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Before Clause 25 insert the following new Clause--
(" . Schedule (Matrimonial Homes (Co-ownership)), which makes provision for statutory co-ownership of matrimonial homes and other provision as to the rights of husbands and wives (whether during the marriage or after its termination), and to extend to engaged couples certain rules applying to married couples, shall have effect.").

The noble and learned Lord said: I am moving Amendment No. 179 and with it speaking to Amendments Nos. 180 and 181. They introduce three new schedules. I am speaking also to Amendment No. 207 at pages 16 to 24 of the Marshalled List, which deals with co-ownership of the matrimonial home. Amendment No. 208, pages 34 to 39, deals with co-ownership of the matrimonial goods and Amendment No. 209, page 40, deals with other matters relating to matrimonial property.

All three schedules reproduce Bills which were recommended and drafted by the Law Commission. I would have preferred to insert them in the Bill as separate parts, Parts IV, V and VI. But I was advised by the Public Bill Office that the only way to introduce them--they fall within the scope of this Bill--was by making them schedules.

I am grateful to the noble Lord, Lord McGregor of Durris, for adding his name, though he cannot be here, and to the noble Baroness, Lady Faithfull. My noble and learned friend, who also, under most unhappy circumstances, cannot be here, has written to support me.

I propose to deal with these matters more shortly than the Committee is entitled to expect in view of the importance, length and complexity of the first two schedules. But it is very late at night and I shall not go into the details of any of them. I hope the Committee will excuse that course; it is not to be taken as any slight to the Law Commission or to minimise the importance of these, its recommendations.

I must say a word about the background of the schedules and the Bills that were drafted. In 1979 the Law Commission made a third report on matrimonial property and annexed to it three draft Bills; the first related to the co-ownership of the matrimonial home, which is now Amendment No. 207; the second to assuring rights of occupation in the matrimonial home, which really completed the work of the late Lady Summerskill and was subsequently enacted as part of our law of matrimonial property after divorce. The third Bill related to co-ownership of matrimonial goods; in other words, Amendment No. 208.

In July 1979 I introduced a debate in your Lordships' Chamber on that report and therefore on the Bill. There was strong support for the home co-ownership Bill and considerable support for the goods co-ownership Bill, though less unanimous and less unreserved than that relating to the home. But in view of that debate, I introduced a home co-ownership Bill early in the following year. In the meantime, or perhaps a little before, there had been a survey

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commissioned by the Law Commission which showed that more than 90 per cent. of all married men canvassed and more than 90 per cent. of all married women canvassed approved of the principle of co-ownership.

The Second Reading was in February 1980 and again there was strong support for that Bill on home co-ownership. The noble Lord, Lord Boston of Faversham, was the Labour spokesman and on behalf of his party he strongly supported the Bill. I hope that that will be echoed by the noble Lord, Lord Irvine of Lairg. Perhaps I should point out that there are some electoral lollipops in this because in February 1976 a general election in New Zealand was won on the basis of the co-ownership of homes and goods. I say that merely to encourage the noble Lord.

Apart from the noble Lord, Lord Boston, the noble Baroness, Lady Seear--I am glad to see that she is still in her place--supported the Bill strongly on behalf of her party, and a great many noble Lords in all parts of the House, including my noble and learned friend Lord Scarman, also supported the principle.

There were two reservations. The noble Lord, Lord Middleton, on behalf of the Historic Houses Association was worried about the effect on historic houses. My view was that the Bill took care of that, but in any case I negotiated an amendment with the association's legal adviser. It is not in the schedule because nobody could find the correspondence until after I had tabled the schedule, but its provisions could be introduced at a later stage if necessary.

The other reservation came from the then Lord Chancellor, my noble and learned friend Lord Hailsham, who in view of the strong support--indeed, it was unanimous support, with the exception of the noble Lord, Lord Middleton--felt it necessary to act on that occasion as, as he described it, "devil's advocate".

The subsequent history was this: my noble and learned friend asked me later in the Session whether I would withdraw the Bill so that it could be considered further by the Law Commission in the light of a case in your Lordships' House involving Williams & Glynn Bank which dealt with the highly technical matter of overriding interest. I did not think that any amendment was necessary, but naturally I agreed with my noble and learned friend and withdrew the Bill.

I had an additional reason. As your Lordships can see from Amendment No. 207, that Bill was highly technical property legislation and was by no means within my sphere of experience and I thought myself inadequate to carry it through without assistance. If I felt inadequate when I was 70, your Lordships can imagine what I now feel 15 years later. However, I thought it right to lay it before your Lordships.

Why is that desirable? It has been common ground in our debates that the law can affirm and strengthen the institution of marriage. In the debate on the Queen's Speech I suggested two fiscal ways in which that could be done: the married couple's allowance and a differential succession duty in place of inheritance duty. I mentioned also these two outstanding Bills. There is also the attraction of the Scottish law of succession

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which takes much more notice of family relations than ours, but I was advised that that was outside the scope of the Bill.

Secondly, co-ownership reflects the concept of marriage as a partnership of two equals. Thirdly, the matrimonial home is essentially the sphere of a married woman. Fourthly, and arising out of that, as the Law Commission pointed out, in order to enjoy legal rights in her sphere (the matrimonial home) the married woman would have to become either a widow or a divorcee. Obviously the law cannot decently be left in that condition, hence these amendments. Divorce by unilateral repudiation has made this reform more than ever necessary.

I must say a brief word about the third new schedule (Amendment No. 209). That is a recent provision drafted by the Law Commission in its report of l988. In a still more recent Written Answer in reply to a planted Question in each House, the Government do not accept that Law Commission proposal. They assign no reason for saying that. I have added that schedule so that my noble and learned friend can explain why that has been rejected, and whether he accepts reform in this branch of the law, because, after all, the proper priority would seem to be measures to affirm marriage rather than measures facilitating--to put it at its lowest--dissolution of marriage.

What course should be taken in regard to the Bills which are now Amendments Nos. 207 and 208? The most satisfactory course would be for my noble and learned friend to accept the amendments, to assume responsibility for them, taking them out of my grateful hands and probably referring them to a Jellicoe Committee. Next to that would be for my noble and learned friend to say that he will, at an early opportunity, bring in a Bill, at any rate in relation to the matrimonial home, and also, desirably, in relation to matrimonial goods. I have skirted over this matter. I hope that at this hour the Committee will excuse that. I beg to move.

Baroness Faithfull: I shall make the shortest speech on record. I support the noble and learned Lord, Lord Simon of Glaisdale.

10.45 p.m.

The Lord Chancellor: I am grateful to my noble and learned friend for raising these matters. The amendments bring forward the results of three reports by the Law Commission relating to the matrimonial home and matrimonial property. The situation as I see it is that at present in England and Wales we have a system of separate ownership of property during marriage. There is no regime whereby spouses automatically become co-owners of the home by virtue of marriage. However, on the whole, spouses are free to decide for themselves how they wish to hold property during marriage. The ordinary rules of property apply. There are few exceptions; for example, the presumption of advancement can mean that a husband who transfers property to his wife is presumed to have intended the transfer to be a gift.

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The main advantage of our current system is that spouses have complete freedom of choice as to how they should own property during marriage and also freedom as to the timing of when they should make decisions regarding such matters. There is nothing to stop spouses deciding to be joint legal owners of the matrimonial home or to agree that certain chattels should belong to one party or the other.

Although spouses have no automatic right of ownership of either's property during marriage that does not mean that they have no rights in respect of that property at all. If, for example, the husband is the legal owner of the home and the wife has no interest in it she does have automatic occupation rights under the Matrimonial Homes Act 1983, which is re-enacted in Part III of the Bill. Such rights are referred to in this Bill as matrimonial home rights. These rights of occupation give the wife, among other things, the right to apply for an order ousting her husband from the home. Once the rights are registered no prudent purchaser of the home will proceed to completion until such time as the rights are released. If a spouse has an interest in the home which is registered land, she will have a measure of protection for her interest, even though it is not registered, so long as she is in actual occupation of the property. If the husband should fail to make reasonable provision for the wife on his death she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975.


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