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Lord Simon of Glaisdale: Does she not need to be a widow to do that?

The Lord Chancellor: I believe that it depends whether she is a dependant. The way in which I put it implies that she would be a widow because I said that, if the husband should fail to make reasonable financial provision for his wife on his death, she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975. A provision for the wife on the husband's death would seem to imply--

Lord Simon of Glaisdale: That was exactly the point that the Law Commission made. She must either be a widow or a divorcee to acquire rights to the matrimonial home.

The Lord Chancellor: By virtue of inheritance she can obtain occupation rights as a wife in occupation, as I said.

As regards the matrimonial home, the Law Commission, in its report on matrimonial property in 1988, questioned whether further statutory intervention was needed. The reasons for doubting whether further intervention was required were threefold. First, there is the automatic protection given to a spouse who has an interest in registered land if she is in actual occupation of the home, to which I have referred. Secondly, a substantial number of matrimonial homes were at that time and still are purchased in joint names. Thirdly,

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spouses are more likely to receive legal advice when purchasing a home than when purchasing other property.

That position means that under our present system husbands and wives are free to agree the way in which any property in which either of them has an interest is held as between them. As my noble and learned friend knows, the exemptions in relation to the capital taxes allow transfers as between husband and wife to be free from such taxation in respect of these transfers. So there is a complete freedom during marriage for parties to arrange property rights between them.

I understand well the considerations which led the Law Commission to make these proposals. I intended in the Bill to deal with the divorce process and the other matters connected with the support of marriage which have now been dealt with, and the extension of legal aid to mediation in relation to matrimonial disputes. I did not intend to deal with the detailed provisions in respect of the family property at this stage.

There are arguments, as my noble and learned friend has said, for considering this matter further. The present situation, if it were to be changed in the way the Law Commission suggest, would involve quite a degree of transitional difficulty for fairly long-term consequences. I intend that the Law Commission should review the whole of this area and bring these matters up to date. The first two of the reports referred to are now quite elderly.

In that situation, I hope that my noble and learned friend will feel that he has served an important purpose by bringing these matters again fully to our attention. I am glad that the 15 years which my noble and learned friend referred to, at least from my perspective, does not seem to have produced any diminution in his powers of advocacy or analysis.

It would be unwise to embark in this Bill on a detailed review or a detailed change of this area without a more modern consultation upon it than we have as yet.

Lord Simon of Glaisdale: Will my noble and learned friend deal with why the Government rejected the 1988 proposal? He will correct me if I have misunderstood, but he implied that it was because he had asked the Law Commission for a fresh appraisal of the whole situation. Perhaps he will clear that matter up.

The Lord Chancellor: I think the reason we had in mind was what I have indicated--that the Law Commission itself in 1988 questioned whether further statutory intervention was needed in respect of the matrimonial home, which, in a way, is the central part of these proposals. It is not the only part but it is the central part, for the reasons that I indicated, and I believe that those were quite good reasons.

However, an additional factor which I mentioned in the course of my submission to the Committee was that a change of this magnitude in property rights as between spouses would involve a good deal of transitional difficulty and possibly litigation and we were not, at that stage at any rate, assured that the difficulties would be

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ultimately, as it were, repaid by the benefits to be reaped after some considerable time before this new regime would settle down.

Lord Simon of Glaisdale: I am most grateful to my noble and learned friend for replying to the debate. I am sorry that we did not have a contribution from either of the Opposition Front Benches. Perhaps the noble Lord, Lord Irvine, modestly felt that he could not improve on the commitment of the noble Lord, Lord Boston of Faversham--a commitment of his party. Moreover, perhaps the noble Baroness, Lady Seear, was too modest to repeat what she said so effectively when I introduced the Bill.

My noble and learned friend said that the parties are entirely free at present to make what arrangements they may wish to make as to ownership of the matrimonial home. That is absolutely true. The Law Commission, both in its Bill and in its report, expressly left open the right to any couple to make their own arrangements. The Bill was only intended for use in default. The situation is that the law does not really exist for those who do not need it--that is, those who live in amity and make their proper arrangements as to the matrimonial home. The law exists primarily to deal with social, pathological situations; indeed, the sort of situations where the married woman is left without any right in her matrimonial home.

I gather that my noble and learned friend--no doubt he will correct me if I misheard him--is prepared to ask, or has asked, the Law Commission to re-examine the whole situation. We have now waited 15 years--indeed, married women have waited 15 years--for elementary justice. There is no reason why they should be kept waiting much longer. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 180 and 181 not moved.]

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Clause 25 [Rights concerning matrimonial home where one spouse has no estate etc.]:

The Lord Chancellor moved Amendment No. 182:

Page 15, line 17, leave out ("(6)") and insert ("(5)").

The noble and learned Lord said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 183, 186, 187 and 210. The amendments are grouped together because they are all of a technical nature and are being made to correct drafting matters arising out of the putting together of the Family Homes and Domestic Violence Bill from the former Session.

Of course, when Parts I and II of this Bill were drafted, I intended to present them separately from Part III which I had hoped might have achieved Royal Assent by that time. However, Members of the Committee know well that, due to an unforseen circumstance, my expectation was not realised. As I said, the amendments are of a technical nature. Obviously, I am in a position to explain them further to anyone who may wish me to do so. But, in the absence of such a request, I beg leave to move the amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 183:

Page 15, line 21, leave out ("the spouses in question") and insert ("theirs").

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clauses 26 to 29 agreed to.

Lord Lucas I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at eleven o'clock.

25 Jan 1996 : Column CWH43

Official Report of the Committee on the

Reserve Forces Bill [H.L.] (On Recruitment, first day)

Thursday, 25th January 1996.

The Committee met in the Moses Room at half past three of the clock.

[The Deputy Chairman of Committees (Lord Amptill) in the Chair.]

The Deputy Chairman of Committees (Lord Ampthill): The Question is that the Title be postponed.

Lord Williams of Elvel: Before the Question is put, perhaps I may comment on the procedure to be adopted. As the Lord Chairman quite rightly said at our previous meeting, there will be no Divisions. That was agreed. I would only say that all our amendments and, as far as I know, all other noble Lords' amendments are probing amendments in the spirit of the rules which were outlined. I hope very much, however, that we will avoid the procedure of negativing. In other words, if an amendment is withdrawn or leave is asked for amendment to be withdrawn, I hope that no noble Lord will stop the amendment being withdrawn; otherwise the Question will have to be put and the decision taken.

The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): I hope that I can deal with that point speedily. I readily agree to the noble Lord's proposal. I do not believe that it would be in the spirit of the proceedings in this part of your Lordships' House that the procedure of negativing should apply. I am quite happy to accede to that.

On Question, Title postponed.

Clause 1 agreed to.

Clause 2 [Membership of the reserve forces]:

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