyell
My Lords, your Lordships will be very grateful for the reception that has been given to this order by the noble Lord, Lord Prys-Davies, and by the noble Lord. Lord Hampton. As the noble Lord, Lord Prys-Davies, points out, it is fairly complicated law, as background. The noble Lord does himself perhaps justice, but no more, by saying that he has only skated upon the generality of the Bill and could have done a great deal more. Those of your Lordships who have listened to his questions will realise the study that he has clearly made as well as appreciating the cogent way in which he has presented the points raised by him and his noble friends. I am sure that everybody who has listened to the noble Lord will be full of compliments, as indeed I am personally, since I found this quite difficult, and I have had expert tuition. I hope I shall be able to assist the noble Lord by answering some of the questions he has raised.
His first question concerned the trustee in bankruptcy. If the noble Lord would consult Article 5(7), I think he will find that that corresponds to Section 2(7) of the Matrimonial Homes Act 1983. This is intended to facilitate the administration of the entitled spouse's assets on insolvency, by allowing the persons in whom his property vests to sell the matrimonial home free from the charge and therefore free from the non-entitled spouse's rights of occupation. That is an exception to the protection under Part II of the order, but I hope that the noble Lord and your Lordships will view this in the wider context of insolvency law, which has traditionally given precedence to the interests of the creditors. Were the provision to be framed in any other way it would cause hardship to them and at the very least the realisation of the assets would be delayed and it would certainly be more expensive. I am sure that the noble Lord and your Lordships will appreciate that the matrimonial home may be the only substantial asset available to meet the creditors' claims, but I do assure the noble Lord and your Lordships that the Government will keep this matter under review. I am sorry that I cannot go further than that this evening.
The noble Lord also raised a second query dealing with the registration of the matrimonial charges. He will see that this is dealt with in the regulations which we hope to make under Article 6. This will involve consultations with interested bodies such as the Law Society of Northern Ireland. We do envisage that an application for the registration of the matrimonial charge will be registered as a document in the normal way and will appear on the index of names and the abstract books of the general register. But to assist anybody who is interested in general searching, consideration has also been given to how best to set up a separate matrimonial charges register within the registry of deeds. This will contain details of these particular charges. The new register will be indexed to show the names of both the person whose estate is affected by the charge and the person who registers it. It will also give the description and address of the property which is affected by the charge. I hope that that is a satisfactory reply.
On Article 6(2), the noble Lord asked a question about the term "exceeding 21 years". I am advised that this applies to a lease which was originally granted 1144 for 21 years or more. The noble Lord also raised a point on Article 9, in regard to where a spouse is dead. I understand that the charge will no longer have effect after the termination of the marriage by death or divorce, even though it is still registered. But it is advisable for record purposes for the person interested to have that particular charge cancelled. I hope that that will assist the noble Lord.
He also asked me about Article 20 and cohabiting couples. When the noble Lord invited your Lordships to look at Article 20 I, too, was studying it. I had glanced at it earlier, but he drew my attention to it in a more detailed way. I understand that the first answer to the noble Lord, is: Yes, an exclusion order may be made in respect of a woman's refuge. Being a lawyer, the noble Lord will appreciate that more than I do, but I understand that the term "woman's refuge" is the correct term. I am also advised that there have been some difficulties with enforcement, but I am told that these are being cured. The noble Lord may wish to question me further.
The noble Lord also raised the question of the minimum period of cohabitation and wondered whether it should be altered if there is a child. In Article 20, on page 15, we find that the definition of a "cohabiting couple" is similar to that which obtains in Scotland under the Matrimonial Homes (Family Protection) (Scotland) Act. I understand that it has given rise to no particular problems in Scotland, and we rely on the court to interpret correctly what constitutes a cohabiting couple. In Article 20, the noble Lord will find:At the end of Article 18 of the Domestic Proceedings (Northern Ireland) Order the following paragraphs shall be added—I hope that I am doing him justice, but I think that the noble Lord omitted the last line-and-a-half of paragraph (10):in the same manner as it applies to the parties to a marriage".This gives some indication as to the behaviour and rights of a cohabiting couple in such a situation.
The noble Lord asked about cases where there are children. If the noble Lord will glance at paragraph (11), he will see that it refers to(a) the time for which it appears they have been living together",which I am sure the court could interpret. All this is covered by the words:the court shall have regard to all the circumstances of the case, including— …(b) whether there are any children of the relationship".I think that we would wish to allow the court to have regard to them as is stated in Article 20. I hope that that answers the noble Lord's points on that article. I trust that I have covered all the other points raised by the noble Lord. I assure him that if there are any small points which I have missed, I shall certainly be in touch with him.
I am grateful for the detailed approach of the noble Lord, Lord Hampton, and for his support. I am advised—I do not have figures, though I am sure that I can obtain the percentages—that compared with England and Wales, there are proportionally fewer marriage breakdowns in Northern Ireland. Your Lordships will agree that all breakdowns of marriages are particularly sad. But I find that fact interesting, and I am grateful to the noble Lord for raising the point.
1145 I hope that that is some answer to the noble Lord's question.
In conclusion, I should like to thank the two noble Lords who have spoken. The noble Lord, Lord Prys-Davies, suggested that our traditional conduct on Northern Ireland affairs can be unsatisfactory, but, certainly, within the parameters of what we are permitted to do the noble Lord has combed through the order. I am grateful to him, as I am sure are your Lordships.
§ On Question, Motion agreed to.